Com. v. Glasgow, T.

J-S22015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

TIMOTHY CHRISTOPHER GLASGOW,

Appellant No. 3076 EDA 2017

Appeal from the Order Entered September 6, 2017

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0003118-2001

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 16, 2018

Appellant, Timothy Christopher Glasgow, appeals from the order

denying his habeas corpus petition for want of subject matter jurisdiction.

Appellant claims that his only remedy lies in habeas review, whereas the trial

court ruled that the Parole Act dictates that Appellant’s remedy lies with the

Board of Probation and Parole and the Commonwealth Court. After careful

review, we affirm.

The trial court provided the relevant procedural history for this case as

follows:

On May 13, 2003, [A]ppellant entered guilty pleas to five

(5) counts of Burglary, and nolo contendere pleas to thirteen (13)

counts of Theft by Unlawful Taking and one (1) count of Attempted

Theft by Unlawful Taking. [A]ppellant burglarized the homes of

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* Retired Senior Judge assigned to the Superior Court.

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five (5) families, and also committed or attempted to commit

fourteen (14) auto thefts.

[A]ppellant also entered a nolo contendere plea in Lehigh

County No. CR-3448-2002 to Criminal Solicitation to Commit

Murder. [A]ppellant solicited an undercover state trooper to

murder a witness in his other cases.

On July 23, 2003, after receipt and review of a presentence

report, and at the conclusion of a sentencing hearing, [A]ppellant

received a total sentence of not less than eighty-four (84) months

nor more than one hundred sixty-eight (168) months in a state

correctional institution. On August 8, 2003, post-sentence

motions were denied. No appeals were filed.

On August 1, 2017, almost fourteen (14) years after

[A]ppellant's judgment of sentence became final, he filed a

"Petition for Writ of Habeas Corpus" (hereinafter Habeas Corpus).

[A]ppellant in that petition outlined his history of incarceration,

including his parole and subsequent recommitment on a parole

violation. Based upon his petition, it appears that [A]ppellant was

convicted of a new offense and sentenced to not less than four (4)

years[’] nor more than eight (8) years[’] imprisonment. The relief

[A]ppellant requested in his Habeas Corpus petition was his

"discharge from custody" on the charges for which sentence was

imposed by this [c]ourt.

On September 6, 2017, the "Petition for Writ of Habeas

Corpus" was denied without a hearing. A Notice of Appeal was

filed on September 22, 2017. [A]ppellant was directed to file a

Concise Statement pursuant to Pa.R.A.P. 1925(b) on October 3,

2017. [A]ppellant[,] in his “1925([b]) Concise Statement of

Matters Complained of on Appeal” objects to the action of the

Pennsylvania Board of Probation and Parole, and the dismissal of

his petition without a hearing.

Trial Court Opinion (TCO), 10/23/17, at 1-2 (footnotes omitted).

Appellant now presents the following questions for our review:

A. Whether the sentencing court abused its discretion when it

dismissed [A]ppellant’s writ of habeas corpus without a hearing

after the [Pennsylvania Board of Probation and Parole, hereinafter

“PBPP”] and [Department of Corrections, hereinafter “DOC”] failed

to honor the maximum sentence imposed order after the

maximum sentence had been served in its entirety but the [PBPP]

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and [DOC] refuses to release him from custody on that judicially-

imposed already[-]served maximum sentence?

B. Whether the sentencing court's “no less than” and “nor more

than” mandatory minimum and maximum sentencing order may

be declared null, void and without legal effect or force, by the

[PBPP] and the [DOC], legislative creatures [of the] legislative

branch, when: 1) the “no less than” and “nor more than”

mandatory minimum and maximum sentencing order is the order

giving the [PBPP] and [DOC] its legal jurisdiction and au[th]ority

from the sentencing's start[/effective] date[, halfway served “no

less than” minimum sentence date], and expiring

[ending/completely served] “nor more than” mandatory

maximum [sentence date]; and 2) when no delinquent time, no

escape time, no absconding time, no service of another [sentence]

time exists to justify the extending and altering of the “nor more

than” mandatory maximum [sentence date] set by the sentencing

court's order on sentencing day?

Appellant’s Brief at v (unnecessary capitalization omitted, some brackets in

original).

