J. S54041/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                      :      IN THE SUPERIOR COURT OF
                                                   :           PENNSYLVANIA
                             Appellee              :
                                                   :
                       v.                          :
                                                   :
MARK BENTON,                                       :
                                                   :
                             Appellant             :      No. 854 EDA 2015

                Appeal from the Order Entered February 25, 2015
                 In the Court of Common Pleas of Bucks County
                Criminal Division No(s).: CP-09-CR-0002928-2005

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                            FILED AUGUST 31, 2015

         Pro se Appellant, Mark Benton, appeals from the order entered in the

Bucks County Court of Common Pleas denying his petition for a writ of

habeas corpus. He contends that the trial court did not issue a judgment of

sentence in his case, thus invalidating all appellate rulings on direct appeal

and resolving claims for collateral relief. We affirm.

         We adopt the facts and procedural history set forth by the trial court’s

decision. See Trial Ct. Op., 5/8/15, at 1-2. Appellant timely appealed and

he raises the following issue: “Did the lower court err in denying [Appellant]

relief    pertaining    to   his   judgment   of       sentence   in   the   circumstances

surrounding it?” Our Supreme Court has held that a claim alleging that the

*
    Former Justice specially assigned to the Superior Court.
J.S54041/15


“absence of a written sentencing order related to the judgment of sentence”

challenges the legality of the defendant’s “‘commitment and detention,’ and

therefore his petition for review sounded in habeas corpus.” Brown v. Pa.

Dept. of Corrections, 81 A.3d 814, 815 (Pa. 2013) (per curiam); accord

Joseph v. Glunt, 96 A.3d 365, 369 (Pa. Super.), appeal denied, 101 A.3d

787 (Pa. 2014).     The standard of review is abuse of discretion.      See

Joseph, 96 A.3d at 369. Instantly, after careful review of the record, the

parties’ briefs, and the decision by the Honorable Alan M. Rubenstein, we

affirm on the basis of the trial court’s decision.   See Trial Ct. Op. at 3

(holding courts have repeatedly rejected claim that illegal sentence results

from absence of sentencing order; regardless, record reflected jury

sentenced Appellant to life imprisonment); see also N.T. Sentencing Hr’g,

3/3/06, at 3.   Accordingly, having discerned no abuse of discretion, see

Joseph, 96 A.3d at 369, we affirm the order below.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2015




                                   -2-
                                                                                 Circulated 08/13/2015 12:59 PM




                     IN THE COURT OF COMMON PLEAS
                      BUCKS COUNTY, PENNSYLVANIA
                            CRIMINAL DIVISION


 MARK BENTON                                                  NO. CP-09-CR-0002928-2005

                                                              PETITION FOR WRIT OF
        v.                                                    HABEAS CORPus·, . ,
                                                              AD SUBJICIENDUM
 BRIAN V. COLEMAN, SUPERINTENDENT




                                            OPINION

        Appellant Mark Benton ("Benton") has appealed from this Court's Order of February 25,

2015, denying his Petition for Writ of Habeas Corpus Ad Subjiciendum. For the reasons that

follow, we respectfully submit that our Order should be affirmed.

        The procedural and factual background of this matter was previously described in our

Opinion of May 5, 2006, which was issued in support of our February 28, 2006 Order denying

Benton's Post-Sentence Motions, and our Opinion and Order of November 2, 2009, denying

Benton's Petition for Post-Conviction Relief. In the latter we explained that:

       On February 2, 2006, Mark Benton was found guilty by a death-qualified jury of First
   Degree Murder, Attempted Murder, Robbery of a Motor Vehicle, Firearms Not to Be Carried
   Without A License, Resisting Arrest, and Fleeing and Eluding a Police Officer in the shooting
   death of Wael Refaey. At the penalty phase on February 3, 2006, the jury unanimously
   returned a sentence of life imprisonment. This Court thereafter sentenced Benton to pay the
   costs of prosecution and undergo life imprisonment in a State Correctional Facility. Benton
   was also sentenced to a term of five (5) to ten (10) years for the Attempted Homicide of a
   separate victim, Nancy Alvarez, and a two and a half (2 Yz) to five (5) year sentence on the
   charge of Robbery of a Motor Vehicle, all sentences to be served consecutively.

Post-Conviction Relief Act Opinion, 11/2/09.
                                                                                Circulated 08/13/2015 12:59 PM




         On January 26, 2007, the Superior Court of Pennsylvania affirmed Benton's judgment of

 sentence (No. 781 EDA 2006), and on July 24, 2007, the Supreme Court of Pennsylvania denied

 Benton's Petition for Allowance of Appeal (No. 170 MAL 2007).

