Opinion
No. 2265 C.D. 2013
09-05-2014
James H. Deiter, Appellant v. Pennsylvania Board of Probation and Parole, and Superintendent Gerald Rozum, at SCI-Somerset
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
James H. Deiter, pro se, appeals an order of the Court of Common Pleas of Dauphin County (trial court) that denied his request for a writ of habeas corpus. Deiter's petition sought immediate release from custody, claiming that he had served his maximum sentence. The trial court dismissed his petition because it had already held in a previous opinion on an identical petition that the Pennsylvania Board of Probation and Parole (Parole Board) had jurisdiction over the calculation of Deiter's sentence. Discerning no error, we affirm.
On December 31, 2012, Deiter filed a petition for writ of habeas corpus. His theory was that the Parole Board erred in its calculation of his maximum sentence. First, it lacked any basis for revoking his parole in 2008 and then imposing backtime for a parole violation. Second, it failed to give him credit against his Pennsylvania sentence for time served in Utah. These errors occurred, in Deiter's view, because his counsel was ineffective during his 2008 parole revocation and appeal.
"Backtime" is the portion of a judicially-imposed sentence that a parole violator must serve as a consequence of violating parole before he is eligible to be re-paroled. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth. 1984).
The trial court, by the Honorable Lawrence F. Clark, Jr., treated Deiter's 2012 petition as a request for post-conviction relief and appointed counsel to represent Deiter. Deiter refused the offer of counsel, and Deiter's counsel was permitted to withdraw from his representation. Thereafter, Judge Clark concluded that the Parole Board had exclusive jurisdiction over the subject matter of Deiter's petition, and, accordingly, dismissed the petition with prejudice. Deiter did not appeal the dismissal of his petition.
Section 6503(b) of the Post Conviction Relief Act states that "[w]here a person is 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." 42 Pa. C.S. §6503(b).
On November 14, 2013, Deiter filed a second petition for writ of habeas corpus with the trial court. The second petition was assigned to another judge, the Honorable Jeannine Turgeon, who dismissed Deiter's second habeas corpus petition on the basis of Judge Clark's determination.
The background to Deiter's current incarceration follows. In 1982, Deiter pleaded guilty to third-degree murder and received a sentence of 7 to 15 years in a Pennsylvania correctional institution. In 1989, he was paroled and given permission to move to Utah. His parole was supervised there. When Deiter was paroled from his 1982 Pennsylvania sentence, his maximum sentence date was August 15, 1997.
On December 3, 1996, Deiter was arrested in Utah for illegal possession of dangerous weapons, i.e., a rifle and a compound bow. After conviction, he received a sentence of 0-15 years on Count I and 1-15 years on Count II, "to be served concurrently with each other and with any other existing sentences." Reproduced Record at 7a (R.R. ___).
In 1998, Deiter was convicted in Utah of criminal solicitation, a first degree felony. Deiter committed the offense in a Utah prison while he was serving time on his conviction for illegal possession of dangerous weapons. For the crime of criminal solicitation, Deiter was sentenced to a "term of not less than five years nor more than life, to be served concurrently with existing prison sentences." R.R. 15a (emphasis omitted).
Upon the filing of the 1996 weapons charges in Utah, a Pennsylvania parole detainer was lodged against Deiter. Deiter remained in custody in Utah until April 22, 2008, at which time he was released to the Parole Board's custody and transported to SCI-Waynesburg. A parole revocation hearing was held on August 20, 2008, at which Deiter was represented by counsel. On October 8, 2008, the Parole Board recommitted Deiter as a convicted parole violator to serve 60 months backtime, as a result of the two criminal convictions in Utah. His maximum sentence date was recalculated to be April 22, 2016.
Deiter, by counsel, filed an administrative appeal, arguing that his Pennsylvania sentence had expired on August 15, 1997. On March 19, 2009, the Parole Board denied the appeal. It explained that Deiter was not entitled to any credit on his Pennsylvania sentence for his incarceration in Utah because that incarceration was not solely on the Parole Board's warrant but, rather, on the Utah criminal charges. Further, because Deiter was on parole from his Pennsylvania sentence when he committed the crimes in Utah, he could not receive any credit for the 2922 days he had spent on parole, i.e., from August 15, 1989, through August 15, 1997. Deiter became available to resume serving his Pennsylvania sentence on April 22, 2008, when he was returned to Pennsylvania. Adding 2922 days to the date of his return to Pennsylvania yielded a new maximum sentence date of April 22, 2016.
Dieter appealed the Parole Board's 2009 decision on March 22, 2012, by filing a pro se petition for administrative review with the Parole Board asserting that the maximum sentence date of April 22, 2016, was wrong. The Parole Board dismissed his administrative appeal as untimely. Deiter then filed the petition for a writ of habeas corpus that was dismissed by Judge Clark. Thereafter, in 2013, Deiter filed a second habeas corpus petition.
In dismissing the second petition, Judge Turgeon explained that "absent the most compelling circumstances, a judge should follow the decision of a colleague on the same court when based on the same set of facts." Yudacufski v. Department of Transportation, 454 A.2d 923, 926 (Pa. 1982). Concluding that the facts pled in Deiter's second petition were identical to those in his first petition, she dismissed Deiter's 2012 petition. Judge Turgeon also held that, in any case, the Parole Board had exclusive jurisdiction over the revocation of Deiter's parole. In support, she cited Department of Corrections v. Reese, 774 A.2d 1255 (Pa. Super. 2001) (holding that habeas corpus cannot be used to challenge the Parole Board's recalculation of a maximum release date).
