J-S26032-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                      Appellee            :
                                          :
                      v.                  :
                                          :
JOHN WILSON,                              :
                                          :
                      Appellant           :       No. 3026 EDA 2015

              Appeal from the PCRA Order September 14, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division, at No(s): CP-51-CR-0743951-1991

BEFORE:     OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED MAY 06, 2016

      John Wilson (Appellant) appeals pro se from the order which dismissed

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546, and denied his petition seeking habeas corpus relief.

Upon review, we affirm.

      On April 8, 1992, Appellant pled guilty to first-degree murder,

aggravated assault, and criminal conspiracy.        He was sentenced to life

imprisonment    for   the   murder   conviction   and   concurrent   terms   of

imprisonment on the remaining convictions. Appellant did not file a direct

appeal.

      Following several unsuccessful attempts at obtaining post-conviction

relief, Appellant filed a PCRA petition on February 16, 2011, to which he also

appended a motion for post-conviction DNA testing.         On April 7, 2014,



*Retired Senior Judge assigned to the Superior Court.
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Appellant filed a petition for writ of habeas corpus, alleging that he was

being confined illegally “based on the absence of a sentencing order

containing statutory authorization for the sentence imposed for the

Department of Corrections [(DOC)] to detain him.”         Petition for Writ of

Habeas Corpus, 4/7/2014, at 2. On September 16, 2014, Appellant filed a

“Supplemental Petition[] for Habeas Corpus Relief,” wherein he alleged that

he was being confined illegally on the basis that his sentence was unlawful

because the court “utilized capital case murder procedures in this non-capital

case.”   “Supplemental Petition[] for Habeas Corpus Relief,” 9/16/2014, at

2-3.

       On July 24, 2015,1 the PCRA court issued notice of its intent to dismiss

Appellant’s February 16, 2011 PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907 on the basis that the petition was filed untimely.2


1
  The reason for the unacceptably-long delay in addressing Appellant’s filings
is not apparent from the record.
2
  The PCRA court also explained that Appellant’s “subsequent filing styled
‘Petition for Habeas Corpus Relief’ was reviewed as a supplemental PCRA
petition because it raised issues remediable under the PCRA.” Rule 907
Notice, 7/24/2015. The PCRA court was referring to Appellant’s September
16, 2014 “Supplemental Petition[] for Habeas Corpus Relief,” as it went on
to explain that, even assuming it had jurisdiction, Appellant would not be
entitled to relief because he was “properly sentenced under 18 Pa.C.S.
[§] 1102(a) to a term of life imprisonment,” the scope of which “is not
limited, as [Appellant] claimed, to capital-murder convictions.” Rule 907
Notice, 7/24/2015. Moreover, in discussing its decision in this regard in its
opinion issued pursuant to Pa.R.A.P. 1925(a), the PCRA court specified the
date of the petition as the one filed on September 16, 2014. PCRA Court
Opinion, 11/2/2015, at 3-4.


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Appellant filed a response, which pertained solely to the sentencing-order

claim he presented in his April 7, 2014 petition for writ of habeas corpus.

On September 14, 2015, the PCRA court dismissed Appellant’s PCRA petition

and denied his petition seeking habeas corpus relief. Appellant filed timely a

notice of appeal to this Court. The PCRA court did not order Appellant to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), but it did file an opinion pursuant to Pa.R.A.P. 1925(a). 3

      Appellant presents the following issues for our consideration:

      A.    Whether the [PCRA] court abused its discretion in
      dismissing Appellant’s petition for writ of habeas corpus ad
      subjiciendum since he is confined absent a sentencing order
      required by 42 Pa.C.S.[] § 9764(a)(8)?

      B.    Whether the [PCRA] court abused its discretion in
      dismissing Appellant’s petition for writ of habeas corpus ad
      subjiciendum as an untimely petition pursuant to the [PCRA]?

Appellant’s Brief at 3 (unnecessary capitalization and suggested answers

omitted).

