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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LARRY BARKSDALE, :
:
APPEAL OF: PENNSYLVANIA BOARD OF :
PROBATION AND PAROLE : No. 3297 EDA 2013
Appeal from the Order entered October 21, 2013,
Court of Common Pleas, Montgomery County,
Criminal Division at No. CP-46-CR-0004544-2005
BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MARCH 23, 2015
The Pennsylvania Board of Probation and Parole (“the Board”) appeals
from the October 21, 2013 order entered by the Montgomery County Court
of Common Pleas granting the habeas corpus petition (the “Petition”) filed by
Larry Barksdale (“Barksdale”) for immediate release from prison. Because
the trial court lacked jurisdiction over the matter, we vacate the order.
The trial court summarized the facts and procedural history of this
case as follows:
On June 26, 2006, [Barksdale] was sentenced to
three[] years and six[] months to seven[] years of
incarceration for two counts of [p]ossession with
[i]ntent to [d]eliver a [c]ontrolled [s]ubstance.
[Barksdale]’s original minimum incarceration date
was December 26, 2009, and original maximum
incarceration date was June 26, 2013.
On January 13, 2010, [Barksdale] was released
on parole to an approved home plan. [Barksdale]’s
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maximum sentence date was listed as June 26, 2013
on the Board’s release order.
On May 23, 2012, while on parole, [Barksdale]
was arrested in Plymouth Township, Montgomery
County, Pennsylvania and charged with [d]riving
[u]nder the [i]nfluence [“DUI”]. The Board took no
action in response to this arrest.
On July 24, 2012, while still on parole,
[Barksdale] was arrested in Philadelphia and charged
with [DUI] and [c]riminal [m]ischief.
On July 25, 2012, the Board lodged a detainer
against [Barksdale].
On October 3, 2012, the Board recommitted
[Barksdale] to serve nine[] months [of] [backtime]
for multiple technical parole violations. The Board’s
decision noted [Barksdale]’s maximum sentence date
of June 26, 2013, subject to change if convicted of
outstanding charges.
On January 8, 2013, [Barksdale] pled guilty in the
Philadelphia Municipal Court to the July 24, 2012,
[DUI] offense, supra. [Barksdale] was then
sentenced to a minimum of ninety[] days [of]
incarceration to a maximum of six[] months [of]
incarceration. [Barksdale] was also sentenced to
serve an eighteen[-]month probationary sentence.
On April 22, 2013, [Barksdale] had a parole
revocation hearing before the Board and waived his
right to counsel.
On May 23, 2013, the Board issued a ruling
declining to award [Barksdale] any credit for the
time that he spent at liberty on parole. [There is
nothing in the record to indicate that the Board
notified Barksdale of this decision at this time.]
On June 19, 2013, the Board recommitted
[Barksdale] to a state correctional facility for his DUI
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conviction in Philadelphia County. [Barksdale]’s
twelve[-]month DUI sentence was to run concurrent
to the nine[-]month sentence he received for the
technical parole violations for a total of twelve
months [of] incarceration, “when available, pending
completion of parole from [Barksdale]’s Philadelphia
County conviction and pending resolution of
[Barksdale]’s outstanding charges in Montgomery
County.”
On June 24, 2013, the Board, through its agent at
the Norristown [s]ub-[o]ffice, sent a “Hold Past Max”
order to the prison to detain [Barksdale] pending
further Board action.
On June 25, 2013, the Board mailed its decision
recommitting [Barksdale] as a convicted parole
violator and mandating that [Barksdale] serve
twelve[] months [of] [backtime] “when available.”
This June 25, 2013 decision, did not note a
maximum sentence date for [Barksdale].
June 26, 2013 marked [Barksdale]’s original
maximum incarceration date, but [Barksdale] was
not released from prison.
As a result of the foregoing, [Barksdale]
communicated extensively with Board staff to
understand why he was being held past his
maximum date, when all of the paperwork in his
possession stated that he should be released.
Despite his written and oral requests, [Barksdale]
was given no answer except [being] told to refer to
his previous paperwork, and that the Board would
have another revocation hearing.
Consequently, on August 8, 2013, approximately
five[] weeks past his release date, [Barksdale]
resorted to filing a pro se [Petition] and [a]pplication
for an [i]mmediate [h]earing for [the Petition] with
[the trial c]ourt.
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Counsel was appointed to represent [Barksdale],
and on October, 21, 2013, the [trial c]ourt held the
habeas hearing to address [Barksdale]’s Petition. At
the hearing, the assistant district attorney was
present and a representative from the Board.
Further, the [trial c]ourt also communicated
extensively with other Board staff via telephone [off
the record]. … [T]he [trial c]ourt granted
[Barksdale]’s Petition and ordered that [Barksdale]
be released forthwith.
