Com. v. Baroni, M.

J-A10027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL BARONI :
:
Appellant : No. 3593 EDA 2018
Appeal from the Order Dated October 31, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000845-1982
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MAY 31, 2019
Michael Baroni appeals from the order entered October 31, 2018, in the
Delaware County Court of Common Pleas, denying his petition for writ of
habeas corpus.1 Baroni seeks relief from the two concurrent sentences of life
imprisonment imposed on April 7, 1983, following his jury conviction of two
counts of second-degree murder and related offenses, in connection with the
January 25, 1982 fire which took the lives of a three-month-old infant and her
four-year-old sister. On appeal, Baroni argues (1) habeas corpus relief is the
proper remedy for his claim, and (2) the trial court erred in finding he was not
entitled to relief based on his assertion that that the statute under which he
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1 See 42 Pa.C.S.A. §§ 6501–6505.
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was sentenced, 18 Pa.C.S.A. § 1102(b), is unconstitutionally vague. For the
reasons below, we affirm.
As we write primarily for the parties, a detailed factual and procedural
history is unnecessary. As noted above, a jury convicted Baroni of murder in
the second degree and related offenses in 1982; the trial court sentenced him
to two concurrent mandatory life sentences in 1983. This Court affirmed the
judgment of sentence on March 22, 1985. Commonwealth v. Baroni, 494
A.2d 475 (Pa. Super. 1985) (unpublished memorandum). The Pennsylvania
Supreme Court denied leave to appeal on October 4, 1985.
Since that time, Baroni has filed numerous petitions in both state and
federal court in an attempt to overturn his conviction. Relevant to the instant
proceeding, on September 5, 2018, this Court denied Baroni’s eighth PCRA
petition. Commonwealth v. Baroni, 198 A.3d 423 (Pa. Super. 2018)
(unpublished memorandum). On September 24, 2018, Baroni filed the
instant, pro se petition for a writ of habeas corpus. On October 31, 2018, the
trial court denied the petition, and this timely appeal followed. The trial court
did not order Baroni to file a concise statement of errors complained of on
appeal.
On January 3, 2019, the trial court issued an opinion. In its opinion, the
trial court stated that, if it deemed Baroni’s pleadings to be a ninth PCRA
petition, it lacked jurisdiction to consider it pursuant to the Pennsylvania
Supreme Court’s decision in Commonwealth v. Lark, 746 A.2d 585, 588
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(Pa. 2000).2 Trial Court Opinion, 1/03/2019, at 1. It further held that, if it
treated the pleadings as a petition for a writ of habeas corpus, Baroni had
waived his claim because he had not raised it at sentencing. Id. at 2.
Preliminarily, we must determine whether we review Baroni’s petition
under the habeas corpus statute or under the PCRA. Although the PCRA
explicitly states it “shall be the sole means of obtaining collateral relief,”3 “the
privilege of the writ of habeas corpus has not been suspended in this
Commonwealth” and is available “for the rare instance where the PCRA offers
no remedy.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007).
In a recent decision, a panel of this Court addressed the same issue
raised by Baroni, and held that a challenge to a sentencing statute as void for
vagueness was appropriately addressed via a petition for a writ of habeas
corpus rather than the PCRA. See Commonwealth v. Smith, 194 A.3d 126,
136-138 (Pa. Super. 2018). In Smith, this Court distinguished between
constitutional challenges to a sentencing statute as void for vagueness and
challenges to an illegal sentence under the PCRA, Id., and stated:
[a]ppellant’s void-for-vagueness claim is a sentencing issue that
presents a legal question that is qualitatively distinct from the
categories of illegal sentences recognized by our courts. It does
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2 The Lark Court held “when an appellant’s PCRA appeal is pending before a
court, a subsequent PCRA petition cannot be filed until the resolution of review
of the pending PCRA petition by the highest state court in which review is
sought, or upon the expiration of the time for seeking such review.” Lark,
supra at 588.
3 42 Pa.C.S.A. § 9542.
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not challenge the sentencing court’s authority or actions insomuch
as it challenges the legislature’s alleged failure. . . .
Id. at 138.
Thus, pursuant to Smith, we will evaluate Baroni’s pleading as a petition
for a writ of habeas corpus rather than a PCRA petition. In considering an
order denying a petition for writ of habeas corpus, we must consider the
following:
Our standard of review of a trial 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. As
in all matters on appeal, the appellant bears the burden of
persuasion to demonstrate his entitlement to the relief he
requests.
****
Accordingly, the writ may be used only to extricate a petitioner
from illegal confinement or to secure relief from conditions of
confinement that constitute cruel and unusual punishment.
Rivera v. Pennsylvania Dep’t of Corr., 837 A.2d 525, 528 (Pa. Super.
2003), appeal denied, 857 A.2d 680 (Pa. 2004).
In Smith, we held that even though a defendant could raise a void for
vagueness challenge to a sentencing statute in a petition for a writ of habeas
corpus and, thus, it was not subject to the PCRA’s timeliness requirement, the
claim was subject to ordinary waiver analysis. Id. However, we held that the
appellant had waived his sentencing challenge because, “[it] could have been
raised at his sentencing hearing, or in a post-sentence motion, he failed to
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exhaust all available remedies before resorting to the habeas corpus remedy.”
Id.
Here, as the trial court correctly noted, Baroni did not raise this claim at
sentencing or in a post-sentence motion. Trial Ct. Op., at 2. Thus, Baroni
failed to exhaust all available remedies and waived his claim. Smith, supra
at 138.
Accordingly, we find no abuse of discretion on the part of the trial court
in denying Baroni’s petition for writ of habeas corpus.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/19
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4Moreover, we agree with the trial court that if Baroni’s petition was to be
deemed a PCRA petition, the court lacked jurisdiction to review it pursuant to
our Supreme Court’s decision in Lark, supra.
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