J-S62025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOEL GAUCHE,                                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

JEROME WALSH, SUPERINTENDENT SCI
DALLAS, PA DEPARTMENT OF
CORRECTIONS MICHAEL POTTEIGER,
CHAIRMAN, PA BOARD OF PROBATION
AND PAROLE

                         Appellees                 No. 2671 EDA 2013


              Appeal from the Order Entered August 20, 2013
              In the Court of Common Pleas of Bucks County
                Civil Division at No(s): No. 2012-07811-25


BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                      FILED DECEMBER 30, 2014

      Appellant, Joel Gauche, appeals pro se from the order entered on

August 20, 2013, dismissing Appellant’s writ of habeas corpus petition.

Upon review, we transfer this matter to Commonwealth Court.

      The trial court aptly summarized the facts and procedural history of

this case as follows:

           On July 2, 1982, [Appellant] was convicted of [r]ape and
        other offenses in two separate criminal informations and
        received ten to twenty years on each criminal information,
        to be served consecutively, for an aggregate +/- sentence
        of twenty to forty years in a state correctional facility.
        Credit for time served was awarded, making [Appellant’s]
        sentence effective December 1, 1980.           Additionally,
        [Appellant] was convicted in Luzerne County on October 5,
        1990 of [p]ossession of [d]rug [p]araphernalia and
        sentenced to a consecutive fifteen days [of] incarceration.
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        [Appellant] had been       continuously   incarcerated   since
        December 1, 1980.

           On July 1, 1991, [Appellant] was granted constructive
        parole to his “detainer sentence only.” [Appellant] states
        that this constructive parole was rescinded by the parole
        board on or about June 28, 2000.

           [Appellant filed a writ of habeas corpus in August 2012.]
        [Appellant’s] contention is that the parole board erred in not
        crediting time during his constructive parole toward his first
        case. He believes that upon receiving constructive parole
        on July 1, 1991, he then began to serve his second ten to
        twenty-year sentence, which would have expired on or
        about July 10, 2011. After the addition of fifteen days for
        his paraphernalia conviction, [Appellant] contends his
        maximum date was July 25, 2011.

Trial Court Opinion, 2/7/2014, at 1-2 (record citations and footnote

omitted).

     On appeal, Appellant presents the following issues for our review:

        I.     Did the lower court improperly consider [Appellee’s]
               motion to dismiss when procedural rule[s] deem
               [Appellee’s] failure to plead the facts of the complaint
               and motion for summary judgment on the admission
               to the facts pleaded?

        II.    Did the lower court fail to address [Appellant’s] claim
               for relief that he has fully served the 10 to 20[-]year
               term of Case No. 186/1981 through incarceration and
               9½ years of constructive parole time credit, and he
               has fully served the 10 to 20[-] year term of Case No.
               2372/1981, through incarceration, and the 15[-]day
               term of Case No. 250/1991 through incarceration?

        III.   Did the lower court improperly deem the relevant
               issue as the aggregation of sentence, when
               [A]ppellant was granted constructive parole in 1991,
               prior to case authority that denied [A]ppellant who
               was entitled to 9½ years of time credit against the
               sentence imposed on Case No. 186/1981?

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Appellant’s Brief at 4 (superfluous capitalization an suggested answers

omitted).

      We briefly summarize Appellant’s contentions together.         In 1981,

Appellant was charged with rape, robbery, theft, and other related offenses.

He pled guilty to some charges, the Commonwealth nol prossed various

others, and the trial court ultimately sentenced Appellant to a term of 10 –

20 years of imprisonment. In 1982, a jury convicted Appellant of rape, and

related offenses, and sentenced him to a 10 - 20 year sentence consecutive

to the prior sentence. In 1990, Appellant pled guilty to possession of drug

paraphernalia and the trial court sentenced him to an additional sentence of

15 days incarceration, consecutive to the previously imposed sentences.

Appellant “alleges that his sentences have been fully satisfied and that the

Department of Corrections and the [Pennsylvania] Board of Probation and

Parole lack the jurisdiction to further incarcerate [Appellant] for any purpose

because the criminal sentences are fully-served according to the orders of

the sentencing [c]ourt and expired.”       Id. at 8 (parentheticals omitted).

Appellant contends that he was granted constructive parole in 1991 and

remained at liberty and in good standing until parole was rescinded in 2000.

Id. at 10. Appellant claims that his second ten to 20-year sentence began

upon his parole in 1991 and it expired in 2011. Id. at 10-11. He further

claims that he served his 15-day consecutive sentence for possession of

drug paraphernalia thereafter. Id. Appellant maintains that the Department

of Corrections improperly aggregated the consecutive sentences. Id. at 11.

