           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Gantz,                                  :
                            Appellant        :
                                             :
              v.                             :    No. 2180 C.D. 2015
                                             :    Submitted: May 6, 2016
Nancy Giroux, Dante Battles, et al.          :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                             FILED: July 13, 2016

              John Gantz (Gantz), representing himself, appeals from an order of
the Court of Common Pleas of Erie County (trial court) dismissing his writ of
habeas corpus ad subjiciendum1 (Petition) because he did not appeal the legality of
his sentence, and he was no longer in custody under the sentence he challenged.
Gantz argues the trial court erred in determining it was a prerequisite to directly
appeal his sentence and in considering his Petition an untimely request for post-
conviction relief under the Post Conviction Relief Act, 42 Pa. C.S. §§9541-9579
(PCRA). He asserts the trial court erred in finding he was not in custody at the
time he filed the Petition, such that the trial court was unable to grant habeas relief.
In addition, Gantz claims he was entitled to a hearing prior to dismissal.
Discerning a proper basis for dismissal below, we affirm.

       1
         “A writ of habeas corpus ad subjiciendum is defined as ‘[a] writ directed to someone
detaining another person and commanding that the detainee be brought to court.’” Pew v.
Mechling, 929 A.2d 1214, 1216 n.1 (Pa. Cmwlth. 2007) (quoting BLACK’S LAW DICTIONARY
715 (7th ed. 1999)).
                                      I. Background
              Gantz is an inmate currently incarcerated in State Correctional
Institution at Albion (SCI-Albion)2 as a convicted parole violator. In March 2015,
he entered a guilty plea to fleeing or attempting to elude, disorderly conduct and
careless driving, docketed at No. 2622 of 2014 in the criminal division of the trial
court (sentencing court). At the time of this plea, he was on state parole under the
supervision of the Pennsylvania Board of Probation and Parole (Board).


              On April 28, 2015, the sentencing court sentenced Gantz to 11½ to 23
months in the county prison, followed by 12 months of probation (Erie Sentence).
Gantz did not appeal the Erie Sentence to the Superior Court.


              The sentencing court issued an order paroling Gantz on June 18, 2015.
The Department of Corrections (DOC) then took him into custody for violating his
parole on his pre-existing conviction for theft of movable property, for which he
was sentenced to nine months to five years (Warren Sentence).


              Gantz filed the Petition in October 2015, while in custody on the
Warren Sentence. However, the Petition challenged the Erie Sentence, stating he
was currently serving a sentence as to “No. 2622 of 2014.” Certified Record
(C.R.), Item No. 9 (Petition at 2).




       2
         Nancy Giroux is the Superintendent at SCI-Albion. Dante Battles, another named
Appellee, is identified as the “[h]ead of Erie County Probation/Parole.” Certified Record, Item
No. 9.



                                              2
                Based on the public docket, the trial court dismissed the Petition.
Specifically, the trial court stated the Petition requested a “release from custody”
under the Erie Sentence, when Gantz did not take a direct appeal from that
sentence. C.R., Item No. 12. Additionally, the trial court noted Gantz was not in
custody on the Erie Sentence as of his parole date, June 18, 2015. Gantz appealed.
As directed by the trial court, Gantz filed his statement of errors complained of on
appeal, listing multiple errors.


                In its Pa. R.A.P. 1925(a) opinion, the trial court consolidated Gantz’s
list into three assignments of error as follows: (1) error in requiring a direct appeal
in order to challenge the legality of his sentence;3 (2) error in concluding Gantz was
not in custody; and, (3) error in not holding a hearing. The trial court reasoned the
Petition was improperly titled a “writ of habeas” when relief from a sentence must be
raised in a PCRA petition, within one year. It found the matter moot because Gantz
was no longer in custody under his Erie Sentence; instead, he was in custody as a
convicted parole violator on his Warren Sentence. Because Gantz was not serving
the Erie Sentence, the trial court concluded it lacked authority to grant relief. The
trial court explained a hearing was unnecessary because it was able to resolve the
issues on the record.




      3
          In context, the trial court appears to be referring to the Erie Sentence.




                                                   3
                                       II. Discussion
              On appeal,4 Gantz argues the trial court erred in concluding he was
required to file a direct appeal before challenging the legality of his sentence in the
Petition.   He asserts he may challenge the sentence as void because he was
confined without proper authority. He also contends he was “in custody” when
paroled from his Erie Sentence. Appellant’s Br. at 28. In addition, Gantz claims
he was entitled to a hearing on his Petition. Appellees did not file a brief.


