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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

LARRY EDWARD WEST, JR.,                 :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                         Appellant      :
                                        :
                    v.                  :          No. 823 MDA 2014
                                        :
DAVID VARANO1                           :


                Appeal from the Order Entered June 29, 2012,
          in the Court of Common Pleas of Northumberland County
                    Civil Division at No. CV-2012-00927


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 24, 2015

      Appellant appeals the order transferring venue of his second collateral

petition, which was brought as a petition for writ of habeas corpus, from

Northumberland County to Luzerne County.           We note that an order

transferring venue in a criminal matter is an interlocutory order appealable

as of right.   Pa.R.A.P., Rule 311(a)(3), 42 Pa.C.S.A.   Finding no error, we

affirm.

      On June 15, 2005, a jury found appellant guilty of numerous sex and

related offenses, including involuntary deviate sexual intercourse.      The

charges arose from the molestation of appellant’s girlfriend’s two minor



* Former Justice specially assigned to the Superior Court.
1
  David Varano is the Superintendent at SCI Coal Township where appellant
is currently incarcerated.
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daughters when they lived at appellant’s home in Freeland from June 2002

to May 2004.

      On October 3, 2006, appellant was sentenced to an aggregate term of

9 to 18 years’ imprisonment.        On April 28, 2008, this court affirmed the

judgment of sentence. Commonwealth v. West, 953 A.2d 842 (Pa.Super.

2008) (unpublished memorandum). No further appeal was taken.

      On March 24, 2009, appellant filed a counseled PCRA petition.         A

hearing was held and on December 30, 2010, the petition was denied and

dismissed.     On January 10, 2012, this court affirmed the judgment of

sentence; and on August 28, 2012, our supreme court denied appeal.

Commonwealth v. West, 43 A.3d 517 (Pa.Super. 2012) (unpublished

memorandum).2

      On May 10, 2012, appellant filed the instant petition for writ of

habeas corpus in Northumberland County, where appellant is incarcerated.

On June 29, 2012, the Northumberland County court entered an order

transferring the petition to Luzerne County, where appellant was tried and

convicted. This order was appealed at docket number 823 MDA 2014 and

has been listed consecutively, at journal number S71003/14, to the two

appeals listed at journal number S71002/14, under which the denial of

appellant’s petition is reviewed.



2
  The denial of appeal by our supreme court does not appear to have been
officially reported.


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      On appeal, appellant raises a single issue, contending that transfer of

venue from Northumberland County to Luzerne County was improper.

Appellant argues that venue in Northumberland County was proper because

he is confined in that county and he is challenging the conditions of his

confinement and not the legality of his confinement.        Appellant bases this

contention on Pa.R.Crim.P., Rule 108(B), 42 Pa.C.S.A. Rule 108 states in its

entirety:

            Rule 108. Habeas Corpus Venue

            (A)   A petition for writ of habeas corpus challenging
                  the legality of the petitioner’s detention or
                  confinement in a criminal matter shall be filed
                  with the clerk of courts of the judicial district in
                  which the order directing the petitioner’s
                  detention or confinement was entered.

            (B)   A petition for writ of habeas corpus challenging
                  the conditions of the petitioner’s confinement
                  in a criminal matter shall be filed with the clerk
                  of courts of the judicial district in which the
                  petitioner is confined.

Pa.R.Crim.P., Rule 108, 42 Pa.C.S.A.

      Upon a full reading of Rule 108, it is clear that if appellant is

challenging the conditions of his confinement, venue in Northumberland

County is appropriate; however, if appellant is attacking the legality of his

confinement, then venue in Luzerne County is appropriate.            We find that

appellant is actually challenging the legality of his confinement.

      “We note that the standard of review regarding the grant or refusal of

a motion to change venue is a matter within the sound discretion of the trial


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court.”   Commonwealth v. Dixon, 959 A.2d 399, 402 (Pa.Super. 2008),

reversed on other grounds, 985 A.2d 720 (Pa. 2009). The gravamen of

appellant’s petition for writ of habeas corpus is that the Luzerne County

court that tried and convicted him was without jurisdiction to do so because

the trial judge was subsequently convicted of unrelated criminal offenses.

Simply stated, this constitutes a claim that appellant’s judgment of sentence

and resulting confinement are illegal.

      We wholly reject appellant’s attempt to position his claim as attacking

only the conditions of his confinement.        Appellant argues that he is only

questioning an unlawful commitment order that imposes total confinement in

a State Correctional Institution.      However, the only basis suggested by

appellant for the unlawfulness of that order, either in his petition, or now on

appeal, is that appellant’s original conviction was obtained in a court without

jurisdiction. No other origin for any alleged unlawfulness of the commitment

order is suggested.      Consequently, no matter what his protestations

otherwise   are,   appellant   is   clearly   attacking   the   lawfulness   of   his

confinement based upon an illegal conviction and sentence by a court

without jurisdiction.

      Accordingly, we find no abuse of discretion on the part of the trial

court, and we will affirm the order below.

      Order affirmed.3

3
 Appellant’s motion, filed October 23, 2014, requesting that appellee’s brief
be barred as untimely, is denied.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/24/2015




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