J-S14008-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
            v.                             :
                                           :
LARRY BARKSDALE,                           :
                                           :
APPEAL OF: PENNSYLVANIA BOARD OF           :
PROBATION AND PAROLE                       : No. 3297 EDA 2013

                 Appeal from the Order entered October 21, 2013,
                   Court of Common Pleas, Montgomery County,
                 Criminal Division at No. CP-46-CR-0004544-2005

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED MARCH 23, 2015

      The Pennsylvania Board of Probation and Parole (“the Board”) appeals

from the October 21, 2013 order entered by the Montgomery County Court

of Common Pleas granting the habeas corpus petition (the “Petition”) filed by

Larry Barksdale (“Barksdale”) for immediate release from prison. Because

the trial court lacked jurisdiction over the matter, we vacate the order.

      The trial court summarized the facts and procedural history of this

case as follows:

                On June 26, 2006, [Barksdale] was sentenced to
            three[] years and six[] months to seven[] years of
            incarceration for two counts of [p]ossession with
            [i]ntent to [d]eliver a [c]ontrolled [s]ubstance.
            [Barksdale]’s original minimum incarceration date
            was December 26, 2009, and original maximum
            incarceration date was June 26, 2013.

              On January 13, 2010, [Barksdale] was released
            on parole to an approved home plan. [Barksdale]’s
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          maximum sentence date was listed as June 26, 2013
          on the Board’s release order.

             On May 23, 2012, while on parole, [Barksdale]
          was arrested in Plymouth Township, Montgomery
          County, Pennsylvania and charged with [d]riving
          [u]nder the [i]nfluence [“DUI”]. The Board took no
          action in response to this arrest.

             On July 24, 2012, while still on parole,
          [Barksdale] was arrested in Philadelphia and charged
          with [DUI] and [c]riminal [m]ischief.

            On July 25, 2012, the Board lodged a detainer
          against [Barksdale].

             On October 3, 2012, the Board recommitted
          [Barksdale] to serve nine[] months [of] [backtime]
          for multiple technical parole violations. The Board’s
          decision noted [Barksdale]’s maximum sentence date
          of June 26, 2013, subject to change if convicted of
          outstanding charges.

             On January 8, 2013, [Barksdale] pled guilty in the
          Philadelphia Municipal Court to the July 24, 2012,
          [DUI] offense, supra. [Barksdale] was then
          sentenced to a minimum of ninety[] days [of]
          incarceration to a maximum of six[] months [of]
          incarceration. [Barksdale] was also sentenced to
          serve an eighteen[-]month probationary sentence.

             On April 22, 2013, [Barksdale] had a parole
          revocation hearing before the Board and waived his
          right to counsel.

             On May 23, 2013, the Board issued a ruling
          declining to award [Barksdale] any credit for the
          time that he spent at liberty on parole. [There is
          nothing in the record to indicate that the Board
          notified Barksdale of this decision at this time.]

             On June 19, 2013, the Board recommitted
          [Barksdale] to a state correctional facility for his DUI



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          conviction in Philadelphia County. [Barksdale]’s
          twelve[-]month DUI sentence was to run concurrent
          to the nine[-]month sentence he received for the
          technical parole violations for a total of twelve
          months [of] incarceration, “when available, pending
          completion of parole from [Barksdale]’s Philadelphia
          County conviction and pending resolution of
          [Barksdale]’s outstanding charges in Montgomery
          County.”

             On June 24, 2013, the Board, through its agent at
          the Norristown [s]ub-[o]ffice, sent a “Hold Past Max”
          order to the prison to detain [Barksdale] pending
          further Board action.

             On June 25, 2013, the Board mailed its decision
          recommitting [Barksdale] as a convicted parole
          violator and mandating that [Barksdale] serve
          twelve[] months [of] [backtime] “when available.”
          This June 25, 2013 decision, did not note a
          maximum sentence date for [Barksdale].

             June 26, 2013 marked [Barksdale]’s original
          maximum incarceration date, but [Barksdale] was
          not released from prison.

