J-S32021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellee

                       v.

LARRY STURGIS

                             Appellant                     No. 2779 EDA 2015


                Appeal from the Order Dated September 1, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0903671-1986


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                                    FILED JUNE 21, 2016

         Appellant, Larry Sturgis, appeals pro se from the September 1, 2015

order denying his petition for writ of habeas corpus ad subjiciendum. After

careful review, we affirm.

         The pertinent procedural history of this case is as follows. Appellant

was convicted of first-degree murder and possession of an instrument of

crime following a bench trial. The trial court sentenced Appellant on October

8, 1987 to a term of life imprisonment without possibility of parole.           On

direct     appeal,    this    Court      affirmed   the   judgment   of   sentence.

Commonwealth v. Sturgis, 545 A.2d 389 (Pa. Super. 1988) (unpublished

memorandum). Subsequently, Appellant filed five petitions pursuant to the

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.                 All of

Appellant’s petitions were denied by the PCRA court, and each was affirmed

on appeal.1

       Meanwhile, Appellant made a request to the Department of Corrections

(DOC) through the Right to Know Law, 65 Pa.C.S. §§ 67.101-67.3104, for a

copy of his sentencing order. When the DOC declined on the basis that it

possessed no copy of the sentencing order, Appellant appealed to the

Commonwealth Court. The Commonwealth Court affirmed, noting the DOC

could not turn over what it did not have.          Sturgis v. Dep’t of Corr., 96

A.3d 445, 448 (Pa. Cmwlth. 2014), appeal denied, 104 A.3d 6 (Pa. 2014).

Subsequently, on May 18, 2015, Appellant filed a petition for writ of habeas

corpus ad subjiciendum, contending, inter alia, that his confinement was

illegal because the DOC did not have a copy of his sentencing order as

required by 42 Pa.C.S.A. § 9764(a)(8).           Appellant filed his petition in the

civil division of the Court of Common Pleas of Philadelphia County. On June

3, 2015, the matter was re-assigned and transferred to the criminal division.


____________________________________________
1
  See Commonwealth v. Sturgis, 626 A.2d 650 (Pa. Super. 1993)
(unpublished memorandum), appeal denied, 634 A.2d 220 (Pa. 1993);
Commonwealth v. Sturgis, 737 A.2d 1279 (Pa. Super. 1999) (unpublished
memorandum); Commonwealth v. Sturgis, 778 A.2d 1248 (Pa. Super.
2001) (unpublished memorandum), appeal denied, 796 A.2d 982 (Pa.
2001); Commonwealth v. Sturgis, 911 A.2d 187 (Pa. Super. 2006)
(unpublished memorandum), appeal denied, 921 A.2d 496 (Pa. 2007);
Commonwealth v. Sturgis, 105 A.3d 795 (Pa. Super. 2014) (unpublished
memorandum).


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On September 1, 2015, the trial court denied Appellant’s petition. Appellant

filed a timely notice of appeal on September 10, 2015.2

       On appeal, Appellant raises the following issues for our consideration.

              i.     Whether the transferring of [Appellant’s]
              petition for writ of habeas corpus subjiciendum from
              the civil court of record to the criminal court of
              record was improper as the writ of habeas corpus
              subjiciendum is a civil remedy?

              ii.   Whether the substance of the trial court’s
              refusal to furnish habeas corpus relief due to the
              [DOC’s] and the clerk of court of Philadelphia
              County’s inability to produce a written copy of
              Appellant’s judgment of sentence is in erro [sic]
              based upon statutory subsection 42 Pa.C.S.A.
              § 9764(a)(8)?

Appellant’s Brief at 4.

       We address Appellant’s second issue first, because it is dispositive of

this appeal. Our standard of review is well settled. “[H]abeas corpus is a

civil remedy which lies solely for commitments under criminal process.”

Commonwealth v. McNeil, 665 A.2d 1247, 1249 (Pa. Super. 1995)

(citation omitted). “Habeas corpus is an extraordinary remedy and may only

be invoked when other remedies in the ordinary course have been

exhausted or are not available.” Id. (citation omitted).


____________________________________________
2
  The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The trial court issued a Rule 1925(a) memorandum
opinion on October 16, 2015.



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              Our standard of review of a trial court’s order
              denying a petition for writ of habeas corpus is limited
              to abuse of discretion. Thus, we may reverse the
              court’s order where the court has misapplied the law
              or exercised its discretion in a manner lacking
              reason. As in all matters on appeal, the appellant
              bears the burden of persuasion to demonstrate his
              entitlement to the relief he requests.

Rivera v. Pennsylvania Dept. of Corr., 837 A.2d 525, 528 (Pa. Super.

