J-S53030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                                IN THE SUPERIOR COURT OF
                                                                  PENNSYLVANIA
                             Appellee

                       v.

MICHAEL SCOTT MARKEL

                             Appellant                            No. 298 MDA 2015


              Appeal from the Order Entered November 26, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0003895-1997


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                  FILED SEPTEMBER 24, 2015

       Michael Scott Markel appeals from the order entered November 26,

2014, in the Court of Common Pleas of York County, denying Markel’s self-

identified   “Motion     for   Finality”1      in   which    he    sought   release   from

incarceration, claiming his sentence had expired.                 He also claims the trial

judge, the Honorable Thomas H. Kelley, VI, should have recused himself

because when he was an assistant district attorney, Judge Kelley had

prosecuted Markel.          After a thorough review of the submissions by the

parties, relevant law, and the certified record, we affirm.



____________________________________________


1
  The motion for finality appears to be a request the trial court rule on an
earlier motion seeking clarification of sentence and credit for time served.
The denial of the motion for finality operated to deny both.
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        On February 18, 1998, Markel pled guilty to two counts of homicide by

vehicle while DUI2 and related charges. He received an aggregate sentence

of six to twelve years’ incarceration.           We adopt the recitation of the

background of this matter as determined by United States District Judge

Yvette Kane, in Markel v. Pennsylvania Board of Probation and Parole,

2014 WL 1818076, 5/7/2014:

        On February 18, 1998, Petitioner was sentenced by the York
        County Court of Common Pleas to a term of six to twelve years
        in prison for homicide by vehicle while driving under the
        influence. His minimum date was July 25, 2003, and his
        maximum date was July 25, 2009. On July 28, 2003, he was
        released on parole. (Doc. No. 10, Ex. A.)


        On August 18, 2008, Petitioner was charged with violating the
        conditions of his parole (consumption of alcohol and use of
        drugs). (Id., Ex. B.) On September 15, 2008, he was
        recommitted to a state correctional institution for violating his
        parole conditions. (Id., Ex. C.) On October 8, 2008, new criminal
        charges were filed against Petitioner based on the criminal
        conduct occurring in August of 2008. (Id., Ex. D.) On July 25,
        2009, the PBPP lifted the detainer placed on Petitioner on August
        18, 2008, because the charges filed on October 8, 2008 were
        still pending as of that date. (Id., Ex. E.)


        On January 25, 2010, Petitioner pled guilty to the new criminal
        charges in York County Court of Common Pleas. (Id., Ex. F.) On
        April 28, 2010, a Notice of Board Decision was issued by the
        PBPP recommitting Petitioner as a convicted parole violator,
____________________________________________


2
    75 Pa.C.S. § 3732.



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      when available, pending completion of, or parole from the
      January 25, 2010 York County sentence. (Id., Ex. G.)


      On June 7, 2012, Petitioner filed a counseled administrative
      appeal from the above decision with the PBPP. (Id., Ex. H.) On
      July 28, 2010, the Board responded to the appeal. (Id., Ex. I.)
      Petitioner did not file a petition for review from the PBPP's
      response with the Pennsylvania Commonwealth Court.


      On April 7, 2010, Petitioner was released on parole from the
      January 25, 2010 York County sentence on the new charges.
      (Id., Ex. J.) On July 26, 2010, the PBPP established July 26,
      2015 as Petitioner's parole violation maximum date based on his
      recommitment as a convicted parole violator. (Id., Ex. K.)
      Petitioner did not file an administrative appeal challenging the
      July 26, 2015 parole maximum date within thirty days of its
      mailing as required by the PBPP's regulation. See 37 Pa.Code §
      73.1(b). On December 20, 2011 and January 10, 2012, the PBPP
      received correspondence from Petitioner claiming he was entitled
      to credit for periods of time during which he resided at
      community corrections centers. (Id., Exs.L, M.) On January 27,
      2012, the PBPP dismissed the correspondence as untimely
      attempts to seek relief from the July 26, 2010 PBPP decision that
      established Petitioner's parole violation maximum date as July
      26, 2015. (Id., Ex. N.) Petitioner did not file a petition for review
      in the Pennsylvania Commonwealth Court challenging the PBPP's
      January 27, 2012 response.

Id. at 1-2.

      Both the Federal Court and the Commonwealth’s Appellee Brief

indicate Markel’s maximum release date was July 26, 2015. While we have

no reason to doubt this, the certified record does not contain any official

documentation from either the Department of Corrections or the PBPP



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confirming the fact that Markel is no longer serving this sentence.

Accordingly, while this appeal is likely moot, absent official confirmation, we

will not dismiss the appeal as moot.

         In his   “Motion   for   Finality”, Markel again   seeks   release   from

incarceration, claiming his sentence expired on March 22, 2014. No relief is

due. The trial court correctly determined that it had no jurisdiction over the

issue.     See Trial Court Pa.R.A.P. 1925(a) Opinion, 6/10/2015, at 3-4.

Rather, it was the duty and responsibility of the Department of Corrections

to calculate Markel’s maximum date. The jurisdiction for any challenges to

that determination lies exclusively with the Commonwealth Court.              See

Gillespie v. Commonwealth, Department of Corrections, 527 A.2d

1061 (Pa. Cmwlth. 1987).3              The trial court also noted that, by all

appearance, Markel originally sought relief from the Commonwealth Court

but was denied. See Trial Court Pa.R.A.P. 1925(a) opinion, 6/10/2015, at

4-5.     Accordingly, Markel cannot obtain relief from this Court and we are

required to affirm the trial court’s decision.

         Finally, Markel challenges the order on the grounds that Judge Kelley

once served as prosecutor against Markel. While the Commonwealth agrees




____________________________________________


3
  As noted in the Federal decision, a determination of Markel’s maximum
release was calculated and Markel never appealed that determination.



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that Judge Kelley once prosecuted Markel, recusal is moot in light of our

disposition and because there are no issues pending before Judge Kelley. 4

       Order affirmed.

       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2015




____________________________________________


4
  It does not appear that Markel raised this issue before Judge Kelley. In
any event, we note that Markel suffered no actual prejudice as Judge Kelly’s
decision was legally correct.



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