             As a result of the foregoing, [Barksdale]
          communicated extensively with Board staff to
          understand why he was being held past his
          maximum date, when all of the paperwork in his
          possession stated that he should be released.
          Despite his written and oral requests, [Barksdale]
          was given no answer except [being] told to refer to
          his previous paperwork, and that the Board would
          have another revocation hearing.

             Consequently, on August 8, 2013, approximately
          five[] weeks past his release date, [Barksdale]
          resorted to filing a pro se [Petition] and [a]pplication
          for an [i]mmediate [h]earing for [the Petition] with
          [the trial c]ourt.




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             Counsel was appointed to represent [Barksdale],
          and on October, 21, 2013, the [trial c]ourt held the
          habeas hearing to address [Barksdale]’s Petition. At
          the hearing, the assistant district attorney was
          present and a representative from the Board.
          Further, the [trial c]ourt also communicated
          extensively with other Board staff via telephone [off
          the record]. … [T]he [trial c]ourt granted
          [Barksdale]’s Petition and ordered that [Barksdale]
          be released forthwith.

              Finally, on November 7, 2013, weeks after the
          [trial c]ourt’s disposition of the present matter, the
          Board notified [Barksdale] that it had just
          recalculated the maximum sentence date to February
          20, 2016, due to his new conviction while on parole.
          … Also, on this date, the Board filed a [p]etition to
          [d]ismiss     the   already     adjudicated  [h]abeas
          [p]etition.

             On November 8, 2013, the [trial c]ourt held a
          further video conference with reference to the
          disputed October 21, 2013, ruling. The following
          exchange occurred on the record[:]

              ADA: This is a [p]etition for a [w]rit of [h]abeas
              [c]orpus that was filed by Mr. Barksdale and also
              by his attorney. For the purposes of the record
              today, the Commonwealth would assert that in
              speaking in conference and speaking with the []
              Board [], my understanding is that the [] Board
              will file a [m]otion to [v]acate the [o]rder that
              was issued by Your Honor ordering the release of
              Mr. Barksdale on October 21st and that that
              motion will be primarily based on lack of
              jurisdiction of the Court of Common Pleas,
              asserting the appropriate jurisdiction lies within
              the Commonwealth Court, and that is where Mr.
              Barksdale’s remedies then lie as well. [...]

              THE COURT: And, at the time, in fairness, at the
              time that the [o]rder was issued, we had no
              information that any recalculation had occurred.



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              His run date had run. There was nothing that we
              were aware of, despite our attempts to notify [the
              Board] and talk to [the Board], they did not
              inform us of anything that was holding
              [Barksdale]. [...]

              And we find out that yesterday, they finally
              recalculated his run date.

              DEFENSE COUNSEL: At that time[,] he was being
              held in excess of his maximum incarceration date.
              We found out that yesterday, on the 7th, they
              recalculated his max date, and it’s now sometime
              in 2016. [...]

              Your Honor, my complaint is with the complete
              lack of procedural safeguard designed to ensure
              this process is moving as efficiently as possible.

              We have now a person that has remained
              incarcerated past his backdate without knowing
              when he’s going to be released.

              There’s a fundamental unfairness to that and a
              deprivation that cannot be remedied by just
              telling him, now, okay, well, now we’ve done it,
              now that we’ve got the [o]rder saying you had to
              be released two weeks ago, now we’ve
              recalculated it, so now make your motion for
              parole. Now that you brought us into [c]ourt two
              times, you have to then ask us to parole you. It
              just seems like he’s fighting an uphill battle here.
              [...]

              When we’re dealing with somebody’s liberty, an
              individual’s liberty, I would suggest that we err on
              the side of releasing him now, and he can be re-
              incarcerated. He’s under supervision. He has a
              Montgomery County case.

              THE COURT: I have to tell you, I have similar
              concerns about the efficiency of the system, the
              way it works.



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              I’m a little distressed because of the fact that we
              did reach out to [the Board] with the defense
              attorney and the prosecutor present. We spoke to
              several people there.

