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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY HOBAN,
Appellant No. 2288 EDA 2015
Appeal from the Order Entered July 17, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002389-1998
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS JJ.*
MEMORANDUM BY OLSON, J.: FILED JULY 18, 2016
Appellant, Anthony Hoban, appeals pro se from the order entered on
July 17, 2015 denying his petition for a writ of habeas corpus. We affirm.
The relevant factual background and procedural history of this case
are as follows. On January 12, 1999, Appellant pled guilty to burglary,1 theft
by unlawful taking,2 carrying a firearm without a license,3 and possession of
a controlled substance.4 On April 29, 1999, Appellant was sentenced to an
aggregate term of five to ten years’ imprisonment. For reasons that are
1
18 Pa.C.S.A. § 3502(a).
2
18 Pa.C.S.A. § 3921(a).
3
18 Pa.C.S.A. § 6106(a)(1).
4
35 P.S. § 780-113(a)(16).
* Judge Jenkins did not participate in the consideration or decision of this
case. This case is decided by a two-judge panel pursuant to 210 Pa. Code
§ 65.5(C)(2)(a).
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unclear in the record, Appellant’s maximum sentence date was calculated as
March 2, 2019.
In August 2012, Appellant was granted pre-release. On June 17,
2013, Appellant was notified by the Pennsylvania Board of Probation and
Parole (“PBPP”) that, pursuant to 2012 P.L. 1050 (“Act 122”), he was no
longer eligible for pre-release. Thus, Appellant was re-committed to the
State Correctional Institution at Fayette (“SCI-Fayette”).
Appellant filed an administrative appeal, and the PBPP denied that
appeal. Appellant thereafter filed a petition for review in the Commonwealth
Court of Pennsylvania. The Commonwealth Court dismissed the petition.
Hoban v. PBPP, 300 C.D. 2015 (Pa. Cmwlth. Mar 24, 2015) (per curiam).
On April 13, 2015, Appellant filed the instant petition for a writ of habeas
corpus. On July 17, 2015, the trial court denied the petition. This timely
appeal followed.
Appellant presents two issues for our review:
1. Does not a [c]onstitutionally protected liberty interest exist[]
where Appellant was released into society on pre-release and
then through no fault of his own sent back to prison without
any procedural safeguards, due to the eradication of pre–
release pursuant to Act 122?
2. Did not this [s]tate action violate Appellant’s [d]ue [p]rocess
rights under the United States and Pennsylvania
Constitutions?
Appellant’s Brief at 5.
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Preliminarily, we address the Commonwealth’s contention that because
Appellant lacked any liberty interest in his pre-release status, the trial court
and this Court lack jurisdiction over the instant case. Subject matter
jurisdiction is a pure question of law, therefore our standard of review is de
novo and our scope of review is plenary. See Roman v. McGuire Mem’l,
127 A.3d 26, 30 (Pa. Super. 2015), appeal denied, 134 A.3d 57 (Pa. 2016)
(citation omitted).
The Commonwealth’s argument conflates subject matter jurisdiction
with the merits of the underling claim. “Generally, subject matter
jurisdiction [is] defined as the court’s power to hear cases of the class to
which the case at issue belongs.” Paluti v. Cumberland Coal LP, 122 A.3d
418, 423 (Pa. Super. 2015) (citation omitted). On the other hand, the
merits of the underlying claim relate to whether or not a litigant is entitled to
relief based upon the law and the factual circumstances of that case.
It is well-settled that the courts of common pleas of this
Commonwealth possess subject matter jurisdiction to consider habeas
corpus petitions. 42 Pa.C.S.A. § 6502(a). Furthermore, venue is proper in
the court of common pleas which originally ordered the petitioner’s
confinement. Pa.R.Crim.P. 108(a). Thus, if Appellant’s filing were a proper
habeas corpus petition, the trial court possessed subject matter jurisdiction
to reach the merits of the petition. On the other hand, if Appellant’s petition
is properly considered a petition for review within the original jurisdiction of
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the Commonwealth Court or a Post-Conviction Relief Act (“PCRA”) petition,
the trial court lacked subject matter jurisdiction to reach the merits of the
petition.
We first consider whether the Commonwealth Court had exclusive
jurisdiction over Appellant’s petition. The Commonwealth Court possesses
exclusive, original jurisdiction over “civil actions or proceedings [ ... a]gainst
the Commonwealth government, including any officer thereof, acting in his
official capacity except[ ] actions or proceedings in the nature of
applications for a writ of habeas corpus or post-conviction relief not ancillary
to proceedings within the appellate jurisdiction of the court[.]” 42 Pa.C.S.A.
