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HomeMy WebLinkAbout14-0564 �____f- IN THE COURT OF COMMON PLEA: OF ? COUNTY, PENNSYLVANIA - CIVIL ACTION �cA[1C�cL r�1arA Petitioner Civil Action No. - 45 vs. ' 6e.re S+ec r Respondent c> PRAECIPE TO PROCEED IN FORMA PAUPER�� -4 Dc-> To the rrotholotazy : � Kindly allow Fc[amis a RLLer(a Mn altail y r P P t l * inn r in the above-captioned matter, to proceed in for I , SSA__ -M^^�°n° , Petitioner , certify i an unable to pay the costs associated with this filing as formally certified by the attached PETITION FOR LEAVE TO PROCEED IN FORMA PAUr ERIS . a Date (Sicnature of _e�it_�nerj Fc k..;\4 PA l_, _1 21 I N THE COURT OF COMMON PLFAS CC C1lMVNerland COUNTY, PENNSYLVANIA - CIVIL ACTION VVAnC'6C0 gwer'A-Mo ctne.Z_, ==-4- Win= J;* ( Her-es-es s^�nden� PETITION FOR LEAVE TO PROCEED TN FORMA PAUPERIS Pursuant to Fa . R . C . P . 240, Petitioner reyue5ts this Honorable Court for leave to proceed in forma pauperis . As certified in the accompanying "AFFIDAVIT IN SUPPORT CF PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS" [ Pa . R. C. P. 240 ( h ) ] , Petitioner is unable to retain counsel or oay the costs of this proceeding . v3aZ 719 l •gnat',;re cf P'titiner) rrA,(K;sC n Qi v�c-A—�Ian�A(�ez \ :! :m:eo Name \ Mc *Nck • • J IN THE COURT OF COMMON PLEAS OF C-AirAyes-Ift(va COUNTY, PENNSYLVANIA - CIVIL ACTION rraeglICS2 PflgresIN-PIOAAA.e."- , • Petitioner : Action N . VE. acMAN_Vvere<A-PC Respondent AFFIDAVIT IN SUPPORT OF PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 1 . I am the Petitioner in the above matter and because of my financial condition am unable to pay the fees and costs of prosecuting the action or proceeding. 2. I am unable to obtain funds from anyone, including my family and associates, to pay the costs of litigation. 3. I represent that the information below relating to my ability to pay the fees and costs is true and correct: (a) Name: Fr ACICA SCO 911t.vextrzt- / cv-VAcve.nz.. Address: 33 tjAnc-e_il (4.0(4A fretel.A1ei Pfl noisD • (b) Employment If you are presently empl31ed, Empl:Dyer: AC...7.E_PAONVAA10)0/ ;,,7-1-th--es5: 301 M.Qt-e.IN PNoctick, Crnekvat.e." QE 1.1.(kz,Q aas mon:h: liqanc) Ty7.e .of wor}:: cocxL€A,zr are prs=snty : le of Wet lalary Page 2 of 5 =) :ther incon-,e _hE, past `a=1va =ntha Pusiness ✓r of es_ion: _-.»r l_-emo1 -.e-. : :nterest: / °ctQ :i .idends: .°nsion and annuities: Aione_ :social security benefits: �,� Support payments: k)oc e_ Cisabili_y payments: Ninne✓ Unemployment compensation and supplemental benefits: Ninc"e_ Workers' compensation: hj04142_, Public assistance:Ji,Qa_ Other: Klp,nsZ.. (d) Other contibutions to household support (Wife/Husband) Name: ti,nrVe If your (wife/husband) is employed, state Employer: A4/f Salary or wages per month: itypt Type of work: A1f1 Contributions from children: WIR Contributions from parents: Other contributions: AVEk (e) Property owned Cash: A tm/ Q Checking Account: IVp ne.. Savings Account: )4010--- Certificates cf deposit: )Jne,2_, ��f ( including h..:7.e) • 14004 . .)c.tcr vehicle: Ma}.e kiorve.. M to_ . _hi__e: Year °Yf•l nic :: Cost /V��J -�'1.. .�7 1l©Cte— /� •J _,cc'Ks and 3onds: JOB- _ 13r: ©d12. Page 3 of 5 f o f) an obligations t : 1JIa�e_ J.a : Aje t h e r: SElri Aone.40 ie5 i Ich¢15 Pica Me sLCl3 j (_) Persons dependant goon you for support (j';1 f e/:-fuSF'3nd) Name: in2+ Chilziren, if any: Name(s) : ),/ A Age(s) : Other Person(s) : M/A Name(s) : Relationship(s) : N� 4. I understand that I have a continuing obligation to inform the court of improvement in my financial circumstances which would permit me to pay the costs incurred herein. 5. I verify that the statements made in this affidavit are true and correct. I understand that if any false statements are made herein, such false statements are made subject to the penalties of 15 Pa.C.S. § 4904, relating to unswcrn falsification to authorities. 71:21 /01- 42: -r i n_e 1 Vi a m of Petitioner (Street/T.:— ?aop 4 of • 7 .a 4 { IN THE COURT OF COMMON PLEAS CF Ccgertber 1'Rnck. COUNTY, PENNSYLVANIA - CIVIL ACTION G..on :cc OiV_QC A-/`1p4Ane= Petitioner Civil Action No. VS . Respondent CERTIFICATE OF SERVICE I, r.ranr.ia-rl iyerw-mot iRc0 2'. Petitioner in the above-captioned matter, hereby verify that on this day a true and correct copy of this "PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS" is being served upon the person(s) listed below in accordance with governing rules of court: Of Jo G`v..