              At that point in time, not one of them was able to
              explain a reason to keep [Barksdale] incarcerated.
              And without that reason, this [c]ourt’s hands were
              tied.

              There was nothing there that prevented me from
              releasing him at that point. It was not for lack of
              trying.

              Now we find the day before another hearing, they
              decide [“]now I’m going to recalculate,[”] and it
              doesn’t seem fair.

              But what I will do, and I will tell you this, is if [the
              Board] and the prosecution wants to, I will
              entertain a motion to revoke my prior [o]rder,
              rescind it, but I want some reasons for it.

              COUNSEL FOR BOARD: Yes, Your Honor, and the
              Board will provide that motion.

              THE COURT: And I hope that if this serves any
              other purpose, the purpose it serves is for the []
              Board to get their act together with regard to this,
              frankly, because this is inexcusable.

             On November 14, 2013, the Board filed its
          [m]otion to [r]econsider the [c]ourt’s October 21,
          2013[] ruling, raising subject matter jurisdiction for
          the first time. [On November 20, 2013,] [t]he [trial
          court] scheduled argument for the same for its next
          available date in December. However, [also] on
          November 20, 2013, the Board filed the present
          appeal thereby divesting the [trial c]ourt of
          jurisdiction.




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Trial Court Opinion, 6/10/14, at 1-6 (record citations, footnotes, and

emphasis omitted).

     On December 16, 2013, this Court received correspondence from the

trial court requesting “that the above[-]captioned matter be remanded back

to the [t]rial [c]ourt so that it can vacate its[] [o]rder, and permit

[Barksdale] to proceed through the Board’s internal process.”          Trial Court

Letter, 12/16/13, at 2 (emphasis omitted). In its subsequent written opinion

pursuant to Pa.R.A.P. 1925(a), however, the trial court seeks affirmance of

the October 21, 2014 order, apparently intending to retract its earlier

request for remand. See Trial Court Opinion, 6/10/14, at 10.

     On May 20, 2014, the Board filed a petition for this Court to confirm

that the Board’s appeal of the October 21, 2013 trial court order operated as

an automatic supersedeas.      By Per Curiam Order dated July 2, 2014, this

Court granted the petition and ordered that “the October 21, 2013 order of

the Court of Common Pleas is STAYED pending the disposition of this

appeal.”     Order, 7/2/14 (emphasis in the original).       Barksdale sought

reconsideration or reargument of the July 2, 2014 Order, which this Court

denied on September 16, 2014.

     On appeal, the Board raises the following issues for our review:

           I. Did the trial court commit an error of law when it
              granted Barksdale’s habeas corpus petition and
              released him because it lacked jurisdiction to release
              Barksdale, a state prisoner whose parole had been
              previously revoked by the [] Board [] for committing



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            a new crime while on parole with a pending
            recomputation of his maximum sentence date?

         II. Did the trial court commit an error of law when it
             released Barksdale from incarceration after the []
             Board [] had previously revoked Barksdale’s parole
             with the intention of recomputing Barksdale’s
             maximum sentence date by denying him credit for
             the time he previously spent at liberty on parole?

The Board’s Brief at 4.

      The Board’s first issue on appeal challenges the trial court’s jurisdiction

to decide Barksdale’s Petition. “The existence of subject matter jurisdiction

goes to the heart of a court’s ability to act in a particular case.     It is not

waivable, even by consent, and may be raised by any party or by the court,

sua sponte, at any stage of the proceeding.”              Commonwealth v.

Hemingway, 13 A.3d 491, 496 (Pa. Super. 2011) (citing Commonwealth

v. Jones, 929 A.2d 205, 208 (Pa. 2007)). “Because the question of subject

matter jurisdiction is purely one of law, our standard of review is de novo,

and our scope of review is plenary.” Commonwealth v. Brinson, 30 A.3d

490, 492 (Pa. Super. 2011) (citation omitted).