Essentially, in Appellant’s second issue, he claims that the PBPP lacked

the authority to alter the projected date of the end of his maximum sentence,

initially slated for May 1, 2015, and which he construes as the PBPP’s

rendering the original sentencing order null and void. Relating back to his first

issue, Appellant asserts that the trial court erred when it dismissed his habeas

petition without a hearing on the basis of a lack of subject matter jurisdiction

because, he contends, the PBPP’s exclusive authority over parole matters did

not extend beyond May 1, 2015, the original date envisioned for the end of

his maximum term. Thus, Appellant contends, his remedy for his ostensible

illegal confinement lies in habeas.

Under Pennsylvania law, the authority to parole convicted

offenders “is split between the common pleas courts and the

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[PBPP].” Commonwealth v. Tilghman, 438 Pa.Super. 313, 652

A.2d 390, 391 (1995), aff'd, 543 Pa. 578, 673 A.2d 898 (1996).

“When an offender is sentenced to a maximum term of

imprisonment of less than two years, the common pleas court

retains authority to grant and revoke parole; when the maximum

term is two years or more, authority to grant or revoke parole is

vested in the [PBPP].” Id.

For prisoners whose maximum sentence is two years or

more, the [PBPP] has exclusive power “to parole and reparole,

commit and recommit for violations of parole, and to discharge

from parole....” 61 P.S. § 331.17. The [PBPP] may extend the

expiration of an offender’s maximum sentence upon his

recommitment as a convicted parole violator. 61 P.S. § 331.21a;

Eckert v. Pa. Bd. of Probation and Parole, 33 Pa. Cmwlth. 390,

381 A.2d 1030 (1978).

A parolee may request administrative review of a [PBPP]

determination, “relating to revocation decisions,” within thirty

days of the mailing date of the [PBPP]’s determination. 37 Pa.

Code § 73.1(b)(1); accord Cadogan v. Commonwealth, Pa. Bd.

of Probation and Parole 116 Pa. Cmwlth. 249, 541 A.2d 832, 833

(1988) (construing former 37 Pa. Code § 71.5(h)). Appellate

review of administrative parole orders, i.e., orders issued by the

[PBPP] as opposed to parole orders issued by common pleas

courts, is within the exclusive jurisdiction of the Commonwealth

Court. Commonwealth v. McDermott, 377 Pa. Super. 623, 547

A.2d 1236 (1988); see also Commonwealth v. Fells, 513 Pa.

18, 518 A.2d 544 (1986) (holding that questions concerning

orders of the [PBPP] are in the appellate jurisdiction of the

Commonwealth Court); Evans v. Pa. Dept. of Corrections, 713

A.2d 741, 743 (Pa. Cmwlth. 1998) (holding that an appeal from a

[PBPP] decision extending the defendant's maximum release date

was within Commonwealth Court’s appellate jurisdiction). A

parolee is required to exhaust all of his administrative remedies

before he has a right to judicial review of an order of the [PBPP].

Evans, 713 A.2d at 743; St. Clair v. Commonwealth, Pa. Bd.

of Probation and Parole, 89 Pa. Cmwlth. 561, 493 A.2d 146

(1985).

The writ of habeas corpus is an extraordinary remedy that

is available after other remedies have been exhausted or are

ineffectual or nonexistent. Moore v. Roth, 231 Pa. Super. 464,

331 A.2d 509, 511 (1974) (citation omitted). The writ will not

issue if another remedy exists and is available. Id. The writ is

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not a substitute for appellate review. Commonwealth v. Wolfe,

413 Pa. Super. 583, 605 A.2d 1271 (1992); see Wilson v.

Commonwealth, Bureau of Corrections, 85 Pa. Cmwlth. 32,

480 A.2d 392 (1984) (holding that a petition seeking the

correction of the [PBPP]’s action in aggregating a defendant’s two

sentences does not sound in habeas corpus); cf. Brown v. Dept.

of Corrections, 144 Pa. Cmwlth. 610, 601 A.2d 1345 (1992)

(holding that a petition in which prisoners were directly

challenging the legality of their continued detention, which was

not grounded merely on an administrative calculation, was in the

nature of habeas corpus).

Com., Dept. of Corrections v. Reese, 774 A.2d 1255, 1259–60 (Pa. Super.

2001) (footnote omitted).

