J-S38029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

ANTHONY HOBAN,

                          Appellant                 No. 2288 EDA 2015


                  Appeal from the Order Entered July 17, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002389-1998

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS JJ.*

MEMORANDUM BY OLSON, J.:                              FILED JULY 18, 2016

        Appellant, Anthony Hoban, appeals pro se from the order entered on

July 17, 2015 denying his petition for a writ of habeas corpus. We affirm.

        The relevant factual background and procedural history of this case

are as follows. On January 12, 1999, Appellant pled guilty to burglary,1 theft

by unlawful taking,2 carrying a firearm without a license,3 and possession of

a controlled substance.4 On April 29, 1999, Appellant was sentenced to an

aggregate term of five to ten years’ imprisonment.      For reasons that are


1
    18 Pa.C.S.A. § 3502(a).
2
    18 Pa.C.S.A. § 3921(a).
3
    18 Pa.C.S.A. § 6106(a)(1).
4
    35 P.S. § 780-113(a)(16).

* Judge Jenkins did not participate in the consideration or decision of this
case. This case is decided by a two-judge panel pursuant to 210 Pa. Code
§ 65.5(C)(2)(a).
J-S38029-16


unclear in the record, Appellant’s maximum sentence date was calculated as

March 2, 2019.

      In August 2012, Appellant was granted pre-release.         On June 17,

2013, Appellant was notified by the Pennsylvania Board of Probation and

Parole (“PBPP”) that, pursuant to 2012 P.L. 1050 (“Act 122”), he was no

longer eligible for pre-release.   Thus, Appellant was re-committed to the

State Correctional Institution at Fayette (“SCI-Fayette”).

      Appellant filed an administrative appeal, and the PBPP denied that

appeal. Appellant thereafter filed a petition for review in the Commonwealth

Court of Pennsylvania.    The Commonwealth Court dismissed the petition.

Hoban v. PBPP, 300 C.D. 2015 (Pa. Cmwlth. Mar 24, 2015) (per curiam).

On April 13, 2015, Appellant filed the instant petition for a writ of habeas

corpus. On July 17, 2015, the trial court denied the petition. This timely

appeal followed.

      Appellant presents two issues for our review:

      1. Does not a [c]onstitutionally protected liberty interest exist[]
         where Appellant was released into society on pre-release and
         then through no fault of his own sent back to prison without
         any procedural safeguards, due to the eradication of pre–
         release pursuant to Act 122?

      2. Did not this [s]tate action violate Appellant’s [d]ue [p]rocess
         rights   under    the    United   States   and     Pennsylvania
         Constitutions?

Appellant’s Brief at 5.




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      Preliminarily, we address the Commonwealth’s contention that because

Appellant lacked any liberty interest in his pre-release status, the trial court

and this Court lack jurisdiction over the instant case.            Subject matter

jurisdiction is a pure question of law, therefore our standard of review is de

novo and our scope of review is plenary. See Roman v. McGuire Mem’l,

127 A.3d 26, 30 (Pa. Super. 2015), appeal denied, 134 A.3d 57 (Pa. 2016)

(citation omitted).

      The Commonwealth’s argument conflates subject matter jurisdiction

with the merits of the underling claim.               “Generally, subject matter

jurisdiction [is] defined as the court’s power to hear cases of the class to

which the case at issue belongs.” Paluti v. Cumberland Coal LP, 122 A.3d

418, 423 (Pa. Super. 2015) (citation omitted).            On the other hand, the

merits of the underlying claim relate to whether or not a litigant is entitled to

relief based upon the law and the factual circumstances of that case.

      It   is   well-settled   that   the   courts   of   common   pleas   of   this

Commonwealth possess subject matter jurisdiction to consider habeas

corpus petitions. 42 Pa.C.S.A. § 6502(a). Furthermore, venue is proper in

the court of common pleas which originally ordered the petitioner’s

confinement. Pa.R.Crim.P. 108(a). Thus, if Appellant’s filing were a proper

habeas corpus petition, the trial court possessed subject matter jurisdiction

to reach the merits of the petition. On the other hand, if Appellant’s petition

is properly considered a petition for review within the original jurisdiction of



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the Commonwealth Court or a Post-Conviction Relief Act (“PCRA”) petition,

the trial court lacked subject matter jurisdiction to reach the merits of the

petition.

      We first consider whether the Commonwealth Court had exclusive

jurisdiction over Appellant’s petition.   The Commonwealth Court possesses

exclusive, original jurisdiction over “civil actions or proceedings [ ... a]gainst

the Commonwealth government, including any officer thereof, acting in his

official capacity    except[ ] actions or proceedings in the nature of

applications for a writ of habeas corpus or post-conviction relief not ancillary

to proceedings within the appellate jurisdiction of the court[.]” 42 Pa.C.S.A.

