J-S19029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT RAMIREZ IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
NANCY GIROUX (SCI ALBION
SUPERINTENDENT)
Appellee No. 1898 EDA 2015
Appeal from the Order entered June 3, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0206171-1999
BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 10, 2016
Appellant, Robert Ramirez, appeals pro se from the June 3, 2015 order
entered in the Court of Common Pleas of Philadelphia County denying
habeas corpus relief.1 In addition, Appellant has filed two motions for
default judgment, stemming from the Commonwealth’s failure to file a brief
in accordance with the extension granted by this Court. Further, Appellant
has filed objections to the Commonwealth’s late-filed brief, asking this Court
to enter an order releasing him from prison and to strike the brief from the
____________________________________________
1
The order also denied Appellant’s requested relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. As explained
herein, Appellant does not challenge the court’s denial of relief under the
PCRA except in a passing reference to the PCRA in his brief.
J-S19029-16
docket.2 Following review, we deny Appellant’s motions for default
judgment; dismiss his objections and deny the requested relief; and affirm
the order denying habeas relief.
The lower court provided the following procedural history:
On June 20, 2000, following a jury trial, [Appellant] was
convicted of first-degree murder, robbery, aggravated assault,
criminal conspiracy, violation of the Uniform Firearms Act
(“VUFA”), and possessing an instrument of crime. [Appellant]
was sentenced to life plus ten to twenty years’ imprisonment.
On June 19, 2002, the Superior Court affirmed [Appellant’s]
judgment of sentence. The Pennsylvania Supreme Court denied
allocatur on November 7, 2002.
[Appellant] filed a pro se PCRA petition on September 3, 2003.
Counsel was appointed and subsequently filed a Finley no merit
letter.[3] On June 24, 2004, the lower court dismissed
[Appellant’s] PCRA petition.
On August 3, 2012, [Appellant] filed the current pro se PCRA
petition, his second. [Appellant] submitted supplemental
petitions seeking habeas corpus relief. Pursuant to Pennsylvania
Rule of Criminal Procedure 907, [Appellant] was served with
notice of the court’s intention to dismiss his PCRA petition and
deny his Writ of Habeas Corpus on April 24, 2015. [Appellant]
filed a response to the court’s Rule 907 notice on May 6, 2015.
The lower court dismissed Petitioner’s [PCRA] petition as
____________________________________________
2
Our rules of appellate procedure do not provide for—or even contemplate—
entry of a “default judgment” for an appellee’s failure to file a timely brief.
Although an appellee’s failure to file a brief in accordance with an extension
will deprive the appellee of the right to present oral argument, Pa.R.A.P.
2188, there is no corollary for a case submitted to this Court for disposition
without argument. Further, although the Commonwealth filed its brief
beyond the date of the extension granted, that late filing is immaterial in
light of our disposition of the issues raised with regard to denial of habeas
relief. Therefore, Appellant’s motions and objections are denied as moot.
3
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-2-
J-S19029-16
untimely on June 3, 2015. [Appellant] filed the instant, pro se
notice of appeal to the Superior Court on June 16, 2015.
Lower Court Opinion, 7/10/15, at 1-2 (citations omitted).
In footnotes to its June 3, 2015 order, the lower court explained:
In his Petition for Writ of Habeas Corpus, [Appellant] disputed
the legality of his sentence due to a lack of a sentencing order.
Because [Appellant’s] claim falls outside the eligibility
requirements of the PCRA, the lower court entertained his
Petition for Writ of Habeas Corpus on the merits. See 42
Pa.C.S.A. § 9543; Joseph v. Glunt, 96 A.3d 365 (Pa. Super.
2014).
Order, 6/3/15, at 1 n.1. Further:
Upon review, the record reveals that [the sentencing judge]
entered a sentencing order in this matter on June 20, 2000. The
original sentencing order is being maintained by the Clerk of
Courts of this court as part of [Appellant’s] case file in this
matter. Therefore, [Appellant’s] claim is clearly without merit
and his petition is denied.
