J-S44015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CARL WHITEHEAD,                              IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF CORRECTIONS,
SUPERINTENDENT GERALD L. ROZUM,

                        Appellees                  No. 390 WDA 2014


             Appeal from the Order Entered February 20, 2014
            In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD 14-920


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED AUGUST 13, 2014

     Appellant, Carl Whitehead, appeals from the trial court’s February 20,

2014 order denying his “Petition for Writ of Habeas Corpus Ad Subjiciendum”

(habeas corpus petition). We affirm.

     In September of 2000, Appellant was convicted, following a jury trial,

of involuntary deviate sexual intercourse, rape, aggravated assault, and

incest based on his sexual assault of his seven month old daughter.     On

September 25, 2000, Appellant was sentenced to an aggregate term of 35 to

70 years’ imprisonment.      This Court affirmed Appellant’s judgment of

sentence on April 25, 2002. He did not petition for permission to appeal to

our Supreme Court.
J-S44015-14



        On January 3, 2014, Appellant filed the pro se habeas corpus petition

at issue in this appeal.         Therein, he alleged that he was being illegally

detained because the Pennsylvania Department of Corrections (DOC)

violated 42 Pa.C.S. 9764(a) by not possessing copies of Appellant’s

“commitment form DC-300B generated from the Common Pleas Criminal

Court Case Management System of the unified judicial system….” 42 Pa.C.S.

§ 9764(a).1       Appellant also claimed that his sentence was illegal because
____________________________________________


1
    That section states:

        (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 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.
(Footnote Continued Next Page)


                                           -2-
J-S44015-14



the court’s sentencing order did not state a statute “authorizing the

imposition” of the sentence.             Habeaus Corpus Petition, 1/23/14, at 4

(unnumbered pages).

      On February 10, 2014, the trial court issued an order denying

Appellant’s habeas corpus petition. Appellant filed a timely notice of appeal.

Herein, he presents three issues for our review:

      (I) Did [the trial] court err and abuse it’s [sic] discretion by
      denying [Appellant] Article I, §[]11 access to the court, where a
      prima facie deprivation of constitutional rights was plead [sic]?

      (II) Did the [trial] court err by concluding [Appellant] is legally
      detained by Pa.D.O.C., based solely on sealed sentencing order,
      with no statutory authority to impose sentence in violation of 42
      Pa.C.S. §[]9795.4?
                       _______________________
(Footnote Continued)

          (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 which the county has notice.

42 Pa.C.S. § 9764(a).




                                            -3-
J-S44015-14


      (III) Did the [trial] court err and abuse it’s [sic] discretion by
      denying [the] habeas petition, where [Appellant] plead [sic] a
      prima facie violation of 42 Pa.C.S. § 9764, invalidating legality of
      detention?

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

      Appellant’s first and third issues raise nearly identical claims and,

therefore, we will address them together.       Essentially, Appellant contends

that he is being illegally detained because the DOC does not possess a DC-

300B commitment form as required by section 9764(a).

      Initially, we note that this appeal is properly before our Court, rather

than the Commonwealth Court. See Brown v. Penna. Dept. of Corr., 81

A.3d 814, 815 (Pa. 2013) (per curiam) (concluding that the appellant’s claim

that his confinement was illegal due to the failure of the DOC to produce his

written sentencing order in violation of 42 Pa.C.S. § 9764(a)(8) sounded in

habeas corpus and, therefore, Commonwealth Court did not have jurisdiction

over the appeal) (citing 42 Pa.C.S. § 761(a)(1) (providing that the

Commonwealth Court does not have original jurisdiction over matters

sounding   in   habeas   corpus   unless   ancillary   to   a   pending   appellate

proceeding)).    We also note that Appellant’s first and third issues were

appropriately raised in a habeas petition, and are not subsumed by the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.            See Joseph v.

