J-S12003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

BRANDON NEIL CAVANAUGH

                         Appellant                     No. 902 MDA 2016


               Appeal from the Order Entered May 18, 2016
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0003471-2006


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                             FILED MARCH 10, 2017

      Appellant, Brandon Neil Cavanaugh, appeals pro se from the trial court

order entered in the Dauphin County Court of Common Pleas denying his

habeas corpus petition. As we find that the trial court correctly determined

that it was without jurisdiction to entertain Appellant’s petition, we affirm.

      Appellant pled guilty to aggravated indecent assault of a person less

than thirteen years of age, and was sentenced on August 16, 2007, to three

to ten years’ imprisonment. The trial court gave Appellant credit for all time

served. Therefore, Appellant’s minimum release date was calculated as July

25, 2010, and his maximum release date as July 25, 2017.

      The Pennsylvania Board of Probation and Parole (“Board”) paroled

Appellant on July 31, 2012. However, on August 1, 2013, Appellant was

arrested for a new charge in York County. Around this time, the Board
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placed a parole detainer on Appellant for a technical parole violation. On

April 22, 2014, Appellant pleaded guilty to the new charges and was

sentenced on those charges to one and a half to three years’ imprisonment.

      On July 10, 2014, the Board notified Appellant that following his parole

violation for gaining new charges, his maximum release date on his original

sentence had been recalculated to April 16, 2019. Appellant filed a request

for relief with the Board, challenging the April 16, 2019 extension of his

sentence. Following a hearing, the Board denied Appellant’s challenge to the

recalculation of his maximum date on February 9, 2016. Appellant then filed

a petition for writ of habeas corpus with the trial court on May 11, 2016. The

trial court dismissed Appellant’s petition for lack of jurisdiction. This timely

appeal follows.

      On appeal, Appellant raised the following issues for our review.

      1. Did the [trial] court err, as a matter of law, by dismissing
         Appellant’s pro se writ of habeas corpus to compel the
         Pennsylvania Board of Probation and Parole to abide by the
         [trial] court’s original sentence, claiming to not have subject
         matter jurisdiction?

      2. Did the [trial] court err by allowing it’s [sic] authority to be
         usurped by the Pennsylvania Board of Probation and Parole,
         as a matter of law, by permitting the Pennsylvania Board of
         Probation and Parole to illegally extend the maximum
         sentence imposed by the court, thus directly violating
         Appellant’s constitutional rights?

Appellant’s Brief, at 3 (some capitalization omitted).

      Appellant’s   first   issue   on   appeal   challenges   the   trial   court’s

determination that it lacked subject matter jurisdiction to hear Appellant’s


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petition. See Appellant’s Brief, at 3, 8-10. The Commonwealth contends that

the trial court correctly determined that it lacked subject matter jurisdiction

as appeals from decisions of the Board are within the exclusive jurisdiction of

the Commonwealth Court. See Commonwealth’s Brief, at 3, 5. Appellant

conceded that case law provides that the Commonwealth Court has

jurisdiction over challenges to decisions of the Board. See Appellant’s Brief,

at 9. However, Appellant contends that the trial court had jurisdiction over

his petition because the trial court “has jurisdiction to hear a matter dealing

with the altering of their original sentencing order by a non-judicial body.”

Id.
            For prisoners whose maximum sentence is two or more
      years, the Board has the exclusive power “to parole and
      reparole, commit and recommit for violations of parole, and to
      discharge from parole. . . .” 61 P.S. § 331.17. The Board may
      extend the expiration of an offender’s maximum sentence upon
      his recommitment as a convicted parole violator. 61 P.S. §
      331.21a; Eckert v. Pa. Bd. of Probation and Parole, 33
      Pa.Cmwlth. 390 A.2d 1030 (1978)

             A parolee may request administrative review of a Board
      determination “relating to revocation decisions,” within thirty
      days of the mailing date of the Board’s determination. 37 Pa.
      Code § 73.1(b)(1); accord Cadogan v. Commonwealth, Pa.
      Bd. of Probation and Parole 116 Pa. Cmwlth. 249, 541 A.2d
      832, 833 (1988) (construing former 37 Pa. Code § 71.5(h)).
      Appellate review of administrative parole orders, i.e., orders
      issued by the Board as opposed to parole orders issued by
      common pleas courts, is within the exclusive jurisdiction of the
      Commonwealth Court. Commonwealth v. McDermott, 377 Pa.
      Super. 623, 547 A.2d 1236 (1988); see also Commonwealth
      v. Fells, 513 Pa. 18, 518 A.2d 544 (1986) (holding that
      questions concerning orders of the Board are in the appellate
      jurisdiction of the Commonwealth Court); Evans v. Pa. Dept. of
      Corrections, 713 A.2d 741, 743 (Pa. Cmwlth. 1998) (holding
      that an appeal from a Board decision extending the defendant’s

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        maximum release date was within the Commonwealth Court’s
        appellate jurisdiction).

Com., Dept. of Corrections v. Reese, 774 A.2d 1255, 1259-1260 (Pa.

Super. 2001).

        Here, it is clear that our precedent requires Appellant to appeal his

denial of his petition with the Board to the Commonwealth Court. Appellant

instead choose to file a petition for writ of habeas corpus with the trial court.

While Appellant contends that he was unaware of the correct appellate

procedure, we note that he did not file his petition with the trial court until

two months after his appeal period to the Commonwealth Court had lapsed.

Under these circumstances, it appears Appellant was using his petition for

writ of habeas corpus as a way to skirt his lapsed appeal period and

preserve a challenge to the Board’s recalculation of his maximum release

date.

        Further, Appellant’s reasoning for the trial court’s jurisdiction fails as

the Board has express statutory power to recalculate a convicted parole

violator’s   maximum      sentence   upon    recommitment.     See   61   P.S.   §

6138(a)(2) (detailing procedure for recalculation of time upon recommitment

of parole violator). Thus, because Appellant did not establish alternate

jurisdiction, and as jurisdiction for appeals from the Board’s recalculation of

a maximum release date is solely vested in the Commonwealth Court, we

find that the trial court correctly determined that it did not have jurisdiction

to hear this matter.

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     As we have determined that the trial court did not have jurisdiction to

hear Appellant’s petition, we need not reach the merits of Appellant’s second

contention on appeal.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017




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