Finally, on November 7, 2013, weeks after the
[trial c]ourt’s disposition of the present matter, the
Board notified [Barksdale] that it had just
recalculated the maximum sentence date to February
20, 2016, due to his new conviction while on parole.
… Also, on this date, the Board filed a [p]etition to
[d]ismiss the already adjudicated [h]abeas
[p]etition.
On November 8, 2013, the [trial c]ourt held a
further video conference with reference to the
disputed October 21, 2013, ruling. The following
exchange occurred on the record[:]
ADA: This is a [p]etition for a [w]rit of [h]abeas
[c]orpus that was filed by Mr. Barksdale and also
by his attorney. For the purposes of the record
today, the Commonwealth would assert that in
speaking in conference and speaking with the []
Board [], my understanding is that the [] Board
will file a [m]otion to [v]acate the [o]rder that
was issued by Your Honor ordering the release of
Mr. Barksdale on October 21st and that that
motion will be primarily based on lack of
jurisdiction of the Court of Common Pleas,
asserting the appropriate jurisdiction lies within
the Commonwealth Court, and that is where Mr.
Barksdale’s remedies then lie as well. [...]
THE COURT: And, at the time, in fairness, at the
time that the [o]rder was issued, we had no
information that any recalculation had occurred.
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His run date had run. There was nothing that we
were aware of, despite our attempts to notify [the
Board] and talk to [the Board], they did not
inform us of anything that was holding
[Barksdale]. [...]
And we find out that yesterday, they finally
recalculated his run date.
DEFENSE COUNSEL: At that time[,] he was being
held in excess of his maximum incarceration date.
We found out that yesterday, on the 7th, they
recalculated his max date, and it’s now sometime
in 2016. [...]
Your Honor, my complaint is with the complete
lack of procedural safeguard designed to ensure
this process is moving as efficiently as possible.
We have now a person that has remained
incarcerated past his backdate without knowing
when he’s going to be released.
There’s a fundamental unfairness to that and a
deprivation that cannot be remedied by just
telling him, now, okay, well, now we’ve done it,
now that we’ve got the [o]rder saying you had to
be released two weeks ago, now we’ve
recalculated it, so now make your motion for
parole. Now that you brought us into [c]ourt two
times, you have to then ask us to parole you. It
just seems like he’s fighting an uphill battle here.
[...]
When we’re dealing with somebody’s liberty, an
individual’s liberty, I would suggest that we err on
the side of releasing him now, and he can be re-
incarcerated. He’s under supervision. He has a
Montgomery County case.
THE COURT: I have to tell you, I have similar
concerns about the efficiency of the system, the
way it works.
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I’m a little distressed because of the fact that we
did reach out to [the Board] with the defense
attorney and the prosecutor present. We spoke to
several people there.
At that point in time, not one of them was able to
explain a reason to keep [Barksdale] incarcerated.
And without that reason, this [c]ourt’s hands were
tied.
There was nothing there that prevented me from
releasing him at that point. It was not for lack of
trying.
Now we find the day before another hearing, they
decide [“]now I’m going to recalculate,[”] and it
doesn’t seem fair.
But what I will do, and I will tell you this, is if [the
Board] and the prosecution wants to, I will
entertain a motion to revoke my prior [o]rder,
rescind it, but I want some reasons for it.
COUNSEL FOR BOARD: Yes, Your Honor, and the
Board will provide that motion.
THE COURT: And I hope that if this serves any
other purpose, the purpose it serves is for the []
Board to get their act together with regard to this,
frankly, because this is inexcusable.
On November 14, 2013, the Board filed its
[m]otion to [r]econsider the [c]ourt’s October 21,
2013[] ruling, raising subject matter jurisdiction for
the first time. [On November 20, 2013,] [t]he [trial
court] scheduled argument for the same for its next
available date in December. However, [also] on
November 20, 2013, the Board filed the present
appeal thereby divesting the [trial c]ourt of
jurisdiction.
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Trial Court Opinion, 6/10/14, at 1-6 (record citations, footnotes, and
emphasis omitted).
On December 16, 2013, this Court received correspondence from the
trial court requesting “that the above[-]captioned matter be remanded back
to the [t]rial [c]ourt so that it can vacate its[] [o]rder, and permit
[Barksdale] to proceed through the Board’s internal process.” Trial Court
Letter, 12/16/13, at 2 (emphasis omitted). In its subsequent written opinion
pursuant to Pa.R.A.P. 1925(a), however, the trial court seeks affirmance of
the October 21, 2014 order, apparently intending to retract its earlier
request for remand. See Trial Court Opinion, 6/10/14, at 10.