      The Board asserts that jurisdiction in this case rested in the

Commonwealth Court, not the Court of Common Pleas. The Board’s Brief at

11.   The Board states that habeas corpus relief was not available to

Barksdale, as Barksdale had other remedies available to him to challenge his

continued incarceration.    According to the Board, Barksdale could have

appealed his placement in “when available” status or filed a writ of



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mandamus to compel the Board to recalculate his maximum sentence, either

of which would have been filed in the Commonwealth Court. Id. at 13.

      The trial court contends that it did have jurisdiction over the matter

and that habeas corpus relief was appropriate in this case. The trial court

states,

               [I]f the Board had followed proper procedure in
            the instant matter, and if [Barksdale] had been given
            the opportunity to follow the Board’s internal
            process, jurisdiction on appeal would lie with the
            Commonwealth Court. However, in this case, [the]
            Board procedure was not followed, and [Barksdale]
            was never given a determination or decision to
            contest within the Board’s internal process.
            [Barksdale] was simply placed in limbo past his
            maximum incarceration date.

Trial Court Opinion, 6/10/14, at 8.

      At the outset, we recognize that the Board has the exclusive power

“[t]o parole and reparole, commit and recommit for violations of parole and

to discharge from parole” criminal defendants sentenced to a term of

imprisonment of at least two years. 61 Pa.C.S.A. § 6132(a)(1)(i); Fross v.

Cnty. Of Allegheny, 20 A.3d 1193, 1196 n.3 (Pa. 2011).              A criminal

defendant may appeal the Board’s decision within thirty days of the Board’s

order. 61 Pa.C.S.A. § 6113(d)(1). The appeal initially proceeds before three

members of the Board. Id. Once a criminal defendant exhausts all of his

administrative remedies before the Board, he is entitled to judicial appellate

review of an order of the Board. Com., Dep’t of Corr. v. Reese, 774 A.2d




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1255, 1260 (Pa. Super. 2001).      Such appeals are within the exclusive

jurisdiction of the Commonwealth Court. 42 Pa.C.S.A. § 763(a).

     Habeas corpus is a writ “used to test the legality of an arrest or

commitment[.]”   BLACK’S LAW DICTIONARY, habeas corpus (10th ed. 2014);

see also Commonwealth v. DiVentura, 734 A.2d 397, 398 (Pa. Super.

1999) (“habeas corpus is a civil remedy which lies solely for commitments

under criminal process”).   “Habeas corpus is an extraordinary remedy and

may only be invoked when other remedies in the ordinary course have been

exhausted or are not available.” Joseph v. Glunt, 96 A.3d 365, 369 (Pa.

Super. 2014) (citation omitted), appeal denied, 101 A.3d 787 (Pa. 2014).

Jurisdiction of a habeas corpus proceeding is in the Court of Common Pleas.

Reese, 774 A.2d at 1261.

     The question of the trial court’s jurisdiction therefore depends upon

whether Barksdale had a remedy other than habeas corpus to challenge his

continued confinement beyond his maximum release date for his violations

of parole. We are constrained to agree with the Board that Barksdale could

have appealed the Board’s June 25 notice placing him in “when available”

status. This designation is reviewable through the administrative channels

of the Board’s appeals process and subject to further review, if necessary,

by the Commonwealth Court. See, e.g., Serrano v. Pennsylvania Bd. of

Prob. & Parole, 672 A.2d 425, 427 (Pa. Commw. 1996), appeal denied,

682 A.2d 312 (Pa. 1996); Lawrence v. Com., Pennsylvania Bd. of Prob.



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& Parole, 456 A.2d 1154, 1155 (Pa. Commw. 1983).             According to the

Board’s records, Barksdale became available on January 24, 2013, six

months prior to his placement in “when available” status by the June 25

notice. Motion To Dismiss Petition for Writ of Habeas Corpus, 11/8/13, at

Exhibit I. At the time of the issuance of the June 25 notice, Barksdale was

not serving any other sentence. Thus, he could have contested the “when

available” designation, asserting that a delay in the commencement of his

sentence would keep him incarcerated beyond his stated maximum release

date.