>,1r'` r L / ri 5 c1r110 l One_C.,'mbelflci . x Arm i;sle_ PA 11ol3 Res ctfully Submitto /�-fi145, Date (Signature of Pet tioner) Vccgnc►sco f'4`►veriA Mort-1Acry (Printed Name of Petitioner) (Street/P.C. box) P I ITFiaR (City/State/Yip 'Cole) Pape _ of 5 ,' 3u1irente Court or rennsylvania Cour>�`otominon Pleas C it Coves Sheet For Prothonotary Use Only: I Docket No: .. . il County 't'' .ti 14- 0504 Oilvirren10 The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. - Commencement of Action: J S. C Complaint ❑ Writ of Summons 17 Petition ❑ Notice of Appeal ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T FrAnc_:Acr 9 j€...rA— Mr 4Atle_ 3t4n Keyes-t.t I Ire-Check here if you are a Self-Represented (Pro Se) Litigant 0 Name of Plaintiff/Appellant's Attorney: N Are money damages requested? : 0 Yes fd No Dollar Amount Requested: within arbitration limits (Check one) outside arbitration limits iiii- Is this a Class Action Suit? ❑ Yes 537No • Nature of the C_ase: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. 1 TORT(do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection:Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection:Other ❑ Board of Elections ❑ Nuisance ❑ Dept.of Transportation ❑ Premises Liability ❑ Zoning Board S ❑ Product Liability(does not include ❑ Statutory Appeal: Other mass tort) ❑ Employment Dispute: E ❑ Slander/Libel/Defamation Discrimination C ❑ Other: ❑ Employment Dispute:Other T Judicial Appeals ❑ MDJ- Landlord/Tenant 1 ❑ Other: ❑ MDJ- Money Judgment O MASS TORT ❑ Other: ❑ Asbestos N ❑ Tobacco - ❑ Toxic Tort- DES ❑ Toxic Tort- Implant REAL PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑ Ejectment ❑ Common Law/Statutory Arbitration B ❑ Other: ❑ Eminent Domain/Condemnation ❑ Declaratory Judgment ❑ Ground Rent ❑ Mandamus ❑ Landlord/Tenant Dispute ❑ Non-Domestic Relations ❑ Mortgage Foreclosure Restraining Order PROFESSIONAL LIABLITY ❑ Partition ❑ Quo Warranto ❑ Dental ❑ Quiet Title ❑ Replevin ❑ Legal ❑ Medical ❑ Other: Other: ❑ Other Professional: Writ of Habeas Cor us Ad Subjuciendu _ Pa.R.C:P. 205.5 2/201P 7 . • ••• IN THE COURT OF COMMON PLEAS OF C_c rninerlAnACOUNTY PENNSYLVANIA CIVIL ACTION - LAW• J-rr�c:5cn c,w ecA•N1n[1kArte,, , • Petitioner nn • -VS- • Civil Action No . 19- U�tO4IV41lm 2i-nlert V rf, G-Ce< •• Respondent •• NOTICE TO DEFEND - CIVIL You have been sued in Court . If you wish to defend against the claims set forth in the following sages, you must take action within twenty ( 20 ) days after this complaint and notice are served , by entering a written appearance personally or by attorney and filing in writing with the Court your de fenses or objections to the claims set forth against you . You are warned that if you fail to do so the case may proceed without you and a judgement may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff . You may lose money or property or other rights important to you . YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE . IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER . IF YOU CANNOT AFFORD TO HIRE A A LAWYER, THIS OFFICE MA BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE . ( Name, address, and Telephone Number of A;ericr or Person Desijnat_d by Local Rule ) C'") M X (__ •14-1". can r tv C1 �cnbvr-I+P� icy t�A�- a :a�;el co r ,-rs extv-Vt..41e_, P+A f 10 ? ° cam, ° ) Phan€ (in)a449-1146 `a Son-49D-g 8 �`~ : IN THE COURT OF COMMON PLEAS OF C%.^nti?_-tQt1ck COUNTY PENNSYLVANIA CIVIL ACTION - LAW FrAtte.Sc®kver-A-MCIAwne' Petitioner • . -VS- Civil Action No . �� - 0.;1\i'itTerm Respondent PRAECIPE FOR 'WRIT OF HABEAS CORPUS AD SUBJICIENDUM To the Clerk/Prothonotary : Issue Writ of Habeas Corpus Ad Subjiciendum in the above captioned matter a,ainst arNMl YIR. eSt,QS , Respondent in the above captioned matter . CUNO'\sCr] t LQ.r - N1011-V[4n . No. 3Y-R39a SCI Mahanoy 301 Morea Road Frackville, PA 17932 Dated : 1 _ ZZ""-- IL-( IN THE COURT OF COMMON PLEAS OF 0_0(41eslpnd COUNTY PENNSYLVANIA CIVIL ACTION - LAW Trpct:sue_&ve rc►-MonkAnex Petitioner -VS- Civil Action No . Res,:onden t PETITION FOR WRIT OF HABEAS CORPUS AD SUBJICIENDUM TO THE HONORABLE JUDGES OF THE SAID COURT: NOW COMES the Petitioner F'c-ep,clser, $1verA- Mdntdw , Pro Se , requesting that this Honorable Court grant the requested Writ of Habeas Corpus Ad Subjiciendum, and represent : STATEMENT OF JURISDICTION 1 . This Honorable Court possess lawful jurisdiction to grant this PETITION FOR WRIT OF HABEAS CORPUS AD SUBJICIENDUM pursuant to 42 Pa .C.S . § 6502 as well as pursuant to Pa . R .Civ. P. , 249 2 . This Honorable Court is the proper venue to entertain and adjudicate this CIVIL ACTION, pursuant to Pa . R .Civ. P. , 1006 . PARTIES 3 . Petitioner , Vi-ImAc'scn RtUerA- MovvkAllez_ , is currently confined at the State Correctional Institution Mahanoy , 301 Morea Road , Frackville , PA 17932 at inmate No. �3 Y-$,3pa and is having his liberty under lawful restraint bj the Rasrcndent against his will . 