2003) (citations omitted), appeal denied, 857 A.2d 680 (Pa. 2004).

      Initially, we note the trial court determined that Appellant’s claim was

properly advanced as a petition for writ of habeas corpus ad subjiciendum

rather than as a collateral claim under the PCRA.                Trial Court Opinion,

10/16/15, at 2. The claim raised in Appellant’s petition for writ of habeas

corpus ad subjiciendum is that his detention by the DOC is illegal based on

the   DOC’s    purported     lack   of   authority   in   the   absence    of   required

documentation. Petition for Writ of Habeas Corpus ad Subjiciendum, 6/3/15,

at 7. As such, Appellant does not challenge the legality of his sentence as

entered by the trial court, which would be cognizable under the PCRA. See

42 Pa.C.S.A. § 9543; see also Commonwealth v. Hockenberry, 689 A.2d

283, 288 (Pa. Super. 1997) (holding, “[i]ssues relating to the legality of

sentence cannot be waived and are cognizable under the PCRA”), appeal

denied, 695 A.2d 784 (Pa. 1997). Our Supreme Court “has never held that

habeas   corpus     cannot     provide    a   separate     remedy,    in   appropriate

circumstances. Indeed, the boundaries of cognizable claims under the PCRA

can only be extended so far as is consistent with the purposes of the

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statute….” Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007), cert.

denied, Judge v. Pennsylvania, 552 U.S. 1011 (2007); See also Joseph

v. Glunt, 96 A.3d 365, 368 (Pa. Super. 2014) (holding that a claim a

defendant’s confinement is illegal “due to the inability of the DOC to ‘produce

a written sentencing order related to [his] judgment of sentence’ constitutes

a claim legitimately sounding in habeas corpus”), appeal denied, 101 A.3d

787 (Pa. 2014).

      Appellant asserts his “most substantial argument is based upon

statutory subsection 9764(a)(8) of the Sentencing Code.” Appellant’s Brief

at 15. That provision provides as follows.

            §   9764.   Information    required                upon
            commitment and subsequent disposition

            (a) General rule.—Upon commitment of an inmate
            to the custody of the [DOC], the sheriff or
            transporting official shall provide to the institution’s
            records officer or duty officer, in addition to a copy of
            the court commitment form DC–300B generated
            from the Common Pleas Criminal Court Case
            Management System of the unified judicial system,
            the following information:

                                       …

            (8) A copy of the sentencing order and any detainers
            filed against the inmate which the county has notice.

42 Pa.C.S. § 9764(a)(8). Appellant argues “that the word ‘shall’, as used in

subsection 9764, is mandatory and provides the only means to establish

DOC’s jurisdiction to detain a prisoner.” Appellant’s Brief at 16.




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      The trial court, noting the trial court record evidenced Appellant’s

sentence, determined that “[t]he fact that there is no commitment form

does not entitle [Appellant] to any relief when the [DOC] had continuous

authority to detain Petitioner.”   Trial Court Opinion, 10/16/15, at 2, citing

Joseph, supra. We agree that Joseph controls the outcome of this appeal.

In Joseph, this Court confronted an identical issue challenging the authority

of the DOC to detain the petitioner when it had no copy of his sentencing

order pursuant to Section 9764(a)(8).         In Joseph, this Court held as

follows.

            The language and structure of section 9764, viewed
            in context, make clear that the statute pertains not
            to the DOC’s authority to detain a duly-sentenced
            prisoner, but, rather, sets forth the procedures and
            prerogatives associated with the transfer of an
            inmate from county to state detention. None of the
            provisions of section 9764 indicate[s] an affirmative
            obligation on the part of the DOC to maintain and
            produce the documents enumerated in subsection
            9764(a) upon the request of the incarcerated person.
            Moreover, section 9764 neither expressly vests, nor
            implies the vestiture, in a prisoner of any remedy for
            deviation from the procedures prescribed within.

Joseph, supra at 371 (footnote omitted). Accordingly, the Joseph Court

affirmed the trial court’s denial of habeas corpus relief.

      The same result is dictated here.      Therefore, we conclude the trial

court committed no error of law or abuse of discretion in denying Appellant’s




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petition for writ of habeas corpus ad subjiciendum.3 See Id. Accordingly,

we affirm the trial court’s September 1, 2015 order.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




____________________________________________
3
  In his first issue, Appellant asserts it was error for the trial court to transfer
the case from the civil division to the criminal division under a new caption.
Given our disposition of the merits of Appellant’s habeas corpus claim, we
deem this procedural issue to be moot. We therefore do not need to
address Appellant’s first allegation of error. We note however, that the trial
court did not alter the nature of Appellant’s action by virtue of the transfer,
and disposed of the matter as a habeas corpus proceeding.


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