Reisser, Jr., C. v. Folino, L. ( 2015 )

J-A18041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHARLES THOMAS REISSER, JR., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
LOUIS S. FOLINO, :
:
Appellee : No. 1780 MDA 2014
Appeal from the Order entered on September 26, 2014
in the Court of Common Pleas of Luzerne County,
Civil Division, No. 2014-01776
BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 28, 2015
Charles Thomas Reisser, Jr., (“Reisser”) appeals, pro se, from the
Order dismissing his Petition for writ of habeas corpus ad subjiciendum. We
affirm.
On April 5, 2011, Reisser pled guilty to one count of sexual assault and
two counts of indecent assault. On November 9, 2011, the trial court
imposed an aggregate sentence of 60 to 120 months in prison, followed by 7
years of probation. Subsequently, Reisser filed a Post Conviction Relief Act
(“PCRA”) Petition, which was dismissed as untimely on August 22, 2013. On
September 13, 2013, Reisser filed a Petition for writ of habeas corpus ad
subjiciendum. The Petition was treated as a PCRA Petition, and dismissed as
untimely. Reisser filed a timely Notice of Appeal.
On appeal, Reisser raises the following questions for our review:
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I. Whether the [PCRA court] erred in treating [Reisser’s]
[Petition for] writ of habeas corpus ad subjiciendum as a PCRA
petition?
II. Whether the [PCRA court] erred in denying [Reisser’s] writ of
habeas corpus as a PCRA petition?
III. Whether the cumulative facts and errors of the [PCRA court]
violate [Reisser’s] due process rights?
Brief for Appellant at 1.1
Reisser argues that the PCRA court abused its discretion and violated
his due process rights when it treated his Petition for writ of habeas corpus
ad subjiciendum as a PCRA Petition. Id. at 3-5. Reisser asserts that he has
been incarcerated for over three years without a written judgment of
sentencing order. Id. at 3. Reisser also argues that the PCRA court violated
his due process rights when it denied his Petition without a hearing. Id. at
4, 5.
Preliminarily, we note that the PCRA court erred in treating the Petition
for writ of habeas corpus ad subjiciendum as a PCRA Petition. Indeed, “a
claim that a defendant’s sentence is illegal due to the inability of the
[Pennsylvania Department of Corrections (“DOC”)] to produce a written
sentencing order related to his judgment of sentence constitutes a claim
legitimately sounding in habeas corpus.” Joseph v. Glunt, 96 A.3d 365, 368
(Pa. Super. 2014) (citations omitted). Despite this error, Reisser is not
entitled to relief.
1
We will address Reisser’s arguments together.
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“Our standard of review of a court’s order denying a petition for writ
of habeas corpus is limited to abuse of discretion. Thus, we may reverse the
court’s order where the court has misapplied the law or exercised its
discretion in a manner lacking reason.” Rivera v. Pa. Dep’t of Corr., 837
A.2d 525, 528 (Pa. Super. 2003) (citations and quotations omitted).
Section 9764 of the Sentencing Code states, in relevant part, that:
Upon commitment of an inmate to the custody of the
Department of Corrections, the sheriff or transporting official
shall provide to the institution’s records officer or duty officer, in
addition to a copy of the court commitment form DC-300B
generated from the Common Pleas Criminal Court Case
Management System of the unified judicial system...(a)(8) A
copy of the sentencing order and any detainers filed against the
inmate which the county has notice.
42 Pa.C.S.A. § 9764(a)(8) (citations omitted).
A sentencing order is not required to detain Reisser. See Glunt, 96
A.3d at 370 (holding that there is no mandatory requirement that the DOC
maintain or produce a sentencing order under 42 Pa.C.S.A. § 9764 upon the
request of a prisoner). Further, subsection 9764(a)(8) does not create any
remedy or cause of action for a prisoner based on the failure to provide a
sentencing order. Id. Thus, Reisser’s claims are without merit.2 See
Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001) (stating
that this Court may affirm the trial court’s decision through different
reasoning than that used by the trial court).
2
Based on our conclusion, Reisser’s claim regarding an evidentiary hearing
is without merit.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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