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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
DANIEL KING WARREN,                         :         No. 2473 EDA 2016
                                            :
                          Appellant         :


                       Appeal from the Order, July 1, 2016,
                 in the Court of Common Pleas of Lehigh County
                Criminal Division at No. CP-39-CR-0004032-2015


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED OCTOBER 06, 2017

        Daniel King Warren appeals, pro se, from the July 1, 2016 order

entered in the Court of Common Pleas of Lehigh County that denied his

petition for writ of habeas corpus for lack of jurisdiction. We affirm.

        The trial court set forth the following:

                    On February 4, 2016, [a]ppellant pled guilty to
              one count of Criminal Trespass,[1] graded as a
              Felony of the second degree. In exchange for his
              entry of a guilty plea, the Commonwealth agreed to
              bind the court to a minimum sentence of 30 months
              of incarceration. On the same date, [a]ppellant was
              sentenced to serve no less than 30 months nor more
              than 60 months at a state correctional institution.

                    At a later date, [a]ppellant went before the
              Pennsylvania Board of Probation and Parole
              (hereinafter “PBPP”) regarding [a]ppellant’s previous
              case, docketed at 388/1998.       [] Appellant was

1   18 Pa.C.S.A. § 3503(a)(1)(ii).
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              ordered to serve the back time in case 388/1998, to
              be implemented prior to the sentence imposed by
              this Court on February 4, 2016 in case 4032 of 2015.

                     On June 16, 2016, [appellant] filed a pro se
              [Petition] for Writ of Habeas Corpus and
              Memorandum of Law in Support. Upon review of the
              procedural history of the case, and pursuant to
              Palmer v. Pennsylvania Board of Probation and
              Parole, 134 A.3d 160 ([Pa.Cmwlth.] 2016), [. . .]
              this Court determined it had no jurisdiction in this
              matter and denied the pro se [Petition] for Writ of
              Habeas Corpus on July 1, 2016.

                    [] Appellant filed a Notice of Appeal on July 25,
              2016 and was subsequently ordered to file a
              Statement of Errors Complained of on Appeal. On
              August 26, 2016, [a]ppellant filed his Statement and
              this Opinion follows.

Trial court opinion, 9/15/16 at 2-3.

        Appellant raises ten claims of error.2 The gravamen of his complaint,

however,     is    that   the   Pennsylvania   Board   of   Probation   and   Parole




2   Appellant frames his issues as follows:

              A.     Does the lower court have jurisdiction over
                     appellant’s claims when appellant is not
                     compelling the performance of a ministerial act
                     or duty of the parole board?

                     1.     Does habeas corpus permits [sic]
                            the sentencing court to review its
                            own    sentence    regarding   any
                            disputes       concerning      the
                            interpretation    of    appellant’s
                            sentence and the legality of the
                            parole laws as being applied to
                            appellant’s sentence?



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          B.   Does 61 Pa.C.S.A. § 6138(a)(5) prescribe a
               mechanism for sentencing which is in direct
               conflict with and unconstitutionally interferes
               with Pa.R.Crim.P. Rule 705 in violation of
               Article V Section 10(c) of the Pennsylvania
               Constitution and should be suspended?

          C.   Does      61     Pa.C.S.A.     §      6138(a)(5),
               unconstitutionally    and     illegally   violate
               42 Pa.C.S.A. § 322 by modifying the terms of
               the judge’s sentencing order when there is no
               clear clerical error and this is a function
               exclusively reserved as a judiciary function and
               should be suspended and violative of the
               separation of powers doctrine?

          D.   Does     [61]     Pa.C.S.A.      §     6138(a)(5)
               unconstitutionally     and    illegally    violate
               42 Pa.C.S.A. § 5505 by modifying the terms of
               the judge’s judicially imposed sentencing order
               way outside the 30 day window period?

               1.    Is this a function exclusively
                     reserved for the judiciary and
                     should be suspended as violative of
                     the separation of powers doctrine?

          E.   Does 61 Pa.C.S.A. § 6138(a)(5) deny appellant
               due process of law by altering appellant’s
               judicially imposed sentence without notice or a
               hearing in a venue that has jurisdiction over
               both parties and subject matter?

               1.    Does § 6138(a)(5) countermand,
                     interfere with and reverses [sic]
                     the finali9ty [sic] of the judge’s
                     court order being an exclusive
                     judicial function and should be
                     suspended?

          F.   As an executive branch, administrative agency,
               does the Pennsylvania Board of Probation and


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(“the Board”) imposed an illegal sentence when it ordered appellant to serve

back    time    in   case   388/1998       before   beginning    to    serve   time    in

case 4032/2015.

       “The Commonwealth Court shall have original jurisdiction of all civil

actions or proceedings[ a]gainst the Commonwealth government, including

any officer thereof, acting in his official capacity,” with exceptions not

applicable here. 42 Pa.C.S.A. § 761(a)(1). When challenging an action of

the Board in a parole matter, the nature of the allegations of the error and

the    relief   sought    determine    whether      the   case   comes      within    the

Commonwealth         Court’s    original     jurisdiction.       McGriff       v.     Pa.

Commonwealth Bd. of Probation and Parole, 809 A.2d 455, 458

(Pa.Cmwlth. 2002), affirmed per curiam, McGriff v. Pa. Bd. of

Probation and Parole, 838 A.2d 564 (Pa. 2003).                        “Jurisdiction over

complaints sounding in mandamus against State agencies administering the




                     Parole have the power or authority to
                     adjudicate the legality of sentence, to add,
                     alter or delete sentencing conditions?

                     1.     Is the power or authority to
                            adjudicate the legality of sentence
                            by adding, deleting and altering
                            sentencing conditions only divested
                            in the sentencing court and done
                            by     an     executive      branch
                            administrative agency violative of
                            the separation of powers doctrine?

Appellant’s brief at 2-4.


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

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

Id. (citation omitted).

      Here, although appellant frames his complaint as one seeking habeas

relief based on an illegal sentence, appellant challenges a statutorily

authorized action of the Board, which is an administrative agency that

administers the parole system; specifically, appellant challenges the Board’s

statutorily imposed requirement that appellant serve back time prior to

serving a new sentence.      The Board’s powers and duties with respect to

parole violations are set forth in 61 Pa.C.S.A. § 6138 and include

requirements for service of back time. Nonetheless, in his petition for writ of

habeas    corpus,    appellant   requested   that   the   trial   court   “suspend

[Section 6138] and commence [appellant’s] sentence to start running and

credit all time from March 23, 2016 when [appellant’s] sentence was

stopped from running.”      (Appellant’s pro se petition for writ of habeas

corpus, 6/16/16.)       As such, appellant’s claim sounds in mandamus and

jurisdiction over that claim falls within the exclusive original jurisdiction of

the Commonwealth Court.          Therefore, the trial court properly denied

appellant’s motion for writ of habeas corpus.

      Order affirmed.

      Ott, J. joins this Memorandum.

      Bowes, J. files a Dissenting Memorandum.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date:10/6/2017




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