Com. v. Tierno, W. ( 2018 )


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  • J-S04017-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                         :
    :
    :
    WILLIAM JOHN TIERNO,                   :
    :
    Appellant            :   No. 953 MDA 2017
    Appeal from the Order Entered May 23, 2017
    In the Court of Common Pleas of Schuylkill County
    Criminal Division at No(s): CP-54-CR-0000866-2009,
    CP-54-CR-0001290-2009
    BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY DUBOW, J.:                            FILED JUNE 15, 2018
    Appellant, William John Tierno, appeals pro se from the May 23, 2017
    Order entered in the Schuylkill County Court of Common Pleas dismissing his
    Petition for Writ of Habeas Corpus. We affirm.
    This Court previously set forth the underlying facts, so we will not
    repeat them here. See Commonwealth v. Tierno, No. 974 MDA 2015 (Pa.
    Super. Aug. 23, 2016) (unpublished memorandum); Commonwealth v.
    Tierno, 
    81 A.3d 1005
    (Pa. Super. 2013) (unpublished memorandum).
    Briefly, on August 30, 2010, Appellant entered guilty pleas at two
    dockets: (1) No. CP-54-CR-0000866-2009 to one count each of Robbery,
    Criminal Conspiracy, Theft by Unlawful Taking, and Receiving Stolen
    J-S04017-18
    Property;1 and (2) No. CP-54-CR-0001290-2009 to one count each of
    Robbery, Criminal Conspiracy, Theft by Unlawful Taking, and Terroristic
    Threats.2 That same day, the trial court imposed the negotiated aggregate
    sentence of 12 to 24 years’ incarceration.
    This Court dismissed Appellant’s direct appeal on December 29, 2011
    after Appellant failed to file an appellate brief. Commonwealth v. Tierno,
    No. 1299 MDA 2011 (Pa. Super. Dec. 29, 2011) (per curiam). Appellant did
    not seek review by the Pennsylvania Supreme Court.
    Over the next several years, Appellant filed two PCRA Petitions, both
    of which were dismissed.
    On May 4, 2017, Appellant filed the instant Petition for Writ of Habeas
    Corpus, arguing that he was subject to cruel and unusual punishment insofar
    as the Department of Corrections (“DOC”) refused him treatment for
    Hepatitis C. Appellant did not append any supporting documentation to his
    Petition, and he did not allege that he had exhausted his administrative and
    other remedies.
    On May 23, 2017, the trial court denied Appellant’s Petition for Writ of
    Habeas Corpus without a hearing.
    ____________________________________________
    118 Pa.C.S. § 3701; 18 Pa.C.S. § 903; 18 Pa.C.S. § 3921; and 18 Pa.C.S. §
    3925, respectively.
    218 Pa.C.S. § 3701; 18 Pa.C.S. § 903; 18 Pa.C.S. § 3921; and 18 Pa.C.S. §
    2706, respectively.
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    Appellant timely filed a pro se Notice of Appeal.    Both Appellant and
    the court complied with Pa.R.A.P. 1925.
    Appellant presents three issues for our review:
    1. Whether a Petition for Writ of Habeas Corpus is available to
    challenge the continued vitality of sentence and confinement
    where conditions of confinement constitute cruel and unusual
    punishment due to the prison the sentencing court ordered
    sentence to be served in (Pa. Dept. of Corrections) deliberately
    and knowingly refuse[d] to provide treatment for “life-
    threatening disease Hepatitis-C” in violation of Article 1 § 13 of
    the Pa. Constitution and the 8th and 14th Amendments of the
    U.S. Constitution?
    2. Whether a Habeas Corpus Petitioner is entitled to a hearing to
    plead and prove the prison’s administrative remedies (“grievance
    system”) [are] ineffective?
    3. Whether [the] lower court erred by not holding a hearing on
    the Habeas Corpus Petition?
    Appellant’s Brief at 3.
    We review a trial court’s order denying a petition for writ of habeas
    corpus for an abuse of discretion. Rivera v. Pennsylvania Dep’t. of Corr.,
    
    837 A.2d 525
    , 528 (Pa. Super. 2003).      In Pennsylvania, the availability of
    habeas corpus is prescribed and limited by statute. The statutory remedy of
    habeas corpus empowers any judge of a court of record to issue a writ “to
    inquire into the cause of detention.” 42 Pa.C.S. § 6502.
    “A habeas corpus court, in determining whether a petition for a writ
    requires a hearing, must accept as true all allegations of fact contained in
    the petition which are non-frivolous, specific, and not contradicted by the
    record, even though those allegations may be controverted by the
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    Commonwealth.” Commonwealth ex rel. West v. Myers, 
    222 A.2d 918
    ,
    920 (Pa. 1966) (citations omitted).         “[T]he petition may be denied
    summarily and without a hearing where it fails to allege facts making out a
    prima facie case for the issuance of the writ.” Balsamo v. Mazurkiewicz,
    