Id. at 1 n. 2.
In his Statement of Questions Involved, Appellant does not challenge
the denial of his second PCRA petition. He challenges only the denial of
habeas corpus relief in the four issues identified in his brief as follows:
I. Did the court err/abuse [its] discretion when it arbitrarily
treated Appellant’s petition for writ of habeas corpus ad
subjiciendum as a criminal appeal denying Appellant his
constitutional right(s) to habeas corpus, access to the
court, and due process of law?
II. Did the court err/abuse [its] discretion when it arbitrarily
denied Appellant’s petition for writ of habeas corpus ad
subjiciendum without issuing a rule to show cause order
and/or requiring a response/answer from the respondent
denying Appellant his constitutional rights(s) to habeas
corpus, access to the court, and due process of law?
-3-
J-S19029-16
III. Did the court err/abuse [its] discretion when it arbitrarily
denied Appellant’s petition for writ of habeas corpus ad
subjiciendum while disregarding Appellant’s affidavit and
declaration in support of his petition in violation of due
process of law?
IV. Did the court err/abuse [its] discretion when it arbitrarily
denied Appellant’s petition for writ of habeas corpus ad
subjiciendum when the DOC is not in possession of any
documentation authorized by law for the DOC to restrain
Appellant’s liberties legally/lawfully and the Appellant is
being held in the DOC under the Mental Health Procedures
Act (MHPA) in violation of due process of law[?]
Appellant’s Brief at 4.4
“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, 96 A.3d
at 369 (citation and brackets omitted). “Thus, we may reverse the court’s
order where the court has misapplied the law or exercised its discretion in a
____________________________________________
4
On pages 14 and 15 of his brief, in the course of addressing his fourth
issue, Appellant contends his PCRA petition was timely filed. However, any
challenge to the denial of PCRA relief is not suggested by his Statement of
Questions Involved and, therefore, has been waived. Pa.R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”). Further, even if not
waived, Appellant’s requested PCRA relief was based on retroactive
application of Miller v. Alabama, 132 S.Ct. 2455 (U.S. 2012). Despite the
fact Miller has since been held to apply retroactively, see Montgomery v.
Louisiana, 136 S.Ct. 718 (U.S. 2016), its retroactive application does not
help Appellant, who turned 18 on April 25, 1998, nearly eight months before
he committed the December 21, 1998 murder that resulted in his life
sentence. Miller, 132 S.Ct. at 2460. See also Commonwealth v.
Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), appeal denied, 81 A.3d 75
(Pa. 2013) (per curiam) (refusing to extend Miller to murderers who were
not under the age of 18 at the time of their crimes).
-4-
J-S19029-16
manner lacking reason.” Rivera v. Pa. Dep’t of Corrections, 837 A.2d
525, 528 (Pa. Super. 2008) (citation omitted).
Although Appellant outlines four separate issues in his brief, his issues
can jointly be summarized as follows:
Is Appellant entitled to habeas corpus relief for being unlawfully
detained under 42 Pa.C.S.A. § 9764 without a written, signed
and sealed sentencing order?
The lower court determined that his petitions for a writ of habeas
corpus lacked merit and Appellant was not entitled to relief. We agree.
Appellant filed petitions for habeas corpus in 2012, 2013 and 2014. In
each petition, Appellant asserted that he was being unlawfully detained at
SCI-Albion without a sentencing order, in violation of 42 Pa.C.S.A.
§ 9764(a)(8) and (b)(5)(i).5 He explained that he attempted to obtain a
____________________________________________
5
42 Pa.C.S.A. § 9764(a)(8) and (b)(5)(i) provide 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:
...
(8) A copy of the sentencing order and any detainers filed against
the inmate which the county has notice.
(b) Additional information.--Within ten days from the date
sentence is imposed, the court shall provide to the county
(Footnote Continued Next Page)
-5-
J-S19029-16
copy of his sentencing order and was advised that the document he sought
did not exist. Without “the original written signed and sealed sentencing
order,” he contends, the Department of Corrections (“DOC”) has “no
authentic legal authority to detain” him. Petition for Writ of Habeas Corpus,
9/19/12, at Exhibit K.
