J-S77036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL EDWARD SILUK, JR.                  :
                                               :   No. 804 MDA 2017
                       Appellant

                 Appeal from the PCRA Order March 30, 2017
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0004194-2001,
             CP-22-CR-0004196-2001, CP-22-CR-0004197-2001,
              CP-22-CR-0004198-2001, CP-22-CR-0004199-2001


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 02, 2018

        Appellant Michael Edward Siluk, Jr. appeals from the order of the Court

of Common Pleas of Dauphin County denying his pro se Petition for Writ of

Habeas Corpus Ad Subjiciendum. As the lower court erred in characterizing

this habeas petition as an untimely petition pursuant to the Post Conviction

Relief Act (PCRA),1 we vacate the order and remand for further proceedings.

        In September 2001, Appellant was arrested for the sexual assault of

several prostitutes. Appellant was ultimately convicted of thirteen convictions

on five separate criminal dockets, which included four counts of rape, two

counts each of aggravated indecent assault, aggravated assault, and robbery,


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1   42 Pa.C.S.A. §§ 9541-9546.
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* Former Justice specially assigned to the Superior Court.
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and one count each of involuntary deviate sexual intercourse, sexual assault,

and simple assault.

      Prior to sentencing, the Commonwealth notified Appellant that he was

subject to the recidivist sentencing statute in 42 Pa.C.S.A. § 9714.        At

Appellant’s sentencing hearing on February 20, 2003, defense counsel

informed the sentencing judge that, although three of Appellant’s felony sex

offenses (one count of sexual assault and two counts of aggravated indecent

assault) carried ten-year mandatory minimum sentences under Section 9714,

the statutory maximums for these charges were also ten-year terms.

      Noting that a flat sentence of ten years’ imprisonment would appear to

violate 18 Pa.C.S.A. § 9756(b), which states that a minimum sentence must

be no more than one half the maximum, defense counsel cited to the Supreme

Court’s decision in Commonwealth v. Bell, 537 Pa. 558, 645 A.2d 211

(1994) to argue that the minimum-maximum requirement would be

superseded by the specific statutes setting the mandatory minimum and

statutory maximums. See Notes of Testimony (“N.T.”) Sentencing, 2/20/03,

at 19-20. Therefore, defense counsel argued that the trial judge was required

to sentence Appellant to flat terms of ten years’ imprisonment (with a ten year

minimum and ten year maximum) for the relevant charges to satisfy the

mandatory minimum and statutory maximum provisions.

      On February 20, 2003, the trial court imposed an aggregate sentence of

621 months to 1260 months’ imprisonment, which included three flat

sentences of ten years’ imprisonment for one count of sexual assault and two

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counts of aggravated indecent assault.     On January 15, 2004, this Court

affirmed the judgment of sentence, and on November 5, 2004, our Supreme

Court denied Appellant’s petition for allowance of appeal.

      On October 12, 2005, Appellant filed his first PCRA petition. On January

30, 2006, the PCRA court dismissed the petition. On March 6, 2007, this Court

affirmed the PCRA court’s order. Appellant did not seek review in the Supreme

Court.   Thereafter, Appellant filed multiple PCRA petitions that were

subsequently denied and have no relevance to the instant petition.

      On December 2011, Appellant filed a petition in the Court of Common

Pleas which he labeled a “Petition to Correct and/or Modify Illegal Sentence

Pursuant to the Court’s Inherent Power to Correct an Illegal Sentence.” In

this filing, Appellant argued that the trial court illegally imposed the three

individual flat sentences of ten years’ imprisonment. Appellant argued that

the trial court should modify the sentences to include a minimum and

maximum of ten years. Further, Appellant alleged that the Department of

Corrections acted without authority and changed the relevant sentences to

ten to twenty years’ imprisonment.

      On January 11, 2012, the lower court entered an order denying

Appellant’s petition to modify his sentence, specifically finding that “the

sentences imposed on the second degree felonies were mandated under 42

Pa.C.S. § 9714 and lawful under Commonwealth v. Bell, 537 Pa. 558, 645

A.2d. 211 (1994).” Order, 1/11/12, at 1.




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      On April 17, 2014, Appellant filed a petition for mandamus in the

Commonwealth Court, requesting that the DOC be compelled to recalculate

the relevant sentences to have minimum and maximum terms of ten years’

imprisonment. In response, the DOC alleged it had authority to modify the

sentence as it previously had received a clarification letter from the sentencing

judge indicating that the flat sentences should have been terms of ten to

twenty years’ imprisonment and confirming that its imposition of flat

sentences was an obvious and patent mistake.

      On June 5, 2014, the Commonwealth Court dismissed Appellant’s

petition, reasoning that (1) the trial court has authority to correct clerical

sentencing errors and (2) the DOC properly corrected the sentences to ten to

twenty years’ imprisonment based on the alleged clarification order from the

trial court and the fact that the trial court subsequently denied Appellant’s

petition for modification of his sentence.    See Siluk v. Wetzel, 524 M.D.

2013 (Pa.Cmwlth. 2014). The Commonwealth Court did not acknowledge that

the lower court’s January 11, 2012 order stated that the flat sentences

imposed were lawful under Bell. On February 17, 2015, the Supreme Court

affirmed the Commonwealth Court’s dismissal of Appellant’s mandamus

petition in a per curiam order. See Siluk v. Wetzel, 631 Pa. 285, 110 A.3d

993 (2014).

      On August 6, 2015, Siluk filed a petition for “clarification of sentence” in

the Court of Common Pleas of Bedford County, arguing that it was illegal to

change his flat ten-year sentences to sentences of ten to twenty years’

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imprisonment. On September 2, 2015, the lower court dismissed Siluk’s filing,

which it characterized as a PCRA petition, without a hearing. On August 9,

2016, this Court affirmed the dismissal of Appellant’s filing as an untimely

PCRA petition.