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J-S62025-14



Thus, Appellant asserts that he is being detained illegally.               Id. at 13.

Finally, Appellant contends that the trial court improperly relied ex post facto

upon Abraham v. Department of Corrections, 615 A.2d 814 (Pa. Cmwlth.

1992) to aggregate his consecutively imposed sentences. Id. at 14-21.

      We may not reach the merits of Appellant’s claims, however, because

we do not have jurisdiction. Appellant does not challenge the validity of his

convictions or the legality of his sentences.         Instead, he argues that the

Board of Probation and Parole failed to give him the proper credit for time

served on constructive parole and the Department of Corrections improperly

aggregated his consecutive sentences.              Such challenges are within the

original   jurisdiction    of    the   Commonwealth       Court.   See   Gillespie   v.

Commonwealth, Dep't of Corr., 527 A.2d 1061, 1063 (Pa. Cmwlth. 1987)

(“[The Commonwealth Court’s original jurisdiction is narrowly circumscribed

to encompass civil actions or proceedings by or against the Commonwealth

or any officer thereof acting in his official capacity or where otherwise

specifically conferred by statute.”); 42 Pa.C.S.A. § 761. “Even when neither

party has raised the issue of jurisdiction, this Court may, sua sponte,

determine whether retention of jurisdiction is appropriate, or whether the

matter     should     be        transferred   to    the     Commonwealth       Court.”

Commonwealth v. Reed, 696 A.2d 199, 200 (Pa. Super. 1997).

      Here, Appellant is challenging the actions of two Commonwealth

agencies, the Department of Corrections and the Board of Probation and

Parole.    In fact, the bulk of Appellant’s appellate argument relies upon

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Commonwealth Court decisions.         Appellant alleges that the Department of

Corrections improperly calculated his sentence. However, “[i]t is well-settled

that if an alleged sentencing error is thought to be the result of an erroneous

computation of sentence by the Bureau of Corrections, the appropriate

recourse would be an original action in Commonwealth Court challenging the

Bureau’s computation.”        Commonwealth v. Hollawell, 604 A.d 723, 725

(Pa. Super. 1992) (citation omitted). Appellant also alleges that the Board

of Probation and Parole wrongfully refused to award him for time served.

“Jurisdiction over complaints […] against State agencies administering the

parole system, where the complaint is not a direct or collateral attack on the

conviction or sentence, is vested exclusively in the Commonwealth Court.”

McGriff v. Commonwealth, 809 A.2d 455, 458 (Pa. Cmwlth. 2002)

(citation omitted).

Therefore, this case should be addressed by the court that has original

jurisdiction to entertain it. Accordingly, we transfer the instant appeal to the

Commonwealth Court.

      Finally, we note that Appellant’s ex post facto claim is without merit.

Appellant claims that aggregation of his two ten to 20-year sentences under

42   Pa.C.S.A.   §    9757,    as   subsequently   discussed   by   Abraham   v.

Department of Corrections, 615 A.2d 814 (Pa. Cmwlth. 1992), constitutes

an ex post facto violation.

      The Fourteenth Amendment of the Federal Constitution states, “[n]o

State shall ... deny to any person within its jurisdiction the equal protection

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of the laws.” XIV, § 1. The Federal Constitution also prohibits the several

States from “pass[ing] any ... ex post facto Law[.]” U.S. Const. Article I, §

10. Likewise, Article I, Section 17 of the Pennsylvania Constitution states

that “[n]o ex post facto law, nor any law impairing the obligation of

contracts,   or    making   irrevocable    any   grant   of   special   privileges   or

immunities, shall be passed.” Pa. Const. Art. I, § 17.            The Pennsylvania

Supreme Court has stated:

         A law violates the ex post facto clause of the United States
         Constitution if it (1) makes an action done before the
         passing of the law, and which was innocent when done,
         criminal, and punishes such action; (2) aggravates a crime,
         or makes it greater than it was when committed; (3)
         changes the punishment, and inflicts a greater punishment
         than the law annexed to the crime when committed; or (4)
         alters the legal rules of evidence, and receives less, or
         different, testimony than the law required at the time of the
         commission of the offense in order to convict the offender.

Comnmonwealth v. Allshouse, 36 A.3d 163, 184 (Pa. 2012) (citation

omitted).

      Here, the sentencing statute at issue was passed on October 5, 1980

and became effective 60 days later. See 42 Pa.C.S.A. § 9757. Upon review

of the record, Appellant’s convictions resulted from two separate bills of

criminal information as filed by the Commonwealth.                In both criminal

matters, Appellant was arrested, charged, convicted and, most importantly,

sentenced after Section 9757 became law. As such, there was no ex post

facto violation.




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J-S62025-14



      Appeal    transferred   to   the   Commonwealth   Court.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2014




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