J-S74044-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :   IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
               Appellee                :
                                       :
          v.                           :
                                       :
DENNIS MADDREY,                        :
                                       :
               Appellant               : No. 1675 EDA 2014

                Appeal from the Order Entered May 22, 2013
           in the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0008761-2009

BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 23, 2015

     Dennis Maddrey (Appellant) appeals from an order denying his petition

for a writ of habeas corpus ad subjiciendum. Upon review, we affirm.

     On December 17, 2010, Appellant was convicted, following a bench

trial, of numerous crimes arising out of his role in a string of armed

robberies that occurred in Montgomery County in August of 2009. He was

sentenced to an aggregate term of 20 to 40 years’ imprisonment. On June

29, 2012, a panel of this Court affirmed Appellant’s judgment of sentence,

and his petition for allowance of appeal to our Supreme Court was denied on

February 14, 2013. Commonwealth v. Maddrey, 53 A.3d 943 (Pa. Super.

2012) (unpublished memorandum), appeal denied, 63 A.3d 775 (Pa. 2013).

     On February 25, 2013, Appellant filed timely a pro se petition for relief

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46.



* Retired Senior Judge assigned to the Superior Court.
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Counsel was appointed and filed a no-merit letter along with a request to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The   PCRA court permitted counsel         to   withdraw, complied   with the

requirements of Pa.R.Crim.P. 907, and eventually dismissed Appellant’s

PCRA petition. Appellant timely filed a notice of appeal to this Court.

      On April 18, 2014, while that appeal was pending, Appellant filed a

document entitled Praecipe for Writ of Habeas Corpus Ad Subjiciendum.1

The caption listed Appellant as the Petitioner and Nancy Giroux as

Respondent.2     In the petition, Appellant asserted that he was being

unlawfully restrained in violation of 37 Pa.Code § 91.3 and 42 Pa.C.S.

§ 9762.

      On May 22, 2014, the lower court denied Appellant’s claim for writ of

habeas corpus. The lower court also denied as premature Appellant’s claims

to the extent the relief requested was cognizable under the PCRA, as

Appellant’s 2013 PCRA petition was still pending. See Order, 5/23/2014.

See Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012) (“[A] PCRA …

court cannot entertain a new PCRA petition when a prior petition is still


1
  A petition for writ of habeas corpus ad subjiciendum is defined as “[a] writ
directed to someone detaining another person and commanding that the
detainee be brought to court.” Woodens v. Glunt, 96 A.3d 365, 367 n.2
(Pa. Super. 2014) (quoting Black’s Law Dictionary 778 (9th ed. 2009)).
2
  Nancy Giroux is the superintendent of SCI-Albion, where Appellant is
incarcerated.


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under review on appeal[.]”). Appellant timely filed a notice of appeal, and

both Appellant and the lower court complied with Pa.R.A.P. 1925.

      On appeal, Appellant sets forth several issues for review, which

generally can be boiled down to one: whether the lower court erred in

denying Appellant relief.

      Our standard of review of a trial court’s order denying a petition
      for writ of habeas corpus is limited to abuse of discretion. Thus,
      we may reverse the court’s order only where the court has
      misapplied the law or exercised its discretion in a manner lacking
      reason. As in all matters on appeal, the appellant bears the
      burden of persuasion to demonstrate his entitlement to the relief
      he requests.

Com. ex rel. Fortune v. Dragovich, 792 A.2d 1257, 1259 (Pa. Super.

2002) (citations omitted).

      Appellant argues that he is being unlawfully restrained “of his liberties

by SCI Albion/DOC due to [the] reliance on documentation that is

inconsistent with the legislative mandates imposed by 37 Pa. Code § 91.3

and 42 Pa.C.S. § 9762.” Appellant’s Brief at 8. Specifically, Appellant argues

that his sentencing order does not conform to the mandates of section 9762,

which states, in relevant part, as follows: “For the three-year period

beginning on the effective date of this subsection, all persons sentenced

to total or partial confinement for the following terms shall be committed

as follows:” 42 Pa.C.S. § 9762 (emphasis added). Appellant argues that his

sentencing order is invalid because it utilized the word “imprisonment”

instead of “confinement” as utilized in the statute.    Appellant goes on to



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argue that because his sentencing order was invalid, he is entitled to be

released.