      On February 7, 2017, Appellant, while incarcerated at S.C.I. Rockview,

filed this pro se Petition for Writ of Habeas Corpus Ad Subjiciendum, arguing

that the DOC erroneously interpreted the sentence imposed by the trial court.

Appellant emphasizes that he does not challenge the lawfulness of the trial

court’s imposition of flat terms of incarceration at sentencing, and asserts that

the trial court never modified these sentences, which were required under this

Court’s decision in Bell.    Rather, Appellant argues that the DOC illegally

modified the sentences to terms of ten to twenty years’ imprisonment as there

is no evidence of record showing that the sentencing court ever sent the DOC

a clarification letter asking for the sentences to be modified. Moreover, in the

alternative, even if the trial court had sent such a modification letter, Appellant

asserts that this informal documentation cannot make substantive changes to

Appellant’s sentence without issuing a sentencing order to that effect.

      As an initial matter, we must address Appellant’s claim that the lower

court erred in finding his petition is cognizable under the PCRA. The PCRA

sets forth its scope as follows: “[t]his subchapter is not intended to limit the

availability of remedies in the trial court or on direct appeal from the judgment

of sentence, to provide a means for raising issues waived in prior proceedings

or to provide relief from collateral consequences of a criminal conviction.” 42

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Pa.C.S.A. § 9542 (emphasis added). In construing this language, this Court

has held that the PCRA contemplates only challenges to the propriety of a

conviction or a sentence.   Commonwealth v. Masker, 34 A.3d 841, 843

(Pa.Super.2011) (en banc), appeal denied, 616 Pa. 635, 47 A.3d 846 (2012)

(case citations omitted) (emphasis in original; some emphasis added).

      As Appellant is not challenging the propriety of the sentence imposed

by the trial court, his claim is not cognizable under the PCRA. Although the

lower court construed Appellant’s filing as a PCRA petition, we note that a

PCRA petition is not the proper method for contesting the DOC's calculation of

sentence.   Commonwealth v. Heredia, 97 A.3d 392, 394–95 (Pa.Super.

2014).   Rather,

      [i]f 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.

Id. (citation omitted and emphasis added).

      At first glance, it appears the appropriate vehicle for Appellant to

address his argument that the DOC erroneously calculated the relevant

minimum and maximum sentences would be an original action for mandamus

in the Commonwealth Court. See Commonwealth v. Wyatt, 115 A.3d 876,

880 (Pa.Super. 2015) (quoting McCray v. Pa. Dept. of Corrections, 582 Pa.

440, 872 A.2d 1127, 1131 (2005) (“Where discretionary actions and criteria


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are not being contested, but rather the actions of the Department in

computing an inmate's maximum and minimum dates of confinement are

being challenged, an action for mandamus remains viable as a means for

examining whether statutory requirements have been met”)).

      However, as the facts of this case suggest that Appellant’s assertion of

error is due to ambiguity in the sentence imposed, it was appropriate for

Appellant to seek habeas relief. As we set forth above, in its January 11, 2012

order, the lower court denied Appellant’s motion to modify his sentence and

expressly stated that his sentences imposed on the second degree felonies

were lawful under Bell, in which the Supreme Court determined that a flat

sentence of five years’ imprisonment satisfied the mandatory minimum and

maximum provisions applicable to the appellee’s convictions for trafficking at

least fifty pounds of marijuana.        While noting that this sentence was

inconsistent with the provision in 18 Pa.C.S.A. § 9756(b) requiring courts to

impose sentences in which the minimum does not exceed one-half the

maximum, the Supreme Court disregarded this section, noting that the

minimum-maximum rule was a statutory and not a constitutional provision.

      Nonetheless, Appellant claims that the DOC has interpreted Appellant’s

sentences imposed for the second degree felonies as terms of ten to twenty

years’ imprisonment, based on its averment that the trial court had

acknowledged in a clarification letter that it made a clerical error in Appellant’s

sentence.    Appellant avers that this revision was not made official in an

amended sentencing order or documented in any way in the certified record

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and even if recorded, rendered his sentences illegal. We note that the DOC’s

interpretation of the sentence change as a clerical correction was upheld by

the Commonwealth Court in a mandamus action filed by Appellant.             See

Siluk, supra, 524 M.D. 2013. However, the Commonwealth Court appears

to have reached this decision without consideration of the trial court’s citation

of Bell.

       While Appellant is asking for relief to compel the DOC to enforce the

sentence of record, the facts of this case demonstrate there is ambiguity in

the sentence that is currently in place. Therefore, pursuant to this Court’s

decision in Heredia, Appellant’s petition for writ of habeas corpus ad

subjiciendum was the proper avenue to address this alleged error due to

ambiguity in the sentence imposed.2              As the lower court incorrectly

determined that Appellant’s habeas petition was a PCRA petition, we must

remand to the trial court for clarification and/or correction of the sentence

imposed. See Heredia, supra.3

       Order vacated. Case remanded for further proceedings.         Jurisdiction

relinquished.


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2We note that Appellant concedes that the DOC’s interpretation of the relevant
sentences as ten to twenty years’ imprisonment did not affect his aggregate
sentence as each of the individual sentences in question were set to run
concurrently with a ten to twenty year sentence for rape.

3A challenge to the denial of a petition for writ of habeas corpus is reviewed
pursuant to an abuse of discretion standard. Commonwealth v. Judge, 591
Pa. 126, 142, 916 A.2d 511, 521 n.13 (2007).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/18




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