J-S25003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA EX                 IN THE SUPERIOR COURT OF
REL. THEODORE W. SCHELL, SR.,                         PENNSYLVANIA

                            Appellant

                       v.

CYNTHIA R. LINK, SUPERINTENDENT SCI
GRATERFORD,

                            Appellee                 No. 3383 EDA 2016


                Appeal from the Order Entered October 21, 2016
               In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 2016-008073


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 20, 2017

       Theodore W. Schell, Sr., appeals from the trial court’s October 21,

2016 order denying his petition for writ of habeas corpus ad subjiciendum,

which was filed in the civil division of the Court of Common Pleas of

Delaware County. After careful review, we vacate the trial court’s order and

remand for further proceedings.

       Briefly, in 1976, Schell was convicted by a jury of two counts of first-

degree murder, and other related offenses, based on evidence that he shot

and killed his mother-in-law and father-in-law.1     According to this Court’s
____________________________________________


1
 We note that we do not have the certified record of Schell’s criminal case,
which underlies the claims he raised in his petition for writ of habeas corpus.
Our understanding of his convictions and sentence was gleaned from this
Court’s decision disposing of his direct appeal. See Commonwealth v.
(Footnote Continued Next Page)
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decision affirming Schell’s judgment of sentence, the trial court sentenced

Schell     on   September      14,     1977,     to   “two   concurrent   terms   of   life

imprisonment       for    [Schell’s]    first[-]degree       murder   convictions”     and

“sentences for all other convictions were suspended.”                 Schell, No. 1830

Philadelphia 1983, unpublished memorandum at 2.

         On September 19, 2016, Schell commenced the instant litigation by

filing a writ of habeas corpus in the civil division of the Court of Common

Pleas of Delaware County. In that petition, Schell essentially claimed that,

while he had been sentenced to two terms of life imprisonment, the written

“Order of Sentence” filed by the trial court (which Schell attached to his

petition) defined a ‘life’ term as 7½ to 15 years, and the court imposed

those terms to run consecutively, resulting in an aggregate sentence of 15

to 30 years’ incarceration. Schell further asserted that he has completed his

maximum sentence, yet he is still being illegally detained. See Petition for

Writ of Habeas Corpus, 9/19/16, at 4.

         In dismissing Schell’s petition for writ of habeas corpus, the trial court

reasoned that Schell “raise[d] claims regarding the legality of sentence…,

which clearly fall under the PCRA.”                    TCO at 2 (citing, inter alia,

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (“Issues

                       _______________________
(Footnote Continued)

Schell, No. 1830 Philadelphia 1983, unpublished memorandum at 2 (Pa.
Super. filed August 30, 1985).




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concerning the legality of sentence are cognizable under the PCRA.”)

(citation omitted)). The court further stressed:

      In Pennsylvania, it is well[-]settled that the PCRA is intended to
      be the sole means of obtaining collateral relief and encompasses
      all other common law and statutory remedies for the same
      purpose, including habeas corpus. Commonwealth v. Taylor,
      65 A.3d 462, 465-66 (Pa. Super. 2013) (citations omitted).
      Issus that are cognizable under the PCRA must be raised in a
      timely PCRA petition and cannot be raised in a habeas corpus
      petition. Id.

Id. at 1.   Consequently, the trial court held that Schell’s “petition should

have been filed pursuant to the PCRA in the criminal division of the Delaware

County Court of Common Pleas under his criminal docket numbers.” Id. at

2.

      Upon carefully reviewing Schell’s petition for writ of habeas corpus, we

disagree with the trial court that his claims are cognizable under the PCRA.

It is apparent that the core of his argument is not a challenge to the legality

of his underlying sentence; rather, Schell is arguing that his detention is

illegal because he finished serving the maximum sentence, as defined by the

court’s September 14, 1977 sentencing order.             Such a claim is not

cognizable under the PCRA, and we ascertain “no other remedy” that would

be “available for the condition [Schell] alleges[,]” other than a filing a writ of

habeas corpus petition.     Com. ex rel. Fortune v. Dragovich, 792 A.2d

1257, 1258 (Pa. Super. 2002) (discussing when a writ of habeas corpus may

be used). Compare Joseph v. Glunt, 96 A.3d 365, 368 (Pa. Super. 2014)

(concluding that appellant properly filed a writ of habeas corpus, rather than


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a PCRA petition, where he argued that he was being illegally detained

because the Department of Corrections did not possess a valid sentencing

order).

      Accordingly, we conclude that the trial court erred by dismissing

Schell’s petition on the basis that he was required to raise his claims in a

PCRA petition.      That being said, we agree with the court that Schell

incorrectly filed his petition for writ of habeas corpus in the civil division of

the Court of Common Pleas of Delaware County.          Our Supreme Court has

stated that “matters sounding in habeas corpus lie in the jurisdiction and

venue of the court of record from which the order of detention came.”

Brown v. DOC, 81 A.3d 814, 815 (Pa. 2013) (per curiam) (citing

Commonwealth ex. rel. Bryant v. Hendrick, 280 A.2d 110, 112 (Pa.

1971); Warren v. DOC, 616 A.2d 140, 143 (Pa. Cmwlth. 1992); 42 Pa.C.S.

§ 6502).       Here, the sentencing order underlying Schell’s detention was

issued by a trial court in the criminal division of the court of common pleas.

Therefore, we vacate the trial court’s order dismissing Schell’s petition for

writ of habeas corpus, and remand for the court to transfer Schell’s petition

to the criminal division of the Court of Common Pleas of Delaware County,

utilizing the applicable docket numbers assigned to Schell’s underlying

convictions.

      Order vacated. Case remanded for further proceedings.          Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2017




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