4 . Respondent ,Jphc re 4e is the 3uperirttend.tnt at SCI Mahanoy , 301 Morea Road , Frackville PA 17932 and is exercising and/or enforcing unlawful restraint of the Petitioner ' s liberty against Petitioner ' s will . STATEMENT OF FACT'S i-. ^. la ii LA-Alb, ' . • • la • •_ s. -. - S.� . • . • a !.• M Ilk t� a 1 t^ _ n 2th-S C c �.�n :CA-mil- c�liVQ_r A c r\-ki-nlea l -k-t 'e, • Lt • - t - . a .. •- ,. r La. •• • . • fa • • • ' = ' • - a - lib s • • CS t• 1111.7 • 11: i i • •• _ • • . ••• • it •• ' •a - • • _ +C • ' •1 " •• STATEMENT OF CLAIMS 7 . Petitioner is eligible for immediate relief from the unlawful restraint of his liberty on the basis of the following claims : (a ) the signed -Sc�o _xxIcn nrckr , attached hereto as Exhibit "A" , of 41„(1,,l,be;lanc1 C`p,>c.Ay Cnm .ri ?tea< Co c°c.,n .c no 4q,Vu ry tr; 'AVt e n pertaining to Case No. CP--dI-eik ponU-Ny_ a[]tn authorizing his current incarceration renders his detention unlawful; (b) the Department of Corrections lacks statutory authority to detain Petitioner absent a signed sentencing order evidencing statutory authorization for the sentence imposed; (c) Petitioner' s Pennsylvania and United States Constitutional Rights to Due Process of Law were procedurally and substantively violated with prejudice . ( d) the Pennsylvania Department of Corrections violated statutory provisions , unified codes , and mandated rules of law, upon acceptance of Petitioner into custody without the rec,uired official signed authorized Sentencing Orders ; and (e) a miscarriage of justice exist where the unlawful restraint of Petitioner ' s liberty without due process for over 4 , years constitutes cruel and unusual punishment . QUESTIONS FOR THE COURT e . Petitioner request that this Court Answer the following questions concerning this Petition for Writ of Habeas Corpus Ad Subj iciendum: (a ) Whether the signed 'SrnnkeeNearl� (1-,6.r attached hereto as Exhibit "A" , of .4 e_ �;,nhrrrlac�i Cr ,n� Cr)orv ,r,ci Pie car ennke■as nel _S4w-Ly4arY Apt} r∎rA-4-19 with respect to Case No . C,p-a1_C,{,►,_obnr -7y4_ , -, authorizing his current incarceration renders his detention unlawful?; (b) Whether the Department of Corrections lacks statutory authority to detain Petitioner absent a signed sentencing order evidencing statutory authorization for the sentence imposed?; (c) Whether Petitioner ' s Pennsylvania and United States Constitutional Rights to Due Process of Law were procedurally and substantively violated with prejudice?; ( d ) Whether the Pennsylvania Department of Corrections violated statutory provisions , unified codes , and mandated rules of law, upon acceptance of Petitioner into custody without the required official signed authorized Sentencing Orders?; and ( e) Whether a miscarriaje of justice exist where the unlawful restraint of Petitioner ' s liberty without due process for over __%.4 years constitutes cruel and unusual punishment? Y a ' i,,EGAL ARGUMENT IN SUPPORT I, (7e VA:e.nQc- petition this Court to grant the requested writ of habeas corpus ad subjiciendum relief upon considetation of the following argument supported by the specific legal citation, legal authorities and facts: No statutory authorization means sentence must be vacated. "If there is no statutory authorization for an imposed sentence, that sentence is illegal and must be vacated." Commonwealth v. Wilson, 11 A.3d 519 (Pa. Super. 2010); Commonwealth v . Johnson, 873 A.2d 704 (Pa. Super. 2005). "If no statutory authorization exist for a particular sentence, then that sentence is illegal and subject to correction. An illegal sentence must be vacated." Commonwealth v. Means, 972 A.2d 1210 (Pa. Super. 2009); Commonwealth v. Randal, 837 A.2d 1211 (Pa•...Super. 2 O 03)(enbanc); Commonwealth v. Artest, 734 A.2d 910 (Pa. Super. 