      The lower court concluded that any suggestion that Appellant’s

sentencing order did not comply with a prescribed statute is an issue

concerning the legality of his sentence which is cognizable under the PCRA.

Lower Court Opinion, 6/26/2014, at 5.            Accordingly, the lower court

concluded that because Appellant’s request for PCRA relief was premature,

as an appeal from Appellant’s first petition was pending, it did not have

jurisdiction to entertain the claim. We agree.

      It is well settled that “[a] challenge to the legality of a sentence may

be raised as a matter of right, is not subject to waiver, and may be

entertained as long as the reviewing court has jurisdiction. If no statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction.” Commonwealth v. Borovichka, 18 A.3d 1242,

1254 (Pa. Super. 2011) (citations and quotations omitted). Thus, because

the lower court did not have jurisdiction to entertain this premature PCRA

petition, to the extent the issue concerned the legality of Appellant’s

sentence, the lower court properly denied relief.

      However, if the claim is considered properly as a petition for writ of

habeas corpus, the lower court had jurisdiction to entertain it.3 We consider


3
  Appellant devotes several pages of his brief to an argument that the lower
court erred by changing the caption in this case by substituting
Commonwealth v. Appellant as the caption. Appellant argues that this


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this claim mindful of this Court’s recent decision in Woodens v. Glunt, 96

A.3d 365 (Pa. Super. 2014).

      In that case, Woodens filed in the Court of Common Pleas of Clearfield

County a petition for writ of habeas corpus ad subjiciendum against Jay

Glunt,   the     superintendent   of   SCI-Houtzdale,   where   Woodens    was

incarcerated. The lower court entertained the petition pursuant to a recent

per curiam opinion of our Supreme Court, which held that “a claim that a

defendant’s sentence is illegal due to the inability of the DOC to ‘produce a

written sentencing order related to [his] judgment of sentence’ constitutes a

claim legitimately sounding in habeas corpus.” Woodens, 96 A.3d at 368

(quoting Brown v. Pa. Dept. of Corrections, 81 A.3d 814, 815 (Pa. 2013)

(per curiam)).4

      The lower court denied Woodens’ petition, and Woodens appealed to

this Court. A panel of this Court analyzed this issue as follows.

      Our standard of review in this context is axiomatic:

               The ancient writ of habeas corpus is inherited from
               the common law, referred to by Sir William


change absolved Nancy Giroux of responsibility. Appellant’s Brief at 7-8.
Appellant goes on to argue that the lower court erred in changing this “civil”
case to a “criminal” case, thereby dispensing with the rule to show cause
procedure available in civil matters. Appellant’s Brief at 10-12. Given our
disposition of the substance of Appellant’s claim, his complaints as to alleged
procedural improprieties are moot.
4
  In Brown, the Supreme Court held that the Court of Common Pleas where
the judgment of sentence originated was the proper tribunal to consider
such a claim sounding in habeas corpus. 81 A.3d at 815.



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           Blackstone as the most celebrated writ in the English
           law. The writ lies to secure the immediate release of
           one who has been detained unlawfully, in violation of
           due process. [T]raditionally, the writ has functioned
           only to test the legality of the petitioner’s detention.

