J-S03033-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                    v.                     :
                                           :
DONALD M. HOLLIDAY,                        :
                                           :
                  Appellant                :     No. 996 WDA 2016

                     Appeal from the Order May 3, 2016
             in the Court of Common Pleas of Lawrence County,
            Criminal Division, at No(s): CP-37-CR-0000250-1994
                          CP-37-CR-0000798-1992

BEFORE:     OLSON, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED MARCH 17, 2017

      Donald M. Holliday (Appellant) appeals from the May 3, 2016 order

which dismissed his petition for writ of habeas corpus. We affirm.

      We glean the following from the record. In the case filed at CP-37-CR-

0000798-1992 (1992 case), Appellant was sentenced in September 1993 to

serve two to ten years of imprisonment. The sentencing order provided that

Appellant would serve his time in the Lawrence County Jail, with work

release privileges. At the end of 1993, Appellant failed to return to the jail

from work release, and instead fled the jurisdiction, resulting in the filing of

charges at docket number CP-37-CR-0000250-1994 (1994 case). In 1996,

Appellant was apprehended in Kentucky, pled guilty to escape in the 1994

case, and was sentenced to a term of nine months to five years of



*Retired Senior Judge assigned to the Superior Court.
J-S03033-17


imprisonment to run consecutive to the sentence in the 1992 case. Shortly

thereafter, in August of 1996, the trial court ordered in the 1992 case that

Appellant’s term of imprisonment would be served in a state correctional

facility rather than in the county jail.

        On August 10, 2015, Appellant filed a petition for writ of habeas

corpus, (1) “challenging the discrepency [sic] between the signed sentencing

orders and the [Department of Corrections] (DOC)’s interpretation of them,”

Petition, 8/10/2015, at ¶ 6 (unnecessary capitalization omitted); and (2)

claiming that the trial court lacked jurisdiction in 1996 to amend the

September 1993 sentencing order entered in the 1992 case. Id. at ¶ 9.

        Court-appointed counsel filed a new habeas petition on November 9,

2015.     The new petition alleged that Appellant was serving an illegal

sentence. Petition, 11/9/2015, at ¶ 6.

              Specifically, [Appellant averred] that:

              a.    When the original order [in the 1992 case] was
        altered or modified it became a new sentence and therefore [the
        sentence in the 1994 case] could not run consecutive as the new
        sentence [in the 1992 case] was not entered until 12 days after
        the new sentence [in the 1994 case].

             b.    When [the sentence in the 1992 case] was amended
                th
        [on] 26 August 1994 it failed to state that it would run
        consecutive with [the sentence in the 1994 case].

              c.   [Appellant] believes and therefore avers that he has
        served the entirety of his sentence and is eligible for immediate
        parole.

Id. at ¶ 7.


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      After conducting a hearing on the petition, the trial court denied it by

order of May 3, 2016.        The court therein opined that (1) Appellant’s

interpretation of the sentencing orders was incorrect, and (2) the 1996

amendment to the 1993 sentence “did not amend the sentence itself but

only the location where it was to be served.” Order, 5/3/2016, at 3. The

trial court further noted that it did not treat Appellant’s filing as an untimely-

filed petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546, because it did “not allege any basis for relief

cognizable under the PCRA.” Id. at 4.

      Thereafter, Appellant pro se filed a notice of appeal, as well as a court-

ordered statement of errors complained of on appeal. Counsel filed a motion

to withdraw, to which Appellant filed a response requesting that the trial

court grant the motion and allow him to proceed pro se. After conducting a

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),

the trial court entered an order permitting counsel to withdraw, Order,

10/3/2016, and determined that Appellant made a knowing, voluntary, and

intelligent waiver of his right to counsel. Waiver of Counsel, 10/3/2016.

      Thus, properly proceeding pro se, Appellant presents this Court with

three questions for review. Two of Appellant’s questions concern the merits

of the claims raised in his habeas petition (i.e., the DOC improperly

interpreted his sentencing orders and the trial court lacked jurisdiction in

1996 to amend his sentence in the 1992 case); the third asks, inter alia,


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“whether the lower erred in finding that it cannot treat the foregoing habeas

corpus petition as a petition under [the] PCRA as it does not allege any basis

of relief cognizable under the PCRA?”      Appellant’s Brief at 4 (unnecessary

capitalization omitted).

      We begin by reviewing the relevant legal principles.       “[T]he PCRA

subsumes all forms of collateral relief, including habeas corpus, to the extent

a remedy is available under such enactment.”       Commonwealth v. West,

938 A.2d 1034, 1043 (Pa. 2007). All PCRA petitions must either (1) be filed

within one year of the judgment of sentence becoming final, or (2) plead and

prove a timeliness exception. 42 Pa.C.S. § 9545(b). “[A] defendant cannot

escape the PCRA time-bar by titling his petition or motion as a writ of

habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.

2013).

      However, “claims that fall outside the eligibility parameters of the

PCRA may be raised through a writ of habeas corpus.” Commonwealth v.

Masker, 34 A.3d 841, 850 (Pa. Super. 2011) (en banc).           Our Supreme

Court has explained that “the boundaries of cognizable claims under the

PCRA can only be extended so far as is consistent with the purposes of the

statute.” Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007).

      To the extent that Appellant claims that his sentence in the 1992 case,

as amended in 1996, is illegal, the claim is cognizable exclusively under the

PCRA.    See, e.g., Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.