On May 20, 2014, the Board filed a petition for this Court to confirm
that the Board’s appeal of the October 21, 2013 trial court order operated as
an automatic supersedeas. By Per Curiam Order dated July 2, 2014, this
Court granted the petition and ordered that “the October 21, 2013 order of
the Court of Common Pleas is STAYED pending the disposition of this
appeal.” Order, 7/2/14 (emphasis in the original). Barksdale sought
reconsideration or reargument of the July 2, 2014 Order, which this Court
denied on September 16, 2014.
On appeal, the Board raises the following issues for our review:
I. Did the trial court commit an error of law when it
granted Barksdale’s habeas corpus petition and
released him because it lacked jurisdiction to release
Barksdale, a state prisoner whose parole had been
previously revoked by the [] Board [] for committing
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a new crime while on parole with a pending
recomputation of his maximum sentence date?
II. Did the trial court commit an error of law when it
released Barksdale from incarceration after the []
Board [] had previously revoked Barksdale’s parole
with the intention of recomputing Barksdale’s
maximum sentence date by denying him credit for
the time he previously spent at liberty on parole?
The Board’s Brief at 4.
The Board’s first issue on appeal challenges the trial court’s jurisdiction
to decide Barksdale’s Petition. “The existence of subject matter jurisdiction
goes to the heart of a court’s ability to act in a particular case. It is not
waivable, even by consent, and may be raised by any party or by the court,
sua sponte, at any stage of the proceeding.” Commonwealth v.
Hemingway, 13 A.3d 491, 496 (Pa. Super. 2011) (citing Commonwealth
v. Jones, 929 A.2d 205, 208 (Pa. 2007)). “Because the question of subject
matter jurisdiction is purely one of law, our standard of review is de novo,
and our scope of review is plenary.” Commonwealth v. Brinson, 30 A.3d
490, 492 (Pa. Super. 2011) (citation omitted).
The Board asserts that jurisdiction in this case rested in the
Commonwealth Court, not the Court of Common Pleas. The Board’s Brief at
11. The Board states that habeas corpus relief was not available to
Barksdale, as Barksdale had other remedies available to him to challenge his
continued incarceration. According to the Board, Barksdale could have
appealed his placement in “when available” status or filed a writ of
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mandamus to compel the Board to recalculate his maximum sentence, either
of which would have been filed in the Commonwealth Court. Id. at 13.
The trial court contends that it did have jurisdiction over the matter
and that habeas corpus relief was appropriate in this case. The trial court
states,
[I]f the Board had followed proper procedure in
the instant matter, and if [Barksdale] had been given
the opportunity to follow the Board’s internal
process, jurisdiction on appeal would lie with the
Commonwealth Court. However, in this case, [the]
Board procedure was not followed, and [Barksdale]
was never given a determination or decision to
contest within the Board’s internal process.
[Barksdale] was simply placed in limbo past his
maximum incarceration date.
Trial Court Opinion, 6/10/14, at 8.
At the outset, we recognize that the Board has the exclusive power
“[t]o parole and reparole, commit and recommit for violations of parole and
to discharge from parole” criminal defendants sentenced to a term of
imprisonment of at least two years. 61 Pa.C.S.A. § 6132(a)(1)(i); Fross v.
Cnty. Of Allegheny, 20 A.3d 1193, 1196 n.3 (Pa. 2011). A criminal
defendant may appeal the Board’s decision within thirty days of the Board’s
order. 61 Pa.C.S.A. § 6113(d)(1). The appeal initially proceeds before three
members of the Board. Id. Once a criminal defendant exhausts all of his
administrative remedies before the Board, he is entitled to judicial appellate
review of an order of the Board. Com., Dep’t of Corr. v. Reese, 774 A.2d
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1255, 1260 (Pa. Super. 2001). Such appeals are within the exclusive
jurisdiction of the Commonwealth Court. 42 Pa.C.S.A. § 763(a).
Habeas corpus is a writ “used to test the legality of an arrest or
commitment[.]” BLACK’S LAW DICTIONARY, habeas corpus (10th ed. 2014);
see also Commonwealth v. DiVentura, 734 A.2d 397, 398 (Pa. Super.
1999) (“habeas corpus is a civil remedy which lies solely for commitments
under criminal process”). “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.” Joseph v. Glunt, 96 A.3d 365, 369 (Pa.
Super. 2014) (citation omitted), appeal denied, 101 A.3d 787 (Pa. 2014).
Jurisdiction of a habeas corpus proceeding is in the Court of Common Pleas.
Reese, 774 A.2d at 1261.
