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HomeMy WebLinkAboutCP-21-CR-0001649-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JUSTIN L. GREENE : CP-21-CR-1649-2010 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., September 27, 2011:-- Appellant, Justin L. Greene, now pro se, appeals this court’s order denying his motion to correct illegal sentence. By way of background, Appellant entered a counseled guilty plea to one count of unlawful delivery of a schedule I controlled substance and was sentenced to 3 to 24 months in a state correctional institution. The sentencing order further indicated that “[t]his sentence shall run concurrent with any sentence he is currently serving ….” Sentencing Order, Sept. 14, 2010. At the time of his plea, Appellant was under parole supervision due to a previous drug conviction. Accordingly, he became a convicted parole violator and was required first to serve the unexpired time on his previous sentence before he could begin serving time on his new sentence. Appellant disputes this contention. On February 3, 2011, Appellant filed a motion to modify/restructure and/or vacate sentence nunc pro tunc due to extraordinary circumstances on the basis that the Department of Corrections is refusing to comply with this court’s order by forcing him to serve his previously unexpired sentence before crediting him for time against his new sentence. On February 18, 2011, this court denied the motion and directed Appellant to seek relief in the Commonwealth Court’s CP-21-CR-1649-2010 original jurisdiction as his conflict was with the Department of Corrections not us. This order was not appealed. Then, on May 24, 2011, filed a motion to correct illegal sentence raising the same issue of whether his new sentence should run simultaneously with the backtime on his previous sentence. The court again denied this motion by order dated July 5, 2011. Appellant now appeals that denial. Appellant complains of the following errors on appeal: 1) Appellant was Not furnished by the Commonwealth information about parole eligibility in order for the Appellant’s plea to be voluntarily, Appellant entered plea upon advise [sic] of counsel and was misled to believe new sentence would run CONCURRENTLY and would NOT effect eligibility date of parole. 2) Manifest Injustice was shown by Judge Albert Masland, because he let a plea be entered involuntary, unknowingly, or unintelligently. 3) Issues were NOT previously litigated, in fact, issues would fall under “Newly Discovered Facts,” Pertaining to the Illegal Sentence. 4) Appellant entered a plea, involuntarily, unknowingly, and unintelligently. Concise Statement of Errors, July 20, 2011 (errors in original). At the outset, we note that Appellant’s motion asks the court to modify a sentencing order far beyond the usual 20-day period in which it has jurisdiction to do so. As such, the motion could be denied on this basis alone. Nonetheless, the court will consider his argument on the merits and will address the cases cited as authority in his motion to modify illegal sentence. In light of this court’s disposition of Appellant’s initial motion to modify his sentence, the Commonwealth’s response to the instant motion was that the same issues had been previously litigated. Appellant disagrees, asserting that -2- CP-21-CR-1649-2010 now there are newly discovered facts. He fails to identify any such facts, but does cite Fajohn v. Dept. of Corrections, 692 A.2d 1067 (Pa. 1997) for the proposition that where a defendant has not received the benefit of his plea bargain, the resulting sentence is illegal and the proper avenue for relief is with the sentencing court. This case is distinguishable. In Fajohn, the trial court had imposed an illegal sentence on the defendant where it ordered the Department of Corrections to credit the defendant for 190 days served on a previously imposed sentence. The sentence was illegal, as the trial court had no authority to grant the defendant credit on sentences that were not currently before it. Because the sentence was illegal, our Supreme Court concluded that the defendant’s remedy was not in mandamus against the Department of Corrections, but in the sentencing court. Here, Appellant has styled his motion as a motion to correct an illegal sentence, but this characterization is misplaced. This court’s sentencing order did not impermissibly modify other sentences or overstep its authority in any way. The sentencing order merely provided that “[t]his sentence shall run concurrent with any sentence he is currently serving ….” Sentencing Order, Sept. 14, 2010. A concurrent sentence is precisely what Appellant wants. His dispute is with the Department of Corrections’ refusal to run this sentence concurrently with the unexpired time on his parole violation. As such, the relief he seeks lies in a mandamus action against the Department of Corrections filed in the Commonwealth Court’s original jurisdiction not in an untimely post-sentence -3- CP-21-CR-1649-2010 motion. Commonwealth ex. rel Powell v. Dept. of Corrections, 14 A.3d 912, 915 (Pa. Cmwlth. 2011). Appellant next relies on Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976) for the proposition that where a plea bargain has been violated, the trial court may correct the resulting sentencing order prior to the taking of an appeal. Again, this case is distinguishable. In Zuber, the defendant entered into plea negotiations, resulting in “a promise by the Commonwealth to recommend a sentence of seven to fifteen years, and further, that the Commonwealth would join with defense counsel in a request to the State Board of Parole that the new sentence run Concurrently with appellant's ‘back time’ of four and one-half years. Id. at 443 (emphasis added). However, such a promise “was a false and empty one since the law is quite clear that a parole violator convicted and sentenced to prison for another offense must serve his or her back time and the new sentence in consecutive order.” Id. (emphasis added). As such the defendant had not received the benefit of his plea bargain and the trial court was reversed. Here, Appellant does not contend the Commonwealth promised to allow his back time to run concurrently with his new sentence, merely that the new sentence would run concurrently with any other outstanding sentences. Appellant cannot escape the statutory mandate that convicted parole violators must first serve the back time on their parole sentences before they may receive credit for any new sentences. Further, to the extent Appellant claims his counsel -4- CP-21-CR-1649-2010 was ineffective for failing to advise him of the parole consequences of his plea, that issues is properly raised in collateral relief proceedings, not on direct appeal. For all these reasons, the Superior should affirm this court’s order denying Appellant’s motion to correct illegal sentence. Or, in the alternative, the appeal should be quashed. By the Court, Albert H. Masland, J. Derek R. Clepper, Esquire Assistant District Attorney Justin L. Greene, KB-3611, Pro se SCI Forest PO Box 945 Marienville, PA 16239 :saa -5-