J-S76039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MAURICE EVERETT

                            Appellant                 No. 3543 EDA 2015


               Appeal from the Order Entered November 12, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1100801-1995


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED NOVEMBER 02, 2016

        This is an appeal from the order of the Court of Common Pleas of

Philadelphia County dismissing Appellant Maurice Everett’s “Petition for Writ

of Habeas Corpus,” deeming it an untimely petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. To the extent that

Appellant’s petition could be characterized as a habeas petition, the lower

denied Appellant’s request for habeas relief.   We affirm.

        In June 1996, Appellant was convicted of second-degree murder,

robbery (two counts), aggravated assault, conspiracy, and possessing an

instrument of crime. On June 21, 1996, the trial court sentenced Appellant

to life imprisonment on the murder conviction.       On October 21, 1996, the

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*
    Former Justice specially assigned to the Superior Court.
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trial court imposed lesser concurrent sentences on the remaining charges.

Appellant filed a timely direct appeal.    On August 27, 1997, this Court

affirmed Appellant’s judgment of sentence.     Appellant did not petition our

Supreme Court for allowance to appeal.

      On January 28, 1998, Appellant filed his first pro se PCRA petition.

After counsel was appointed to assist Appellant on collateral review, she filed

a request to withdraw and a no-merit letter pursuant to Commonwealth v.

Finley, 550 A.2d 213 (Pa.Super. 1988). After Appellant’s initial counsel was

removed for failing to properly comply with Finley, Appellant’s replacement

counsel also sought to withdraw under Finley.        On August 8, 2000, the

PCRA court dismissed Appellant’s petition.     On May 30, 2001, this Court

affirmed the PCRA court’s order.         Appellant subsequently filed three

additional PCRA petitions, all of which were dismissed as untimely filed.

      On December 23, 2014, Appellant filed the instant “Petition for Writ of

Habeas Corpus,” claiming the Department of Corrections (DOC) had no

authority to continue to detain him without proof of a written sentencing

order.   On September 30, 2015, the lower court treated the filing as

Appellant’s fifth PCRA petition and notified him of its intent to dismiss the

petition as untimely filed pursuant to Pa.R.Crim.P. 907. In the alternative,

the lower court reviewed the merits of Appellant’s habeas claim, citing

Joseph v. Glunt, 96 A.3d 365 (Pa.Super. 2014), appeal denied, 627 Pa.

774, 101 A.3d 787 (2014), for the proposition that the DOC has the

continuing authority to detain a prisoner even without the possession of the

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written sentencing order if the record of his judgment of sentence is

maintained by the sentencing court. On October 14, 2015, Appellant filed a

response to the Rule 907 notice.

      On November 12, 2015, the lower court dismissed the instant petition.

In this order, it appears that the lower court treated the filing as a hybrid

PCRA petition and petition for writ of habeas corpus. To the extent the filing

could be characterized as PCRA petition, the lower court dismissed the

petition as untimely filed. To the extent the filing could be characterized as

a petition for writ of habeas corpus, the lower court denied the petition as

demonstrably frivolous. Appellant filed a timely appeal.

      As an initial matter, we review the lower court’s decision to

characterize Appellant’s filing both as a PCRA petition and a petition for writ

of habeas corpus. Generally, the PCRA “shall be the sole means of obtaining

collateral relief and encompasses all other common law and statutory

remedies … including habeas corpus and coram nobis.” Commonwealth v.

Descardes, ---Pa.---, 136 A.3d 493, 497–98 (2016) (citing 42 Pa.C.S. §

9542).   However, 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, 591 Pa. 126, 141, 916 A.2d 511, 520 (2007). In Joseph, this Court

held that a defendant’s claim that his confinement was illegal “due to the

inability of the DOC to produce a written sentencing order related to [his]

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judgment of sentence constitutes a claim legitimately sounding in habeas

corpus.” Joseph, 96 A.3d at 368 (citing Brown v. Pa. Dept. of Corr., 622

Pa. 742, 745, 81 A.3d 814, 815 (2013) (per curiam) (other citations

omitted)). In Brown, our Supreme Court reasoned that a prisoner’s claim

challenging the legality of his commitment and detention should be

characterized as a petition for habeas relief. Id. at 744, 81 A.3d at 815.

      In the instant case, Appellant raises a claim identical to the challenge

raised in Joseph, alleging that the DOC had no authority to confine him

without providing him with his written sentencing order.     Pursuant to our

precedent in Joseph, we will treat Appellant’s petition as a petition for writ

of habeas corpus instead of a petition pursuant to the PCRA, which only

encompasses claims challenging the legality of sentence. See 42 Pa.C.S. §

9542 (“This subchapter provides for an action by which persons … serving

illegal sentences may obtain collateral relief”).

      In reviewing a petition for writ of habeas corpus, our standard of

review is as follows:

             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 Dep't of Corr., 837 A.2d 525, 528 (Pa.Super.

2003) (citations omitted).



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      As noted above, Appellant takes issue with the failure of the DOC to

provide him with a copy of the sentencing order relevant to his confinement.

Section 9764 provides in relevant part:

      § 9764.   Information required upon commitment and
      subsequent disposition

      (a) General rule. -- Upon commitment of an inmate to the
      custody of the Department of Corrections, 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).

      The trial court correctly concluded that this Court’s holding in Joseph

is controlling precedent. In that case, the petitioner raised an identical claim

that his confinement was illegal because the DOC did not possess the court

order signed by the sentencing court. This Court affirmed the trial court’s

denial of habeas relief, rejecting the petitioner’s attempt to construe Section

9764 to provide the remedy of a prisoner’s release for the DOC’s failure to

comply with this statute:

      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 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.

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       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).

       In this case, Appellant does not acknowledge that the trial court’s

review of the record revealed that the Honorable James Fitzgerald, III,

entered sentencing orders in this matter on June 21, 1996 and October 21,

1996. The trial court also noted the sentences were accurately docketed by

the clerk of courts. Even if in the absence of a written sentencing order, this

Court held in Joseph that the DOC retains authority to detain the prisoner.

See Joseph, supra. Accordingly, we conclude that the trial court correctly

denied Appellant’s petition for habeas relief.

       Order affirmed.      Appellant’s “Application Seeking Leave to File Post

Submission Communication Brief” is denied.1




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1
  In this application, Appellant alleges that 42 Pa.C.S. § 9764(c.1)(3)
cannot be retroactively applied to his case as this provision was enacted in
2008.     See 42 Pa.C.S. § 9764 (providing that “[t]he Department of
Corrections, board and a county correctional facility shall not be liable for
compensatory, punitive or other damages for relying in good faith on any
sentencing order or court commitment form DC-300B generated from the
Common Pleas Criminal Court Case Management System of the unified
judicial system or otherwise transmitted to them”). Appellant’s claim does
not offer any coherent discussion as to why this Court’s holding in Joseph
does not apply in this case.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2016




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