1999). THe Legislation is empowered to set the punishment for criminal conduct, while Judges may only impose sentences that are within those bounderies set by the legislature. "It is the legislature which is constitutionally empowered to set the punishment for criminal conduct." Commonwealth v. Sutley, 378 A.2d 780, 793 (Pa. 1977). There is no question that is is within the provence of the legislature to pronounce what acts.. .are crimes and to fix the punishment of all crimes." Commonwealth v. Sutley, supra. The issue of statutory authorization has no time bar and is non-waivable. "A challenge to the legality of a sentence may be raised as a matter of right, is no n-waivable and may be entertained so long as the reviewing court has iu risdiction." Cornnonwcalth v. Robinson, 931 A.2d 15, 19-20 (Pa. Super. 2007) (en banc) ; Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa. Super. 2010) ; Commonwealth v. Wilson, Supra.. "An inquiry into the validity of a sentence is a question as to the legality of the sentence, a non-waivable matter." Commonwealth b. Isabella, 467 A.2d 1287, 503 Pa. 2 (1983) ; Commonwealth v. Ford, - 461 A.2d 1281 (Pa. Super. 1983). "Since illegality of sentence is a non-waiva b 1 e issue, which we can raise sua sponte.. ." Commonwealth v. Craig, 457 A.2d 1310 ( Pa Super. 1983); citing Commonwealth v. Roach, 453 A.2d 1001 (Pa. Super. 1982) ; Commonwealth v. Gilliam, 448 A.2d 89 (Pa. Super 1982) ; and Commonwealth v. Beto ni, :385 A.2d 506 (Pa. Super. 1978). Issues concerning a lack of statutory authorization are not cognizable under PCRA, and thus, such an appellate issue should be raised under state habeas corpus. " the PCRA limits the types of claims that are cognizable. Thus, the petitioner must plead and prove by a preponderance of the evidence, that the conviction or sentence resulted from one or more of eight specified circumstances. See 42 Pa.C.S.' 5 9543(a)(2)(i)-(vii)." Commonwealth v. Grier, 599 A.2d 993 (Pa. Super. 1991). "To determine whether the relief a habeas petitioner seeks is governed by the law of habeas corpus or whether it is subsumed by the Post Conviction Relief Act, the court must test whether the petitioner had a remedy under the Act and it must consider the Act itself as applied to the petitioner's case." All sentencing conditions imposed with the sentence must also possess statutory authorization. "...if a court does not have statutory authority to order a particular act, the order must be vacated." Commonwealth v. Mockaitis, 575 Pa. 5, at 266, 834 A.2d 488 (Pa. 2003) citing Commonwealth v. Randal, supra. "Thus, when a court lacks statutory authority to impose a specific act or condition as part of its sentencing scheme, the sentence's legality is implicated and may be addressed, sua sponte, as a matter of right, even if not raised by an appellant." Commonwealth v. Wilson supra..P ". ..the sentencing court was without the statutory authority to impose special terms and conditions of parole. Accordingly, that portion of the sentence that imposed conditions upon the Appellant's parole is vacated.. ." Commonwealth v. Mears, 972 A.2d 1210 at 1212 (Pa. Super. 2009) It is well established that the Precedence Over established sentencing t sentencing Precedence enc Transcri is ' Order , takes sea Y exist between the sentence as "�+rittentand�as�Orally a Pronounced" . (Com. v. Wilson , (Com. v. Gordon , 897 2010 WL • 5100596 2010) Peons A . 2d 504 ( Pa . Su ( ) 28 Super . 2010) Pennsylvania Practice 2 .d § 137 : 25 • per ' 2006) 28 Standard If there is "No Statutory Authorization" for an Imrosed ( Com. Sentence, Wilson)Sentence is "Illegal " and must be "Vacated " ( Pa . Super. 2005) . (Com. v. Johnson; 873, A . 2d 704 The Petitioner, is "Detained" CommiTheePe but er account of the by virtue of Warrant Order g Judgement and Sentence of Order, 56si signed by the Sentencing Judge . ( Biddle v. (C.C. A . 3 ) (kan) 1926 . Shirley, 16 Oral statements made by the Judge, Passing not incorporated in the Written Sentence' si nedb Judgz are not sentence, but Quinlan, 639 apart of the "Judgement of Sentence" . the Sentencing 93 A. 2d 887, 172dPa23Super. 258 Super. 111 ( 1994) (Co,om•vv.r ( 1953) . Count , The Only Sentence known entered upon the Record of to Law, is the sentence U.S . of Judgement 326, 79 S .Ct . 340 the Court. (Green v. U.S . 358 U.S..S A. 2d 832, 177 (U.S . Dist. Col . 1959) (Appeal 110. v.idm Pa. Super. 520 ( 1955) (Hill v. pUof ifarellia , pler, U. S .. S �:{ 298 U.S . 460, 56 S .Ct . 760 ( U.S. Pa . 1936) . The court s - �fediuT, it court speaks through its Judgement , and not an a clerk it is not within the, Power of a Judge by any other a clr other Medium" the t instrgan ofs, "to ( Hill V . U. S . ex rel . :Jam 298 U.S .rtic" organ of its pler , 2.8 U. The Written signed �� S 460, 56 S .Ct . 