                                     A. Habeas Relief
              Section 6503(a) of the Judicial Code provides that, “[e]xcept as
provided in subsection (b), an application for habeas corpus to inquire into the
cause of detention may be brought by or on behalf of any person restrained of his
liberty within this Commonwealth under any pretense whatsoever.” 42 Pa. C.S.
§6503(a). The exception in subsection (b) specifies that, “[w]here a person is
restrained by virtue of a sentence after conviction for a criminal offense, the writ of
habeas corpus shall not be available if a remedy may be had by post-conviction
hearing proceedings authorized by law.” 42 Pa. C.S. §6503(b) (emphasis added).


              The PCRA provides “an action by which … persons serving illegal
sentences may obtain collateral relief.” 42 Pa. C.S. §9542.                  PCRA petitions
constitute the “sole means of obtaining collateral relief and encompass[] all other
common law and statutory remedies for the same purpose … including habeas
corpus.” Id. Habeas corpus “is an extraordinary remedy that is available after
       4
         Our review as to matters of law is plenary. Skipworth by Williams v. Lead Indus. Ass’n,
Inc., 690 A.2d 169 (Pa. 1997); Gardner v. Capozza (Pa. Cmwlth., No. 2282 C.D. 2015, filed May
6, 2016) (unreported), 2016 WL 2610006 (affirming trial court’s dismissal of writ).



                                               4
other remedies have been exhausted or are ineffectual or non-existent.” Dep’t of
Corr. v. Reese, 774 A.2d 1255, 1260 (Pa. Super. 2001). Accordingly, the PCRA
subsumes the writ of habeas corpus where it provides a remedy for the petitioner’s
claim. Com. v. Hackett, 956 A.2d 978 (Pa. 2008).


              From the foregoing authority, it is clear that habeas relief is not
available to Gantz to challenge his Erie Sentence. Rather, a direct appeal of the
Erie Sentence and an action under the PCRA were his remedies.                    He timely
pursued neither.


              Gantz contends habeas corpus offers the only remedy because the
PCRA does not apply to him. He argues he was incarcerated after being paroled
from the Erie Sentence without being sentenced after a conviction as the PCRA
requires. Therefore, his return to custody constitutes an illegal sentence. His
contention is based on a misapprehension of the cause for his return to custody.


              The basis for Gantz’s confinement is not the Erie Sentence; instead, the
basis for his confinement is his parole violation of the Warren Sentence. Any
remedy to Gantz’s ongoing confinement must therefore focus on the legality of the
Warren Sentence or the process of revocation of parole from that sentence. Gantz
does not state a claim for either in his current appeal.5




       5
         Gantz challenged his recommitment in another proceeding before this Court. See Gantz
v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 2614 C.D. 2015).




                                             5
               The Prisons and Parole Code (Code)6 provides that any parolee who,
during the period of parole, commits a crime punishable by imprisonment and is
convicted or found guilty of that crime may be recommitted as a convicted parole
violator. 61 Pa. C.S. §6138(a)(1). If the parolee is recommitted, he must serve the
remainder of the term on his original sentence, which he would have been compelled
to serve had parole not been granted, with no credit for the time spent at liberty on
parole, unless the Board chooses to award credit. 61 Pa. C.S. §6138(a)(2), (2.1).


               Gantz was required to serve his Erie Sentence (the new sentence)
before he continued serving his Warren Sentence (the original sentence). Gaito v.
Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980); see also Serrano v. Pa. Bd. of
Prob. & Parole, 672 A.2d 425 (Pa. Cmwlth. 1996). At the time the trial court
considered his Petition, Gantz was already paroled from the Erie Sentence, and
recommitted to serve his Warren Sentence.       See Calloway v. Pa. Bd. of Prob. &
Parole, 857 A.2d 218 (Pa. Cmwlth. 2004) (when an inmate is administratively
paroled from one sentence to another sentence rather than released, he has been
constructively paroled). Although Gantz remained “in custody” when he filed his
Petition, the Erie Sentence that he challenged in the Petition was not the basis for
his confinement.


               In addition to the procedural problems arising from Gantz’s request
for habeas relief from his Erie Sentence, Gantz fails to state a substantive basis for
relief. In the Petition, Gantz seeks relief from an illegal sentence that is based on
“non-positive law.” C.R., Item No. 9 (Petition at 5). He claims there was no

      6
          61 Pa. C.S. §§101-7123.