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Super. 2011) (“[T]he plain language of the PCRA… states that ‘[the PCRA]

provides for an action by which … persons serving illegal sentences may

obtain collateral relief.’   …   Therefore, Jackson’s ‘motion to correct illegal

sentence’ is a PCRA petition and cannot be considered under any other

common law remedy.”).

      Because Appellant’s sentence became final 20 years ago, and

Appellant did not plead and offer to prove a PCRA timeliness exception, the

trial court lacked jurisdiction to address the merits of his illegal-sentence

claim.1 See Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014)

(“The timeliness of a PCRA petition is a jurisdictional threshold and may not

be disregarded in order to reach the merits of the claims raised in a PCRA


1
  The record reveals that the amendment to Appellant’s sentence in the
1992 case resulted from the trial court’s granting of a petition to amend
sentence filed by Appellant. Therein, Appellant explained that he received
a state sentence in the 1994 case, but he could not be transferred to a state
correctional facility until he was paroled on his sentence in the 1992 case,
which he was serving in the Lawrence County Jail. Petition to Amend
Sentence, 8/26/1996, at ¶¶ 4-5. Therefore, Appellant “request[ed] that his
sentence be amended to reflect that he serve not less than 2 years nor more
than 10 years in a State Correctional Facility.” Id. at ¶ 6. The trial court
granted Appellant’s request, and signed Appellant’s proposed order
indicating that the sentence was amended to reflect that he serve his time
for the 1992 case in a state facility. Order, 8/26/1996.

 Appellant argues in his brief that counsel was ineffective in petitioning for
the amendment. That claim is also within the exclusive province of the
PCRA; because Appellant did not present it timely, neither the trial court nor
this Court has jurisdiction to entertain it. See 42 Pa.C.S. 9543(a)(2)(ii)
(enumerating claims of ineffective assistance of counsel as cognizable under
PCRA); Commonwealth v. Eller, 807 A.2d 838, 845 (Pa. 2002) (noting
PCRA is exclusive means of obtaining relief for claims cognizable under
PCRA).

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petition that is untimely.”); Commonwealth v. Taylor, 65 A.3d 462, 465

(Pa. Super. 2013) (“[A]lthough illegal sentencing issues cannot be waived,

they still must be presented in a timely PCRA petition.”).

      However, Appellant’s claim that he has served the balance of his

sentences and should be paroled immediately is brought properly in a

petition for writ of habeas corpus.    Commonwealth v. Isabell, 467 A.2d

1287, 1291 (Pa. 1983) (holding that the writ of habeas corpus, the “well

known remedy for deliverance from illegal confinement,” rather than

statutory post-conviction relief, “is particularly suited to the wrong alleged in

this case, illegal detention resulting from an incorrect computation of

appellant’s sentence by prison officials”).   Thus, we consider the merits of

Appellant’s claim that he is being detained unlawfully because he has

completed his sentences.

      Appellant’s argument is as follows:

      Once the court amended, changed and altered the original
      county sentence [in the 1992 case] into a now state sentence, it
      failed to state in [its] order to amend, that the state sentence [in
      the 1994 case] would still be run consecutive to the now state
      sentence [in the 1992 case;] therefore, these two state
      sentences must now be running concurrently!

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      The trial court offered the following response:

      It is clear that [in the 1994 case,] the court ordered the
      sentence at that case number to be served on a consecutive
      basis to the sentence previously issued [in the 1992 case]. The
      amendment on August 26, 1996 of the sentence [in the 1992


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     case] only changed the place of confinement and not the
     effective date of the sentence. In changing [Appellant’s] place
     of confinement, the court did not amend the sentence itself but
     only the location where it was to be served. Thus, the only
     reasonable and logical interpretation of the three orders in
     question is that [Appellant] received a sentence of not less than
     2 years nor more than 10 years [in the 1992 case,] and then
     received a consecutive sentence of not less than 9 months nor
     more than 5 years in the 1994 case,] and as of August 26, 1996
     a determination was made that both sentences should be served
     in a state correctional facility with the sentence [in the 1994
     case] to be served consecutively to the sentence [in the 1992
     case].

Order, 5/3/2016, at 2-3 (unnecessary capitalization omitted).

     “[A] sentence … is to be construed so as to give effect to the intention

of the sentencing judge.   To determine this intention the reviewing court

limits itself to the language of the written judgment.” Commonwealth v.

Kennedy, 868 A.2d 582, 591 (Pa. Super. 2005) (citation omitted).         After

review of the sentencing orders at issue, we agree with the trial court that

the only reasonable interpretation is that the sentence in the 1994 case runs

consecutively to the amended sentence in the 1992 case.

     Neither the original sentencing order from 1993, nor the amendment

ordered in 1996, references the sentence entered in the 1994 case. It was

the sentencing order in the 1994 case that indicated it was to run

consecutively to the sentence in the 1992 case. There simply was no reason

for the trial court to mention anything about the 1994 case in its order

amending the sentence in the 1992 case.




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      The sentence in the 1994 case was never amended; accordingly, that

sentence still runs consecutively to the sentence in the 1992 case. The trial

court’s grant of Appellant’s requested amendment to the place where he

would serve his sentence in the 1992 case had no impact whatsoever upon

the consecutive nature of the sentence in the 1994 case. Thus, we conclude

that the trial court properly denied Appellant’s petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2017




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