The question of the trial court’s jurisdiction therefore depends upon
whether Barksdale had a remedy other than habeas corpus to challenge his
continued confinement beyond his maximum release date for his violations
of parole. We are constrained to agree with the Board that Barksdale could
have appealed the Board’s June 25 notice placing him in “when available”
status. This designation is reviewable through the administrative channels
of the Board’s appeals process and subject to further review, if necessary,
by the Commonwealth Court. See, e.g., Serrano v. Pennsylvania Bd. of
Prob. & Parole, 672 A.2d 425, 427 (Pa. Commw. 1996), appeal denied,
682 A.2d 312 (Pa. 1996); Lawrence v. Com., Pennsylvania Bd. of Prob.
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& Parole, 456 A.2d 1154, 1155 (Pa. Commw. 1983). According to the
Board’s records, Barksdale became available on January 24, 2013, six
months prior to his placement in “when available” status by the June 25
notice. Motion To Dismiss Petition for Writ of Habeas Corpus, 11/8/13, at
Exhibit I. At the time of the issuance of the June 25 notice, Barksdale was
not serving any other sentence. Thus, he could have contested the “when
available” designation, asserting that a delay in the commencement of his
sentence would keep him incarcerated beyond his stated maximum release
date.
Barksdale asserts that this Court’s decision in Reese compels a finding
that the trial court had jurisdiction to grant him habeas corpus relief.
Barksdale’s Brief at 10. Reese involved two petitions for habeas corpus filed
by two state prisoners, Emmitt Reese (“Reese”) and Scott Richart
(“Richart”), both of whom were being detained in prison beyond their
maximum release date. The pertinent facts relating to Reese’s petition were
as follows. On August 17, 1984, Reese was sentenced to two years and ten
months to ten years of incarceration, effective May 17, 1987, for his
conviction of robbery and related charges. The Board paroled Reese on
December 28, 1990, at which time his maximum release date was May 17,
1997. The Board recommitted Reese as a technical parole violator on
February 10, 1992, and recalculated his maximum release date as July 30,
1997. He returned to state prison in 1992 and 1993 as a technical parole
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violator, and on August 15, 1994, the Board recalculated his maximum
release date as October 30, 1998. Id. at 1257.
On September 29, 1998, Reese was arrested on new criminal charges,
following which the Board issued a warrant to detain Reese, and advised
Reese that his maximum sentence would be extended. On February 24,
1999, Reese filed a petition for review in the Commonwealth Court, alleging
that he was being held beyond his maximum release date and sought
discharge. Reese further asserted that the Board exceeded its authority by
extending his maximum sentence from May 17, 1997 to October 30, 1998.1
Id.
The Commonwealth Court transferred the case to the Allegheny
County Court of Common Pleas on March 31, 1999. On May 27, 1999, the
Court of Common Pleas ordered Reese’s discharge from custody based upon
the expiration of his maximum release date on October 30, 1998 with no
additional violations that had extended that sentence. Id. at 1257-58.
On June 17, 1999, Reese was convicted of the pending criminal
charges and sentenced to ten to twenty months of incarceration, with credit
for time served. The Board issued a warrant to detain Reese that same day,
advising the Department of Corrections and Reese that Reese’s maximum
1
On appeal, this Court found this issue waived based upon Reese’s failure
to timely appeal the Board’s recalculation of his maximum release date
before the Board, as required. Reese, 774 A.2d at 1262.
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sentence would likely be extended because of his new conviction. Id. at
1258.
On June 23, 1999, the Department of Corrections filed a motion for
reconsideration of the trial court’s May 27 order releasing Reese from
custody. The trial court vacated its order pending a decision on the motion
to reconsider. On July 7, 1999, following a hearing, the trial court again
granted Reese’s habeas petition and ordered his release forthwith. The
Department of Corrections appealed that decision, challenging, in relevant
part, the trial court’s jurisdiction over the matter. Id. On appeal, we found
that the trial court had jurisdiction to decide the habeas corpus petition. Id.
at 1261.
The key difference between the circumstances of Reese and the case
at bar is that at the time Reese was being held on the Board’s detainer,
there was no Board order for him to have appealed through administrative
channels. There was no revocation hearing held and no decision
recommitting Reese to prison for his parole violation. Unlike Reese,
Barksdale had a final, appealable order recommitting him for a parole
violation to twelve months of backtime and placing him in “when available”
status. He could have (and should have) appealed that decision to the
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Board, removing this case from the ambit of habeas corpus.2 See Joseph,
96 A.3d at 369.
Order vacated. Jurisdiction relinquished.
Musmanno, J. joins the Memorandum.
Olson, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2015
2
We understand why the trial court ruled as it did. The Board did not
provide an explanation for its actions at the hearing on Barksdale’s habeas
petition, and even after the trial court stated that it would entertain the
Board’s arguments and consider vacating its order, the Board filed an appeal
to this Court despite the trial court scheduling a hearing on the Board’s
motion. Nonetheless, as Barksdale had an alternative means for relief, the
trial court lacked jurisdiction to decide the Petition.
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