Com. v. Abney, C. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CAREY ABNEY :
:
Appellant : No. 1142 EDA 2021
Appeal from the Order Entered May 5, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0804281-1995
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 03, 2022
Carey Abney appeals, pro se, from the order, entered in the Court of
Common Pleas of Philadelphia County, denying his petition to cease unlawful
imprisonment. The court deemed his petition as one filed pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and denied
relief. We affirm.
On September 9, 1996, following a non-jury trial, Abney was convicted
of first-degree murder1 and possession of instruments of crime (PIC)2 by the
Honorable Juanita Kidd Stout and immediately sentenced to life imprisonment.
Following a direct appeal to this Court, several PCRA and habeas corpus
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(a).
2 18 Pa.C.S.A. § 907(a).
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petitions, and this, his sixth appeal to this Court, Abney again claims he is
unlawfully confined because there is no written and signed sentencing order
authorizing his incarceration. See Petition to Cease Unlawful Imprisonment,
10/5/20, at 1-2; Pa.R.A.P. 1925(b) Statement of Errors Complained of Appeal,
6/23/21, at ¶ 2. On July 9, 2021, the Honorable Glenn B. Bronson denied
Abney’s petition.
Abney first claims the court erred in treating his petition as one filed
pursuant to the PCRA, rather than as a petition for habeas corpus. In Joseph
v. Glunt, 96 A.3d 365, 368 (Pa. Super. 2014), this Court stated that a claim
challenging the legality of a defendant’s commitment and detention “due to
the inability of the [Department of Corrections] to produce a written
sentencing order related to [his] judgment of sentence constitutes a claim
legitimately sounding in habeas corpus.” Id. at 368. See also Brown v.
Penna. Dept. of Corr., 81 A.3d 814, 815 (Pa. 2013) (per curiam) (citing
Commonwealth ex rel. Bryant v. Hendrick, 280 A.2d 110, 112 (Pa. 1971).
Notwithstanding the validity of this claim, Abney raised the same issue in two
prior habeas corpus petitions, the most recent one filed on February 22, 2017.
On appeal to this Court following denial of that petition, we stated:
To the extent [Abney] contends that he is being confined without
a written sentencing order, we agree with the trial court that this
issue could be cognizable under the habeas corpus statute but was
previously litigated and frivolous. See Abney, 80 EDA 2016 at 3-
4; see also Commonwealth v. Isabell, 467 A.2d 1287, 1292
(Pa. 1983) (construing written sentence endorsed on bill of
information); Commonwealth v. Williams, 636 A.2d 183, 184
n.2 (Pa. Super. 1993) (en banc) (relying on written endorsement
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of sentence on back of information that was dated the same day
of the sentencing hearing).
Commonwealth v. Abney, 1407 EDA 2017, at *5 (Pa. Super. filed March
13, 2018) (unpublished memorandum decision). The Pennsylvania Supreme
Court denied allowance of appeal. Commonwealth v. Abney, 197 A.3d 712(Pa. 2018) (Table).3
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3 In a prior opinion, in 2015, Judge Bronson explained:
Trial courts have the inherent authority to correct patent errors in
orders and judgments even after the expiration of the statutory
30[-]day time limit for modification of orders set forth in 42 Pa.C.
S.A. § 5505. See, e.g., Commonwealth v. Holmes, 933 A.2d
57, 64–67 (Pa. 2007). Here, however, there are no apparent
errors in the sentencing orders in [Abney’s] case. As was then
the standard procedure, the sentencing orders were handwritten
on the original Bills of Information filed in this matter, copies of
which are attached to this Opinion as Exhibit A.
There are no clerical errors on the orders. Judge Stout clearly and
succinctly detailed the sentence imposed, correctly dated the
orders, and signed them. Further, the [c]ourt’s sentencing order
was correctly recorded on a Form DC-300B, which was signed by
the court clerk. The Form DC-300B is attached to this Opinion as
Exhibit B.
[Abney] was sentenced on September 9, 1996, long before the
adoption and use of the Commonwealth of Pennsylvania Case
Management System (“CPCMS”). The “order” that [Abney]
attached to his motion, while apparently generated by CPCMS,
does contain numerous errors.[] It is not, however, the
sentencing order actually entered by the [c]ourt, but an incorrect
report of the sentence, printed decades after [Abney] was
sentenced. As there are no clerical errors in [Abney’s] actual
sentencing orders, the Court properly denied [Abney’s] motion.
No relief is due.
Trial Court Opinion, 12/31/2015, at 3 (footnote omitted).
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Abney’s claim would not have entitled him to habeas corpus review
because it was finally litigated and, more importantly, would not have entitled
him to relief because the record contains the trial court’s September 9, 1996
sentencing order.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2022
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4 Regardless of whether the claim is reviewed under the habeas corpus statute
or the PCRA statute, the court properly dismissed it. See 42 Pa.C.S.A. §
9543(a)(2)-(3). Abney’s judgment of sentence became final once this Court
affirmed the judgment of sentence on October 17, 1997, and the period for
filing a direct appeal to the Supreme Court of Pennsylvania expired on
November 17, 1997. Commonwealth v. Abney, 990 A.2d 34 (Pa. Super.
2009) (unpublished memorandum decision), appeal denied, 998 A.2d 958 (Pa.
Super. 2010). See 42 Pa.C.S.A. § 9545(b)(3). Thus, in order to comply with
the time requirements of the PCRA, any and all PCRA petitions had to be filed
by November 17, 1998. See 42 Pa.C.S.A. § 9545(b)(1). The instant petition,
filed on October 5, 2020, is almost twenty-two years late, and no exception
has been pled or proven. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Cf.
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (writ
of habeas corpus not available outside framework of PCRA, where merits of
PCRA petition cannot be considered due to, for example, previous litigation).
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