J-S32024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES WESTBROOK
Appellant No. 730 EDA 2015
Appeal from the Order January 30, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0800781-2004
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 21, 2016
Appellant, James Westbrook, appeals pro se from the January 30,
2015 order, denying his petition for writ of habeas corpus. After careful
review, we affirm.
We summarize the procedural history of this case, as discerned from
the certified record, as follows. Appellant was convicted by a jury of delivery
of a controlled substance, 35 P.S. § 780-113(a)(30), on September 29,
2004. On November 15, 2004, the trial court sentenced Appellant to a term
of incarceration of 15 to 30 years. This Court affirmed the judgment of
sentence. See Commonwealth v. Westbrook, 895 A.2d 635 (Pa. Super.
2006) (unpublished memorandum). In subsequent years, Appellant filed
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*
Retired Senior Judge assigned to the Superior Court.
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two petitions pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. In each instance, the PCRA court denied relief, and the
denials were affirmed on appeal. See Commonwealth v. Westbrook, 988
A.2d 732 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 8
A.3d 345 (Pa. 2010); Commonwealth v. Westbrook, 87 A.3d 384 (Pa.
Super. 2013) (unpublished memorandum), appeal denied, 86 A.3d 233 (Pa.
2014).
On December 10, 2013, Appellant filed a petition for writ of habeas
corpus. Appellant claimed his detention by the Department of Corrections
(DOC) was illegal because the DOC averred it was not in possession of a
copy of Appellant’s sentencing order as required by 42 Pa.C.S.A.
§ 9764(a)(8). Petition for Writ of Habeas Corpus, 12/10/13, at 4. On
January 29, 2014, the trial court, treating Appellant’s petition as a PCRA
petition, filed a notice pursuant to Pennsylvania Rule of Criminal Procedure
907, noting Appellant’s appeal from the denial of his second PCRA petition
was still pending, such that the instant petition could not be filed. On March
12, 2014, the trial court filed a second rule 907 notice indicating its intent to
dismiss Appellant’s petition as an untimely PCRA petition. Appellant, on
April 1, 2014, filed an answer to the trial court’s notice of intent to dismiss,
asserting his claim was not cognizable under the PCRA and therefore was
properly filed as a petition for habeas corpus relief and was not untimely.
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The trial court dismissed Appellant’s petition on January 30, 2015. Appellant
filed a timely notice of appeal on February 26, 2015.1
On appeal, Appellant raises the following issues for our review.
A. Whether the Trial Court abused its discretion in
dismissing the Instant Petition for Writ of Habeas
Corpus Ad Subjiciendum since Appellant is confined
pursuant to a Sentencing Order absent the Statute
under Pennsylvania law that the Judge received
Statutory Authorization from to impose the
sentence?[2]
B. Whether Due Process is violated where there is
no remedy for the violation of a constitutional right?
Appellant’s Brief at 3.
We initially note the trial court now recognizes that Appellant’s petition
was not cognizable under the PCRA and the dismissal on the basis it was an
untimely PCRA petition was incorrect. Trial Court Opinion, 3/18/15, at 2 n.2.
We agree. As noted above, the claim raised in Appellant’s petition for writ of
habeas corpus is that his detention by the DOC is illegal based on the DOC’s
purported lack of authority because it is not in possession of a copy of his
sentencing order. Petition for Writ of Habeas Corpus, 12/10/13, at 4. As
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1
The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The trial court issued a Rule 1925(a) memorandum
opinion on March 18, 2015.
2
Notwithstanding the phrasing of this question, Appellant’s contention is
that the trial court erred in dismissing his petition because he is illegally
detained where the DOC is not in possession of an order containing the
authorization for his sentence. Appellant’s Brief at 6. We address the issue
accordingly.
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such, Appellant does not challenge the legality of his sentence as entered by
the trial court, which would be cognizable under the PCRA. See 42
Pa.C.S.A. § 9543; see also Commonwealth v. Hockenberry, 689 A.2d
283, 288 (Pa. Super. 1997) (holding, “[i]ssues relating to the legality of
sentence cannot be waived and are cognizable under the PCRA”), appeal
denied, 695 A.2d 784 (Pa. 1997). 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, 916 A.2d 511, 520 (Pa. 2007), cert.
denied, 552 U.S. 1011 (2007); See also Joseph v. Glunt, 96 A.3d 365,
368 (Pa. Super. 2014) (holding that a claim a defendant’s confinement 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”), appeal denied, 101 A.3d 787 (Pa. 2014).
