Com. v. Jones, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DWAYNE JONES :
:
Appellant : No. 303 EDA 2020
Appeal from the PCRA Order Entered November 1, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0715621-2002
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: Filed: December 24, 2020
Dwayne Jones (Appellant) appeals from the order entered in the
Philadelphia County Court of Common Pleas, dismissing, as untimely filed,
both a petition for writ of habeas corpus, which the court treated as a serial
petition pursuant to the Post Conviction Relief Act (PCRA),1 and a separate
PCRA petition. Appellant seeks relief from the aggregate sentence imposed
after his guilty plea to multiple counts of robbery and possessing an
instrument of crime (PIC), and one count of indecent assault,2 in nine separate
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 3701, 907, and 3126, respectively.
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cases.3 On appeal, Appellant contends the PCRA court erred when it treated
his petition for writ of habeas corpus as an untimely PCRA petition. We affirm.
The relevant facts and procedural history underlying this appeal are as
follows. On September 24, 2002, Appellant entered an open guilty plea in
nine separate cases to charges of robbery, PIC, and indecent assault. On
November 19, 2002, the trial court sentenced Appellant to an aggregate term
of 20 to 40 years’ imprisonment, followed by 25 years’ probation. Appellant
did not file a direct appeal.
On June 12, 2007, Appellant filed his first PCRA petition, and listed all
nine trial court docket numbers. Counsel was appointed, but later filed a
Turner/Finley4 “no merit” letter and petition to withdraw. The PCRA court
subsequently dismissed Appellant’s petition and permitted counsel to
withdraw. Although Appellant appealed the ruling to this Court, his appeal
was dismissed when he failed to file a brief. See 1988 EDA 2010, Order
2/17/11.
Between November 2012 and June 2014, Appellant filed a petition for
writ of habeas corpus, an amendment thereto, and a second PCRA petition,
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3 Appellant pled guilty at the following trial court docket numbers: CP-51-CR-
0706831-2002, CP-51-CR-0706841-2002, CP-51-CR-0710831-2002, CP-51-
CR-0715621-2002, CP-51-CR-0715641-2002, CP-51-CR-0715661-2002, CP-
51-CR-0715671-2002, CP-51-CR-0715681-2002, and CP-51-CR-0904311-
2002. From this point forward, we will refer to a docket number by the last
eight digits.
4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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all of which listed the trial court dockets at issue as Docket No. 5621-2002 “et
al.” The PCRA court reviewed all three filings — some claims under the PCRA
and other under habeas standards — and ultimately denied relief on July 13,
2015. See Commonwealth v. Jones, 2534 EDA 2015 (unpub. memo. at 5-
6) (Pa. Super. Apr. 26, 2016). Appellant appealed that decision and argued,
inter alia, that the PCRA court erred in dismissing his habeas claim that he
was being confined in the absence of a sentencing order. Id. at 3.
Specifically, he asserted the Department of Corrections “lack[ed] the authority
to detain” him because it was unable to produce a copy of his sentencing order
when he requested it. Id. (citation omitted). This Court determined the PCRA
court “properly treated [that] claim under habeas review and agree[d] that he
was not entitled to relief” because the certified record demonstrated the trial
court entered a sentencing order on November 19, 2002. Id. at 5. Upon
determining Appellant’s remaining PCRA claims were raised in an untimely
petition, the panel affirmed the order on appeal.5 See id. at 11. The
Pennsylvania Supreme Court subsequently denied Appellant’s petition for
allowance of appeal. Commonwealth v. Jones, 199 EAL 2016 (Pa. Sep. 27,
2016).
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5We note that only seven of the nine trial court docket numbers at issue were
appealed in that decision. Trial court Docket Nos. 5621-2002 and 6841-2002
are not listed in the caption. See Jones, 2534 EDA 2015 (unpub. memo. at
1).
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On June 9, 2017, Appellant filed the present petition for writ of habeas
corpus, again listing only trial court Docket No. 5621-2002 followed by “et al.”