In Reese, the DOC appealed from a pair of trial court orders that

granted two habeas petitions on the basis that the petitioners’ maximum

release date had passed. Analogous to Appellant’s circumstances in the case

sub judice, the initially projected dates for the Reese petitioners’ completion

of their maximum terms of incarceration were extended by the PBPP because

the petitioners had reoffended while at liberty on parole. With regard to one

petitioner, Reese, the Court determined that the remedy of habeas corpus was

available to him because he filed his habeas petition after the PBPP’s

recalculated maximum release date had expired. Id. at 1261. However, the

other petitioner, Richart, filed his habeas petition before the PBPP’s

recalculated maximum release date expired. The Reese Court determined

that under those circumstances, “Richart was using his Petition for habeas

corpus relief to challenge the Board’s recalculation of his maximum release

date.” Id. The Reese Court concluded that “the trial court did not have

jurisdiction to hear Richart’s Petition” because at “the time he filed his Petition

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for a writ for habeas corpus, Richart’s maximum sentence, as calculated by

the Board, had not expired.” Id (emphasis added).

The crux of Appellant’s argument in his Brief is that the July 23, 2003

sentencing order is binding and, therefore, cannot be extended by the PBPP.

That argument is contrary to our decision in Reese, as Richart filed his habeas

petition after his original maximum release date, but before the PBPP’s

recalculated maximum release date expired. Clearly, the PBPP can alter the

calculation of a maximum release date from that which would have existed

based on the original sentencing order alone. Any argument to the contrary

is meritless.

As indicated in Appellant’s habeas petition, however, when the PBPP

effectively extended his maximum release date by 21 months, it did so on

June 16, 2015, ostensibly after the original maximum release date passed.

See Habeas Petition, 8/1/17, at 3 ¶ 7 (unnumbered pages). Thus, Appellant

appears to argue in the alternative that, even if the PBPP can extend a

maximum release date under certain circumstances, it cannot do so after that

date has passed.

However, before we answer any such question on the merits, Appellant

must convince us that a remedy cannot be found in an administrative appeal

with the PBPP and, if unsuccessful, in the Commonwealth Court. Appellant

provides scant argument on this point. The writ of habeas corpus can only

apply “after other remedies have been exhausted or are ineffectual or

nonexistent.” Reese, 774 A.2d at 1260. This threshold question is essential

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habeas review. “The writ will not issue if another remedy exists and is

available.” Id (emphasis added). Here, Appellant is effectively challenging

the PBPP’s issuance of backtime1 of 21 months, which is what caused him to

remain incarcerated beyond the originally calculated maximum end date for

his 2003 sentence. However, whether the PBPP’s issuance of backtime was

proper under existing law2 is a matter fully within the purview of the

Commonwealth Court because, as noted above, “[a]ppellate review of

administrative parole orders, i.e., orders issued by the [PBPP] as opposed to

parole orders issued by common pleas courts, is within the exclusive

jurisdiction of the Commonwealth Court.” Reese, 774 A.2d at 1260

(emphasis added). This exclusive jurisdiction applies to orders “[t]o parole

and reparole, commit and recommit for violations of parole and to discharge

from parole all persons sentenced by any court at any time to imprisonment

in a correctional institution[.]” 61 Pa.C.S. § 6132(a)(1)(i).

Appellant styles his habeas petition as an attempt to “enforce” the terms

of the 2003 sentencing order. However, we agree with the trial court that this

claim is just a thinly veiled attack on the PBPP’s determination to issue

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1 “‘Backtime’ is a penalty imposed by the Board for a violation of parole.”

Santiago v. Pennsylvania Bd. of Probation and Parole, 937 A.2d 610,

617 (Pa. Cmwlth. 2007). “By definition, ‘backtime’ is that part of an existing

judicially imposed sentence that a parole violator is required to serve as a

result of violating the terms and conditions of parole prior to being eligible to

again apply for parole.” Id.

2 Appellant claims that the PBPP’s issuance of backtime in this case was

improper because it effectively failed to afford him credit for the time he was

on parole, given the nature of his parole violation.

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backtime for his parole violation. Moreover, Appellant has not provided a

citation to any authority establishing an exception to the Commonwealth

Court’s exclusive jurisdiction in these matters, and the circumstances of this

case are not analogous to the petitioner in Reese who remained incarcerated

after the expiration of the PBPP’s recalculated maximum end date. For these

reasons, we conclude that the trial court did not err or otherwise abuse its

discretion when it denied Appellant’s habeas petition for want of jurisdiction.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/16/18

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