HomeMy WebLinkAboutCP-21-CR-794-2001
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
MIGUEL A. LOPEZ : CP-21-CR-0794-2001
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF
APPELLATE PROCEDURE 1925
Bayley, J., April 17, 2009:--
January 16, 2002
On , Miguel Angel Lopez, was convicted of two counts of
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attempt to robbery of a motor vehicle, two counts of simple assault, resisting arrest,
4
unlawful possession of drug paraphernalia, and unlawful possession of a small amount
5 March 19, 2002
of marijuana. On , he was sentenced as follows: On the count of
attempted robbery of Jennifer Ohashi’s vehicle, to pay the costs of prosecution and
undergo imprisonment in a state correctional institution for not less than four years or
more than ten years to date from April 7, 2001. On the attempted robbery of Kathleen
Freeman’s vehicle, to pay the costs of prosecution, make restitution to Jennifer
Schlegel in the amount of $150, and undergo imprisonment in a state correctional
__________
1
18 Pa.C.S. § 901 (to § 3702).
2
18 Pa.C.S. § 2701(a)(1).
3
18 Pa.C.S. § 5104.
4
35 P.S. § 780-113(a)(32).
5
35 P.S. § 780-113(a)(31).
CR-21-CR-0794-2001
institution for not less than four years or more than ten years to date from April 7, 2001,
and to run concurrent with the sentence imposed on the previous count. On the count
of simple assault of Jennifer Ohashi, to pay the costs of prosecution and undergo
imprisonment in a state correctional institution for not less than one year or more than
two years to date from April 7, 2001, and to run concurrent to the two previous
sentences imposed. On the count of simple assault of Kathleen Freeman, to pay the
costs of prosecution and undergo imprisonment in a state correctional institution for not
less than one year or more than two years to date from April 7, 2001, and to run
concurrent to the sentences just imposed. On the counts of resisting arrest, unlawful
possession of drug paraphernalia, and possession of a small amount of marijuana, to
pay the costs of prosecution. No post-sentence motion was filed nor was there an
appeal filed to the Superior Court from these judgments of sentence.
November 10, 2008
On , Lopez filed a “Motion to correct sentence to credit time
November 19, 2008
served.” On , the motion was denied by an order with the following
notation:
1
There is nothing to correct. The sentencing order of March 19, 2002,
started the sentence which was not less than four years or more than ten
years, “to date from April 7, 2001, this sentence to run concurrent to the
sentence just imposed.” Defendant was in the Cumberland County Prison
for the entire period of time from April 7, 2001 until he was sentenced on
March 19, 2002.
No appeal was filed from the entry of this order.
March 25, 2009
On , Lopez filed a motion for a writ of habeas corpus. Noting
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CR-21-CR-0794-2001
correctly that his sentences to a state correctional institution on March 19, 2002,
provided that they date from April 7, 2001, he averred:
As the attached PA-DOC “Sentence Status Summary” shows, the PA-
DOC only gave the Defendant credit from April 7, 2001 through October
15, 2001; and then from March 19, 2002 through present.
He sought the following relief:
[t]hat the Court (1) confirm that the Defendant was in fact incarcerated
from October 16, 2001 through March 18, 2002, (2) confirm that the PA-
DOC has not given the Defendant credit for that time, and (3) Order that
the Defendant be credited with time spent in custody from October 16,
2001 through March 18, 2002.
March 26, 2009
On , the following order was entered:
IS DISMISSED WITHOUT A
(1) The petition for a writ of habeas corpus,
1
HEARING
.
2
IS DISMISSED WITHOUT A HEARING
(2) The motion for time credit, .
1
A petition for a writ of habeas corpus is not a proper legal procedure for
raising the issue set forth in the within petition.
2
The motion for time credit is nothing more than a restatement of the
“motion to correct sentence to credit time served” which was denied in an
order dated November 19, 2008.
Lopez filed a direct appeal from this order to the Superior Court of Pennsylvania.
His petition for a writ of habeas corpus does not challenge the legality of his detention
pursuant to the sentence imposed on March 19, 2002. His dispute is with the
Department of Corrections for allegedly not noting in its record the full amount of the
credit that was given by the court when he was sentenced on March 19, 2002. The
relief he seeks is an order directing the Department of Corrections to change its
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records.
This court can hear a petition for a writ of habeas corpus challenging the legality
of detention when the order of detention was entered in this court. Pa.R.Crim.P.
108(A). The maximum sentence of ten years imposed on Lopez on March 19, 2002,
has not expired. Habeas Corpus may only issue where the petitioner’s allegations, if
true, would entitle him to be released from confinement. See generally
Commonwealth ex rel. Codispoti v. Rundle,
200 Pa. Super. 487 (1963). Habeas
corpus is not a procedure whereby defendant can obtain an order in this court directing
the Department of Corrections to change its records.
(Date) Edgar B. Bayley, J.
District Attorney’s Office
Miguel Lopez, EY-2341, Pro se
SCI Somerset
1600 Walters Mill Road
Somerset, PA 15510
:sal
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