This Court considered and rejected the identical argument in Joseph.
There, Joseph a/k/a Woodens, claimed that the DOC’s inability to produce a
copy of his sentencing report constituted a fatal flaw requiring his immediate
release. We noted:
Woodens is not the first individual to assert this species of claim.
In addition to the aforementioned holding in [Brown v. Pa.
Dep’t of Corrections, 81 A.3d 814 (Pa. 2013) (per curiam)],
our Commonwealth Court has adjudicated at least one similar
appeal on the merits, albeit in an unpublished memorandum. 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
_______________________
(Footnote Continued)
correctional facility the following information pertaining to the
inmate:
...
(5) All of the following:
(i) A written, sealed sentencing order from the
county.
-6-
J-S19029-16
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. Specifically, the Commonwealth Court
emphasized that the appellant in Travis did not dispute
that he had pleaded guilty and that he was sentenced
upon that plea. Thus, even where there appeared to be no
sentencing order in the possession of the DOC or the trial
court, the Commonwealth Court held that subsection
9764(a)(8) furnished no basis for relief where the
appellant’s sentence was confirmed by the certified record.
....
Although the decisions of the Commonwealth Court are not
binding upon this Court, they may serve as persuasive authority.
Commonwealth v. Ortega, 995 A.2d 879, 885 (Pa. Super.
2010); see also Petow v. Warehime, 996 A.2d 1083, 1088 n.
1 (Pa. Super. 2010) (“[W]e may turn to our colleagues on the
Commonwealth Court for guidance when appropriate.”). We find
the reasoning presented in Travis to be probative and
instructive. 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 implies the vestiture, in a prisoner of any remedy for
deviation from the procedures prescribed within.
Joseph, 96 A.3d at 370-71 (emphasis in original, footnotes and citations
omitted).
-7-
J-S19029-16
Further, with regard to relief under habeas corpus:
When a petitioner is in custody by virtue of a judgment of
sentence of a court of competent jurisdiction, the writ generally
will not lie. The rationale for this limitation is the presumption of
regularity which follows the judgment. The writ, as stated
above, is an extraordinary remedy and, therefore, a judgment
rendered in the ordinary course is beyond the reach of habeas
corpus. That conviction cannot be put aside lightly, and it
becomes stronger the longer the judgment stands.
Consequently, habeas corpus generally is not available to review
a conviction which has been affirmed on appeal.
Id. at 372 (citations omitted).
In its opinion, the lower court recognized Appellant’s assertion that his
“detention on a DC-300B Court Commitment form, rather than a written
sentencing order is in contravention of 42 Pa.C.S[A.] § 9764(a)(8) and 37
Pa. Code § 91.3.” Lower Court Opinion, 7/10/15, at 5. Citing Joseph, the
court noted that the claim was not cognizable under the PCRA and was
properly raised in a writ of habeas corpus. “Nevertheless, the [sentencing
judge] entered a sentencing order in this matter on June 20, 2000. The
Superior Court has held that even in the absence of a written sentencing
order, the [DOC] retains detention authority.” Id. (citing Joseph for its
“holding that the fact that the DOC did not possess sentencing order did not
entitle [p]etitioner to habeas relief”).
-8-
J-S19029-16
We find no merit in Appellant’s arguments6 or any abuse of discretion
on the part of the lower court. Therefore, we affirm the June 3, 2105 order.
Motions for default judgment denied. Objections dismissed and relief
denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2016
____________________________________________
6
To the extent Appellant’s issues as stated suggest procedural deficiencies
in the lower court’s disposition of his habeas corpus writs, e.g., for failing to
issue a rule to show cause, his contentions do not save his writs in light of
the lack of any available remedy or cause of action based on a failure to
provide a copy of the sentencing order to the DOC. See Joseph, 96 A.3d at
370.
-9-