Appellant’s petition seeks “clarification” of the “statute under Pennsylvania law
that the [trial court] received statutory authorization from to impose [his]
sentence[.]” Appellant’s Petition for Writ of Habeas Corpus A[d] Subjiciendum,
6/9/17, at 2. Thereafter, Appellant filed a PCRA petition on May 18, 2018.
That untimely-filed petition — which lists only trial court Docket Nos. 5671-
2002, 6831-2002, 6841-2002, and 5681-2002 — asserts claims of after-
discovered evidence and governmental interference based upon the fact that
he received a split sentence for one of his robbery convictions. See
Appellant’s Motion for Post Conviction Collateral Relief, 5/18/18, at 2, 6-7.
On August 26, 2019, the PCRA court issued notice of its intent to dismiss
both petitions as untimely filed PCRA petitions. See Notice Pursuant to
Pennsylvania Rule of Criminal Procedure 907, 8/26/19, at 1. The Rule 907
notice listed eight of the nine trial court docket numbers, omitting Docket No.
5661-2002. Appellant filed a pro se response on September 6th (listing the
same eight docket numbers), asserting that his habeas corpus petition raised
a claim that is not cognizable under the PCRA. See Appellant’s Answer to
Court’s Notice of Intention to Dismiss, 9/6/19, at 1-2. On November 1, 2019,
the PCRA court entered an order dismissing both petitions. Order, 11/1/19.
Thereafter, on November 27, 2019, Appellant filed a timely notice of appeal,
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which lists the relevant trial court docket as “CP-51-CR-0715621-2001 et al.”6
Appellant’s Notice of Appeal, 11/27/19.
Appellant raises the following issue in his brief:
Whether the trial court abused its discretion in dismissing
Appellant’s Petition for Writ of Habeas Corpus Relief for
clarification as to the statute under Pennsylvania law that the
Judge received Statutory Authorization from to impose an
aggregated term of 20 to 40 years imprisonment plus a
consecutive 25 years probation as an untimely PCRA petition?
Appellant’s Brief at 3.
Before we address Appellant’s substantive claim on appeal, we must
first determine if this appeal is properly before us. In Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), the Pennsylvania Supreme Court
announced a prospective ruling7 that requires appellants to file separate
notices of appeal “when a single order resolves issues arising on more than
one lower court docket[.]” Id. at 977. The Court further held: “The failure
to do so will result in quashal of the appeal.” Id. Because Appellant’s notice
of appeal was filed in November of 2019, it is subject to the Walker ruling.
As noted above, Appellant’s notice of appeal lists only one docket
number followed by the designation “et. al.” However, the Criminal Docketing
Statement and appellate brief he filed in this Court list only trial court Docket
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6The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
7 The Walker decision was filed on June 1, 2018.
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No. 5621-2002, without any “et. al” notation. See Appellant’s Criminal
Docketing Statement, 2/6/20;8 Appellant’s Brief, cover page. Thus, for our
purposes, we conclude Appellant has perfected an appeal only at trial court
Docket No. 5621-2002.
On appeal, Appellant has abandoned the claims raised in his May 2018
PCRA petition, and focuses solely on his June 2017 petition for writ of habeas
corpus. He first argues the PCRA court erred in “treating his Petition for Writ
of Habeas Corpus as an untimely PCRA petition.” Appellant’s Brief at 7.
Appellant maintains the issue raised therein — “entitlement to clarification as
to the statute under Pennsylvania law used to impose [his] sentence” — is not
cognizable under the PCRA, and thus, should have been considered under
habeas review. Id. With regard to his particular claim, Appellant contends
that neither his criminal docket, nor the transcript from his sentencing
hearing, reflect the statute under which the court received “statutory
authorization” to impose his sentence. See id. at 7-8. As a result, he insists
he was “prohibited” from challenging the imposition of his sentence. Id. at 8.
