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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
JOHN ELLSWORTH O’HARA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
NANCY GIROUX – SUPERINTENDENT, :
:
Appellee : No. 15 WDA 2015
Appeal from the Order entered December 9, 2014,
Court of Common Pleas, Erie County,
Civil Division at No. 12860-2014
BEFORE: PANELLA, DONOHUE and WECHT, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 11, 2015
Appellant, John Ellsworth O’Hara (“O’Hara”), appeals pro se from the
order entered on December 9, 2014 by the Court of Common Pleas of Erie
County, Civil Division, denying his petition for writ of habeas corpus ad
subjiciendum. For the reasons that follow, we affirm.
O’Hara is currently serving twenty-seven to fifty-five years of
incarceration in state prison for his convictions of burglary, possessing
instruments of crime, and aggravated indecent assault in 1990. See Petition
for Writ of Habeas Corpus Ad Subjiciendum, 10/10/14, at vi. On October
10, 2014, O’Hara filed a petition for writ of habeas corpus ad subjiciendum
(hereinafter “habeas petition”) in which he asserted that the Department of
Corrections (“DOC”) does not have the authority to incarcerate him because
it does not possess the required documentation under section 9764 of the
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Sentencing Code, 42 Pa.C.S.A. § 9764, specifically a copy of his sentencing
order. See Habeas Petition, 10/10/14, at 1-9. Attached to O’Hara’s habeas
petition was correspondence from the DOC documenting his efforts to obtain
a copy of his written sentencing order and informing him that the record
does not currently exist. See id. at Exhibit A.
On December 9, 2014, the trial court denied O’Hara’s petition without
a hearing, determining that his “request for relief is neither substantiated
nor supported by any statute, regulation, precedent, or appropriate case
law” and that section 9764 “creates no remedy for relief, or cause of action
for failure of the [DOC] to have a copy of [O’Hara]’s sentencing order.” Trial
Court Order, 12/9/14. On December 30, 2014, O’Hara filed a timely notice
of appeal.
O’Hara’s pro se appellate brief is nearly incomprehensible and the
statement of the questions involved section of his brief raises nine issues
that are equally difficult to understand. From what we are able to discern,
O’Hara raises two issues on appeal: (1) that the trial court erred in
dismissing his habeas petition and (2) that the trial court erred in dismissing
his habeas petition without a hearing. See O’Hara’s Brief at 12-22. Our
standard of review in this context is as follows:
Under Pennsylvania statute, habeas corpus is a civil
remedy that 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
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exhausted or are not available. Our standard of
review of a trial court’s order denying a petition for a
writ of habeas corpus is limited to an abuse of
discretion.
Joseph v. Glunt, 96 A.3d 365, 369 (Pa. Super. 2014) (quotations, citations,
and brackets omitted), appeal denied, 101 A.3d 787 (Pa. 2014).
First, O’Hara argues that the trial court erred in dismissing his habeas
petition. See O’Hara’s Brief at 12-22. O’Hara asserts that the DOC does not
have the authority to incarcerate him because it does not possess a copy of
his sentencing order, which he contends is required to incarcerate him under
section 9764 of the Sentencing Code. See id. We conclude that this
argument does not entitle O’Hara to any relief.
The relevant subsection of section 9764 provides as follows:
(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:
(1) Record of adjustment in the county
correctional facility, including, but not limited
to, misconducts and escape history.
(2) Any current medical or psychological
condition requiring treatment, including, but
not limited to, suicide attempts.
(3) All medical records of the county
correctional institution relating to the inmate to
the extent that those records may be disclosed
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under Federal and State law. The records shall
include admission testing performed by the
county and the results of those tests and any
testing related to hepatitis, HIV/AIDS,
tuberculosis or other infectious disease testing.
(4) Notice of current or previously
administered medications.
(5) A 48-hour supply of current medications.
(6) A written statement by the county
correctional institution relating to any
sentencing credit to which the inmate may be
entitled.
(7) A written statement by the county
correctional institution setting forth all of the
following:
(i) The dates on which the inmate was
incarcerated.
(ii) The charges pending against the
inmate with the offense tracking number.
(iii) The date on which the inmate was
released on bail, if any, and a copy of the
bail order.
(8) A copy of the sentencing order and
any detainers filed against the inmate of
which the county has notice.
42 Pa.C.S.A. § 9764(a) (emphasis added).
In Joseph, cited hereinabove, our Court faced a similar challenge to
the DOC’s authority to incarcerate a prisoner under section 9764(a)(8). See
Joseph, 96 A.3d at 366-72. Our Court relied on a memorandum decision
from the Commonwealth Court in reaching its conclusion that section
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9764(a)(8) did not afford the appellant any relief. Id. at 370. This Court
explained:
In Travis v. Giroux, No. 489 C.D.2013, 2013 WL
6710773 (Pa. Cmwlth. Dec. 18, 2013), an appellant
challenged the DOC’s authority to hold him in
custody because, as in the present situation, the
DOC was unable to produce a written sentencing
order. Relying upon two holdings from the United
States District Court for the Eastern District of
Pennsylvania, the Commonwealth Court held that
subsection 9764(a)(8) does not provide a cause of
action for prisoners:
The current version of [42 Pa.C.S. §
9764(a)(8)] requires that a copy of the
sentencing order be provided to the
[DOC] upon commitment of an inmate to
its custody. However, it does not
create any remedy or cause of action
for a prisoner based upon the failure
to provide a copy to the DOC. The
statute regulates the exchange of
prisoner information between the state
and county prison system, and does not
provide a basis for habeas relief.
Id. (quoting Travis, 2013 WL 6710773, at *3) (emphasis in original).
Finding Travis probative and instructive, our Court held:
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.
Moreover, section 9764 neither expressly vests, nor
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implies the vestiture, in a prisoner of any remedy for
deviation from the procedures prescribed within.
Id. at 371 (footnote omitted).
Therefore, based on Joseph, O’Hara has no basis on which to argue
that the DOC does not have the authority to incarcerate him merely because
it does not possess a copy of his sentencing order. Accordingly, the trial
court did not abuse its discretion in denying O’Hara’s habeas petition.
Second, O’Hara argues that the trial court erred in dismissing his
habeas petition without a hearing. See O’Hara’s Brief at 12-22. This Court
has long held that where a habeas petition does not present any factual
issues and only presents question of law, a hearing on the petition is not
necessary. Commonwealth v. Smythe, 195 A.2d 187, 189 (Pa. Super.
1963). Here, O’Hara’s habeas petition only raises a question of law, namely,
that the DOC does not have the authority to incarcerate him because it does
not possess a copy of his sentencing order. Because the habeas petition
does not present any factual issues, a hearing on the petition was not
necessary in this case. Accordingly, O’Hara’s second issue does not entitle
him to relief.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2015
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