J-S24032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CURTIS SMITH                           :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                     Appellant          :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 MONTGOMERY COUNTY DISTRICT             :    No. 2927 EDA 2018
 ATTORNEY                               :

            Appeal from the Order Dated September 10, 2018
   In the Court of Common Pleas of Montgomery County Civil Division at
                          No(s): 2018-20095


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED MAY 22, 2019

      Appellant Curtis Smith (“Smith”) appeals from the order entered in the

Court of Common Pleas of Montgomery County Civil Division (“civil court”),

denying Smith’s pro se petition for a writ of habeas corpus. We vacate the

order and remand for the entry of an order transferring the matter to the

Court of Common Pleas of Montgomery County Criminal Division.

      The relevant facts and procedural history have been set forth, in part,

by the civil court as follows:

            This appeal arises out of [Smith’s] Petition for Writ of
      Habeas Corpus, filed with the Montgomery County Prothonotary
      on August 10, 2018. The Montgomery County District Attorney
      was named as Respondent. Though not set forth in his filings, it
      appears that on February 13, 2018, Smith was charged with Retail
      Theft in a proceeding docketed at Montgomery County Criminal
      Action CP-46-CR-0003255-2018. According to the Montgomery
      County criminal dockets, that offense is currently pending.1


____________________________________
* Former Justice specially assigned to the Superior Court.
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      1 Smith is represented by private counsel in the criminal action. He filed
      his habeas corpus petition pro se.

             Smith, who pleads that he is “on bail awaiting trial in this
      county” asks that his petition for writ of habeas corpus be granted
      because      he    is    not   governed      by    the   “corporate
      state/Commonwealth of Pennsylvania” thus “rendering the Bills of
      Information/Indictments” in [his criminal case] null and void.”2 In
      his Petition for writ of habeas corpus, Smith requested that th[e]
      [civil] court “quash the bill(s) of Information/Indictment(s) and
      order his release from custody.” Smith presented a proposed
      order which stated that the District Attorney3 “release and
      discharge the Petitioner.”
            This petition for habeas corpus was assigned to th[e] [civil]
      court as a civil equity emergency matter. On September 10,
      2018, th[e] [civil] court entered an order denying Smith’s Petition.
      Smith filed a timely appeal of this order.3 [The civil court did not
      order Smith to file a Pa.R.A.P. 1925(b) statement, and
      consequently, Smith did not file one. The civil court filed an
      opinion pursuant to Pa.R.A.P. 1925(a) on November 6, 2018.]
      2 Smith’s petition challenges his [criminal] counsel’s effectiveness in not
      raising whether he is bound by the state and federal law and
      constitutions, and whether he must follow the law of Pennsylvania.
      3 The docket entries in this case contain no affidavits of service showing
      that the District Attorney’s Office was ever notified of Smith’s Petition
      prior to the filing of the appeal.
      4 Smith averred in his petition that he is “on bail awaiting trial” in
      Montgomery County, and can be found at an address in Philadelphia.
      Thus, [Smith] is not currently being detained. The court in
      Commonwealth ex rel Paulinski, 483 Pa. 467, 397 A.2d 760 (1979),
      ruled that the writ is available to a person released on bail “so long as
      there are restraints on the petitioner’s physical liberty not shared by the
      public generally.” Smith has not set forth any such restraints in his
      petition. However, his petition was not denied on that basis.


Civil Court Opinion, filed 11/6/18, at 1-2 (footnotes in original).

      Smith contends the Court of Common Pleas has no jurisdiction over the

persona/subject matter of the underlying criminal case as Smith is a

“sovereign citizen.”     He further contends his confinement/bail is being



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unlawfully enforced absent jurisdiction. The civil court denied Smith’s petition

for writ of habeas corpus on the basis Smith incorrectly filed the petition with

the Civil Division’s Prothonotary, as opposed to the Criminal Division’s Clerk

of Courts. In so doing, the civil court concluded it had no authority to act with

regard to the underlying criminal case.

      Initially, we agree with the civil court that Smith mistakenly filed his pro

se petition for writ of habeas corpus with the Civil Division’s Prothonotary.

While a habeas petition is a “civil remedy,” Chadwick v. Caulfield, 834 A.2d

562, 566 (Pa.Super. 2003), the Pennsylvania Supreme Court has promulgated

the rules governing the filing of such petitions in the Pennsylvania Rules of

Criminal Procedure.

      Specifically, Pa.R.Crim.P. 108 provides that “[a] petition for writ of

habeas corpus challenging the legality of the petitioner’s detention or

confinement in a criminal matter shall be filed with the clerk of courts of the

judicial district in which the order directing the petitioner’s detention or

confinement was entered.” Pa.R.Crim.P. 108. Rule 103, in turn, defines the

“clerk of courts” as “that official…in each judicial district who…has the

responsibility and function to maintain the official criminal case file and list of

docket entries, and to perform such other duties as required by rule or law.”

Pa.R.Crim.P. 103. Moreover, Section 2738 of the Judicial Code sets forth the

general rule that “the office of the prothonotary shall not exercise the powers




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and perform the duties of the office of the clerk of courts.” 42 Pa.C.S.A. §

2738(b).

       However, we disagree with the civil court that it was proper to deny

Smith’s petition on the basis it was incorrectly filed with the Prothonotary.

Section 2756 of the Judicial Code provides that “[a]ll applications for relief or

other documents relating to the following matters shall be filed in or

transferred to the office of the clerk of the courts: (1) Criminal matters

including all related motions and filings.”      42 Pa.C.S.A. § 2756 (emphasis

added). Accordingly, based on the plain language of Section 2756, the civil

court should have transferred the petition for a writ of habeas corpus, which

presented issues related to Smith’s criminal matter, to the criminal court’s

Clerk of Courts rather than summarily denying the petition on the basis it was

incorrectly filed with the civil court’s Prothonotary.

       For all of the foregoing reasons, we vacate the Court of Common Pleas

of Montgomery County Civil Division’s order dated September 10, 2018, and

remand for an order directing the transfer of the petition for a writ of habeas

corpus to the Court of Common Pleas of Montgomery County Criminal

Division.1

____________________________________________


1 We note that, during the pendency of this appeal, Appellant pled guilty and
was sentenced at CP-46-CR-0003255-2018. However, we decline to find the
instant matter “moot” as it is capable of repetition yet evading review. See
Commonwealth v. Dixon, 589 Pa. 28, 907 A.2d 468 (2006) (holding issue
pertaining to whether the appellant was entitled to pretrial release from



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       Order    vacated;     Case     remanded   with   instructions;   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/19




____________________________________________


confinement was reviewable under the mootness exception of “capable of
repetition yet evading review”).

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