We review an order denying a petition under the PCRA to determine
whether the PCRA court’s decision “is supported by the evidence of record and
is free of legal error.” Commonwealth v. Rouse, 191 A.3d 1, 3 (Pa. Super.
2018).
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8 We note that Appellant attached to his criminal docketing statement an
undated notice of appeal which lists all nine trial court dockets. That
document, however, is neither time-stamped nor docketed.
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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.” 42 Pa.C.S. § 9542 (emphasis added). The Act clearly states
it “shall be the sole means of obtaining collateral relief and encompasses all
other common law and statutory remedies for the same purpose . . .
including habeas corpus[.]” Id. (emphasis supplied). Thus, as the
Pennsylvania Supreme Court explained:
The plain language of [Section 9542] demonstrates quite clearly
that the General Assembly intended that claims that could be
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, 136 A.3d 493, 499 (Pa. 2016), quoting
Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001).
Here, Appellant insists he “has not raised any claim cognizable under
the PCRA.” Appellant’s Brief at 7. We agree. The PCRA provides relief for
sentencing claims involving either constitutional violations, the ineffective
assistance of counsel, or “[t]he imposition of a sentence greater than the
lawful maximum.” 42 Pa.C.S. § 9543(a)(2)(i), (ii), (vii). In the present case,
Appellant seeks only “clarification” of the statute upon which the trial court
received authority to impose his sentence. Appellant’s Brief at 7. He further
suggests that this lack of clarification “prohibited” him from “challenging the
imposition of such sentence[.]” Id. at 8. Thus, it appears Appellant is seeking
information he then intends to use to challenge his sentence.
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Traditionally, the writ of habeas corpus “lies to secure the immediate
release of one who has been detained unlawfully, in violation of due process.”
Joseph v. Glunt, 96 A.3d 365, 369 (Pa. Super. 2014) (citation omitted).
Furthermore, it “is an extraordinary remedy and may only be invoked when
other remedies in the ordinary course have been exhausted or are not
available.” Id. (citations omitted).
Here, Appellant’s claim is similar to the allegation in his prior petition for
writ of habeas corpus, in which he challenged his continued confinement
absent the Department of Corrections’ inability to produce a sentencing order.
See Jones, 2534 EDA 2015 at 3. Although his present claim does not focus
on the sentencing order per se, he now asserts he is unaware of the “statutory
authority” under which the court imposed his sentence. See Appellant’s Brief
at 8. Nevertheless, it is well settled that habeas corpus relief is “an
extraordinary remedy” which lies only after “other remedies have been
exhausted.” Rouse, 191 A.3d at 6. Appellant could have sought clarification
of the trial court’s statutory sentencing authority at his sentencing hearing or
in a post-sentence motion. Because he “failed to exhaust all available
remedies before resorting to habeas corpus,” his claim is now waived.9 See
id. at 7.
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9 Although it is unclear in Appellant’s brief what “statutory authority” he is
seeking, we note that in the May 2018 PCRA petition, he argued the court’s
imposition of a sentence of probation “that runs consecutively to a term of
confinement constitutes an illegal split sentence.” Appellant’s Motion for Post
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Thus, while we agree the PCRA court erred in construing Appellant’s
claim under the PCRA, we affirm the order denying relief.10 See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/20
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Conviction Relief at 5. The only trial court docket upon which the court
imposed a split sentence on the robbery conviction was Docket No. 5671-
2002, which is not at issue here. Furthermore, pursuant to 42 Pa.C.S. § 9721,
a trial court may impose a term of total confinement and a term of probation
to run consecutively. 42 Pa.C.S. § 9721(a)(1), (4). The only restriction is
that the maximum time imposed on a split sentence may not exceed the
statutory maximum. Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.
Super. 2010).
10 We may affirm an order on any basis supported by the record, even if our
legal reasoning differs from that of the trial court. Commonwealth v.
Williams, 125 A.3d 425, 433 n.8 (Pa. Super. 2015).
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