     Commonwealth v. Wolfe, 413 Pa.Super. 583, 605 A.2d 1271,
     1272–73       (1992)    (internal   citations    omitted).   “Under
     Pennsylvania statute, habeas corpus is a civil remedy [that] lies
     solely     for    commitments       under      criminal    process.”
     Commonwealth v. McNeil, 445 Pa. Super. 526, 665 A.2d
     1247, 1249–50 (1995) (citing Wolfe, 605 A.2d at 1273).
     “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.” Id. (citing Commonwealth ex
     rel. Kennedy v. Myers, 393 Pa. 535, 143 A.2d 660, 661
     (1958)). “Our standard of review of a trial court’s order denying
     a petition for [a] writ of habeas corpus is limited to [an] abuse of
     discretion.” Rivera v. Penna. Dep't of Corrs., 837 A.2d 525,
     528 (Pa. Super. 2003).

     The statute cited by Woodens in support of his argument
     provides, in pertinent part, as follows:

          § 9764. Information required upon commitment and
     subsequent disposition

           (a) General rule.—Upon commitment of an inmate
           to the custody of the [DOC], the sheriff or
           transporting official shall provide to the institution’s
           records officer or duty officer, in addition to a copy of
           the court commitment form DC–300B generated
           from the Common Pleas Criminal Court Case
           Management System of the unified judicial system,
           the following information:

                                    ***

                 (8) A copy of the sentencing order and any
           detainers filed against the inmate which the county
           has notice.

     42 Pa.C.S. § 9764. Although not mentioned explicitly in his brief
     before this Court, Woodens previously has invoked 37 Pa.Code


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     § 91.3 (“Reception of inmates”) in support of his claims, see
     Woodens’ Petition for Writ of Habeas Corpus Ad Subjiciendum,
     5/10/2013, at 6–10, which provides as follows: “[The DOC] will
     accept and confine those persons committed to it under lawful
     court orders ... when information has been provided to [the
     DOC] as required by 42 Pa.C.S. § 9764 (relating to information
     required upon commitment and subsequent disposition).” 37
     Pa.Code § 91.3.

     Woodens advances numerous legal arguments in support of the
     instant petition, many of which are not relevant to the present
     controversy. The most complete statement of Woodens’
     argument is as follows: [T]he only sentence imposed upon a
     prisoner was the one signed by the sentencing judge, under
     statutory authority and entered into the record .... 42 Pa.C.S.
     § 9764 does not state anywhere in its provision[s] that a
     “sentencing order” can be substituted by any other documents,
     e.g., [the] transcript of [the] sentencing proceedings. Woodens’
     Brief at 12. Woodens argues that the use of the word “shall” in
     section 9764 establishes a mandatory requirement that the DOC
     must satisfy in order to establish its jurisdiction to detain a
     prisoner. Id. Consequently, Woodens claims that the DOC’s
     inability to produce a copy of this sentencing report constitutes a
     fatal failure that should result in his immediate release. We
     disagree.

     Woodens is not the first individual to assert this species of claim.
     In addition to the aforementioned holding in Brown, our
     Commonwealth Court has adjudicated at least one similar appeal
     on the merits, albeit in an unpublished memorandum. In Travis
     v. Giroux, No. 489 C.D.2013, 2013 WL 6710773 (Pa. Cmwlth.
     Dec. 18, 2013), an appellant challenged the DOC’s authority to
     hold him in custody because, as in the present situation, the
     DOC was unable to produce a written sentencing order. Relying
     upon two holdings from the United States District Court for the
     Eastern District of Pennsylvania, the Commonwealth Court held
     that subsection 9764(a)(8) does not provide a cause of action
     for prisoners:

     The current version of [42 Pa.C.S. § 9764(a)(8)] requires that a
     copy of the sentencing order be provided to the [DOC] upon
     commitment of an inmate to its custody. However, it does not
     create any remedy or cause of action for a prisoner based
     upon the failure to provide a copy to the DOC. The statute