§ 761(a)(1). In a challenge to an action taken by the PBPP, the nature of

the allegations of error and the relief sought determine whether the case

comes within the Commonwealth Court’s exclusive original jurisdiction.

McGriff v. PBPP, 809 A.2d 455, 458 (Pa. Cmwlth. 2002), aff’d, McGriff v.

PBPP, 838 A.2d 564 (Pa. 2003) (per curiam).

      We find instructive our Supreme Court’s decision in Brown v. PBPP,

81 A.3d 814 (Pa. 2013) (per curiam). In Brown, our Supreme Court held

that the petitioner’s request to be released from prison was correctly

considered a habeas corpus petition. Id. at 815. Our Supreme Court noted

that Brown “principally [was] testing the legality of his commitment and

detention[.]”    Id. (internal alteration, quotation marks, and citations

omitted).   Our Supreme Court reasoned that this type of relief made the



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petition fall under the guise of habeas corpus and not under the

Commonwealth Court’s jurisdiction.       Id.   Therefore, our Supreme Court

ordered the petition transferred to the appropriate court of common pleas.

       In this case, Appellant is seeking his release from prison. He argues

that his confinement in SCI-Fayette is illegal because the elimination of the

pre-release program pursuant to Act 122 deprived him of due process of

law.   Although this differs from Brown’s argument that he was illegally

detained in a state correctional institution because of the lack of a written

sentencing order, the gravamen of both cases involves the contention that

the petitioners were unlawfully detained in a state correctional institution.

The exact reason for that illegal detention is immaterial to determining if the

petition properly lies in the Commonwealth Court’s original jurisdiction.

Accordingly, we conclude that, like in Brown, the Commonwealth Court did

not possess exclusive, original jurisdiction over Appellant’s petition.

       We next turn to whether the trial court should have considered

Appellant’s filing a PCRA petition. The PCRA

       provides for an action by which persons convicted of crimes they
       did not commit and persons serving illegal sentences may obtain
       collateral relief. The action established in [the PCRA] shall be
       the sole means of obtaining collateral relief and encompasses all
       other common law and statutory remedies for the same purpose
       that exist when [the PCRA] takes effect, including habeas corpus
       and coram nobis.

42 Pa.C.S.A. § 9542. Our Supreme Court has explained that

       [t]he plain language of Section 9542 demonstrates quite clearly
       that the General Assembly intended that claims that could be


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     brought under the PCRA must be brought under that Act. No
     other statutory or common law remedy “for the same purpose”
     is intended to be available; instead, such remedies are explicitly
     “encompassed” within the PCRA.

Commonwealth v. Descardes, 2016 WL 1249964, at *5 (Pa. Mar. 29,

2016) (internal alteration and citation omitted; emphasis removed).

     In this case, Appellant’s claim – that his detention violates the Due

Process Clause – is not cognizable under the PCRA. In order for a claim to

be cognizable under the PCRA, a petitioner must be challenging his

underlying conviction and/or sentence. See id., citing Commonwealth v.

Peterkin, 722 A.2d 638, 640-641 (Pa. 1998). Appellant is not challenging

his underlying conviction or sentence. He concedes that his conviction and

sentence were lawful.    Instead, he challenges the revocation of his pre-

release status. The absence of any challenge to Appellant’s conviction and

sentence becomes plain when one acknowledges that Act 122, the legislative

enactment that eliminated the pre-release program, did not exist when

Appellant entered his guilty plea and received his sentence nor does it

purport to alter or impair the statutory authority underlying Appellant’s

guilty plea or punishment.     Therefore, the trial court properly did not

consider Appellant’s petition under the PCRA. As Appellant’s challenge is not

within the original jurisdiction of the Commonwealth Court nor is it within

the confines of the PCRA, Appellant’s filing is properly considered a habeas

corpus petition.   The Court of Common Pleas of Delaware County had

jurisdiction over the petition and venue was proper in that county.


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Accordingly, we reject the Commonwealth’s argument that the trial court

(and thus this Court) lacked jurisdiction to consider the merits of Appellant’s

habeas corpus petition.

      Turning to the merits of Appellant’s two issues raised on appeal, he

argues that Act 122 denied him due process of law as it essentially revoked

his pre-release status without a hearing or any other procedural safeguard.

