J-S71037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JASON ISAAC WEST,

                             Appellant                No. 312 EDA 2017


                     Appeal from the Order January 4, 2017
              in the Court of Common Pleas of Montgomery County
                Criminal Division at No.: CP-46-CR-0004823-2004


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 08, 2018

        Appellant, Jason Isaac West, appeals pro se from the order of January

4, 2017, denying his petition for a writ of Habeas Corpus Ad Subjiciendum

(petition). For the reasons discussed below, we dismiss.

        In January 2005, a jury convicted Appellant of murder of the first

degree, attempted murder, aggravated assault, and various weapons

offenses.    On August 31, 2005, the trial court sentenced Appellant to life

imprisonment.       The court also sentenced him to an aggregate term of

incarceration of not less seven and one-half nor more than fifteen years

consecutive to the term of life imprisonment on the charge of attempted


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*   Retired Senior Judge assigned to the Superior Court.
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murder. Further, it sentenced him to a term of incarceration of not less than

six nor more than twenty-three months concurrent to the term of life

imprisonment on the weapons offenses.

       On November 28, 2006, this Court affirmed the judgment of sentence.

(See    Commonwealth v.         West,      915    A.2d   153   (Pa.   Super.   2006)

(unpublished memorandum)). The Pennsylvania Supreme Court denied leave

to appeal on July 31, 2007. (See Commonwealth v. West, 929 A.2d 645

(Pa. 2007)). On July 22, 2008, Appellant filed a timely petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court

dismissed the petition on November 27, 2009.             This Court subsequently

affirmed the dismissal of Appellant’s PCRA petition.

       On March 24, 2015, Appellant filed a petition for a writ of Habeas Corpus

Ad Subjiciendum, alleging that he was eligible for immediate release because

of the illegality of the sentencing order. (See Petition for a Writ of Habeas

Corpus Ad Subjiciendum, 3/24/15, at 4). The trial court denied the petition

on April 1, 2015.

       On December 27, 2016, Appellant filed the instant petition.             In the

petition, Appellant alleged that the Pennsylvania Department of Corrections

(DOC)    had   incorrectly   interpreted    the   sentencing    order   and,    thus,

miscalculated his sentence. (See Petition, 12/27/16, at 2-3). On January 4,




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2017, the trial court dismissed the petition.         The instant, timely appeal

followed.1

       On appeal, Appellant raises the following questions for our review:

              I. Whether the trial court abused its discretion and/or
       committed an error of law in denying and dismissing Appellant[’]s
       [petition] without a hearing or rule to show cause, and did the
       Appellant[’]s petition state sufficient material facts that would
       entitle Appellant to habeas relief?

            [II.] Whether the record supports that Appellant was
       sentenced in accordance with 42 Pa.C.S.[A.] § 9711?

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

       Appellant appeals from the denial of his petition.        “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 where

the court has misapplied the law or exercised its discretion in a manner lacking

reason.” Rivera v. Pa. Dep't of Corr., 837 A.2d 525, 528 (Pa. Super. 2003),

appeal denied, 857 A.2d 680 (Pa. 2004) (citations and quotations omitted).

       In his first issue, Appellant argues that the trial court erred in dismissing

his petition without holding a hearing or issuing a rule to show cause. (See

Appellant’s Brief, at 8-11). We disagree.


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1 On January 19, 2017, the trial court directed Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on February 3, 2017. On
March 28, 2017, the trial court issued an opinion. On July 28, 2017, without
seeking leave of court as required by Pennsylvania Rule of Appellate Procedure
1925(b)(2), Appellant filed a supplemental Rule 1925(b) statement. See
Pa.R.A.P. 1925(b)(2).

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      In Commonwealth v. Perry, 563 A.2d 511 (Pa. Super. 1989), this

Court explained the proper method for contesting the DOC calculation of

sentence as follows:

             If the alleged error is thought to be the result of an
      erroneous computation of sentence by the Bureau of Corrections,
      then the appropriate vehicle for redress would be an original
      action in the Commonwealth Court challenging the Bureau’s
      computation. If, on the other hand, the alleged error is thought
      to be attributable to ambiguity in the sentence imposed by the
      trial court, then a writ of habeas corpus ad subjiciendum lies to
      the trial court for clarification and/or correction of the sentence
      imposed.

Perry, supra at 512-13 (citations omitted); see also Commonwealth v.

Heredia, 97 A.3d 392, 395 (Pa. Super. 2014), appeal denied, 104 A.3d 524

(Pa. 2014).

      Here, in his petition, Appellant claimed that, “PA DOC officials have

incorrectly calculated [his] sentence, and delated a sentencing condition

imposed by the courts which results in a[n] illegal detention[.]”    (Petition,

12/27/16, at 2).   He further stated, “[Appellant] contends that the [DOC]

calculation of the sentence is wrong.” (Id. at 3). At several points throughout

the petition, Appellant alleged that the sentencing order was “clear.” (Id. at

6; see also id. at 4-5). Appellant makes the same argument in his appellate

brief. (See Appellant’s Brief, at vi). At no point in his brief does Appellant




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argue that the sentencing order was illegal or ambiguous,2 a contention, as

we noted above, that he made in a previous petition for a writ of habeas

corpus. (See id. at 1-3). Thus, Appellant does not claim that the sentence

imposed by the trial court was ambiguous, but rather that the DOC was not

properly applying it. (See Appellant’s Brief, at 8 (discussing proper procedure

to challenge DOC’s computation or construction of sentence); see also id. at

9 (claiming DOC deleted sentencing condition)).       Thus, because Appellant

claims that the problem lies with the DOC’s interpretation of the sentencing

order and not any inherent ambiguity in the sentencing order itself, he is not

entitled to relief on his petition but rather must file an original action in the

Commonwealth Court in order to address his claim. See Perry, supra at

512-13; see also Heredia, supra at 395; Cf., Commonwealth v. Owens,

936 A.2d 1090, 1091-92 (Pa. Super. 2007), appeal denied, 951 A.2d 1162

(Pa. 2008) (holding claim that trial court failed to give credit for time served

on house arrest was based upon ambiguity in sentence rather than

computational error by DOC and was thus properly raised in habeas corpus

petition filed in trial court).




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2  Rather, if anything, Appellant’s claim is that both DOC and the
Commonwealth are misinterpreting the sentencing order, not that the order
itself is ambiguous. (See Appellant’s Brief, at 1-3).

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      In his second claim, Appellant argues that the trial court did not

sentence him in accordance with 42 Pa.C.S.A. § 9711. (See Appellant’s Brief,

at 12). However, this claim is not properly before us.

      Appellant’s contention is a challenge to the legality of his sentence and

thus Appellant must raise it in a timely PCRA petition, not a petition for a writ

of habeas corpus. See Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.

Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008) (Pennsylvania courts

have consistently held that, so long as it falls within ambit of PCRA, any claims

filed after judgment of sentence is final must be raised in PCRA petition).

      Accordingly, for the reasons discussed above, we dismiss this appeal.

      Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/18




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