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     regulates the exchange of prisoner information between the
     state and county prison system, and does not provide a basis for
     habeas relief. Travis, 2013 WL 6710773, at *3 (quoting Gibson
     v. Wenerowicz, No. 11–CV–7751, slip op. at 3 n. 6, 2013 WL
     3463575 (E.D.Pa. Mar. 5, 2013), report and recommendation
     adopted as modified, (E.D.Pa. Jul. 10, 2013) (citing Mundy v.
     Kerestes, No. 13–6081, slip op. at 1, 2013 WL 5781108
     (E.D.Pa. Oct. 24, 2013))) (emphasis in original). Specifically, the
     Commonwealth Court emphasized that the appellant in Travis
     did not dispute that he had pleaded guilty and that he was
     sentenced upon that plea. Thus, even where there appeared to
     be no sentencing order in the possession of the DOC or the trial
     court, the Commonwealth Court held that subsection 9764(a)(8)
     furnished no basis for relief where the appellant’s sentence was
     confirmed by the certified record. Id. at *3–4 (holding that the
     appellant's claim pursuant to subsection 9764(a)(8) was
     “without merit” where the criminal docket confirmed that the
     appellant had pleaded guilty and had been duly sentenced).

     Although the decisions of the Commonwealth Court are not
     binding upon this Court, they may serve as persuasive authority.
     Commonwealth v. Ortega, 995 A.2d 879, 885 (Pa. Super.
     2010); see also Petow v. Warehime, 996 A.2d 1083, 1088 n.
     1 (Pa. Super. 2010) (“[W]e may turn to our colleagues on the
     Commonwealth Court for guidance when appropriate.”). We find
     the reasoning presented in Travis to be probative and
     instructive. The language and structure of section 9764, viewed
     in context, make clear that the statute pertains not to the DOC’s
     authority to detain a duly-sentenced prisoner, but, rather, sets
     forth the procedures and prerogatives associated with the
     transfer of an inmate from county to state detention. None of
     the provisions of section 9764 indicate[s] an affirmative
     obligation on the part of the DOC to maintain and produce the
     documents enumerated in subsection 9764(a) upon the request
     of the incarcerated person. Moreover, section 9764 neither
     expressly vests, nor implies the vestiture, in a prisoner of any
     remedy for deviation from the procedures prescribed within.

Woodens v. Glunt, 96 A.3d 365, 369-71 (Pa. Super. 2014) (footnotes

omitted; emphasis in original). Accordingly, this Court affirmed the order of

the lower court denying Woodens’ request for habeas corpus relief.



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     Instantly, Appellant contends that his argument is distinguishable from

that considered in Woodens, as he relies upon 42 Pa.C.S. § 9762 rather

than section 9764 for relief. Appellant’s Brief at 14. Appellant argues that

because his sentencing order, which uses the term “imprisonment,” is not a

“lawful court order” conforming to the mandates of 42 Pa.C.S. § 9762, he is

entitled to release. This statute governs where a criminal defendant can be

confined, a county jail or a state prison. See Commonwealth v.

Stalnaker, 376 Pa. Super. 181, 185 (1988) (concerning a trial court’s

discretion “with respect to determining the place for confinement under 42

Pa.C.S.A. § 9762(2).”).    Thus, similar to our holding in Woodens, we

conclude that Section 9762 “does not create any remedy or cause of action

for a prisoner….” 96 A.3d at 370. Accordingly, Appellant’s attempt to utilize

this statute to gain relief is in error; therefore, the PCRA court properly

denied Appellant’s petition for writ of habeas corpus ad subjiciendum.

     For the foregoing reasons, we affirm the order of the PCRA court

denying Appellant’s petition for writ of habeas corpus ad subjiciendum.5

     Order affirmed.



5
  Appellant also sets forth an incomprehensible argument that the lower
court erred in “disregarding his ‘Affidavit and Declaration in support of his
petition.’” Appellant’s Brief at 12. Appellant seems to be arguing that
anything he set forth in his affidavit must be true because it was
“unrebutted” by Giroux. Id. at 13. Appellant’s affidavit, attached to the
originally filed writ, merely restated his belief that his arguments are true.
The lower court’s failure to consider it is without merit, as we have already
concluded that Appellant is not entitled to relief.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2015




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