J-S03033-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONALD M. HOLLIDAY, :
:
Appellant : No. 996 WDA 2016
Appeal from the Order May 3, 2016
in the Court of Common Pleas of Lawrence County,
Criminal Division, at No(s): CP-37-CR-0000250-1994
CP-37-CR-0000798-1992
BEFORE: OLSON, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 17, 2017
Donald M. Holliday (Appellant) appeals from the May 3, 2016 order
which dismissed his petition for writ of habeas corpus. We affirm.
We glean the following from the record. In the case filed at CP-37-CR-
0000798-1992 (1992 case), Appellant was sentenced in September 1993 to
serve two to ten years of imprisonment. The sentencing order provided that
Appellant would serve his time in the Lawrence County Jail, with work
release privileges. At the end of 1993, Appellant failed to return to the jail
from work release, and instead fled the jurisdiction, resulting in the filing of
charges at docket number CP-37-CR-0000250-1994 (1994 case). In 1996,
Appellant was apprehended in Kentucky, pled guilty to escape in the 1994
case, and was sentenced to a term of nine months to five years of
*Retired Senior Judge assigned to the Superior Court.
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imprisonment to run consecutive to the sentence in the 1992 case. Shortly
thereafter, in August of 1996, the trial court ordered in the 1992 case that
Appellant’s term of imprisonment would be served in a state correctional
facility rather than in the county jail.
On August 10, 2015, Appellant filed a petition for writ of habeas
corpus, (1) “challenging the discrepency [sic] between the signed sentencing
orders and the [Department of Corrections] (DOC)’s interpretation of them,”
Petition, 8/10/2015, at ¶ 6 (unnecessary capitalization omitted); and (2)
claiming that the trial court lacked jurisdiction in 1996 to amend the
September 1993 sentencing order entered in the 1992 case. Id. at ¶ 9.
Court-appointed counsel filed a new habeas petition on November 9,
2015. The new petition alleged that Appellant was serving an illegal
sentence. Petition, 11/9/2015, at ¶ 6.
Specifically, [Appellant averred] that:
a. When the original order [in the 1992 case] was
altered or modified it became a new sentence and therefore [the
sentence in the 1994 case] could not run consecutive as the new
sentence [in the 1992 case] was not entered until 12 days after
the new sentence [in the 1994 case].
b. When [the sentence in the 1992 case] was amended
th
[on] 26 August 1994 it failed to state that it would run
consecutive with [the sentence in the 1994 case].
c. [Appellant] believes and therefore avers that he has
served the entirety of his sentence and is eligible for immediate
parole.
Id. at ¶ 7.
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After conducting a hearing on the petition, the trial court denied it by
order of May 3, 2016. The court therein opined that (1) Appellant’s
interpretation of the sentencing orders was incorrect, and (2) the 1996
amendment to the 1993 sentence “did not amend the sentence itself but
only the location where it was to be served.” Order, 5/3/2016, at 3. The
trial court further noted that it did not treat Appellant’s filing as an untimely-
filed petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546, because it did “not allege any basis for relief
cognizable under the PCRA.” Id. at 4.
Thereafter, Appellant pro se filed a notice of appeal, as well as a court-
ordered statement of errors complained of on appeal. Counsel filed a motion
to withdraw, to which Appellant filed a response requesting that the trial
court grant the motion and allow him to proceed pro se. After conducting a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),
the trial court entered an order permitting counsel to withdraw, Order,
10/3/2016, and determined that Appellant made a knowing, voluntary, and
intelligent waiver of his right to counsel. Waiver of Counsel, 10/3/2016.
Thus, properly proceeding pro se, Appellant presents this Court with
three questions for review. Two of Appellant’s questions concern the merits
of the claims raised in his habeas petition (i.e., the DOC improperly
interpreted his sentencing orders and the trial court lacked jurisdiction in
1996 to amend his sentence in the 1992 case); the third asks, inter alia,
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“whether the lower erred in finding that it cannot treat the foregoing habeas
corpus petition as a petition under [the] PCRA as it does not allege any basis
of relief cognizable under the PCRA?” Appellant’s Brief at 4 (unnecessary
capitalization omitted).
We begin by reviewing the relevant legal principles. “[T]he PCRA
subsumes all forms of collateral relief, including habeas corpus, to the extent
a remedy is available under such enactment.” Commonwealth v. West,
938 A.2d 1034, 1043 (Pa. 2007). All PCRA petitions must either (1) be filed
within one year of the judgment of sentence becoming final, or (2) plead and
prove a timeliness exception. 42 Pa.C.S. § 9545(b). “[A] defendant cannot
escape the PCRA time-bar by titling his petition or motion as a writ of
habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.
2013).
However, “claims that fall outside the eligibility parameters of the
PCRA may be raised through a writ of habeas corpus.” Commonwealth v.
Masker, 34 A.3d 841, 850 (Pa. Super. 2011) (en banc). Our Supreme
Court has explained that “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).
To the extent that Appellant claims that his sentence in the 1992 case,
as amended in 1996, is illegal, the claim is cognizable exclusively under the
PCRA. See, e.g., Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.
