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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DANIEL KING WARREN, : No. 2473 EDA 2016
:
Appellant :
Appeal from the Order, July 1, 2016,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0004032-2015
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 06, 2017
Daniel King Warren appeals, pro se, from the July 1, 2016 order
entered in the Court of Common Pleas of Lehigh County that denied his
petition for writ of habeas corpus for lack of jurisdiction. We affirm.
The trial court set forth the following:
On February 4, 2016, [a]ppellant pled guilty to
one count of Criminal Trespass,[1] graded as a
Felony of the second degree. In exchange for his
entry of a guilty plea, the Commonwealth agreed to
bind the court to a minimum sentence of 30 months
of incarceration. On the same date, [a]ppellant was
sentenced to serve no less than 30 months nor more
than 60 months at a state correctional institution.
At a later date, [a]ppellant went before the
Pennsylvania Board of Probation and Parole
(hereinafter “PBPP”) regarding [a]ppellant’s previous
case, docketed at 388/1998. [] Appellant was
1 18 Pa.C.S.A. § 3503(a)(1)(ii).
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ordered to serve the back time in case 388/1998, to
be implemented prior to the sentence imposed by
this Court on February 4, 2016 in case 4032 of 2015.
On June 16, 2016, [appellant] filed a pro se
[Petition] for Writ of Habeas Corpus and
Memorandum of Law in Support. Upon review of the
procedural history of the case, and pursuant to
Palmer v. Pennsylvania Board of Probation and
Parole, 134 A.3d 160 ([Pa.Cmwlth.] 2016), [. . .]
this Court determined it had no jurisdiction in this
matter and denied the pro se [Petition] for Writ of
Habeas Corpus on July 1, 2016.
[] Appellant filed a Notice of Appeal on July 25,
2016 and was subsequently ordered to file a
Statement of Errors Complained of on Appeal. On
August 26, 2016, [a]ppellant filed his Statement and
this Opinion follows.
Trial court opinion, 9/15/16 at 2-3.
Appellant raises ten claims of error.2 The gravamen of his complaint,
however, is that the Pennsylvania Board of Probation and Parole
2 Appellant frames his issues as follows:
A. Does the lower court have jurisdiction over
appellant’s claims when appellant is not
compelling the performance of a ministerial act
or duty of the parole board?
1. Does habeas corpus permits [sic]
the sentencing court to review its
own sentence regarding any
disputes concerning the
interpretation of appellant’s
sentence and the legality of the
parole laws as being applied to
appellant’s sentence?
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B. Does 61 Pa.C.S.A. § 6138(a)(5) prescribe a
mechanism for sentencing which is in direct
conflict with and unconstitutionally interferes
with Pa.R.Crim.P. Rule 705 in violation of
Article V Section 10(c) of the Pennsylvania
Constitution and should be suspended?
C. Does 61 Pa.C.S.A. § 6138(a)(5),
unconstitutionally and illegally violate
42 Pa.C.S.A. § 322 by modifying the terms of
the judge’s sentencing order when there is no
clear clerical error and this is a function
exclusively reserved as a judiciary function and
should be suspended and violative of the
separation of powers doctrine?
D. Does [61] Pa.C.S.A. § 6138(a)(5)
unconstitutionally and illegally violate
42 Pa.C.S.A. § 5505 by modifying the terms of
the judge’s judicially imposed sentencing order
way outside the 30 day window period?
1. Is this a function exclusively
reserved for the judiciary and
should be suspended as violative of
the separation of powers doctrine?
E. Does 61 Pa.C.S.A. § 6138(a)(5) deny appellant
due process of law by altering appellant’s
judicially imposed sentence without notice or a
hearing in a venue that has jurisdiction over
both parties and subject matter?
1. Does § 6138(a)(5) countermand,
interfere with and reverses [sic]
the finali9ty [sic] of the judge’s
court order being an exclusive
judicial function and should be
suspended?
F. As an executive branch, administrative agency,
does the Pennsylvania Board of Probation and
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(“the Board”) imposed an illegal sentence when it ordered appellant to serve
back time in case 388/1998 before beginning to serve time in
case 4032/2015.
“The Commonwealth Court shall have original jurisdiction of all civil
actions or proceedings[ a]gainst the Commonwealth government, including
any officer thereof, acting in his official capacity,” with exceptions not
applicable here. 42 Pa.C.S.A. § 761(a)(1). When challenging an action of
the Board in a parole matter, the nature of the allegations of the error and
the relief sought determine whether the case comes within the
Commonwealth Court’s original jurisdiction. McGriff v. Pa.
Commonwealth Bd. of Probation and Parole, 809 A.2d 455, 458
(Pa.Cmwlth. 2002), affirmed per curiam, McGriff v. Pa. Bd. of
Probation and Parole, 838 A.2d 564 (Pa. 2003). “Jurisdiction over
complaints sounding in mandamus against State agencies administering the
Parole have the power or authority to
adjudicate the legality of sentence, to add,
alter or delete sentencing conditions?
1. Is the power or authority to
adjudicate the legality of sentence
by adding, deleting and altering
sentencing conditions only divested
in the sentencing court and done
by an executive branch
administrative agency violative of
the separation of powers doctrine?
Appellant’s brief at 2-4.
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parole system, where the complaint is not a direct or collateral attack on the
conviction or sentence, is vested exclusively in the Commonwealth Court.”
Id. (citation omitted).
Here, although appellant frames his complaint as one seeking habeas
relief based on an illegal sentence, appellant challenges a statutorily
authorized action of the Board, which is an administrative agency that
administers the parole system; specifically, appellant challenges the Board’s
statutorily imposed requirement that appellant serve back time prior to
serving a new sentence. The Board’s powers and duties with respect to
parole violations are set forth in 61 Pa.C.S.A. § 6138 and include
requirements for service of back time. Nonetheless, in his petition for writ of
habeas corpus, appellant requested that the trial court “suspend
[Section 6138] and commence [appellant’s] sentence to start running and
credit all time from March 23, 2016 when [appellant’s] sentence was
stopped from running.” (Appellant’s pro se petition for writ of habeas
corpus, 6/16/16.) As such, appellant’s claim sounds in mandamus and
jurisdiction over that claim falls within the exclusive original jurisdiction of
the Commonwealth Court. Therefore, the trial court properly denied
appellant’s motion for writ of habeas corpus.
Order affirmed.
Ott, J. joins this Memorandum.
Bowes, J. files a Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:10/6/2017
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