J-S48024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JOHN ELLSWORTH O’HARA,                  :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
           v.                           :
                                        :
NANCY GIROUX – SUPERINTENDENT,          :
                                        :
                  Appellee              :   No. 15 WDA 2015

              Appeal from the Order entered December 9, 2014,
                    Court of Common Pleas, Erie County,
                       Civil Division at No. 12860-2014

BEFORE: PANELLA, DONOHUE and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED AUGUST 11, 2015

     Appellant, John Ellsworth O’Hara (“O’Hara”), appeals pro se from the

order entered on December 9, 2014 by the Court of Common Pleas of Erie

County, Civil Division, denying his petition for writ of habeas corpus ad

subjiciendum. For the reasons that follow, we affirm.

     O’Hara is currently serving twenty-seven to fifty-five years of

incarceration in state prison for his convictions of burglary, possessing

instruments of crime, and aggravated indecent assault in 1990. See Petition

for Writ of Habeas Corpus Ad Subjiciendum, 10/10/14, at vi.     On October

10, 2014, O’Hara filed a petition for writ of habeas corpus ad subjiciendum

(hereinafter “habeas petition”) in which he asserted that the Department of

Corrections (“DOC”) does not have the authority to incarcerate him because

it does not possess the required documentation under section 9764 of the
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Sentencing Code, 42 Pa.C.S.A. § 9764, specifically a copy of his sentencing

order. See Habeas Petition, 10/10/14, at 1-9. Attached to O’Hara’s habeas

petition was correspondence from the DOC documenting his efforts to obtain

a copy of his written sentencing order and informing him that the record

does not currently exist. See id. at Exhibit A.

      On December 9, 2014, the trial court denied O’Hara’s petition without

a hearing, determining that his “request for relief is neither substantiated

nor supported by any statute, regulation, precedent, or appropriate case

law” and that section 9764 “creates no remedy for relief, or cause of action

for failure of the [DOC] to have a copy of [O’Hara]’s sentencing order.” Trial

Court Order, 12/9/14. On December 30, 2014, O’Hara filed a timely notice

of appeal.

      O’Hara’s pro se appellate brief is nearly incomprehensible and the

statement of the questions involved section of his brief raises nine issues

that are equally difficult to understand. From what we are able to discern,

O’Hara raises two issues on appeal:        (1) that the trial court erred in

dismissing his habeas petition and (2) that the trial court erred in dismissing

his habeas petition without a hearing.     See O’Hara’s Brief at 12-22.    Our

standard of review in this context is as follows:

             Under Pennsylvania statute, habeas corpus is a civil
             remedy that 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



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           exhausted or are not available. 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.

Joseph v. Glunt, 96 A.3d 365, 369 (Pa. Super. 2014) (quotations, citations,

and brackets omitted), appeal denied, 101 A.3d 787 (Pa. 2014).

     First, O’Hara argues that the trial court erred in dismissing his habeas

petition. See O’Hara’s Brief at 12-22. O’Hara asserts that the DOC does not

have the authority to incarcerate him because it does not possess a copy of

his sentencing order, which he contends is required to incarcerate him under

section 9764 of the Sentencing Code.        See id.     We conclude that this

argument does not entitle O’Hara to any relief.

     The relevant subsection of section 9764 provides as follows:

           (a) General rule.--Upon commitment of an inmate
           to the custody of the Department of Corrections, 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:

                 (1) Record of adjustment in the county
                 correctional facility, including, but not limited
                 to, misconducts and escape history.

                 (2) Any current medical or psychological
                 condition requiring treatment, including, but
                 not limited to, suicide attempts.

                 (3) All medical records of the county
                 correctional institution relating to the inmate to
                 the extent that those records may be disclosed



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                 under Federal and State law. The records shall
                 include admission testing performed by the
                 county and the results of those tests and any
                 testing   related   to    hepatitis,  HIV/AIDS,
                 tuberculosis or other infectious disease testing.

                 (4)   Notice  of    current     or    previously
                 administered medications.

                 (5) A 48-hour supply of current medications.

                 (6) A written statement by the county
                 correctional  institution  relating  to  any
                 sentencing credit to which the inmate may be
                 entitled.

                 (7) A written statement by the county
                 correctional institution setting forth all of the
                 following:

                       (i) The dates on which the inmate was
                       incarcerated.

                       (ii) The charges pending against the
                       inmate with the offense tracking number.

                       (iii) The date on which the inmate was
                       released on bail, if any, and a copy of the
                       bail order.

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

42 Pa.C.S.A. § 9764(a) (emphasis added).

     In Joseph, cited hereinabove, our Court faced a similar challenge to

the DOC’s authority to incarcerate a prisoner under section 9764(a)(8). See

Joseph, 96 A.3d at 366-72. Our Court relied on a memorandum decision

from the Commonwealth Court in reaching its conclusion that section



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9764(a)(8) did not afford the appellant any relief. Id. at 370. This Court

explained:

             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 regulates the exchange of
                  prisoner information between the state
                  and county prison system, and does not
                  provide a basis for habeas relief.

Id. (quoting Travis, 2013 WL 6710773, at *3) (emphasis in original).

     Finding Travis probative and instructive, our Court held:

             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 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



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             implies the vestiture, in a prisoner of any remedy for
             deviation from the procedures prescribed within.

Id. at 371 (footnote omitted).

      Therefore, based on Joseph, O’Hara has no basis on which to argue

that the DOC does not have the authority to incarcerate him merely because

it does not possess a copy of his sentencing order.      Accordingly, the trial

court did not abuse its discretion in denying O’Hara’s habeas petition.

      Second, O’Hara argues that the trial court erred in dismissing his

habeas petition without a hearing. See O’Hara’s Brief at 12-22. This Court

has long held that where a habeas petition does not present any factual

issues and only presents question of law, a hearing on the petition is not

necessary.       Commonwealth v. Smythe, 195 A.2d 187, 189 (Pa. Super.

1963). Here, O’Hara’s habeas petition only raises a question of law, namely,

that the DOC does not have the authority to incarcerate him because it does

not possess a copy of his sentencing order.      Because the habeas petition

does not present any factual issues, a hearing on the petition was not

necessary in this case. Accordingly, O’Hara’s second issue does not entitle

him to relief.

      Order affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2015




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