760 . information, and thus n`d Judgement of Sentence Order" information, Loved accessible to the defendant is Public defendants ones . Furthermore ndaRu an 114 clearly states , Pa • R .Crim• Rule li "All Orders and Curt 'lotices Pr thetoto the Clerks of 011:Cil Shall "U b� recj,nitted h Courts Office for fillip„ rT;)on re mClerk' of Courts , Office , the Order of c�i:t in Y shall be time ' �tatn.;e9 ourt ;dice with the ::sty of R.'c`i .t As a , result , the � . bbe filed within ,;ritten Judgement fi3 hin the defendant ' of Sentence at( the clerk should Office within ant . ln3l ti. `11c such defendant ' , -ount1 3t t:t� Clark �f 7 ti SUPPORTING EXHIBITS q . In su;,eort of this petition, Petitioner have attached the following exhibits : ( a ) _M /l 211�2dk`.cic nrcke c- (b) o ' •J ♦ 1 a •• ♦ (d) e CERTIFICATION le. Petitioner certify, subject to the penalties for unswo falsification to authorities set forth at 18 rn Pa . C. S . § 4904, that the following p2rsons will testify to the matters stated : (a ) Qi' �pA Petitioner, Information with respect to his detention and the lawfulness thereof within his knowled,e, (b) Marilou Co,an, Custodian of Records of SCI Mahanoy , Information with .resr•ect to the authority Mahanoy detains Petitioner. y by which SCI (c) The custodian of Records of the Court of Common Pleas of •, x„ _d_ _ i County, Information with respect to the authorization and/or statute by which the Court imposed sentence t o detain Petitioner in the Pennsylvania Department of Corrections . y nia JUDICIAL NOTICE 1/ . Petitioner aver that the privilege of ,Habeas C SHALL BE available °rpus to all persons having their liberty deprived by by means of unlawFul restraint , and this ,privilege SHALL NOT BE SUSPENDED unless when in case of rebellion or invasion the public safety may require it . This Fact is supported by the constitutional provisions at Pennsylvania Constitution Section 14 , as well as th Article I . the statutory provisions at 42 Pa . C . S . § 65Z1 . Writ not to be suspended . kel • To that end , Petitioner Further aver that the Commonwealth Commonwealth of Pennsylvania is not curre invasion . nor ntly under have the citizens oF this Commonwealth taken a position of rebellion , nor has there been any executive order declaring or instituting martial law , nor has there been any executive or judicial order declaring the suspension of activities within the Courts oF this Commonwealth . As a result , Petitioner aver that his privilege to the Writ of Habeas Corpus must be acknowledged as PROTECTED by the Laws of the General Ap=c bl oF of the Commonwealth Y Pennsylvania and the Constitution oF Pennsylvania . -v RELIEF REQUESTED WHEREFORE , For the Foregoing reasons . Petitioner requests that this Honorable Court : ( a) Grant the requested Writ of Habeas Corpus Ad Subjiciendum . and issue a rule upon the Respondent compelling the Respondent to show cause why the Petitioner is not entitled to the requested relief , pursuant to Pennsylvania Constitution Article I , 14 , 42 Pa . C . S . § SS01 42 Pa . C . S , § 6502 , and P a . R . Civ . P . 206 . 7 ; or (b ) Grant the requested Writ of Habeas Corpus Ad Subjiciendum , and provide relief by refl ' ' I n - 9 . n: i - - , . < r Gated : 6 // 0V,. IN THE COURT OF COMMON PLEAS OF 04,y0abeCA,Ack1 COUNTY PENNSYLVANIA CIVIL ACTION - LAW FrFinc:'.<cn (kw erR-Mint rikt ez Petitioner -VS- Civil Action No . • Sohn V,eress Respondent ORDER ANO NOW , this day oF . 20 . upon consideration of the PETITION FOR WRIT OF HABEAS CORPUS AD SUBJICIENOUM , it is hereby ordered that : ( 1 ) A rule is issued upon the Res.,Jondent ( s ) to show cause why Petitioner is not entitled to the relieF requested : ( 2 ) The Respondent( s) shall File an answer within twenty ( 20 ) days oF service upon the Respondent ( s ) ; ( 3 ) The above-captioned matter shall ba decided under Pa.R . Civ . P . 206 . 7 ; ( 4 ) Depositions shall be completed within das oF this date ; ( 5 ) Argument shall be held on 20 , in Courtroom of the .)016Qr-,Atld County Courthouse ; and ( 6 ) Notice of the entry of this ORDER shall be provided to all ,parties by the Petitioner . BY THE COURT J . lA. IN TriT. COURT OF COMMON PLEAS OF lM62.1-kgga COUN'T'Y, PENNSYLVANIA - CIVIL ACTION - nnn Petitioner -VS- Civil Action No. . Respondent CERTIFICATE OF SERVICE I , Fr_gdas cc.. a."'