J-A10008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANTHONY TYRONE DAVIS

                            Appellant                No. 1404 MDA 2014


                   Appeal from the PCRA Order August 5, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000128-1994


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED APRIL 09, 2015

        Appellant, Anthony Tyrone Davis, appeals from the order entered in

the Lancaster County Court of Common Pleas, dismissing his pro se filings,

which the court treated as petitions brought pursuant to the Post Conviction

Relief Act (“PCRA”).1 We transfer the matter to the Commonwealth Court.

        The relevant facts and procedural history of this case are as follows.

On September 23, 1994, a jury convicted Appellant of rape, aggravated

indecent assault, and tampering with evidence at No. 128 of 1994 in

Lancaster County. On November 8, 1994, the court sentenced Appellant to

an aggregate term of six (6) to twenty (20) years’ imprisonment. The court

also gave Appellant credit for three hundred ninety-six (396) days of time
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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served.   Appellant timely filed post-sentence motions on November 15,

1994, which the court denied on December 5, 1994. Appellant did not file a

notice of appeal.

      On July 25, 1997, Appellant filed his first pro se PCRA petition. The

court appointed counsel, who filed a request to withdraw and “no-merit”

letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927

(1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en

banc). On February 3, 1998, the court issued notice of its intent to dismiss

the petition without a hearing.   Appellant filed a pro se response to the

notice.   The court, however, permitted PCRA counsel to withdraw and

dismissed as untimely Appellant’s petition on February 12, 1998. Between

2001 and 2008, Appellant filed several unsuccessful pro se motions and

petitions attacking the convictions and sentence.

      On March 8, 2002, while incarcerated at SCI-Dallas in Luzerne County,

Appellant assaulted several prison employees.       On May 3, 2004, a jury

convicted Appellant of three (3) counts of aggravated assault at No. 1594 of

2002 in Luzerne County.    Appellant immediately proceeded to sentencing,

and the court imposed an aggregate sentence of one hundred thirty-five

(135) to two hundred seventy (270) months’ imprisonment, to run

consecutive to Appellant’s sentence at No. 128 of 1994. This Court affirmed

the Luzerne County judgment of sentence on May 27, 2005, and Appellant

did not seek further review.


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       In March 2014, Appellant sent two pro se filings to the Lancaster

County Court of Common Pleas.2 The filings, styled as a motion to compel

action and motion for order, complained that the Department of Corrections

(“DOC”) continued to incarcerate Appellant on his sentence for No. 128 of

1994, even though the maximum term of that sentence had expired.

Appellant requested an order granting his immediate discharge.       Appellant

also asked the court to order the DOC to remove No. 128 of 1994 from

Appellant’s “status-sheet summary reports, and that case [No.] 128 of 1994

be closed out, and removed from the files and case docket.”         (Motion to

Compel Action, filed 3/4/14, at 1).

       The court treated the pro se filings as PCRA petitions. On March 21,

2014, the court issued notice of its intent to dismiss the petitions without a

hearing, per Pa.R.Crim.P. 907. Appellant responded with additional pro se

filings, including a petition for a writ of habeas corpus, arguing he was being

illegally detained on the sentence at No. 128 of 1994. On August 5, 2014,

the court entered the following order:

          AND NOW, this 5th day of August, 2014, [Appellant’s]
          collective filings, which the [c]ourt treated as motions for
          [PCRA] relief, are dismissed for lack of jurisdiction.
          [Appellant’s] requests for appointment of counsel and his
          trial transcripts at no cost are denied.
____________________________________________


2
  Pursuant to the prisoner mailbox rule, a document is considered filed on
the date the appellant delivered it to prison authorities for mailing.
Commonwealth v. Castro, 766 A.2d 1283 (Pa.Super. 2001). Here, the
postmarks attached to Appellant’s pro se filings are dated March 4, 2014.



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(Order, filed 8/5/14, at 1). Appellant timely filed a pro se notice of appeal

on August 14, 2014.       The court did not order Appellant to file a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

      Preliminarily, we address this Court’s jurisdiction. “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) (quoting

Commonwealth v. CSX Transportation, Inc., 639 A.2d 1213, 1214

(Pa.Super. 1994)).

      Any petition for post-conviction collateral relief is generally considered

a PCRA petition, although it might be captioned as a request for habeas

corpus relief, if the petition raises issues for which the relief sought is the

kind available under the PCRA. See generally Commonwealth v. Fahy,

558 Pa. 313, 737 A.2d 214 (1999); Commonwealth v. Lantzy, 558 Pa.

214, 736 A.2d 564 (1999); Commonwealth v. Peterkin, 554 Pa. 547, 722

A.2d 638 (1998).     See also Commonwealth v. Weimer, 756 A.2d 684,

685-86 (Pa.Super. 2000), appeal denied, 564 Pa. 695, 764 A.2d 50 (2000)

(explaining pro se post-conviction petitions couched in terms of legality of

sentence actually seek relief available under PCRA).       The writ of habeas

corpus, however, continues to exist as a separate remedy only if the claim

raised is not cognizable under the PCRA. Peterkin, supra at 552, 722 A.2d

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at 640.     “The writ of habeas corpus is used to determine whether a

petitioner is entitled to an immediate release from an unlawful confinement.”

Commonwealth ex rel. Powell v. Rosenberry, 645 A.2d 1328, 1330

(Pa.Super. 1994).

       “[I]f 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 the Commonwealth Court

challenging the Bureau’s computation.” Commonwealth v. Hollawell, 604

A.2d 723, 725 (Pa.Super. 1992) (emphasis in original).        Additionally, “the

proper method by which a prisoner could challenge the [DOC’s] aggregation

of   his   sentences   [is]   through   a   mandamus   action.”   Gillespie   v.

Commonwealth, Dept. of Corrections, 527 A.2d 1061, 1064 (Pa.Cmwlth.

1987), appeal denied, 518 Pa. 614, 540 A.2d 535 (1988).

       Instantly, regardless of how Appellant styled his filings, his claims did

not challenge the validity of his convictions or the legality of his sentence.

Rather, Appellant challenged the DOC’s ability to continue to incarcerate him

on the sentence for No. 128 of 1994. Appellant’s brief includes a letter from

the DOC, explaining that the Lancaster County sentence at No. 128 of 1994

automatically aggregated with the Luzerne County sentence at No. 1594 of

2002, because the Luzerne County Court of Common Pleas ordered the

sentences to run consecutive to each other.         See 42 Pa.C.S.A. § 9757

(stating: “Whenever the court determines that a sentence should be served


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consecutively to one…previously imposed, the court shall indicate the

minimum sentence to be served for the total of all offenses with respect to

which sentence is imposed”).      See also Gillespie, supra (explaining

Section 9757 applies to sentences imposed at different times by different

courts; therefore, DOC correctly aggregated inmate’s Centre and Luzerne

County sentences into single sentence).

     Like the inmate in Gillespie, Appellant effectively challenges the

DOC’s authority to aggregate his Lancaster and Luzerne County sentences.

This Court does not have jurisdiction to entertain Appellant’s claim.     As

argued, Appellant’s claim should be raised initially before the Commonwealth

Court.   See Hollawell, supra.       See also Gillespie, supra (holding

Commonwealth Court has original jurisdiction over filing, although styled as

habeas corpus petition, which sought judicial determination regarding

completion of sentence; petition did not challenge legality of initial or

subsequent sentences or imposition of consecutive sentences; rather,

petition challenged aggregation of sentences by DOC).      Accordingly, we

transfer this matter to Commonwealth Court for appropriate disposition.

     Case transferred to Commonwealth Court. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/9/2015

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