Com. v. Perez, J.

J-S31013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE M. PEREZ :
:
Appellant : No. 1967 MDA 2019
Appeal from the Order Entered November 1, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-MD-0001270-1987
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE MIGUEL PEREZ :
:
Appellant : No. 1968 MDA 2019
Appeal from the Order Entered November 1, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-MD-0001271-1987
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE MIGUEL PEREZ :
:
Appellant : No. 1969 MDA 2019
Appeal from the Order Entered November 1, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-MD-0001272-1987
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
J-S31013-20
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 15, 2020
Jose Miguel Perez appeals pro se from the order that dismissed his
petition for habeas corpus relief. We affirm.
Succinctly, the history of these cases is as follows. In 1988, Appellant
pled guilty to crimes related to controlled substances in the three above-
captioned cases, in exchange for the Commonwealth recommending a
sentence of, inter alia, less than two years of imprisonment. The trial court
accepted the plea, but rejected the Commonwealth’s recommendation, and
instead imposed a sentence of six and one-half to sixteen years of
imprisonment. On direct appeal, this Court vacated the sentence and
remanded for the withdrawal of the guilty plea. Thereafter, Appellant entered,
and the trial court accepted, a new negotiated plea of eleven and one-half to
twenty-three months of incarceration followed by five years of probation. In
1991, Appellant violated his probation and was resentenced to fifty-nine
months to twenty years of incarceration, with credit for the time he had
served. Appellant filed no direct appeal from the 1991 judgment of sentence,
and subsequent collateral attacks resulted in no relief.
On July 29, 2019, Appellant, who had completed serving his sentence
for the cases sub judice but was incarcerated on another conviction, filed a
pro se petition for habeas corpus relief. Therein, he requested “clarification”
of his 1991 sentencing order. Specifically, he contended that the 1991 order
“is ambiguous and/or unclear in that it exceeds the original negotiated
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sentencing recommendation of 23 months which has a collateral consequence
on [Appellant]’s current sentence . . . .” Petition for Habeas Corpus Relief,
7/29/19, at 2. The trial court dismissed the petition as moot by order of
November 1, 2019. These appeals followed.1 Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents one issue for our consideration: “Whether the trial
court abused its discretion in dismissing Appellant’s petition for writ of habeas
corpus seeking clarification of its intent regarding the [1991 sentencing]
order?” Appellant’s brief at 3 (unnecessary capitalization omitted).
We begin with a review of the applicable law.
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.
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1 Appellant’s notices of appeal, dated November 25, 2019, were not docketed
until December 3 and 4, 2019. However, the appeals are not subject to
quashal for untimeliness due to the prisoner mailbox rule and/or the lack of
notation on the docket that the November 1, 2019 order was served upon
Appellant. See Pa.R.A.P. 108(a)(1), (d) (establishing that the thirty-day time
period for appealing from a criminal order other than a judgment of sentence
begins to run on the day that the order is served on the parties by the clerk
of courts); Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa.Super.
2019) (“The prisoner mailbox rule provides that a pro se prisoner’s document
is deemed filed on the date he delivers it to prison authorities for mailing.”
(cleaned up)).
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Rivera v. Pennsylvania Dep’t of Corr., 837 A.2d 525, 528 (Pa.Super. 2003)
(cleaned up).
Appellant contends that the trial court abused its discretion in denying
his petition because “it is unclear whether the revocation Court consider[ed]
the time spent in custody on the 6.5 to 16 year sentence and the 11.5 to 23
year sentence or applied any credit for time spent in custody prior to the July
23, 1991, revocation and subsequent September 30, 1991, sentence.”
Appellant’s brief at 8. Appellant appears to be arguing that his 1991 sentence
violated the terms of his plea agreement, and that the excess time he
improperly served in the instant cases should be credited to his subsequent
sentence. Appellant’s brief at 8-9 (citing Com. ex rel. Ulmer v. Rundle, 218
A.2d 233, 234 (Pa. 1966)).