°r^ %"^aci Petitioner in the above-captioned matter, hereby verify that on this day a true and correct copy of this PETITION FOR WRIT OF HABEAS CORPUS and PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS is being served upon the person(s ) :.fisted below in accordance with governing rules of court : SERVICE BY CERTIFIED U.S. MAIL John Kerestes , in care of Office of General Counsel PA Department of Corrections 1920 Technology Parkway Mechanicsburg PA 17050 rf4t c <ln a�ue.re- MnA t�e2 No . '•Y-RADa SCI Mahanoy 301 Morea Road Frackville , PA 17932 Dated : f d/ - /3 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA v CP-21-CR-0749-2010 CHARGE: (1) UNLAWFUL DELIVERY, MANUFACTURE, POSSESSION WITH INTENT TO DELIVER A SCHEDULE II , C.S . , COCAINE • (2) CRIMINAL CONSPIRACY TO UNLAWFUL DELIVERY, • MANUFACTURE, POSSESSION • WITH INTENT TO DELIVER • SCHEDULE II, C.S . , • COCAIN (3) UNLAWFUL DELIVERY, • MANUFACTURE, POSSESSION WITH INTENT TO DELIVER A SCHEDULE II, CONTROLLED SUBSTANCE - COCAINE FRANCISCO RIVERA-MONTANEZ: OTN: K772730-0 AFFIANT: AGENT DANIEL B. JENKINS IN RE: SENTENCING ORDER OF COURT AND NOW, this 22nd day of March, 2011, the Defendant having appeared for sentence, and the Court being in 0 . receipt cf a sentencing report, the sentence at Count 1 is that E ; -_ he pay the costs of prosecution, and that he undergo ( t-'{ imprisonment in a state correctional institution for not less P1-4 "Ls). than 5 nor more than 10 years..� C.) The sentence of the Court at Count 2. is that he � rT� =-) , pay the costs of prosecution, and that he undergo imprisonment E; in a state correctional institution for not less than 5 nor more • L7- than 10 years . The sentence of the Court at Count 3 is that he • pay the costs of prosecution, and that he undergo imprisonment in a state correctional institution for not less than 7 :nor more • than 10 years . All sentences are to run concurrent with each gy1 ) A / - w I other and to date from March 2, 2010 . The Defendant is not RRRI eligible . is The Defendant is further directed to submit to DNA testing as authorized by law. These are all standard range or mandatory minimum sentences . Certainly any lesser sentences would depreciate the seriousness of the offense. By the Court, tom ' } Edward E. Guido, J. Heather Adams, Esquire Off ice of the Attorney General A TRUE COPY FROM RECOF.D In Testimony whereof,k here unto set my hand Office of the District Attorney and the seal of saki Court at Carlisle,k=A. Gregory B. Abeln, Esquire This day of Court-appointed Counsel '1r u«c �I I )• - Probation Ct:n ber;and Ccurdy Sheriff r'; CCP 44 L �H SCIC r',1Victim - Witness c„,,.,)s r s 011. •, • it J Received DEC - 3 . pennsylvania y ,iqr c to-Know omoe,Tray _ OFFICE-OF -. OREN�RECORaS - STANDARD RIGHT-TO-KNOW Re:VEST FORM DATE REQUESTED: !)A5 7// REQUEST SUBMITTED BY: E-MAIL U.S.MAIL FAX IN-PERSON NAME OF REQUESTER STREET ADDRESS 9- CITY/STATEICOUNTY/ZIP(Requlred): / TELEPHONE (Optional): t4-1/4.. RECORDS REQUESTED' ;Provide as much specific detail as possible so the agency can identify the information. • s - 4/9— )JO � � '•2C�r�/3 .` ��%J t '12.1L-.4 z:.,2-055zA:-4-,J .s• �12�J.� il ► �f�a L'7 rim �<,,�S DO YOU WANT COPIES?Ceor NO DO YOU WANT TO INSPE THE RECORDS? YES o DO YOU WANT CERTIFIED COPIES OF RECORDS?YES or 0 " FOR AGENCY USE ONLY RIGHT TO KNOW OFFICER: DATE RECEIVED BY THE AGENCY: AGENCY FIVE (5) BUSINESS DAY RESPONSE DUE: "Public bodies may fill anonymous verbal or written requests If the requestor wishes to pursue the relief and remedies provided for in this Act, the request must be in writing. (Section 702.) Written requests need not Include an explanation why information is sought or the intended use of the information unless otherwise required by law. (Section 703.) Pennsylvania Department of Corrections Right-to-Know Office Office of Chief Counsel 1920 Technology Parkway Mechanicsburg, PA 17050 Telephone 717-728-7763 Fax 717-728-0312 January 6, 2014 Francisco Rivera-Montanez, JY8302 SCI-Mahanoy 301 Morea Road Frackville, PA 17932 Re: RTKL#2229-13 Dear Mr. Rivera-Montanez: This letter acknowledges receipt by the Department of Corrections of your written request for records under the Pennsylvania Right-to-Know Law (RTKL). Your request was received by this office December 3, 2013. On December 10, 2013, an interim response was sent to you extending the final response date to January 9, 2014. A copy of your original request letter is enclosed. Your request for your Sentencing Order pertaining to case number CP-21-CR-0749-2010 is granted. This document is enclosed at no charge. Sincerely, Andrew Fkosky Agency Open Records Officer Enclosure cc: File FRANCISCO : IN THE COURT OF COMMON PLEAS OF RIVERA-MONTANEZ : CUMBERLAND COUNTY, PENNSYLVANIA V. • • JOHN KERESTES : NO. 2014—0564 CIVIL TERM ORDER OF COURT AND NOW, this 28TH day of FEBRUARY, 2014, the Defendant's Request to Proceed In Forma Pauperis is GRANTED. By t. ourt, Edward E. Guido, J. ■ Francisco Rivera-Montanez JY-8302 301 Morea Road Frackville, Pa. 17932 °i� Office of General Counsel e 3 0li 1 4 Pa. Dept. of Corrections 1920 Technology Parkway Mechanicsburg, Pa. 17050 Court Administrator in Wt`' :sld ;„ N `r r =1 ., ;.k')i!