§ 761(a)(1). In a challenge to an action taken by the PBPP, the nature of
the allegations of error and the relief sought determine whether the case
comes within the Commonwealth Court’s exclusive original jurisdiction.
McGriff v. PBPP, 809 A.2d 455, 458 (Pa. Cmwlth. 2002), aff’d, McGriff v.
PBPP, 838 A.2d 564 (Pa. 2003) (per curiam).
We find instructive our Supreme Court’s decision in Brown v. PBPP,
81 A.3d 814 (Pa. 2013) (per curiam). In Brown, our Supreme Court held
that the petitioner’s request to be released from prison was correctly
considered a habeas corpus petition. Id. at 815. Our Supreme Court noted
that Brown “principally [was] testing the legality of his commitment and
detention[.]” Id. (internal alteration, quotation marks, and citations
omitted). Our Supreme Court reasoned that this type of relief made the
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petition fall under the guise of habeas corpus and not under the
Commonwealth Court’s jurisdiction. Id. Therefore, our Supreme Court
ordered the petition transferred to the appropriate court of common pleas.
In this case, Appellant is seeking his release from prison. He argues
that his confinement in SCI-Fayette is illegal because the elimination of the
pre-release program pursuant to Act 122 deprived him of due process of
law. Although this differs from Brown’s argument that he was illegally
detained in a state correctional institution because of the lack of a written
sentencing order, the gravamen of both cases involves the contention that
the petitioners were unlawfully detained in a state correctional institution.
The exact reason for that illegal detention is immaterial to determining if the
petition properly lies in the Commonwealth Court’s original jurisdiction.
Accordingly, we conclude that, like in Brown, the Commonwealth Court did
not possess exclusive, original jurisdiction over Appellant’s petition.
We next turn to whether the trial court should have considered
Appellant’s filing a PCRA petition. The PCRA
provides for an action by which persons convicted of crimes they
did not commit and persons serving illegal sentences may obtain
collateral relief. The action established in [the PCRA] shall be
the sole means of obtaining collateral relief and encompasses all
other common law and statutory remedies for the same purpose
that exist when [the PCRA] takes effect, including habeas corpus
and coram nobis.
42 Pa.C.S.A. § 9542. Our Supreme Court has explained that
[t]he plain language of Section 9542 demonstrates quite clearly
that the General Assembly intended that claims that could be
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brought under the PCRA must be brought under that Act. No
other statutory or common law remedy “for the same purpose”
is intended to be available; instead, such remedies are explicitly
“encompassed” within the PCRA.
Commonwealth v. Descardes, 2016 WL 1249964, at *5 (Pa. Mar. 29,
2016) (internal alteration and citation omitted; emphasis removed).
In this case, Appellant’s claim – that his detention violates the Due
Process Clause – is not cognizable under the PCRA. In order for a claim to
be cognizable under the PCRA, a petitioner must be challenging his
underlying conviction and/or sentence. See id., citing Commonwealth v.
Peterkin, 722 A.2d 638, 640-641 (Pa. 1998). Appellant is not challenging
his underlying conviction or sentence. He concedes that his conviction and
sentence were lawful. Instead, he challenges the revocation of his pre-
release status. The absence of any challenge to Appellant’s conviction and
sentence becomes plain when one acknowledges that Act 122, the legislative
enactment that eliminated the pre-release program, did not exist when
Appellant entered his guilty plea and received his sentence nor does it
purport to alter or impair the statutory authority underlying Appellant’s
guilty plea or punishment. Therefore, the trial court properly did not
consider Appellant’s petition under the PCRA. As Appellant’s challenge is not
within the original jurisdiction of the Commonwealth Court nor is it within
the confines of the PCRA, Appellant’s filing is properly considered a habeas
corpus petition. The Court of Common Pleas of Delaware County had
jurisdiction over the petition and venue was proper in that county.
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Accordingly, we reject the Commonwealth’s argument that the trial court
(and thus this Court) lacked jurisdiction to consider the merits of Appellant’s
habeas corpus petition.
Turning to the merits of Appellant’s two issues raised on appeal, he
argues that Act 122 denied him due process of law as it essentially revoked
his pre-release status without a hearing or any other procedural safeguard.
As the Commonwealth Court explained:
In order to determine whether a constitutional violation has
occurred, a determination must initially be made that a
protected liberty interest exists and, if so, what process is due.