      Preliminarily, we observe that Appellant’s second claim is belied by the

record.     In its September 14, 2015 order, the PCRA court stated that

Appellant’s “[PCRA p]etition is dismissed as untimely and his [p]etition

seeking habeas corpus relief is denied.”        Order, 9/14/2015 (emphasis


3
  The PCRA court did not address Appellant’s motion for post-conviction DNA
testing appended to his February 26, 2011 PCRA petition until it issued its
Rule 1925(a) opinion, wherein the court concluded that Appellant was not
entitled to such testing. PCRA Court Opinion, 11/2/2015, at 5. Appellant
does not raise any issues relating to this motion on appeal.


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omitted).    Thus, the PCRA court clearly provided a denial of Appellant’s

request for habeas corpus relief separate from the dismissal of his PCRA

petition on the basis of untimeliness. Moreover, in its Rule 1925(a) opinion,

the PCRA court explained that “[i]n Joseph v. Glunt, 96 A.3d 365 (Pa.

Super. 2014), the Superior Court held that a claim identical to the instant

one was not cognizable under the PCRA and was properly raised in a writ of

habeas corpus.”     PCRA Court Opinion, 11/2/2015, at 5; see Joseph, 96

A.3d at 367-69 (treating the appellant’s petition, in which he alleged that his

sentence was illegal and that his constitutional rights had been violated

because the DOC did not possess a lawful sentencing order authorizing his

restraint, as a petition for a writ of habeas corpus and not a PCRA petition).

Appellant fails to cite anything in the record to support his argument that the

PCRA court improperly treated his request for habeas corpus relief as an

untimely PCRA petition. Thus, we conclude that his claim is meritless.

        Appellant also contends that the PCRA court abused its discretion in

denying his petition for writ of habeas corpus on the merits.        Appellant

reiterates that he is being confined illegally because the DOC is not in

possession of a sentencing order, which he contends is required to detain

him under subsection 9764(a)(8) of the Sentencing Code. 4 In Joseph, this

Court considered, and rejected, this exact claim:


4
    Subsection 9764(a)(8) provides as follows:



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       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, 96 A.3d at 371 (footnote omitted).       This Court further observed

that

       [Joseph] has cited no apposite legal authorities demonstrating
       that the undisputed record of his judgment of sentence
       maintained by the sentencing court constitutes insufficient
       authority for his continuing detention.       See T.C.O. at 2
       (“Through use of the Common Pleas Case Management System,
       the [thirteen] page criminal docket of [Joseph] ... was obtained.
       This docket shows that [Joseph] was found guilty of First Degree
       Murder.... He was sentenced to life without parole by ... Judge
       John F. Cherry.”); see also Dauphin County Criminal Docket
       CP–22–CR–0001269–2009 at 6. … [C]ourts confronting this
       issue in the past have deemed a record of the valid imposition of
       a sentence as sufficient authority to maintain a prisoner’s
       detention notwithstanding the absence of a written sentencing
       order…. Both the criminal docket provided by the trial court and
       the transcript of the sentencing hearing confirm the imposition,
       and legitimacy, of [Joseph’s] sentence.




       (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…

                                     ***

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


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            Based upon the foregoing, we discern no merit in
      [Joseph’s] arguments. The trial court properly reviewed the
      record and discovered a valid sentencing order contained
      therein. Moreover, the trial court correctly concluded that, even
      in the absence of a written sentencing order, the DOC had
      continuing authority to detain [Joseph].

Id. at 372.

      Based on Joseph, section 9764 does not require the DOC to maintain

and produce a sentencing order, nor does it create a remedy for

noncompliance. Moreover, the PCRA court concluded that, “[u]pon review,

… Judge Halbert entered a sentencing order in this matter on April 8, 1992.”

PCRA Court Opinion, 11/2/2015, at 5.        Our review of the record confirms

that the sentencing orders for each of Appellant’s convictions are located

therein.   Thus, the PCRA court did not abuse its discretion in denying

Appellant’s petition for habeas corpus relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/6/2016




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