        On November 5, 2010, the Superior Court affirmed this Court's denial of Benton's Petition

 for Post-Conviction Relief (No. 3396 EDA 2009), and on December 5, 2011, the Supreme Court

 of Pennsylvania again denied Benton's Petition for Allowance of Appeal (No. 870 MAL 2010).

        On May 28, 2014, Benton filed a Petition for Writ of Habeas Corpus Ad Subjiciendum in

 the Civil Division of the Court Common Pleas of Bucks County, under Docket Number 2014-

 03671, alleging the illegality of his sentence. (Petition, 5/28/2015.) On August 26, 2014, our

 colleague, the Honorable Susan Devlin Scott, entered an Order transferring Benton's Petition for

Writ of Habeas Corpus from the Civil Division to the Criminal Division of the Bucks County

Court of Common Pleas under the original Criminal Docket Number, CP-09-CR-0002928-2005.

(Order, 8/26/2014.)

        On February 25, 2015, this Court entered an Order denying Benton's Petition for Writ of

Habeas Corpus. (Order, 2/25/2015.)

       In his Petition for Writ of Habeas Corpus Ad Subjiciendum, Benton contends that "a

written judgment of sentence order is the only document that can prove that a defendant has ever

been sentenced," and he therefore claims that "he is being held illegally by the Department of

Corrections due to a faulty judgment of sentence order that does not contain the charges or statute

to which the conviction was obtained." Benton also argues that his sentence oflife imprisonment

is illegal because "Statute 18 Pa. C.S. § 2502(a) Murder of the First degree does not provide

statutory authorization for a life sentence," and consequently, because "the court sentenced him




                                                2
                                                                                  Circulated 08/13/2015 12:59 PM




  under a statute that doesn't authorize a term of life imprisonment [] this 'shocks the conscience'

  thereby violating his substantive due process rights." (Petition, 5/28/2014.)

           Benton's claim in his Petition for Writ of Habeas Corpus that his incarceration is illegal

 due to the absence of a written sentencing order has been repeatedly rejected by Pennsylvania's

 appellate courts. See, e.g., Commonwealth v. Dozier, 99 A.3d 106, 115 (Pa. Super. 2014), appeal

 denied, (Pa. 2014) (it matters not whether the sentencing order is in the possession of any

 administrative or judicial body other than the certified record retained by the court of common

 pleas; the certified record in this case confirms and documents the defendant's judgment of

 sentence);Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014), appeal denied, 101 A.3d 787 (Pa. 2014)

 ( even in absence of written sentencing order, the Department of Corrections had continuing

 authority to detain the petitioner); Travis v. Giroux, 2013 WL 6710773 (Pa.Cmwlth. 2013) (the

 absence of a sentencing order does not make confinement illegal, especially in light of the

undisputed docket entry and the sentence information sheet signed by the sentencing judge).

          Here, the docket and record clearly reflect the sentencing information,           and as a

consequence, there is no merit to Benton's claim.

          Benton's other claim that his sentence is illegal because "18 Pa. C.S. § 2502(a) Murder of

the First degree does not provide statutory authorization for a life sentence" similarly has no merit.

After his conviction for First Degree Murder pursuant to 18 Pa.C.S.A. § 2502(a), Benton was then

sentenced in accordance with 42 Pa.C.S.A. § 9711. We therefore find no merit to this claim, and

recommend that our Order of February 25, 2015 denying Benton's Petition for Writ of Habeas

Corpus Ad Subjiciendum be affirmed.




Date: ---,,.-'~---                              ALAN M. RUBENSTEIN , J.


                                                  3
                                                          Circulated 08/13/2015 12:59 PM




          MARK BENTON v. BRJAN V. COLEMAN, SUPERINTENDENT
                         CASE NO. CP-09-CR-0002928-2005



COPIES SENT TO:

DAVID W. HECKLER, BUCKS COUNTY DISTRICT ATTORNEY
100 N. Main Street
Doylestown, PA 18901

     Attorney for Commonwealth


KAREN DIAZ, DEPUTY DISTRICT ATTORNEY
100 N. Main Street
Doylestown, PA 18901

     Attorney for Commonwealth


MARI( BENTON
INMATE NO. GM9193
STATE CORRECTIONAL INSTITUTION AT FAYETTE
50 Overlook Drive
Labelle, PA 15450-1050


JOSEPH D. SELETYN, ESQ.
PROTHONOTARY
SUPERIOR COURT OF PENNSYLVANIA
530 Walnut Street
Suite 315
Philadelphia, PA 19106