Hagan v. Tirado, 896 F.Supp. 990 (C.D. Cal. 1995). Protected
liberty interests may be created by either the Due Process
Clause itself or by state law. Sandin v. Conner, 515 U.S. 472
(1995); Wolff v. McDonnell, 418 U.S. 539 (1974). Where a
liberty interest is not created by the Due Process Clause itself:
States may under certain circumstances create liberty
interests which are protected by the Due Process Clause.
But these interests will be generally limited to freedom
from restraint which, while not exceeding the sentence in
such an unexpected manner as to give rise to protection
by the Due Process Clause of its own force, see, e.g.,
Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to
mental hospital), and Washington v. Harper, 494 U.S.
210, 221-222 (1990) (involuntary administration of
psychotropic drugs), nonetheless imposes atypical and
significant hardship on the inmate in relation to the
ordinary incidents of prison life.
Sandin, 515 U.S. at 483-484. In Sandin, the prisoner, Conner,
complained that his segregation in a special holding unit for a
disciplinary misconduct that was later expunged violated his due
process rights. The [Supreme Court of the United States] held
that “Conner’s discipline in segregated confinement did not
present the type of atypical, significant deprivation in which a
state might conceivably create a liberty interest” because it did
not exceed other types of segregated confinement and, due to
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the restrictions on prisoners outside of confinement at that
prison, did not work a major disruption in his environment. Id.
at 485.
In Meachum v. Fano, 427 U.S. 215, 224 (1976), which
involved transfers from a medium security prison to a maximum
security prison, the Supreme Court [of the United States] held
that the Due Process Clause does not protect every change in
the conditions of confinement having a substantial adverse
impact on the prisoner. Because the Due Process Clause is not
so broad, it does not create a liberty interest in prisoners to be
free from intrastate prison transfers. Id. at 225. Moreover, the
[C]ourt stated, such transfers are within the normal limits of
custody which the conviction authorizes the state to impose. Id.
Just as in Sandin and Meachum, the Due Process Clause does
not create a liberty interest in a prisoner’s participation in a pre-
release program. [Lawson v. Com., Dep't of Corr., 539 A.2d
69, 72 (Pa. Cmwlth. 1988)]. There is also no state-created
liberty interest in the pre-release status that is protected by the
Due Process Clause because the revocation is not the type of
deprivation of the freedom from restraint required by the Court
in Sandin. See Hagan, 896 F.Supp. at 995 (if an inmate
placed in disciplinary segregation has no due process right to
procedures established in state regulations, a fortiori an inmate
placed in administrative segregation has no such due process
right). The transfer of a prisoner into an SCI imposes no
“atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life” because an SCI is the place all
prisoners ordinarily expect to serve their term, and there was
nothing about [Wilder’s] placement or conditions in SCI-Camp
Hill that was different from other residents of SCI-Camp Hill.
Wilder v. Dep’t of Corr., 673 A.2d 30, 32-33 (Pa. Cmwlth. 1996), appeal
denied, 681 A.2d 1344 (Pa. 1996) (internal alterations omitted); see Myers
v. Ridge, 712 A.2d 791, 795 (Pa. Cmwlth. 1998), appeal denied, 742 A.2d
173 (Pa. 1999).
The United States Court of Appeals for the Third Circuit has similarly
held that an inmate in Pennsylvania has “neither an independent due
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process nor a state-created liberty interest in his revoked pre[-]release
status.” Powell v. Weiss, 757 F.3d 338, 346 (3d Cir. 2014). Without a
liberty interest in the revocation of his pre-release status, Appellant is
unable to prove that his current detention in SCI-Fayette violates his due
process rights. Accordingly, we affirm the denial of relief.5 See In re
Payne, 129 A.3d 546, 571 (Pa. Super. 2015) (citation omitted) (we may
affirm on any basis).
Order affirmed.
Judge Jenkins did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2016
5
Appellant relies heavily on Young v. Harper, 520 U.S. 143 (1997), in
support of his argument that he had a liberty interest in his pre-release
status. Young, however, is distinguishable from the case at bar. Under the
Oklahoma pre-parole program at issue in Young, there was an implicit
understanding that pre-parole would not be revoked if the pre-parolee lived
up to his or her pre-parole conditions. Id. at 148. On the other hand,
under Pennsylvania’s pre-release program, an individual could have his pre-
release revoked for purely administrative reasons. See 37 Pa. Code
§ 94.3(a)(10).
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