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Super. 2011) (“[T]he plain language of the PCRA… states that ‘[the PCRA]
provides for an action by which … persons serving illegal sentences may
obtain collateral relief.’ … Therefore, Jackson’s ‘motion to correct illegal
sentence’ is a PCRA petition and cannot be considered under any other
common law remedy.”).
Because Appellant’s sentence became final 20 years ago, and
Appellant did not plead and offer to prove a PCRA timeliness exception, the
trial court lacked jurisdiction to address the merits of his illegal-sentence
claim.1 See Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014)
(“The timeliness of a PCRA petition is a jurisdictional threshold and may not
be disregarded in order to reach the merits of the claims raised in a PCRA
1
The record reveals that the amendment to Appellant’s sentence in the
1992 case resulted from the trial court’s granting of a petition to amend
sentence filed by Appellant. Therein, Appellant explained that he received
a state sentence in the 1994 case, but he could not be transferred to a state
correctional facility until he was paroled on his sentence in the 1992 case,
which he was serving in the Lawrence County Jail. Petition to Amend
Sentence, 8/26/1996, at ¶¶ 4-5. Therefore, Appellant “request[ed] that his
sentence be amended to reflect that he serve not less than 2 years nor more
than 10 years in a State Correctional Facility.” Id. at ¶ 6. The trial court
granted Appellant’s request, and signed Appellant’s proposed order
indicating that the sentence was amended to reflect that he serve his time
for the 1992 case in a state facility. Order, 8/26/1996.
Appellant argues in his brief that counsel was ineffective in petitioning for
the amendment. That claim is also within the exclusive province of the
PCRA; because Appellant did not present it timely, neither the trial court nor
this Court has jurisdiction to entertain it. See 42 Pa.C.S. 9543(a)(2)(ii)
(enumerating claims of ineffective assistance of counsel as cognizable under
PCRA); Commonwealth v. Eller, 807 A.2d 838, 845 (Pa. 2002) (noting
PCRA is exclusive means of obtaining relief for claims cognizable under
PCRA).
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petition that is untimely.”); Commonwealth v. Taylor, 65 A.3d 462, 465
(Pa. Super. 2013) (“[A]lthough illegal sentencing issues cannot be waived,
they still must be presented in a timely PCRA petition.”).
However, Appellant’s claim that he has served the balance of his
sentences and should be paroled immediately is brought properly in a
petition for writ of habeas corpus. Commonwealth v. Isabell, 467 A.2d
1287, 1291 (Pa. 1983) (holding that the writ of habeas corpus, the “well
known remedy for deliverance from illegal confinement,” rather than
statutory post-conviction relief, “is particularly suited to the wrong alleged in
this case, illegal detention resulting from an incorrect computation of
appellant’s sentence by prison officials”). Thus, we consider the merits of
Appellant’s claim that he is being detained unlawfully because he has
completed his sentences.
Appellant’s argument is as follows:
Once the court amended, changed and altered the original
county sentence [in the 1992 case] into a now state sentence, it
failed to state in [its] order to amend, that the state sentence [in
the 1994 case] would still be run consecutive to the now state
sentence [in the 1992 case;] therefore, these two state
sentences must now be running concurrently!
Appellant’s Brief at 4 (unnecessary capitalization omitted).
The trial court offered the following response:
It is clear that [in the 1994 case,] the court ordered the
sentence at that case number to be served on a consecutive
basis to the sentence previously issued [in the 1992 case]. The
amendment on August 26, 1996 of the sentence [in the 1992
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case] only changed the place of confinement and not the
effective date of the sentence. In changing [Appellant’s] place
of confinement, the court did not amend the sentence itself but
only the location where it was to be served. Thus, the only
reasonable and logical interpretation of the three orders in
question is that [Appellant] received a sentence of not less than
2 years nor more than 10 years [in the 1992 case,] and then
received a consecutive sentence of not less than 9 months nor
more than 5 years in the 1994 case,] and as of August 26, 1996
a determination was made that both sentences should be served
in a state correctional facility with the sentence [in the 1994
case] to be served consecutively to the sentence [in the 1992
case].
Order, 5/3/2016, at 2-3 (unnecessary capitalization omitted).
“[A] sentence … is to be construed so as to give effect to the intention
of the sentencing judge. To determine this intention the reviewing court
limits itself to the language of the written judgment.” Commonwealth v.
Kennedy, 868 A.2d 582, 591 (Pa. Super. 2005) (citation omitted). After
review of the sentencing orders at issue, we agree with the trial court that
the only reasonable interpretation is that the sentence in the 1994 case runs
consecutively to the amended sentence in the 1992 case.
Neither the original sentencing order from 1993, nor the amendment
ordered in 1996, references the sentence entered in the 1994 case. It was
the sentencing order in the 1994 case that indicated it was to run
consecutively to the sentence in the 1992 case. There simply was no reason
for the trial court to mention anything about the 1994 case in its order
amending the sentence in the 1992 case.
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The sentence in the 1994 case was never amended; accordingly, that
sentence still runs consecutively to the sentence in the 1992 case. The trial
court’s grant of Appellant’s requested amendment to the place where he
would serve his sentence in the 1992 case had no impact whatsoever upon
the consecutive nature of the sentence in the 1994 case. Thus, we conclude
that the trial court properly denied Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
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