Com. v. Thompson, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEANDRE TREMAIN THOMPSON :
:
Appellant : No. 1325 MDA 2016
Appeal from the Order Entered July 27, 2016
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002326-2012
BEFORE: GANTMAN, P.J., SHOGAN, and STRASSBURGER*, JJ
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 11, 2017
Deandre Tremain Thompson (Appellant) pro se appeals from the order
entered July 27, 2016, denying his petition for writ of habeas corpus. We
affirm.
In 2012, Appellant was charged “with sexually abusing two minor girls,
D.M. and T.F.” Trial Court Opinion, 10/25/2012, at 2. Appellant had been
incarcerated on unrelated charges since 2008. According to the girls, the
sexual abuse occurred prior to Appellant’s incarceration “while he was
supposed to be babysitting them.” Id. After being appointed several
attorneys and being granted numerous continuances, Appellant pro se filed a
petition for writ of habeas corpus on July 21, 2014. According to Appellant,
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*
Retired Senior Judge assigned to the Superior Court.
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he was “never arrested on a warrant, in contravention of [Pa.R.Crim.P.]
509.” Petition for Writ of Habeas Corpus, 7/21/2014, at ¶ 7. The
Commonwealth agreed that Appellant was never arrested, but responded
that Appellant was served properly with a summons pursuant to
Pa.R.Crim.P. 511. Commonwealth’s Answer, 7/28/2014, at ¶ 7. A hearing
on Appellant’s petition was held on July 31, 2014, and on August 11, 2014,
the trial court issued an opinion, which provided the following.
[Appellant] is accurate that the record clearly shows he was
never arrested, in contravention of Pa.R.Crim.P. 509. In
addition, although the record indicates that [Appellant] was
served with a summons on April 20, 2012, due to lack of further
evidence of service and [Appellant’s] testimony otherwise, [the
trial court] concludes that the summons was not properly served
pursuant to Pa.R.Crim.P. 511. Despite these concerning defects,
the Commonwealth is accurate that Pa.R.Crim.P. 109 applies,
and [Appellant] is not entitled to relief at this time. Rule 109
states:
A defendant shall not be discharged nor shall a case
be dismissed because of a defect in the form or
content of a complaint, citation, summons, or
warrant, or a defect in the procedures of these rules,
unless the defendant raises the defect … before the
conclusion of the preliminary hearing in a court case,
and the defect is prejudicial to the rights of the
defendant.
Pa.R.Crim.P. 109. Preliminarily, as noted in the Rule,
[Appellant] was required to raise the defect before the
conclusion of the preliminary hearing which was held on or about
December 18, 2012…. Therefore, as [Appellant’s] preliminary
hearing was held over a year and a half ago, his request is too
late.
In addition, [Appellant] must show how the defect is
prejudicial to his rights. At the July 31, 2014 hearing,
[Appellant] testified that he would be ready to defend himself at
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trial, yet also testified that he has had reluctance and difficulty
thinking about the case going to trial because he has been
unlawfully detained.
In effect, [Appellant] argues that he has been prejudiced
due to his preoccupation with this issue. [Appellant] asserts that
he has been so focused on the defects pertaining to his lack of
arrest and improper service of summons that any trial
preparation and attention to the merits of his case has become
difficult.
Trial Court Opinion, 8/11/2014, at 4-5 (some citations and footnotes
omitted). Concluding that Appellant’s petition was late and that his
preoccupation with the issue of service did not amount to actual prejudice,
the trial court denied Appellant’s petition.
After a jury trial, at which Appellant elected to proceed pro se with
stand-by counsel, Appellant was found guilty of all charges. On November
6, 2015, Appellant was sentenced to an aggregate term of 66 to 174 years
of incarceration. The trial court also found that Appellant was a sexually
violent predator (SVP).1 Appellant did not file a direct appeal.
On April 18, 2016, Appellant filed pro se the petition for writ of habeas
corpus at issue in this appeal, in which he contended, inter alia, that no
arrest warrant or summons was ever served in this case. Counsel was
appointed and informed Appellant that he intended to represent Appellant
within the framework of the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Appellant then indicated his desire to proceed pro se and
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1
See 42 Pa.C.S. § 9979.24.
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remain committed to his petition for writ of habeas corpus. The trial court
conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1999), and permitted Appellant to proceed pro se. In addition, the trial
court concluded that Appellant was not raising any issue it had not
considered already in denying Appellant’s prior petition for writ of habeas
corpus. Thus, the trial court denied Appellant’s petition. Order, 7/27/2016.
Appellant pro se timely filed a notice of appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.2
We begin our review by noting the relevant legal principles. It is well-
settled that the PCRA is intended to be the sole means of achieving post-
conviction relief. Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super.
2013). “[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). “[C]laims 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).
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2
The Commonwealth has not filed a brief on appeal.
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Here, Appellant is once again arguing that this case should be
dismissed because he was never served an arrest warrant or summons.
However, as the trial court points out, this amounts to an argument that the
trial court erred in denying his prior petition for writ of habeas corpus. See
Order, 7/27/2016, at 2 (“[Appellant] having raised no new issues that were
not considered by this [c]ourt in its August 11, 2014 [o]pinion, the petition
for writ of habeas corpus … is denied.”). However, the remedy available to
Appellant for purported trial court error in denying that petition is not the
filing of a new petition; rather, it was the filing of a direct appeal from his
judgment of sentence.
Under Pennsylvania statute, habeas corpus is a civil remedy
which lies solely for commitments under criminal process.
Habeas corpus is an extraordinary remedy and may only be
invoked when other remedies in the ordinary course have been
exhausted or are not available. If a petitioner is in custody by
virtue of a judgment of sentence of a court of competent
jurisdiction, the writ generally will not lie. Pennsylvania law
explicitly states that in cases where a person has been
restrained by virtue of sentence after conviction for a criminal
offense, the writ of habeas corpus shall not be available if a
remedy may be had by post conviction hearing proceedings
authorized by law. Issues are not cognizable under the
statutory remedy of habeas corpus if they could have
been considered and corrected in the regular course of
appellate review or by post-conviction proceedings
authorized by law.
Commonwealth v. DiVentura, 734 A.2d 397, 398 (Pa. Super. 1999)
(quoting Commonwealth v. McNeil, 665 A.2d 1247, 1249-50 (Pa. Super.
1995) (citations omitted) (emphasis added)).
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Here, Appellant was sentenced on November 6, 2015, and he had 30
days, or until December 7, 2015, to file timely a notice of appeal raising this
issue. See Pa.R.A.P. 903. He did not do so. Because Appellant could have
raised this issue in a direct appeal, but did not, Appellant is not entitled to
relief. Accordingly, we affirm the order of the trial court denying Appellant’s
petition for writ of habeas corpus.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
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3
“[W]e may affirm the trial court’s decision on any basis.” Commonwealth
v. McCulligan, 905 A.2d 983, 988 (Pa. Super. 2006).
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