J-S12041-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
EX REL. THEODORE W. SCHELL SR., : PENNSYLVANIA
:
v. :
:
MICHAEL WENEROWICZ, :
SUPERINTENDENT, SCI GRATERFORD, :
ET AL., JACK J. WHELAN, ESQUIRE, :
DELAWARE COUNTY DISTRICT :
ATTORNEY, :
:
APPEAL OF: THEODORE W. SCHELL, :
SR. : No. 1272 EDA 2015
Appeal from the Order Dated March 31, 2015,
in the Court of Common Pleas of Delaware County,
Civil Division, at No(s): 2013-0004380
BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 18, 2016
Theodore W. Schell, Sr. (Schell) appeals pro se from an order denying
his petition for writ of habeas corpus ad subjiciendum. We affirm.
The trial court summarized the background underlying this matter as
follows.
[Schell] was convicted by a jury of two counts each of
murder in the first degree, aggravated assault, recklessly
endangering another person, as well as one count of possessing
an instrument of crime on January 30, 1976. A jury found
[Schell] guilty of the shooting deaths of his ex-wife’s parents.
Following the trial, [Schell] was sentenced to [consecutive]
terms of life imprisonment for the first[-]degree murder
convictions [] on September 14, 1977. A direct appeal was filed
to the Superior Court on October 6, 1977 and on June 1, 1979,
the Superior Court affirmed the judgment of sentence after
finding that [Schell] had failed to preserve any of the issues for
appellate review. Commonwealth v. Schell, [] 405 A.2d 330
*Retired Senior Judge assigned to the Superior Court.
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([Pa. Super.] 1979). Thereafter, Schell filed a petition under the
Post-Conviction Hearing Act (hereinafter referred to as “PCHA”)
on March 27, 1981. On April 18, 1983, the PCHA Court denied
relief, but granted [Schell] the right to file an appeal nunc pro
tunc. [Schell] filed his appeal, and the Superior Court affirmed
his judgment of sentence. Commonwealth v. S[c]hell, 503
A.2d 51 (Pa. Super. 1985) (unpublished memorandum). The
Pennsylvania Supreme Court denied allowance of appeal on
December 2, 1986.
Several petitions under the Post-Conviction Relief Act
(hereinafter referred to as “PCRA”) followed[, …. which were,
a]ccording to this court’s calculations, his fourth and fifth overall.
After a review of the case, this court denied these petitions. The
Superior Court affirmed both of these denials. [Schell] then filed
a [p]etition for [w]rit of [h]abeas [c]orpus ad subjiciendum on
May 3, 2013. On April 14, 2014, he filed an amended petition.
Following another thorough review of the record in this case, the
court dismissed [Schell’s] petition on March 31, 2015. A motion
for reconsideration was denied on April 15, 2015. This [timely-
filed] appeal followed.
Trial Court Opinion, 10/15/2015, at 1-2 (footnotes and some citations
omitted).1
We now try to discern Schell’s arguments on appeal. As is common
with pro se prisoner litigation of this type, the arguments presented to us
are confusing and inartfully-stated. Schell co-mingles numerous legal
principles in a lengthy dialogue about his conviction and sentence.
We first consider Schell’s claims regarding his sentencing order.
Schell’s Brief at 1-9. “Schell does not deny that he was found guilty by the
1
The trial court did not order Schell to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b); however, Schell did
file a statement, which was essentially a copy of his writ of habeas corpus ad
subjiciendum.
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jury of murder in the first degree … [and] the Commonwealth was not
seeking the death sentence in this case, but [was] rather seeking
consecutive life sentences.” Schell’s Brief at 2. However, Schell contends
that during a closing argument, the Commonwealth stated that a life
sentence was only 7½ to 15 years’ incarceration, and that he would be
eligible for parole. Id. Schell argues that because he has served that time,
he is entitled to be released from prison. Moreover, Schell claims that the
document relied upon by the trial court, a court commitment document
stating that Schell was sentenced to life in prison, is invalid as a sentencing
order.
Initially, we note that the Pennsylvania Supreme Court,
albeit in a per curiam opinion, has held that a claim that a
defendant’s sentence 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. Brown v. Penna. Dept. of Corr., [] 81 A.3d 814, 815
([Pa.] 2013) (per curiam) (citing Commonwealth ex rel.
Bryant v. Hendrick, [] 280 A.2d 110, 112 ([Pa.] 1971);
Warren v. DOC, [] 616 A.2d 140, 142 ([Pa. Cmwlth.] 1992)
(“An application for a writ of habeas corpus requests the
applicant’s release from prison.”)).
Our standard of review in this context is axiomatic:
The ancient writ of habeas corpus is inherited
from the common law, referred to by Sir William
Blackstone as the most celebrated writ in the English
law. The writ lies to secure the immediate release of
one who has been detained unlawfully, in violation of
due process. [T]raditionally, the writ has functioned
only to test the legality of the petitioner’s detention.
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Commonwealth v. Wolfe, [] 605 A.2d 1271, 1272–73 ([Pa.
Super.] 1992) (internal citations omitted). “Under Pennsylvania
statute, habeas corpus is a civil remedy [that] lies solely for
commitments under criminal process.” Commonwealth v.