- 101,113iAii. 1J11, f;PR -9 ''�► 11: 41.E ?,UV3E RLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCISCO RIVERA - MONTANEZ, Petitioner • • v. 2014 -0564 Civil Term • JOHN KERESTES, • Respondent RESPONDENT'S MOTION TO TRANSFER TO CRIMINAL DOCKET AND DISMISS THE INSTANT ACTION TO EDWARD E. GUIDO, JUDGE, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY: AND NOW, comes Kathleen G. Kane, Attorney General of Pennsylvania, by Christopher J. Schmidt, Deputy Attorney General, who files this motion in response to Rivera - Montanez's civil writ of habeas corpus action. 1. On January 28, 2011, Rivera commenced the instant civil action. 2. Undersigned was just referred the instant civil action on April 7, 2014. 3. In the instant civil action, Rivera contends he is serving an illegal or unauthorized sentence for the crimes to which he was convicted at CP- 21- CR -749- 2010, Commonwealth v. Rivera - Montanez. 4. Rivera's writ of habeas corpus should be treated as a Post Conviction Relief Act (PCRA) petition. The PCRA is intended to be the sole means of achieving post- conviction relief. Unless the PCRA cannot provide for a potential remedy, the PCRA subsumes the writ of habeas corpus. Issues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition. A defendant cannot escape the PCRA's jurisdictional time -bar by titling his petition or motion as a writ of habeas corpus. Rivera's instant claim that his sentence is unauthorized and /or illegal is cognizable under the PCRA. Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013); 42 Pa.C.S.A. § 9543(a)(2)(vii); 42 Pa.C.S.A. § 9543(a)(2)(vii). 5. Respondent requests this Court enter the attached order transferring this action to the criminal docket at CP -21- 749 -2010, Commonwealth v. Rivera - Montanez. 6. Once this case is transferred and considered a PCRA petition, the Commonwealth (also represented by undersigned) requests this Court issue the attached order indicating its intent to dismiss Rivera's instant PCRA action without a hearing. 7. This PCRA action would constitute Rivera's third PCRA petition because Rivera's second PCRA petition was filed on or about December 26, 2013. 8. This Court issued an order on March 27, 2014, indicating its intent to dismiss Rivera's second PCRA petition without a hearing. 9. On or about April 8, 2014, Rivera filed a response to that order. 10. Rivera's third PCRA petition is facially untimely, 42 Pa.C.S.A. § 9545(b)(1); 42 Pa.C.S.A. § 9545(b)(3), and Rivera does not assert an exception to the PCRA's jurisdictional time bar. 42 Pa.C.S.A. § 9545(b)(1)(i -iii), (b)(2); Commonwealth v. Alcorn, 703 A.2d 1054, 1056 -67 (Pa. Super. 1997). 11. A PCRA court lacks jurisdiction to address claims raised in an untimely PCRA petition. Commonwealth v. Crews, 863 A.2d 498, 501 (Pa. 2004). 12. Additionally, Rivera could have raised his unauthorized and/or illegal sentence claim after sentencing and in either of his previous two PCRA petitions because he is relying on the public record of the trial court's sentencing order. See 42 Pa.C.S.A. § 9543(a)(3) (PCRA petitioner must plead and prove that "the allegation of error has not been previously litigated or waived."); 42 Pa.C.S.A. § 9544(b) (PCRA issue "is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding."); Commonwealth v. Chester 895 A.2d 520, 523 (Pa. 2006) (public record cannot be unknown to a PCRA petitioner pursuant to the newly discovered evidence exception). 13. Although a challenge to an illegal sentence can never be waived, Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003), a court still must have jurisdiction pursuant to the PCRA's time limits to hear an illegal sentence claim. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); Commonwealth v. Grafton, 928 A.2d 1112, 1114 (Pa. Super. 2007). 14. Rivera's third PCRA petition may also not be entertained while his second PCRA petition is pending. Commonwealth v. Jones, 811 A.2d 994, 1008 (Pa. 2002). 15. On the merits, Rivera's sentence at CP-21-749-2010 was lawful. 