Deiter now appeals to this Court. Deiter claims that the trial court erred and requests that this Court remand his request for a writ of habeas corpus to the trial court with instructions to conduct a hearing on his petition or, in the alternative, grant him relief from his unlawful detention. Deiter does not address the coordinate jurisdiction rule on which the trial court based its decision. Instead, Deiter argues that the Parole Board wrongly concluded that he was delinquent while on parole and that he was not entitled to credit for the time he spent in prison in Utah toward his Pennsylvania sentence. Further, Deiter claims that his counsel in the parole revocation proceeding was ineffective.
The Parole Board counters that habeas corpus may only be invoked when other remedies have been exhausted. If Deiter disagreed with the Parole Board's 2009 decision, he should have appealed. A petition for writ of habeas corpus is not the proper vehicle to challenge the Parole Board's revocation of parole.
A writ of habeas corpus "is an extraordinary remedy that is available after other remedies have been exhausted or are ineffectual or nonexistent." Reese, 774 A.2d at 1260. It cannot be used as a substitute for appellate review. Id. It may be pursued where one seeks a reduction in sentence or challenges the legality of a sentence. Wilson v. Pennsylvania Bureau of Corrections, 480 A.2d 392, 393 (Pa. Cmwlth. 1984). It is not available to challenge the aggregation of two criminal sentences that has the effect of delaying availability for parole. Id. A habeas corpus proceeding cannot be used "to challenge the Board's recalculation of [an inmate's] maximum release date." Reese, 774 A.2d at 1261. As this Court has explained:
[H]abeas Corpus is not available to challenge an action of the Board as by definition a parolee is subject to a legal sentence
imposed by a court of competent jurisdiction of this Commonwealth and remains in the legal custody of the Commonwealth until the expiration of that sentence's maximum term.Gillespie v. Department of Corrections, 527 A.2d 1061, 1064 (Pa. Cmwlth. 1987). These principles confirm the trial court's holding that it lacked jurisdiction over Deiter's challenge to the Parole Board's recalculation of his maximum sentence date.
Gillespie is instructive not just on the limits of habeas corpus but also on the Court's scope of review. How a petitioner styles his petition is not dispositive. Rather, the court must review its substance. In Gillespie, we concluded that the petition was actually a mandamus action and, thus, could be considered by this Court in its original jurisdiction.
Where a court lacks subject matter jurisdiction, it should transfer the matter to the appropriate tribunal. Deiter's petition, however, does not state a valid cause of action in any forum. It misstates the Parole Board's determination and misunderstands Pennsylvania sentencing law.
Where a court lacks subject matter jurisdiction, it must transfer the matter to the tribunal with jurisdiction. Section 5103(a) of the Judicial Code states:
If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or magisterial district judge shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court or magisterial district of this Commonwealth. A matter which is within the exclusive jurisdiction of a court or magisterial district judge of this Commonwealth but which is commenced in any other tribunal of this Commonwealth shall be transferred by the other tribunal to the proper court or magisterial district of this Commonwealth where it shall be treated as if originally filed in the transferee court or magisterial district of this Commonwealth on the date when first filed in the other tribunal.42 Pa. C.S. §5103(a).
Deiter argues that the Parole Board revoked his street time because he was "delinquent while on parole," even though he routinely reported to his parole officer in Utah. He did not abscond from parole. However, the Parole Board did not revoke his parole for absconding. Rather, it revoked his parole because he committed new crimes, in Utah, while on parole. Accordingly, the Parole Board recommitted him as a "convicted parole violator." Parole Board Order; R.R. 17a.
Deiter also argues that the Parole Board was required to credit the time he served in Utah toward his Pennsylvania sentence because the Utah court ordered its sentences to run concurrently with the Pennsylvania sentence. The law in Pennsylvania, however, is that "sentences for crimes committed on parole must be served consecutively with the time remaining on original sentences and thus [we prohibit] ... imposing concurrent sentencing." Vance v. Pennsylvania Board of Probation and Parole, 741 A.2d 838, 840 (Pa. Cmwlth. 1999). The Parole Board is not required to follow the order of the federal government that directs that a sentence being served in a federal prison count toward his Pennsylvania sentence. The same is true for another state's sentence. An out-of-state court order purporting to allow an inmate to serve backtime on a Pennsylvania sentence concurrently with the out-of state sentence is not binding in Pennsylvania. Vance, 741 A.2d at 840. In short, Deiter's claim for credit on his Pennsylvania sentence for time served in Utah lacks merit.
Where an inmate is serving an out-of-state sentence and a Pennsylvania sentence in a Pennsylvania prison, we will honor an out-of-state sentencing order permitting its sentence to be served concurrently. Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 634, 638 (Pa. Cmwlth. 1999). In Walker, the inmate received credit on both his Pennsylvania sentence and his Maryland sentence that he was serving in Pennsylvania, which the Maryland court ordered to be served concurrently. Pennsylvania is obligated to "respect the Maryland authorities' concurrent sentencing even though such sentencing is not permitted in this Commonwealth." Id.
Deiter claims his counsel was ineffective for failing to raise the above arguments. As the arguments are not actionable, Deiter cannot establish ineffective assistance by counsel. Additionally, in his brief, Deiter asserts that his attorney admitted in a letter that he made mistakes in the case. To the contrary, counsel stated in the letter that "I cannot argue that I made a mistake in your case on your behalf." R.R. 26a. --------
We affirm the trial court. First, it correctly relied upon the coordinate jurisdiction rule. Second, the dismissal of Deiter's petition was correct on the merits.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 5th day of September, 2014, the order of the Court of Common Pleas of Dauphin County dated November 22, 2013, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge