Com. v. Sisson, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANDREW SISSON
Appellant No. 179 MDA 2020
Appeal from the Order Entered January 10, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0003138-1998
BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 09, 2021
Appellant, Andrew Sisson, appeals pro se from the order entered on
January 10, 2020 in the Court of Common Pleas of Dauphin County, denying
his “Petition for Writ of Habeas Corpus.” Appellant contends he was
improperly detained in violation of the Interstate Agreement on Detainers
(“IAD”)1 when he was transported in October 1998 from the federal
penitentiary in Lewisburg, Pennsylvania, to Dauphin County and was returned
without trial or final disposition of the charges against him. For the reasons
explained below, we conclude that Appellant’s petition must be treated as a
first petition for collateral relief pursuant to the Post Conviction Relief Act
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. § 9101 et seq.
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(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. As such, Appellant is entitled to
counsel. Therefore, we are constrained to vacate the January 10, 2020 order
and remand for appointment of counsel.
Our review reveals that Appellant was transported from the federal
penitentiary in Lewisburg to Dauphin County in 1998. On the “State
Agreement Certificate,” the reference to the IAD was x-ed out. The certificate
clearly reflects that the release of temporary custody was “under the
conditions of the STATE WRIT OF HABEAS CORPUS,” rather than the IAD.
State Agreement Certificate, 10/21/98, at 1. In Commonwealth v. Diggs,
416 A.2d 1119 (Pa. Super. 1979), this Court explained that a writ of habeas
corpus and a detainer lodged pursuant to the IAD
are two different methods by which one jurisdiction may obtain
custody of a person in another jurisdiction. The Interstate
Agreement on Detainers does not apply when custody was
obtained by means of writ of habeas corpus ad
prosequendum. This specific issue has been decided in United
States v. Mauro, 436 U.S. 340, 56 L.Ed.2d 329, 98 S.Ct. 1834(1978).
Id. at 1120 (emphasis added).
As the trial court explained, on April 14, 1999, Appellant pled guilty in
Dauphin County “to two counts of aggravated assault and was sentenced to
25 to 50 years in a state correctional institution, to be served concurrently
with his then federal sentence of 223 months.” Memorandum Opinion,
3/11/20, at 1. On November 1, 2019, Appellant filed his petition, styled
“Petition for Habeas Corpus,” contending Dauphin County obtained custody
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over him in 1998 pursuant to the IAD. Petition, 11/1/19, at ¶ 3. The
Commonwealth filed an answer to the petition and attached a copy of the
October 21, 1998 State Agreement Certificate as an exhibit. Commonwealth’s
Answer, 12/27/19, Exhibit 1. By order entered on January 10, 2020, the court
denied the petition. Appellant filed a timely notice of appeal and the trial court
issued a Rule 1925(b) order. In response to that order, Appellant
sent a “letter” indicating that he was confused by our order and
that if we would like him to respond to our 1925(b) order to let
him know. However, later in his “letter” he states his reasons for
appealing. We now state that issue as follows:
“Needless to say, is that no matter what Dauphin Co.
says about the type of writ used to retrieve
[Appellant], once a notice of temporary custody is
asked for and given between a giving and receiving
state/Fed jurisdiction the protection long established
in the I.A.D. law is guaranteed.[”]
Trial Court Memorandum, 3/11/20, at 1-2 (quoting Appellant’s Letter sent in
response to Rule 1925(b) order) (footnote omitted).
Rejecting Appellant’s contention, the trial court noted that the “State
Agreement Certificate” allowed for Appellant’s release to the temporary
custody of Dauphin County. Id. at 2. The court explained:
[The certificate] was signed by a warden and it indicated that
[Appellant] was to be returned to the United States Penitentiary,
Lewisburg, Pennsylvania. We fail to see how this violated
[Appellant’s] rights. Quite simply, a writ was used to transport
[Appellant] to Dauphin County to answer for the crimes charged.
On April 14, 1999, [Appellant] entered a guilty plea and was
returned to federal custody. We fail to see how [Appellant’s]
constitutional rights were violated.