McNeil, [] 665 A.2d 1247, 1249–50 ([Pa. Super.] 1995) (citing
Wolfe, 605 A.2d at 1273). “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.
(citing Commonwealth ex rel. Kennedy v. Myers, [] 143 A.2d
660, 661 ([Pa.] 1958)). “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.” Rivera v. Penna. Dep’t of Corrs.,
837 A.2d 525, 528 (Pa. Super. 2003).
Joseph v. Glunt, 96 A.3d 365, 368-69 (Pa. Super. 2014).
In response to Schell’s arguments, the trial court offered the following:
This court has reviewed [Schell’s] record including the
notes of testimony from [Schell’s] sentencing hearing on
September 14, 1977, the previous opinions authored by the
sentencing judge and those of the Superior Court, and the court
commitment order dated September 14, 1977. They all reveal
that [Schell] was sentenced to two consecutive life sentences by
the Honorable Robert A. Wright. While [Schell] maintains that a
sentencing order has not been provided to the DOC to reflect
this sentence, the record clearly reflects his sentence, and he is
not entitled to relief on this claim.
Trial Court Opinion, 10/15/2015, at 4.
The trial court’s conclusion is consistent with the holding in Joseph,
wherein Joseph set forth similar arguments.
[Joseph] has cited no apposite legal authorities
demonstrating that the undisputed record of his judgment of
sentence maintained by the sentencing court constitutes
insufficient authority for his continuing detention. See T.C.O. at
2 (“Through use of the Common Pleas Case Management
System, the [thirteen] page criminal docket of [Joseph] ... was
obtained. This docket shows that [Joseph] was found guilty of
First Degree Murder.... He was sentenced to life without parole
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by ... Judge John F. Cherry.”); see also Dauphin County
Criminal Docket CP–22–CR–0001269–2009 at 6. … [C]ourts
confronting this issue in the past have deemed a record of the
valid imposition of a sentence as sufficient authority to maintain
a prisoner’s detention notwithstanding the absence of a written
sentencing order[.] Both the criminal docket provided by the
trial court and the transcript of the sentencing hearing confirm
the imposition, and legitimacy, of [Joseph’s] sentence.
Based upon the foregoing, we discern no merit in
[Joseph’s] arguments. The trial court properly reviewed the
record and discovered a valid sentencing order contained
therein. Moreover, the trial court correctly concluded that,
even in the absence of a written sentencing order, the
DOC had continuing authority to detain [Joseph].
Joseph, 96 A.3d at 372 (emphasis added). Thus, we conclude the trial
court did not abuse its discretion in denying Schell’s petition for writ of
habeas corpus as the DOC has continuing authority to detain him because he
was sentenced to life in prison.
Schell next sets forth a series of arguments about the evidence
presented against him at trial. Schell’s Brief at 14-24. For example, he
argues that the Commonwealth questioned a witness improperly; that the
Commonwealth presented “false” testimony; and, that the Commonwealth
suppressed forensic evidence.
It is well-settled that the PCRA is intended to be the sole
means of achieving post-conviction relief. Unless the PCRA could
not provide for a potential remedy, the PCRA statute subsumes
the writ of habeas corpus. Issues that are cognizable under the
PCRA must be raised in a timely PCRA petition and cannot be
raised in a habeas corpus petition.
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Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)
(citations omitted).
Schell’s aforementioned contentions had remedies available from PCRA
proceedings. Accordingly, those claims are subject to the jurisdictional time-
bar of the PCRA.
Generally, a PCRA petition must be filed within one year from the
date a judgment becomes final.[2] There are three exceptions to
this time requirement: (1) interference by government officials
in the presentation of the claim; (2) newly discovered facts; and
(3) an after-recognized constitutional right. When a petitioner
alleges and proves that one of these exceptions is met, the
petition will be considered timely. A PCRA petition invoking one
of these exceptions must be filed within 60 days of the date the
claims could have been presented. The timeliness requirements
of the PCRA are jurisdictional in nature and, accordingly, a PCRA
court cannot hear untimely petitions.
Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(footnote added; citations and quotation marks omitted).
On December 2, 1986, our Supreme Court denied Schell’s petition for
allowance of appeal, and Schell did not file a writ of certiorari to the United
2
“PCRA petitioners whose judgment of sentence became final prior to the
effective date of the amendments to the PCRA ha[d] until January 17, 1997
to file a timely [petition].” Commonwealth v. Baldwin, 789 A.2d 728, 730
(Pa. Super. 2001). As discussed infra, Appellant’s judgment of sentence
became final prior to 1997; thus, Appellant had the benefit of this additional
time to file timely his first PCRA petition.
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States Supreme Court. Accordingly, Appellant had until January 17, 1997 to
file timely a PCRA petition.3
The instant petition, filed on May 3, 2013, is patently untimely. The
PCRA court had no jurisdiction to entertain Appellant’s petition unless he
pled and offered proof of one or more of the three statutory exceptions to
the time bar. See 42 Pa.C.S. § 9545(b)(1). Appellant failed to do so.
Accordingly, the PCRA court properly dismissed his petition to the extent he
was raising claims with remedies available under the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2016
3
Appellant did file timely his first PCRA petition, and was denied relief.
Subsequently, Appellant filed several untimely petitions prior to filing the
instant petition for writ of habeas corpus.
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