                                          6
proper legal authority for his Erie Sentence because the statutes cited in the
criminal information were not part of the codified statutes. Instead, each of the
crimes underlying his conviction was cited as a “P.S.”           Id. (Petition at 3
(underlined emphasis in original; citing statutes underlying Erie conviction, 75 P.S.
§3733, 75 P.S. §3714, 18 P.S. §5503)).


             In support of this argument, Gantz relies heavily on the Superior
Court’s decision in Commonwealth v. Stultz, 114 A.3d 865 (Pa. Super. 2015).
Stultz arose in the context of the PCRA, after the defendant appealed the sentence
at issue. There, the defendant filed a PCRA petition challenging the legality of his
sentence on several grounds, including that the statutes the sentencing court cited
did not constitute proper legal authority. Because he was charged under violations
of criminal law that are “P.S.,” the defendant argued they were not a proper legal
authority, and the sentence was void on that basis. The Superior Court rejected
that argument. Rather, the Court explained that failing to cite a statute does not
result in a sentence being illegal where the court had authority to sentence the
defendant. Nevertheless, Gantz makes the same argument here.


             Like the defendant in Stultz, Gantz states the criminal information and
the sentencing order contain uncodified statutes that are not proper legal authority.
That statutes are uncodified does not mean they lack legal effect as Gantz suggests.
Appeal of Tenet Health Sys., Bucks Cnty., 880 A.2d 721 (Pa. Cmwlth. 2005)
(explaining difference between codified and uncodified statutes).




                                         7
              In sum, Gantz’s Petition challenges only his Erie Sentence. Gantz
does not challenge the basis for his current detention, the Warren Sentence and the
revocation of his parole from that sentence. Gantz was detained as a convicted
parole violator under the Code, which constitutes proper legal grounds for his
confinement. Therefore, for both procedural and substantive reasons, his Petition
does not state a basis for habeas relief from the Erie Sentence.


                                         B. Custody
              Next, Gantz asserts the trial court erred in holding he was not in
custody, such that it was unable to grant relief. As explained above, although
Gantz remained in custody, he was not in custody on the sentence he challenged.


              A court may not grant relief when an inmate is no longer in
disciplinary custody. Com. v. Smith, 486 A.2d 445 (Pa. Super. 1984). This Court
recognized habeas relief is not available when the challenged confinement has
ended. Bailey v. Wakefield (Pa. Cmwlth., No. 1165 CD 2007, filed August 12,
2008) (unreported), 2008 WL 9398644.7


              Here, the challenged confinement was the Erie Sentence. Because
Gantz was no longer confined based on that sentence, his challenges to the legality
of that sentence are moot. As a result, the trial court did not err in dismissing the
Petition.


       7
           Pursuant to Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code
§69.414, an unreported panel decision of this Court, issued after January 15, 2008, may be cited
for its persuasive value.



                                               8
                                     C. Hearing
             Lastly, we consider Gantz’s claim that the trial court was required to
hold a hearing prior to dismissal. We discern no error by the trial court in this
regard because the Petition did not raise issues of fact.


             “A habeas corpus court, in determining whether a petition for a writ
requires a hearing, must accept as true all allegations of fact contained in the
petition which are non-frivolous, specific, and not contradicted by the record ….”
Com. ex rel. West v. Myers, 222 A.2d 918, 920 (Pa. 1966). “Grounds for denial of
a [w]rit of [h]abeas [c]orpus, without a hearing, include frivolous petitions,
petition[s] clearly refuted by the record and petitions which raise legal questions
that can be determined by the pleadings.” Com. ex rel. Brown v. Hendrick, 283
A.2d 722, 724 (Pa. Super. 1971). A hearing is not required when there is no issue
of fact to be decided. Com. v. Judge, 916 A.2d 511 (Pa. 2007).


             Gantz did not raise any issues of fact that required an evidentiary
hearing.   Id. There was a legal basis for dismissal because the Petition did not
challenge the basis for his confinement. As a result, the trial court did not err in
dismissing the Petition without a hearing.


                                   III. Conclusion
             For the foregoing reasons, we affirm.




                                        ROBERT SIMPSON, Judge


                                           9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Gantz,                             :
                         Appellant      :
                                        :
              v.                        :   No. 2180 C.D. 2015
                                        :
Nancy Giroux, Dante Battles, et al.     :


                                      ORDER

              AND NOW, this 13th day of July, 2016, the order of the Court of
Common Pleas of Erie County is AFFIRMED.




                                       ROBERT SIMPSON, Judge