The trial court opines that dismissal of Appellant’s petition for writ of
habeas corpus was nevertheless proper on the merits, and urges affirmance
based on this Court’s decision in Joseph.3 Trial Court Opinion 3/18/15, at
2-3. We therefore proceed with the following principles in mind. “[H]abeas
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3
“[T]his court may affirm the decision of the trial court if there is any basis
on the record to support the trial court’s action; this is so even if we rely on
a different basis in our decision to affirm.” Commonwealth v. O’Drain,
829 A.2d 316, 322 n.7 (Pa. Super. 2003) (citation omitted)
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corpus is a civil remedy which lies solely for commitments under criminal
process.” Commonwealth v. McNeil, 665 A.2d 1247, 1249 (Pa. Super.
1995) (citation omitted). “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. (citation omitted).
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 Dept. of Corr., 837 A.2d 525, 528 (Pa. Super.
2003) (citations omitted), appeal denied, 857 A.2d 680 (Pa. 2004).
Instantly, Appellant’s principal contention is as follows.
Appellant is principally testing the legality of his
commitment and detention, claiming the Sentencing
Order by which he is detained do [sic] not exist.
Because the Sentencing Order herein do [sic] not
exist the [] DOC lacks the authority to detain
Appellant pursuant to 37 Pa. Code § 91.3 (Reception
of inmates), which provides the “DOC will accept and
confine those persons committed to it under lawful
court orders…when information has been provided to
the DOC as required by 42 Pa.C.S.A. § 9764
(relating to information required upon commitment
and subsequent disposition).” Appellant claims the
DOC’s inability to produce a copy of the Sentencing
Order, constitutes a fatal failure that should result in
his release….
Appellant’s Reply Brief at 3.
Section 9764 provides in pertinent part as follows.
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§ 9764. Information required upon
commitment and subsequent disposition
(a) General rule.—Upon commitment of an inmate
to the custody of the [DOC], 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).
We agree with the trial court that Joseph controls the outcome of this
appeal. In Joseph, this Court confronted an identical issue challenging the
authority of the DOC to detain the petitioner when it had no copy of his
sentencing order pursuant to Section 9764(a)(8). We held as follows.
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[s] 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, supra at 371 (footnote omitted). Accordingly, the Joseph Court
affirmed the trial court’s denial of habeas corpus relief.
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Appellant acknowledges the trial court record shows “the [trial] judge
stated on the record at the sentencing hearing that Appellant was sentenced
to a term of imprisonment of 15 to 30 years ….” Appellant’s Brief at 8.
However, he argues a written order is required. “It is well-settled that the
signed sentencing order takes precedence over oral statement of the
sentencing court not incorporated into that order.” Id. at 9. The Joseph
Court dealt with a similar contention by the petitioner in that case, holding
that a sentencing hearing transcript is sufficient evidence of a defendant’s
sentence. Joseph, supra at 371-372.
As noted by the trial court, “the [trial court] record confirm[s] that
petitioner was officially sentenced on November 15, 2004.” Trial Court
Opinion, 3/18/15, at 2. Our review of the record substantiates that
conclusion. Therefore, we determine the trial court’s dismissal of Appellant’s
petition for writ of habeas corpus was legally correct, albeit on other grounds
than those it contemporaneously relied on. See Joseph, supra.4 We
therefore affirm the trial court’s January 30, 2015 order.
Order affirmed.
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4
In his second issue, Appellant argues it would be a violation of due process
to deny him an opportunity to address his claim of illegal confinement.
Appellant’s Brief at 11. This is essentially addressed to the trial court’s initial
decision to treat his petition as a PCRA petition, which in turn was foreclosed
on timeliness grounds. Given our disposition of Appellant’s first issue on its
merits as a petition for habeas corpus relief, this issue is moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2016
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Com. v. Westbrook, J.
Combined Opinion