J-S19029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT RAMIREZ                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

NANCY GIROUX (SCI ALBION
SUPERINTENDENT)

                            Appellee                  No. 1898 EDA 2015


                   Appeal from the Order entered June 3, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0206171-1999


BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 10, 2016

       Appellant, Robert Ramirez, appeals pro se from the June 3, 2015 order

entered in the Court of Common Pleas of Philadelphia County denying

habeas corpus relief.1        In addition, Appellant has filed two motions for

default judgment, stemming from the Commonwealth’s failure to file a brief

in accordance with the extension granted by this Court. Further, Appellant

has filed objections to the Commonwealth’s late-filed brief, asking this Court

to enter an order releasing him from prison and to strike the brief from the

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1
  The order also denied Appellant’s requested relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. As explained
herein, Appellant does not challenge the court’s denial of relief under the
PCRA except in a passing reference to the PCRA in his brief.
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docket.2      Following review, we deny Appellant’s motions for default

judgment; dismiss his objections and deny the requested relief; and affirm

the order denying habeas relief.

       The lower court provided the following procedural history:

       On June 20, 2000, following a jury trial, [Appellant] was
       convicted of first-degree murder, robbery, aggravated assault,
       criminal conspiracy, violation of the Uniform Firearms Act
       (“VUFA”), and possessing an instrument of crime. [Appellant]
       was sentenced to life plus ten to twenty years’ imprisonment.
       On June 19, 2002, the Superior Court affirmed [Appellant’s]
       judgment of sentence. The Pennsylvania Supreme Court denied
       allocatur on November 7, 2002.

       [Appellant] filed a pro se PCRA petition on September 3, 2003.
       Counsel was appointed and subsequently filed a Finley no merit
       letter.[3]  On June 24, 2004, the lower court dismissed
       [Appellant’s] PCRA petition.

       On August 3, 2012, [Appellant] filed the current pro se PCRA
       petition, his second.      [Appellant] submitted supplemental
       petitions seeking habeas corpus relief. Pursuant to Pennsylvania
       Rule of Criminal Procedure 907, [Appellant] was served with
       notice of the court’s intention to dismiss his PCRA petition and
       deny his Writ of Habeas Corpus on April 24, 2015. [Appellant]
       filed a response to the court’s Rule 907 notice on May 6, 2015.
       The lower court dismissed Petitioner’s [PCRA] petition as
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2
  Our rules of appellate procedure do not provide for—or even contemplate—
entry of a “default judgment” for an appellee’s failure to file a timely brief.
Although an appellee’s failure to file a brief in accordance with an extension
will deprive the appellee of the right to present oral argument, Pa.R.A.P.
2188, there is no corollary for a case submitted to this Court for disposition
without argument. Further, although the Commonwealth filed its brief
beyond the date of the extension granted, that late filing is immaterial in
light of our disposition of the issues raised with regard to denial of habeas
relief. Therefore, Appellant’s motions and objections are denied as moot.
3
    Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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      untimely on June 3, 2015. [Appellant] filed the instant, pro se
      notice of appeal to the Superior Court on June 16, 2015.

Lower Court Opinion, 7/10/15, at 1-2 (citations omitted).

      In footnotes to its June 3, 2015 order, the lower court explained:

      In his Petition for Writ of Habeas Corpus, [Appellant] disputed
      the legality of his sentence due to a lack of a sentencing order.
      Because [Appellant’s] claim falls outside the eligibility
      requirements of the PCRA, the lower court entertained his
      Petition for Writ of Habeas Corpus on the merits. See 42
      Pa.C.S.A. § 9543; Joseph v. Glunt, 96 A.3d 365 (Pa. Super.
      2014).

Order, 6/3/15, at 1 n.1. Further:

      Upon review, the record reveals that [the sentencing judge]
      entered a sentencing order in this matter on June 20, 2000. The
      original sentencing order is being maintained by the Clerk of
      Courts of this court as part of [Appellant’s] case file in this
      matter. Therefore, [Appellant’s] claim is clearly without merit
      and his petition is denied.

Id. at 1 n. 2.

      In his Statement of Questions Involved, Appellant does not challenge

the denial of his second PCRA petition.       He challenges only the denial of

habeas corpus relief in the four issues identified in his brief as follows:

      I.    Did the court err/abuse [its] discretion when it arbitrarily
            treated Appellant’s petition for writ of habeas corpus ad
            subjiciendum as a criminal appeal denying Appellant his
            constitutional right(s) to habeas corpus, access to the
            court, and due process of law?