As the Commonwealth Court explained:

      In order to determine whether a constitutional violation has
      occurred, a determination must initially be made that a
      protected liberty interest exists and, if so, what process is due.
      Hagan v. Tirado, 896 F.Supp. 990 (C.D. Cal. 1995). Protected
      liberty interests may be created by either the Due Process
      Clause itself or by state law. Sandin v. Conner, 515 U.S. 472
      (1995); Wolff v. McDonnell, 418 U.S. 539 (1974). Where a
      liberty interest is not created by the Due Process Clause itself:

         States may under certain circumstances create liberty
         interests which are protected by the Due Process Clause.
         But these interests will be generally limited to freedom
         from restraint which, while not exceeding the sentence in
         such an unexpected manner as to give rise to protection
         by the Due Process Clause of its own force, see, e.g.,
         Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to
         mental hospital), and Washington v. Harper, 494 U.S.
         210, 221-222 (1990) (involuntary administration of
         psychotropic drugs), nonetheless imposes atypical and
         significant hardship on the inmate in relation to the
         ordinary incidents of prison life.

      Sandin, 515 U.S. at 483-484. In Sandin, the prisoner, Conner,
      complained that his segregation in a special holding unit for a
      disciplinary misconduct that was later expunged violated his due
      process rights. The [Supreme Court of the United States] held
      that “Conner’s discipline in segregated confinement did not
      present the type of atypical, significant deprivation in which a
      state might conceivably create a liberty interest” because it did
      not exceed other types of segregated confinement and, due to


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     the restrictions on prisoners outside of confinement at that
     prison, did not work a major disruption in his environment. Id.
     at 485.

     In Meachum v. Fano, 427 U.S. 215, 224 (1976), which
     involved transfers from a medium security prison to a maximum
     security prison, the Supreme Court [of the United States] held
     that the Due Process Clause does not protect every change in
     the conditions of confinement having a substantial adverse
     impact on the prisoner. Because the Due Process Clause is not
     so broad, it does not create a liberty interest in prisoners to be
     free from intrastate prison transfers. Id. at 225. Moreover, the
     [C]ourt stated, such transfers are within the normal limits of
     custody which the conviction authorizes the state to impose. Id.

     Just as in Sandin and Meachum, the Due Process Clause does
     not create a liberty interest in a prisoner’s participation in a pre-
     release program. [Lawson v. Com., Dep't of Corr., 539 A.2d
     69, 72 (Pa. Cmwlth. 1988)]. There is also no state-created
     liberty interest in the pre-release status that is protected by the
     Due Process Clause because the revocation is not the type of
     deprivation of the freedom from restraint required by the Court
     in Sandin. See Hagan, 896 F.Supp. at 995 (if an inmate
     placed in disciplinary segregation has no due process right to
     procedures established in state regulations, a fortiori an inmate
     placed in administrative segregation has no such due process
     right). The transfer of a prisoner into an SCI imposes no
     “atypical and significant hardship on the inmate in relation to the
     ordinary incidents of prison life” because an SCI is the place all
     prisoners ordinarily expect to serve their term, and there was
     nothing about [Wilder’s] placement or conditions in SCI-Camp
     Hill that was different from other residents of SCI-Camp Hill.

Wilder v. Dep’t of Corr., 673 A.2d 30, 32-33 (Pa. Cmwlth. 1996), appeal

denied, 681 A.2d 1344 (Pa. 1996) (internal alterations omitted); see Myers

v. Ridge, 712 A.2d 791, 795 (Pa. Cmwlth. 1998), appeal denied, 742 A.2d

173 (Pa. 1999).

     The United States Court of Appeals for the Third Circuit has similarly

held that an inmate in Pennsylvania has “neither an independent due


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process nor a state-created liberty interest in his revoked pre[-]release

status.”     Powell v. Weiss, 757 F.3d 338, 346 (3d Cir. 2014). Without a

liberty interest in the revocation of his pre-release status, Appellant is

unable to prove that his current detention in SCI-Fayette violates his due

process rights.     Accordingly, we affirm the denial of relief.5   See In re

Payne, 129 A.3d 546, 571 (Pa. Super. 2015) (citation omitted) (we may

affirm on any basis).

      Order affirmed.

      Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2016




5
  Appellant relies heavily on Young v. Harper, 520 U.S. 143 (1997), in
support of his argument that he had a liberty interest in his pre-release
status. Young, however, is distinguishable from the case at bar. Under the
Oklahoma pre-parole program at issue in Young, there was an implicit
understanding that pre-parole would not be revoked if the pre-parolee lived
up to his or her pre-parole conditions. Id. at 148. On the other hand,
under Pennsylvania’s pre-release program, an individual could have his pre-
release revoked for purely administrative reasons.      See 37 Pa. Code
§ 94.3(a)(10).


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