Glunt, 2014 WL 2155396, *3 (Pa. Super. 2014) (treating the appellant’s

claim that his sentence is illegal because the DOC violated 42 Pa.C.S. §

9764(a)(8) by not producing a written sentencing order as a petition for writ

of habeas corpus rather than a petition under the PCRA) (citing Brown, 81

                                     -4-
J-S44015-14



A.3d at 815)). Accordingly, we will review these claims with the following

legal principles in mind:

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

      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
      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, 2014 WL 2155396 at *3.

      In Joseph, we addressed a very similar claim as that presented by

Appellant. There, the appellant filed a “Petition for Writ of Habeas Corpus Ad

Subjiciendum,” averring that “his sentence is illegal, and that his rights

under the United States and Pennsylvania Constitutions have been violated,

because the [DOC] … ‘does not possess a lawful court order signed by [the

sentencing court] authorizing any lawful restraint of [the appellant’s] body.’”

Id. at *1. The appellant in Joseph claimed that his sentence violated 42

Pa.C.S. § 9764(a)(8) and, consequently, that he should be immediately

released. Id. In rejecting this argument 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

                                     -5-
J-S44015-14


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

Id. at *5 (footnote omitted).2

       Despite that Joseph addressed the DOC’s failure to produce a written

sentencing order under subsection (a)(8) of section 9764, the language of

our holding clearly applies to all “documents enumerated in subsection

9764(a)….” Id. Consequently, we conclude that Appellant’s claim that his

detention is illegal because the DOC failed to produce a DC-300B

commitment form is meritless and does not entitle Appellant to habeas

relief.3

____________________________________________


2
   Our holding in Joseph adopted the rationale expressed by the
Commonwealth Court in an unpublished memorandum decision, Travis v.
Giroux, 2013 WL 6710773 (Pa. Cmwlth. 2013).
3
  In any event, we would conclude that Appellant failed to prove that the
DOC does not possess a copy of his DC-300B commitment form. In support
of this allegation, Appellant explained in his habeas corpus petition that he
wrote to the Department of Court Records (DCR) and requested copies of his
sentencing order. In response, a DCR official sent Appellant a letter stating
that “[w]hen [Appellant] was received into DOC custody, the Department
received sealed Sentencing Orders.” Habeaus Petition at 4 (unnumbered
pages). Appellant interprets this language as indicating that the only
documents the DOC received were Appellant’s sentencing orders, thus
violating section 9764(a)’s requirement that the DOC also obtain his DC-
300B commitment form. Appellant’s argument is speculative and would not
convince us that he is entitled to any relief, even if a remedy for a violation
of section 9764(a) were available.




                                           -6-
J-S44015-14



      In Appellant’s remaining issue, he avers that his sentence is illegal

because the sentencing order does not provide “statutory authorization for

the sentence imposed….” Appellant’s Brief at 10. In support of this claim,

Appellant confusingly argues that the trial court was required to issue an

order, within 10 days of his conviction, directing the Sexual Offenders

Assessment Board (SOAB) to conduct a sexually violent predator (SVP)

assessment. Id. at 11. Appellant alleges that such an order was not issued

in this case, rendering his sentence illegal. Id.

      We acknowledge that Appellant’s legality of sentencing claim is

arguably cognizable under the PCRA and subject to its one-year time-bar.

See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011).

However, we decline to assess this question because Appellant has clearly

waived this issue for our review.        Appellant’s argument regarding the

omitted SOAB assessment was not raised in his habeas corpus petition.

Therefore, it is waived.   Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

Appellant provides no other argument to support his general assertion

(which was presented in his habeas corpus petition) that his sentence is

illegal because the sentencing order did not state the statutory authority

permitting the court to impose the sentence.        Consequently, this claim is

also waived.    See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.

Super. 2007) (stating “it is an appellant’s duty to present arguments that

are sufficiently developed for our review[,’]” including “pertinent discussion,

                                     -7-
J-S44015-14



with references to the record and with citations to legal authorities[;]” when

an appellant’s failure to do so “impedes our ability to conduct meaningful

appellate review, we may dismiss the appeal entirely or find certain issues to

be waived”).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2014




                                    -8-