      II.   Did the court err/abuse [its] discretion when it arbitrarily
            denied Appellant’s petition for writ of habeas corpus ad
            subjiciendum without issuing a rule to show cause order
            and/or requiring a response/answer from the respondent
            denying Appellant his constitutional rights(s) to habeas
            corpus, access to the court, and due process of law?

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J-S19029-16



       III.   Did the court err/abuse [its] discretion when it arbitrarily
              denied Appellant’s petition for writ of habeas corpus ad
              subjiciendum while disregarding Appellant’s affidavit and
              declaration in support of his petition in violation of due
              process of law?

       IV.    Did the court err/abuse [its] discretion when it arbitrarily
              denied Appellant’s petition for writ of habeas corpus ad
              subjiciendum when the DOC is not in possession of any
              documentation authorized by law for the DOC to restrain
              Appellant’s liberties legally/lawfully and the Appellant is
              being held in the DOC under the Mental Health Procedures
              Act (MHPA) in violation of due process of law[?]

Appellant’s Brief at 4.4

       “Our standard of review of a trial court’s order denying a petition for a

writ of habeas corpus is limited to an abuse of discretion.” Joseph, 96 A.3d

at 369 (citation and brackets omitted). “Thus, we may reverse the court’s

order where the court has misapplied the law or exercised its discretion in a
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4
  On pages 14 and 15 of his brief, in the course of addressing his fourth
issue, Appellant contends his PCRA petition was timely filed. However, any
challenge to the denial of PCRA relief is not suggested by his Statement of
Questions Involved and, therefore, has been waived. Pa.R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”). Further, even if not
waived, Appellant’s requested PCRA relief was based on retroactive
application of Miller v. Alabama, 132 S.Ct. 2455 (U.S. 2012). Despite the
fact Miller has since been held to apply retroactively, see Montgomery v.
Louisiana, 136 S.Ct. 718 (U.S. 2016), its retroactive application does not
help Appellant, who turned 18 on April 25, 1998, nearly eight months before
he committed the December 21, 1998 murder that resulted in his life
sentence. Miller, 132 S.Ct. at 2460.          See also Commonwealth v.
Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), appeal denied, 81 A.3d 75
(Pa. 2013) (per curiam) (refusing to extend Miller to murderers who were
not under the age of 18 at the time of their crimes).




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manner lacking reason.”          Rivera v. Pa. Dep’t of Corrections, 837 A.2d

525, 528 (Pa. Super. 2008) (citation omitted).

        Although Appellant outlines four separate issues in his brief, his issues

can jointly be summarized as follows:

        Is Appellant entitled to habeas corpus relief for being unlawfully
        detained under 42 Pa.C.S.A. § 9764 without a written, signed
        and sealed sentencing order?

        The lower court determined that his petitions for a writ of habeas

corpus lacked merit and Appellant was not entitled to relief. We agree.

        Appellant filed petitions for habeas corpus in 2012, 2013 and 2014. In

each petition, Appellant asserted that he was being unlawfully detained at

SCI-Albion without a sentencing order, in violation of 42 Pa.C.S.A.

§ 9764(a)(8) and (b)(5)(i).5         He explained that he attempted to obtain a


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5
    42 Pa.C.S.A. § 9764(a)(8) and (b)(5)(i) provide as follows:

        (a) General rule.--Upon commitment of an inmate to the
        custody of the Department of Corrections, the sheriff or
        transporting official shall provide to the institution's records
        officer or duty officer, in addition to a copy of the court
        commitment form DC-300B generated from the Common Pleas
        Criminal Court Case Management System of the unified judicial
        system, the following information:

           ...

           (8) A copy of the sentencing order and any detainers filed against
           the inmate which the county has notice.

        (b) Additional information.--Within ten days from the date
        sentence is imposed, the court shall provide to the county
(Footnote Continued Next Page)


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copy of his sentencing order and was advised that the document he sought

did not exist.    Without “the original written signed and sealed sentencing

order,” he contends, the Department of Corrections (“DOC”) has “no

authentic legal authority to detain” him. Petition for Writ of Habeas Corpus,

9/19/12, at Exhibit K.

      This Court considered and rejected the identical argument in Joseph.

There, Joseph a/k/a Woodens, claimed that the DOC’s inability to produce a

copy of his sentencing report constituted a fatal flaw requiring his immediate

release. We noted:

      Woodens is not the first individual to assert this species of claim.
      In addition to the aforementioned holding in [Brown v. Pa.
      Dep’t of Corrections, 81 A.3d 814 (Pa. 2013) (per curiam)],
      our Commonwealth Court has adjudicated at least one similar
      appeal on the merits, albeit in an unpublished memorandum. In
      Travis v. Giroux, No. 489 C.D. 2013, 2013 WL 6710773 (Pa.
      Cmwlth. Dec. 18, 2013), an appellant challenged the DOC’s
      authority to hold him in custody because, as in the present
      situation, the DOC was unable to produce a written sentencing
      order. Relying upon two holdings from the United States District
      Court for the Eastern District of Pennsylvania, the
                       _______________________
(Footnote Continued)

      correctional facility the following information pertaining to the
      inmate:

          ...