The trial court indicated that Appellant’s petition was properly denied
because he did not state a proper habeas corpus claim, i.e. “to extricate a
petitioner from illegal confinement or to secure relief from conditions of
confinement that constitute cruel and unusual punishment.” Trial Court
Opinion, 1/27/20, at unnumbered 3 (citing Rivera, supra). The court further
noted that, to the extent Appellant questions the propriety of his 1991
revocation sentence exceeding his negotiated sentence, the claim is a
challenge to the legality of Appellant’s sentence that must have been pursued
PCRA petition rather than a habeas petition. Id. The court opined that PCRA
relief was not available to Appellant because his 2019 petition was filed
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decades after his judgment became final, and because he was no longer
serving his 1991 sentence. Id. at unnumbered 4.
While we conclude that we have no basis to disturb the trial court’s order
dismissing Appellant’s petition, we cannot agree wholesale with the trial
court’s reasoning.2 The trial court is correct that “the 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). All PCRA petitions must either (1) be filed within one year
of the judgment of sentence becoming final, or (2) plead and prove a
timeliness exception. 42 Pa.C.S. § 9545(b). A petitioner “cannot escape the
PCRA time-bar by titling his petition or motion as a writ of habeas corpus.”
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013). “Issues that
are cognizable under the PCRA must be raised in a timely PCRA petition and
cannot be raised in a habeas corpus petition.” Id.On the other hand, “claims 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). “It is well settled
that the extraordinary remedy of habeas corpus, which can be successfully
invoked only in exceptional cases, is not a substitute for an appeal or a motion
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2“This Court is not bound by rationale of a trial court and may affirm the trial
court’s order on any basis.” Commonwealth v. Wilcox, 174 A.3d 670, 674
n.4 (Pa.Super. 2017).
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for a new trial, nor is it available for the correction of trial errors.” Com. ex
rel. Williams v. Myers, 162 A.2d 419, 420 (Pa.Super. 1960). However, our
Supreme Court has held that the remedy of habeas corpus was available for
a prisoner who fully served a constitutionally infirm judgment of sentence to
advance the commencement date of a subsequent, valid sentence he was
serving at the time he filed his petition. See Ulmer, supra at 234.
Turning to the instant appeal, we observe that, contrary to the trial
court’s assertion, Appellant’s complaint that the revocation sentence in 1991
exceeded the terms of his prior plea agreement does not implicate the legality
of his sentence. See Commonwealth v. Tann, 79 A.3d 1130, 1133
(Pa.Super. 2013) (explaining that when the trial court imposes a sentence
other than that which was a term of a negotiated guilty plea, the “sentence is
legal, so long as it does not exceed the statutory maximum”). The relief
available to a defendant in such circumstances is the right to withdraw the
plea. See id. Indeed, this principle was the basis for this Court’s remand for
Appellant to withdraw his 1988 plea. That withdrawal terminated any efficacy
of the 1988 plea agreement and resulted in a judgment of sentence in
accordance with a new 1990 plea agreement.
Appellant breached the second negotiated plea agreement when he
violated the terms of his probation. The breach by Appellant voided the 1990
plea agreement and legally permitted the trial court to impose any sentence
up to the statutory maximum. See Commonwealth v. Wallace, 870 A.2d
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838, 843 (Pa. 2005) (“[A]t any revocation of probation hearing, the court is
. . . free to impose any sentence permitted under the Sentencing Code and is
not restricted by the bounds of a negotiated plea agreement between a
defendant and prosecutor”); Tann, supra at 1133 (“[W]hen such a criminal
defendant violates the terms of his probation, he may be resentenced up to
the statutory maximum, regardless of the fact that the lesser sentence
induced him to plead guilty in the first place.”). Appellant does not argue that
his 1991 sentence exceeded the statutory limits.
To the extent that Appellant questions whether he received credit for
the time he served on the charges in the instant case, we note that such a
claim does involve the legality of Appellant’s sentence. See Commonwealth
v. Johnson, 967 A.2d 1001, 1003 (Pa.Super. 2009) (providing that failure to
award credit for time served in accordance with 42 Pa.C.S. § 9760 results in
an illegal sentence). As such, the time-credit issue is cognizable under the
PCRA. See, e.g., Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super.