    611 A.2d 1250
    , 1253 (Pa. Super. 1992) (citations omitted). “A hearing is
    not required when there is no issue of fact to be decided or when the facts
    averred by relator, even if believed, are insufficient to warrant granting the
    writ of habeas corpus.”    Commonwealth v. Judge, 
    916 A.2d 511
    , 521,
    n.13 (Pa. 2007) (citation omitted).
    Pursuant to the statute, habeas corpus relief is available “only when no
    other remedy is available for the condition the petitioner alleges or available
    remedies are exhausted or ineffectual.” Commonwealth ex rel. Fortune
    v. Dragovich, 
    792 A.2d 1257
    , 1259 (Pa. Super. 2002) (citation omitted).
    Since our function is not “to superintend the treatment and discipline of
    prisoners in penal institutions[,]” Pennsylvania courts may not entertain
    habeas corpus “merely to correct prison conditions [that] can be remedied
    through an appeal to prison authorities or to an administrative agency.” 
    Id. (citations omitted).
      Thus, “[t]he failure or refusal of prison authorities to
    exercise discretion in a particular way may not be reviewed in a habeas
    corpus proceeding.” 
    Id. (citation omitted).
    “Accordingly, the writ may be used only to extricate a petitioner from
    illegal confinement or to secure relief from conditions of confinement that
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    constitute cruel and unusual punishment.”        
    Id. (citations omitted).
      This
    Court has held that prisoner challenges to the administrative discretion of
    prison officials “are appropriately addressed in a claim of deprivation of
    constitutional rights under color of state law as prescribed by the federal
    Civil Rights Act, 42 U.S.C. § 1983.”        
    Id. at 1259-60
    (citation omitted).
    “Although the potential for relief in such an action does not preclude review
    of claims in habeas corpus, such claims must be based on ‘patent and
    serious deprivations’ of a constitutional right sufficient to establish cruel and
    unusual punishment” in order to be addressed in a petition for writ of habeas
    corpus. 
    Id. (citation and
    quotation marks omitted).
    In Appellant’s May 4, 2017 Petition for Writ of Habeas Corpus,
    Appellant summarily claimed that the prison’s refusal to provide him with
    necessary medical treatment is causing him irreparable harm. Appellant did
    not provide any allegations about his previous attempts to obtain relief
    through available administrative remedies.       Specifically, Appellant did not
    allege that “no other remedy is available for the condition the petitioner
    alleges or available remedies are exhausted or ineffectual.” 
    Dragovich, 792 A.2d at 1259
    . Thus, he was not entitled to a hearing because he failed “to
    allege facts making out a prima facie case for the issuance of the writ.”
    
    Balsamo, 611 A.2d at 1253
    .
    Moreover, Appellant has provided no documentation to the lower court
    supporting his bald allegations of general denial of treatment. Although he
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    appended documents to his appellate brief, these documents are not
    properly admitted evidence and, moreover, fail to support his allegations of
    cruel and unusual punishment.3 This deficiency makes clear that Appellant
    has failed to demonstrate: (1) that “no other remedy is available for the
    condition the petitioner alleges or available remedies are exhausted or
    ineffectual[;]” or (2) “patent and serious deprivations of a constitutional
    right sufficient to establish cruel and unusual punishment.” 
    Dragovich, 792 A.2d at 1259
    .4
    Accordingly, we conclude that Appellant’s allegations provide no basis
    upon which the trial court might issue a writ of habeas corpus. Thus, the
    trial court did not abuse its discretion in dismissing Appellant’s Petition
    without a hearing. Accordingly, we affirm.
    Order affirmed.
    ____________________________________________
    3 “[A]ny document which is not part of the officially certified record is
    deemed non-existent—a deficiency which cannot be remedied merely by
    including copies of the missing documents in a brief or in the reproduced
    record.” Commonwealth v. Preston, 
    904 A.2d 1
    , 7 (Pa. Super. 2006) (en
    banc) (citations omitted).
    4 Even if we could consider these supporting documents, they demonstrate
    that Appellant failed to exhaust available remedies. See, e.g., Appellant’s
    Brief at Appendix C, SCI Greene “Initial Review Response” dated 3/24/17,
    denying Grievance (indicating available remedy process Appellant failed to
    utilize, and concluding Appellant was not entitled to relief through the
    prison’s “grievance procedure” because he failed to exhaust “all other
    options.”). Moreover, they fail to support his claim of cruel and unusual
    punishment. See 
    id. (indicating Appellant’s
    lab values are within normal
    range and there is no damage to his liver that requires the medication
    (Harvoni) that he requested).
    -6-
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 06/15/2018
    -7-
    

Document Info

Docket Number: 953 MDA 2017

Filed Date: 6/15/2018

Precedential Status: Precedential

Modified Date: 6/15/2018