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Additionally, we note, that were [Appellant’s] petition to be
treated as a PCRA petition, it would be blatantly untimely.[fn]
[fn]
Out of caution, we note the untimeliness exception and the
possibility of treating [Appellant’s] petition as a PCRA petition.
However, [Appellant] failed to raise any claims that would
warrant relief.
Id.
As explained above, the October 1998 transfer was effected in response
to a writ of habeas corpus. The IAD was not implicated. Therefore, the trial
court correctly determined that Appellant’s petition failed to establish any
basis for habeas corpus relief. However, the court also entertained the
possibility that the petition should be treated as a PCRA petition. As reflected
in Section 9542 of the PCRA,
[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. The action established in this
subchapter shall be the sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies
for the same purpose that exist when this subchapter takes
effect[2], including habeas corpus and coram nobis.
42 Pa.C.S.A. § 9542.
In Commonwealth v. Thompson, 199 A.3d 889 (Pa. Super. 2018),
this Court recognized that “the focus of a court considering a [post-conviction]
petition is on the remedy being sought by the petitioner. See 42 Pa.C.S.
§ 6503(b) (“The writ of habeas corpus shall not be available if a remedy may
be had by post-conviction hearing proceedings authorized by law.”). Id. at
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2 The “subchapter” known as the PCRA took effect on May 13, 1982.
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892 (emphasis in original). In Thompson, the appellant was seeking a
hearing to determine whether his sentence should be reduced or he should be
discharged. “Such relief is clearly contemplated by the PCRA. See 42 Pa.C.S.
§ 9546(a) (‘If the court rules in favor of the petitioner, it shall order
appropriate relief and issue supplementary orders as to . . . custody, bail,
discharge, correction of sentence or other matters that are necessary and
proper.’).” Id.
In his petition, Appellant asked the court to vacate his sentence, dismiss
the charges against him with prejudice, and discharge him from custody in
Pennsylvania. Therefore, as in Thompson, the PCRA was the proper vehicle
under which Appellant’s petition should be considered.
The trial court suggested that Appellant’s petition, if treated as a PCRA
petition, “would be blatantly untimely.” Trial Court Memorandum, 3/11/20,
at 2. The petition, filed decades after Appellant’s judgment of sentence
became final, obviously falls outside the PCRA’s one-year time limitation. See
42 Pa.C.S.A. § 9545(b). Therefore, unless Appellant pleaded and proved an
exception to the time bar, both the PCRA court and this Court would lack
jurisdiction to entertain the merits of his untimely-filed petition. Thompson,
199 A.3d at 892.
A review of Appellant’s petition confirms he did not plead or prove an
exception to the time bar. If, as was the case in Thompson, this were not
his first PCRA petition, dismissal of the petition would clearly be warranted.
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However, this is Appellant’s first petition. Our Supreme Court has held that
“an indigent petitioner, who files his first PCRA petition, is entitled to have
counsel appointed to represent him during the determination of whether any
of the exceptions to the one-year time limitation apply.” Commonwealth v.
Smith, 818 A.2d 494, 499 (Pa. 2003). The Smith Court noted its agreement
with this Court’s holding in Commonwealth v. Ferguson, 772 A.2d 177, 178
(Pa. Super. 1998), which recognized that Section 9545’s time bar “must yield”
to the rule-based right to counsel for first-time PCRA petitioners under
Pa.R.Crim.P. 904.3 Smith, 818 A.2d at 500 (citing Ferguson, 722 A.2d at
178).
Because Appellant is entitled to representation on his first PCRA petition,
we vacate the trial court’s January 10, 2020 order and remand for
appointment of counsel.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/09/2021
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3 Pa.R.Crim.P. 904(c) provides that “when an unrepresented defendant
satisfies the judge that the defendant is unable to afford or otherwise procure
counsel, the judge shall appoint counsel to represent the defendant on the
defendant’s first petition for post-conviction collateral relief.”
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