J-S32024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

JAMES WESTBROOK

                            Appellant                      No. 730 EDA 2015


                    Appeal from the Order January 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0800781-2004


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

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

        Appellant, James Westbrook, appeals pro se from the January 30,

2015 order, denying his petition for writ of habeas corpus.           After careful

review, we affirm.

        We summarize the procedural history of this case, as discerned from

the certified record, as follows. Appellant was convicted by a jury of delivery

of a controlled substance, 35 P.S. § 780-113(a)(30), on September 29,

2004. On November 15, 2004, the trial court sentenced Appellant to a term

of incarceration of 15 to 30 years.            This Court affirmed the judgment of

sentence. See Commonwealth v. Westbrook, 895 A.2d 635 (Pa. Super.

2006) (unpublished memorandum).                In subsequent years, Appellant filed

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*
    Retired Senior Judge assigned to the Superior Court.
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two petitions pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546.         In each instance, the PCRA court denied relief, and the

denials were affirmed on appeal. See Commonwealth v. Westbrook, 988

A.2d 732 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 8

A.3d 345 (Pa. 2010); Commonwealth v. Westbrook, 87 A.3d 384 (Pa.

Super. 2013) (unpublished memorandum), appeal denied, 86 A.3d 233 (Pa.

2014).

       On December 10, 2013, Appellant filed a petition for writ of habeas

corpus.       Appellant claimed his detention by the Department of Corrections

(DOC) was illegal because the DOC averred it was not in possession of a

copy     of    Appellant’s   sentencing   order   as   required   by   42   Pa.C.S.A.

§ 9764(a)(8).       Petition for Writ of Habeas Corpus, 12/10/13, at 4.           On

January 29, 2014, the trial court, treating Appellant’s petition as a PCRA

petition, filed a notice pursuant to Pennsylvania Rule of Criminal Procedure

907, noting Appellant’s appeal from the denial of his second PCRA petition

was still pending, such that the instant petition could not be filed. On March

12, 2014, the trial court filed a second rule 907 notice indicating its intent to

dismiss Appellant’s petition as an untimely PCRA petition.             Appellant, on

April 1, 2014, filed an answer to the trial court’s notice of intent to dismiss,

asserting his claim was not cognizable under the PCRA and therefore was

properly filed as a petition for habeas corpus relief and was not untimely.




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The trial court dismissed Appellant’s petition on January 30, 2015. Appellant

filed a timely notice of appeal on February 26, 2015.1

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

              A.    Whether the Trial Court abused its discretion in
              dismissing the Instant Petition for Writ of Habeas
              Corpus Ad Subjiciendum since Appellant is confined
              pursuant to a Sentencing Order absent the Statute
              under Pennsylvania law that the Judge received
              Statutory Authorization from to impose the
              sentence?[2]

              B.   Whether Due Process is violated where there is
              no remedy for the violation of a constitutional right?

Appellant’s Brief at 3.

       We initially note the trial court now recognizes that Appellant’s petition

was not cognizable under the PCRA and the dismissal on the basis it was an

untimely PCRA petition was incorrect. Trial Court Opinion, 3/18/15, at 2 n.2.

We agree. As noted above, the claim raised in Appellant’s petition for writ of

habeas corpus is that his detention by the DOC is illegal based on the DOC’s

purported lack of authority because it is not in possession of a copy of his

sentencing order.      Petition for Writ of Habeas Corpus, 12/10/13, at 4. As
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1
  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 March 18, 2015.
2
  Notwithstanding the phrasing of this question, Appellant’s contention is
that the trial court erred in dismissing his petition because he is illegally
detained where the DOC is not in possession of an order containing the
authorization for his sentence. Appellant’s Brief at 6. We address the issue
accordingly.


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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

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

denied, 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).

       The trial court opines that dismissal of Appellant’s petition for writ of

habeas corpus was nevertheless proper on the merits, and urges affirmance

based on this Court’s decision in Joseph.3 Trial Court Opinion 3/18/15, at

2-3. We therefore proceed with the following principles in mind. “[H]abeas

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3
 “[T]his court may affirm the decision of the trial court if there is any basis
on the record to support the trial court’s action; this is so even if we rely on
a different basis in our decision to affirm.” Commonwealth v. O’Drain,
829 A.2d 316, 322 n.7 (Pa. Super. 2003) (citation omitted)


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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).

            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).

      Instantly, Appellant’s principal contention is as follows.

            Appellant is principally testing the legality of his
            commitment and detention, claiming the Sentencing
            Order by which he is detained do [sic] not exist.
            Because the Sentencing Order herein do [sic] not
            exist the [] DOC lacks the authority to detain
            Appellant pursuant to 37 Pa. Code § 91.3 (Reception
            of inmates), which provides the “DOC will accept and
            confine those persons committed to it under lawful
            court orders…when information has been provided to
            the DOC as required by 42 Pa.C.S.A. § 9764
            (relating to information required upon commitment
            and subsequent disposition).” Appellant claims the
            DOC’s inability to produce a copy of the Sentencing
            Order, constitutes a fatal failure that should result in
            his release….

Appellant’s Reply Brief at 3.

      Section 9764 provides in pertinent part as follows.

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            §   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).

      We agree with the trial court 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). We 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.

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       Appellant acknowledges the trial court record shows “the [trial] judge

stated on the record at the sentencing hearing that Appellant was sentenced

to a term of imprisonment of 15 to 30 years ….”           Appellant’s Brief at 8.

However, he argues a written order is required. “It is well-settled that the

signed sentencing order takes precedence over oral statement of the

sentencing court not incorporated into that order.” Id. at 9. The Joseph

Court dealt with a similar contention by the petitioner in that case, holding

that a sentencing hearing transcript is sufficient evidence of a defendant’s

sentence. Joseph, supra at 371-372.

       As noted by the trial court, “the [trial court] record confirm[s] that

petitioner was officially sentenced on November 15, 2004.”             Trial Court

Opinion, 3/18/15, at 2.           Our review of the record substantiates that

conclusion. Therefore, we determine the trial court’s dismissal of Appellant’s

petition for writ of habeas corpus was legally correct, albeit on other grounds

than those it contemporaneously relied on.          See Joseph, supra.4        We

therefore affirm the trial court’s January 30, 2015 order.

       Order affirmed.




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4
  In his second issue, Appellant argues it would be a violation of due process
to deny him an opportunity to address his claim of illegal confinement.
Appellant’s Brief at 11. This is essentially addressed to the trial court’s initial
decision to treat his petition as a PCRA petition, which in turn was foreclosed
on timeliness grounds. Given our disposition of Appellant’s first issue on its
merits as a petition for habeas corpus relief, this issue is moot.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




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