2004) (addressing time-credit issue under the PCRA). Consequently, even if
he did not receive proper credit for his pre-1991 incarceration,3 his decision
to bring his claim decades after his judgment of sentence became final, and
____________________________________________
3 We find it impossible to discern from the poor-quality certified record how
much time credit was awarded towards the 1991 revocation sentence. What
may be a post-it note on a barely-legible, untitled form that appears to be the
sentencing order for Appellant’s second negotiated plea suggests that he
received credit for time served prior to that sentencing proceeding.
Sentencing Order, 2/21/90.
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after he had fully served his sentence, precludes relief. See id. (indicating
dictates and limitations of PCRA govern time-credit claim although petition
was couched in terms of habeas corpus relief). See also Commonwealth v.
Williams, 977 A.2d 1174, 1176 (Pa.Super. 2009) (“[T]he PCRA[, 42 Pa.C.S.
§ 9543(a)(1)(i),] precludes relief for those petitioners whose sentences have
expired, regardless of the collateral consequences of their sentence.”).
Furthermore, again assuming arguendo that there was a failure to award
all of the time credit to which he was entitled, we find Appellant’s reliance
upon Ulmer, supra, for the proposition that habeas corpus can right the
wrong at this stage, to be misplaced. In that case, the defendant pled guilty
in 1959 and was sentenced to probation, then imprisonment upon the violation
of probation, all without the assistance of counsel or proper waiver of his right
to counsel. Id. at 233-34. While on parole in 1961, Ulmer was convicted of
new charges resulting in new sentences. Additionally, his parole was revoked
for the 1959 case. After he had completed serving the balance of his sentence
in the 1959 case, but while he was still incarcerated on the subsequent
convictions, Ulmer initiated a habeas corpus proceeding. Our Supreme Court
granted relief, explaining as follows:
While it is true that Ulmer is not now confined on the 1959 invalid
judgment, the duration of his imprisonment on the valid
judgments entered in 1961 is substantially affected, and will be
extended illegally for a period of many months as a result of the
sentence imposed in 1959. If the latter is allowed to stand
unimpeached, the first valid sentence imposed on June 13, 1961,
will be computed from the expiration date of the invalid 1959
sentence, and its commencement and expiration dates illegally
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delayed. . . . Ulmer is legally entitled to seek relief from
imprisonment beyond the correct expiration date of the lawful
sentences imposed, and habeas corpus is the only available
remedy to obtain it.
Id. at 234. The Court remanded the 1959 case for a new trial, and ordered
that the time Ulmer had served in that case be credited to his 1961
convictions. Id. at 235.
We find the 1966 Ulmer decision to be unavailing to Appellant. First,
the decision predated the 1982 enactment of the PCRA. As discussed above,
the PCRA now provides the exclusive remedy for illegal sentencing claims.
See, e.g., Beck, supra. The fact that Appellant is no longer eligible for relief
under the PCRA does not affect the exclusivity of that statutory framework as
a basis for relief. See Commonwealth v. Kutnyak, 781 A.2d 1259, 1261
(Pa.Super. 2001) (“Simply because the merits of the PCRA petition cannot be
considered due to previous litigation, waiver, or an untimely filing, there is no
alternative basis for relief outside the framework of the PCRA.”).
Furthermore, while Ulmer involved a conviction that was
“constitutionally tainted and invalid” as a result of the deprivation of a
fundamental right, Ulmer, supra at 234, the alleged impropriety in the
instant case concerns only a statutory sentencing right. See Johnson, supra
at 1003 (“It is well established that there is no constitutional right to credit
for time served prior to trial or sentence.”).
For these reasons, we discern no basis to disturb the trial court’s order
dismissing Appellant’s petition for writ of habeas corpus.
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Order affirmed.
Judge Dubow joins the memorandum.
President Judge Emeritus Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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