J-S64042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES M. OVERLY                               IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

JON FISHER

                        Appellee                   No. 995 WDA 2014


               Appeal from the Order Entered May 30, 2014
          In the Court of Common Pleas of Westmoreland County
                  Civil Division at No(s): No. 459 M 2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED OCTOBER 31, 2014

     Appellant, James M. Overly, appeals pro se from the order entered in

the Westmoreland County Court of Common Pleas, which denied his “Petition

for Writ of Habeas Corpus Ad Subjiciendum” against Appellee, Jon Fisher,

the superintendent at SCI Smithfield. We affirm.

     The relevant facts and procedural history of this case are as follows.

In 1984, a jury convicted Appellant of first-degree murder, and the trial

court sentenced Appellant to life imprisonment on February 14, 1986. This

Court affirmed Appellant’s judgment of sentence on December 4, 1986, and

our Supreme Court denied allowance of appeal on July 31, 1987.         See

Commonwealth v. Overly, 520 A.2d 1216 (Pa.Super. 1986), appeal

denied, 515 Pa. 613, 530 A.2d 867 (1987).     Later, the trial court granted

Appellant leave to file a petition under the Post-Conviction Hearing Act
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(predecessor to the Post Conviction Relief Act) to reinstate his appeal rights

nunc pro tunc to raise issues which should have been raised on direct

appeal. This Court again affirmed the judgment of sentence on January 8,

1990, and our Supreme Court denied allowance of appeal on June 12, 1990.

See Commonwealth v. Overly, 573 A.2d 622 (Pa.Super. 1990), appeal

denied, 525 Pa. 617, 577 A.2d 889 (1990).

        On May 28, 2014, Appellant filed a petition for habeas corpus in civil

court, in which he alleged Appellee is unlawfully restraining Appellant in

prison.1     The civil court denied Appellant’s petition on June 2, 2014.

Appellant timely filed a pro se notice of appeal on June 16, 2014. On July 2,

2014, the civil court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely

complied on July 14, 2014.

        Appellant raises the following issues for our review:

           DID THE TRIAL COURT HAVE SUBJECT MATTER
           JURISDICTION OVER THE COMPLAINT  AGAINST
           [APPELLANT]?

           DOES LIFE IMPRISONMENT IN THE COMMONWEALTH OF
           PENNSYLVANIA FOR FIRST DEGREE MURDER CONVICTION
           MEAN LIFE WITHOUT PAROLE OR NATURAL LIFE?

           IS THE SENTENCE OF LIFE IMPRISONMENT LAWFUL OR
           MORE    SPECIFICALLY    IS   THERE    STATUTORY
           AUTHORI[Z]ATION FOR THE IMPOSED SENTENCE?

____________________________________________


1
    The only certified record we have is from the civil court filing.



                                           -2-
J-S64042-14


         HAS THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS
         BEEN SUSPENDED AND DID THE [CIVIL] COURT VIOLATE
         [APPELLANT’S] RIGHT TO PETITION[?]

(Appellant’s Brief at 3).

      Section 9542 of the Post-Conviction Relief Act (“PCRA”) provides in

relevant part:

         § 9542. Scope of subchapter

         This subchapter provides for an action by which persons
         convicted of crimes they did not commit and persons
         serving illegal sentences may obtain collateral relief. The
         action established in this subchapter shall be the
         sole means of obtaining collateral relief and
         encompasses all other common law and statutory
         remedies for the same purpose that exist when this
         subchapter takes effect, including habeas corpus and
         coram nobis. This subchapter is not intended to limit the
         availability of remedies in the trial court or on direct appeal
         from the judgment of sentence, to provide a means for
         raising issues waived in prior proceedings or to provide
         relief from collateral consequences of a criminal conviction.
         Except as specifically provided otherwise, all provisions of
         this subchapter shall apply to capital and noncapital cases.

42 Pa.C.S.A. § 9542 (emphasis added). Thus, as a general rule, any petition

for post-conviction collateral relief will be considered as a PCRA petition,

even those captioned as requests for habeas corpus relief, if the petition

raises issues for which the relief sought is the kind of remedy available

under the PCRA.     See generally Commonwealth v. Fahy, 558 Pa. 313,

737 A.2d 214 (1999); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d

564 (1999); Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638

(1998). The writ of habeas corpus continues to exist as a separate remedy


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only if the claim raised is not cognizable under the PCRA. Id. at 552, 722

A.2d at 640.

      Instantly, Appellant filed a petition for habeas corpus relief in civil

court, but a review of Appellant’s issues indicates he is trying to obtain

criminal collateral relief. Moreover, Appellant fails to identify any claims that

might arguably fall outside of the PCRA.        Therefore, despite Appellant’s

efforts to characterize the present petition as a civil habeas corpus petition,

we conclude his requests for relief fall within the ambit of the PCRA. See

Fahy, supra; Lantzy, supra; Peterkin, supra.              Thus, the civil court

properly recognized that Appellant’s recent prayer for collateral relief should

be filed in criminal court. See id. If Appellant pursues relief on the grounds

stated, he must file a proper PCRA petition in criminal court. Accordingly,

the civil court properly denied Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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