          (5) All of the following:

             (i) A written, sealed sentencing order from the
             county.




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     Commonwealth Court held that subsection 9764(a)(8) does not
     provide a cause of action for prisoners:
        The current version of [42 Pa.C.S. § 9764(a)(8)] requires
        that a copy of the sentencing order be provided to the
        [DOC] upon commitment of an inmate to its custody.
        However, it does not create any remedy or cause of
        action for a prisoner based upon the failure to
        provide a copy to the DOC. The statute regulates the
        exchange of prisoner information between the state and
        county prison system, and does not provide a basis for
        habeas relief.    Specifically, the Commonwealth Court
        emphasized that the appellant in Travis did not dispute
        that he had pleaded guilty and that he was sentenced
        upon that plea. Thus, even where there appeared to be no
        sentencing order in the possession of the DOC or the trial
        court, the Commonwealth Court held that subsection
        9764(a)(8) furnished no basis for relief where the
        appellant’s sentence was confirmed by the certified record.

        ....

     Although the decisions of the Commonwealth Court are not
     binding upon this Court, they may serve as persuasive authority.
     Commonwealth v. Ortega, 995 A.2d 879, 885 (Pa. Super.
     2010); see also Petow v. Warehime, 996 A.2d 1083, 1088 n.
     1 (Pa. Super. 2010) (“[W]e may turn to our colleagues on the
     Commonwealth Court for guidance when appropriate.”). We find
     the reasoning presented in Travis to be probative and
     instructive. The language and structure of section 9764, viewed
     in context, make clear that the statute pertains not to the DOC’s
     authority to detain a duly-sentenced prisoner, but, rather, sets
     forth the procedures and prerogatives associated with the
     transfer of an inmate from county to state detention. None of
     the provisions of section 9764 indicate an affirmative obligation
     on the part of the DOC to maintain and produce the documents
     enumerated in subsection 9764(a) upon the request of the
     incarcerated person. Moreover, section 9764 neither expressly
     vests, nor implies the vestiture, in a prisoner of any remedy for
     deviation from the procedures prescribed within.

Joseph, 96 A.3d at 370-71 (emphasis in original, footnotes and citations

omitted).


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J-S19029-16


      Further, with regard to relief under habeas corpus:

      When a petitioner is in custody by virtue of a judgment of
      sentence of a court of competent jurisdiction, the writ generally
      will not lie. The rationale for this limitation is the presumption of
      regularity which follows the judgment. The writ, as stated
      above, is an extraordinary remedy and, therefore, a judgment
      rendered in the ordinary course is beyond the reach of habeas
      corpus. That conviction cannot be put aside lightly, and it
      becomes       stronger   the    longer     the    judgment   stands.
      Consequently, habeas corpus generally is not available to review
      a conviction which has been affirmed on appeal.

Id. at 372 (citations omitted).

      In its opinion, the lower court recognized Appellant’s assertion that his

“detention on a DC-300B Court Commitment form, rather than a written

sentencing order is in contravention of 42 Pa.C.S[A.] § 9764(a)(8) and 37

Pa. Code § 91.3.” Lower Court Opinion, 7/10/15, at 5. Citing Joseph, the

court noted that the claim was not cognizable under the PCRA and was

properly raised in a writ of habeas corpus. “Nevertheless, the [sentencing

judge] entered a sentencing order in this matter on June 20, 2000.            The

Superior Court has held that even in the absence of a written sentencing

order, the [DOC] retains detention authority.”      Id. (citing Joseph for its

“holding that the fact that the DOC did not possess sentencing order did not

entitle [p]etitioner to habeas relief”).




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J-S19029-16


       We find no merit in Appellant’s arguments6 or any abuse of discretion

on the part of the lower court. Therefore, we affirm the June 3, 2105 order.

       Motions for default judgment denied. Objections dismissed and relief

denied. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2016




____________________________________________


6
  To the extent Appellant’s issues as stated suggest procedural deficiencies
in the lower court’s disposition of his habeas corpus writs, e.g., for failing to
issue a rule to show cause, his contentions do not save his writs in light of
the lack of any available remedy or cause of action based on a failure to
provide a copy of the sentencing order to the DOC. See Joseph, 96 A.3d at
370.



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