16. For all the above reasons, Respondent respectfully requests this Court transfer this case to Rivera's criminal docket mentioned above and enter an order indicating its intent to dismiss the third PCRA petition without a hearing. Conclusion WHEREFORE, based on arguments stated above, Respondent respectfully requests this Court enter an order transferring this case to the criminal docket at CP -21- 749 -2010 and thereafter enter an order indicating its intent to dismiss Rivera's third PCRA petition. By: Office of Attorney General Criminal Law Division Appeals and Legal Services Section 16th Floor, Strawberry Square Harrisburg, PA 17120 (Tele) 717 - 787 -6348 (Fax) 717 - 783 -5431 Date: April 8, 2014 Respectfully Submitted, KATHLEEN G. KANE Attorney General LAWRENCE M. CHERBA Executive Deputy Attorney General Director, Criminal Law Division JAMES P. BARKER Chief Deputy Attorney General Appeals and Legal Services Section . .. .,� _ CHRIST•PHER . SCHMIDT Deputy Attorney General Supreme Court No. 87617 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCISCO RIVERA- MONTANEZ, Petitioner v. 2014 -0564 Civil Term JOHN KERESTES, Respondent VERIFICATION The undersigned hereby certifies the facts set forth in the above pleading are true and correct to the best of my knowledge, information and belief, subject to the provisions of 18 Pa.C.S.A. § 4904, relating to Unsworn Falsification to Authorities. Cek/o)atzt, a, CHRISTOPHER J. SCHMIDT Deputy Attorney General Supreme Court No. 87617 Office of Attorney General Criminal Law Division Appeals and Legal Services Section 16th Floor, Strawberry Square Harrisburg, PA 17120 (Tele) 717 - 787 -6348 (Fax) 717 - 783 -5431 Date: April 8, 2014 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCISCO RIVERA- MONTANEZ, Petitioner v. 2014 -0564 Civil Term JOHN KERESTES, • • Respondent • • CERTIFICATE OF SERVICE I certify I am this day serving the foregoing pleading upon the persons below via First -Class Mail or UPS: Francisco Rivera - Montanez, pro se #JY -8302 SCI Mahanoy 301 Morea Road Frackville, PA 17932 Melissa H. Calvanelli Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 CHRISTOPHER J. SCHMIDT Deputy Attorney General Supreme Court No. 87617 Office of Attorney General Criminal Law Division Appeals and Legal Services Section 16th Floor, Strawberry Square Harrisburg, PA 17120 (Tele) 717 - 787 -6348 (Fax) 717 - 783 -5431 Date: April 8, 2014 Z RIPR`9 Fail 43 COLT f" PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCISCO RIVERA- MONTANEZ, Petitioner V. 2014 -0564 Civil Term JOHN KERESTES, Respondent ENTRY OF APPEARANCE Kindly enter the appearance of Deputy Attorney General Christopher J. Schmidt for the Respondent in connection with the above - captioned matter. KATHLEEN G. KANE Attorney General By: Office of Attorney General Appeals and Legal Services Section 16th Floor, Strawberry Square Harrisburg, PA 17120 (Tele) 717- 787 -6348 (Fax) 717 - 783 -5431 Date: April 8, 2014 ,41 1,44A CHRIST *PHER . SCHMIDT Deputy Attorney General Supreme Court No. 87611 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCISCO RIVERA- MONTANEZ, Petitioner v. 2014 -0564 Civil Term JOHN KERESTES, Respondent CERTIFICATE OF SERVICE I certify I am this day serving the foregoing pleading upon the person(s) below via First -Class Mail or UPS: Francisco Rivera - Montanez, pro se #JY -8302 SCI Mahanoy 301 Morea Road Frackville, PA 17932 Melissa H. Calvanelli Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 By: CHRISTOPHER J. SCHMIDT Deputy Attorney General Supreme Court No. 87617 Office of Attorney General Criminal Law Division Appeals and Legal Services Section 16th Floor, Strawberry Square Harrisburg, PA 17120 (Tele) 717 - 787 -6348 (Fax) 717 - 783 -5431 Date: April 8, 2014 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCISCO RIVERA-MONTANEZ, V. JOHN KERESTES, Petitioner Respondent • 231[1 i!,PR I I Ffi I: OL'; CUMBERLAW3 LJJ PENNSYLVANIA 2014-0564 Civil Term ORDER OF COURT AND NOW this // day of "AY. , 2014, upon consideration of Rivera Montanez's instant Praecipe for Writ of Habeas Corpus Ad Subjiciendum, and Respondent's Motion to Transfer to Criminal Docket and dismiss the instant action: IT IS ORDERED that the instant civil action is transferred to Criminal Docket CP- 21-749-2010, Commonwealth v. Rivera-Montanez. The instant civil action is considered a third Post Conviction Relief Act (PCRA) petition filed by Rivera-Montanez. IT IS ORDERED that the instant civil docket, 2014-0564, is CLOSED. JUDGE EDWARD E. GUIDO Distribution: ncisco Rivera-Montanez, pro se petitioner Christopher J. Schmidt, Esq., Deputy Attorney General apis fr2.4.1LELL