        Barksdale asserts that this Court’s decision in Reese compels a finding

that the trial court had jurisdiction to grant him habeas corpus relief.

Barksdale’s Brief at 10. Reese involved two petitions for habeas corpus filed

by two     state   prisoners, Emmitt Reese     (“Reese”) and Scott Richart

(“Richart”), both of whom were being detained in prison beyond their

maximum release date. The pertinent facts relating to Reese’s petition were

as follows. On August 17, 1984, Reese was sentenced to two years and ten

months to ten years of incarceration, effective May 17, 1987, for his

conviction of robbery and related charges.       The Board paroled Reese on

December 28, 1990, at which time his maximum release date was May 17,

1997.     The Board recommitted Reese as a technical parole violator on

February 10, 1992, and recalculated his maximum release date as July 30,

1997. He returned to state prison in 1992 and 1993 as a technical parole



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violator, and on August 15, 1994, the Board recalculated his maximum

release date as October 30, 1998. Id. at 1257.

      On September 29, 1998, Reese was arrested on new criminal charges,

following which the Board issued a warrant to detain Reese, and advised

Reese that his maximum sentence would be extended.         On February 24,

1999, Reese filed a petition for review in the Commonwealth Court, alleging

that he was being held beyond his maximum release date and sought

discharge. Reese further asserted that the Board exceeded its authority by

extending his maximum sentence from May 17, 1997 to October 30, 1998.1

Id.

      The Commonwealth Court transferred the case to the Allegheny

County Court of Common Pleas on March 31, 1999. On May 27, 1999, the

Court of Common Pleas ordered Reese’s discharge from custody based upon

the expiration of his maximum release date on October 30, 1998 with no

additional violations that had extended that sentence. Id. at 1257-58.

      On June 17, 1999, Reese was convicted of the pending criminal

charges and sentenced to ten to twenty months of incarceration, with credit

for time served. The Board issued a warrant to detain Reese that same day,

advising the Department of Corrections and Reese that Reese’s maximum




1
  On appeal, this Court found this issue waived based upon Reese’s failure
to timely appeal the Board’s recalculation of his maximum release date
before the Board, as required. Reese, 774 A.2d at 1262.


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sentence would likely be extended because of his new conviction.        Id. at

1258.

        On June 23, 1999, the Department of Corrections filed a motion for

reconsideration of the trial court’s May 27 order releasing Reese from

custody. The trial court vacated its order pending a decision on the motion

to reconsider.   On July 7, 1999, following a hearing, the trial court again

granted Reese’s habeas petition and ordered his release forthwith.         The

Department of Corrections appealed that decision, challenging, in relevant

part, the trial court’s jurisdiction over the matter. Id. On appeal, we found

that the trial court had jurisdiction to decide the habeas corpus petition. Id.

at 1261.

        The key difference between the circumstances of Reese and the case

at bar is that at the time Reese was being held on the Board’s detainer,

there was no Board order for him to have appealed through administrative

channels.     There was no revocation hearing held and no decision

recommitting Reese to prison for his parole violation.          Unlike Reese,

Barksdale had a final, appealable order recommitting him for a parole

violation to twelve months of backtime and placing him in “when available”

status.    He could have (and should have) appealed that decision to the




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Board, removing this case from the ambit of habeas corpus.2 See Joseph,

96 A.3d at 369.

     Order vacated. Jurisdiction relinquished.

     Musmanno, J. joins the Memorandum.

     Olson, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2015




2
    We understand why the trial court ruled as it did. The Board did not
provide an explanation for its actions at the hearing on Barksdale’s habeas
petition, and even after the trial court stated that it would entertain the
Board’s arguments and consider vacating its order, the Board filed an appeal
to this Court despite the trial court scheduling a hearing on the Board’s
motion. Nonetheless, as Barksdale had an alternative means for relief, the
trial court lacked jurisdiction to decide the Petition.


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