HomeMy WebLinkAboutCP-21-CR-0171-1999
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CP-21-CR-171-1999
DANIEL BLAINE KUHN
IN RE: OPINION PURSUANT TO RULE 1925
On December 22, 1998 Daniel B. Kuhn (the appellant) was charged with one count of
burglary, two counts of theft by unlawful taking or disposition, one count of criminal mischief,
one count of criminal trespass, and one count of unauthorized use of a motor vehicle from an
incident that occurred in the borough of Carlisle, Cumberland County. On May 3, 1999, he pled
guilty to one count of burglary in full satisfaction of all the charges against him. One June 22,
1999, Mr. Kuhn was sentenced to undergo imprisonment in a state correctional facility for a
period of not less than three years nor more than seven years. He was given 19 days' credit for
time served.
On July 2, 1999 appellant filed a motion to modify sentence which was denied by the
court the same day. No direct appeal was filed. On May 15,2000, appellant filed a petition
under the Post Conviction Relief Act ("PCRA"). In his PCRA petition, appellant alleged that his
counsel was ineffective for failing to file a direct appeal challenging the legality of his sentences.
On March 2, 2001, the trial court entered an order that specifically permitted appellant to
file an appeal nunc pro tunc from the judgment of sentence. On February 5, 2005, the
Pennsylvania Superior Court affirmed the legality of appellant's sentence. On February 28,
2005, the appellant filed a Writ of Habeas Corpus Ad Subjeciendum. He alleged that he was
being denied credit for time served based on erroneous calculation of time by the Department of
CP-21-CR-171-1999
Corrections. On March 8, 2005, this court denied the petition. This appeal was filed on April 4,
2005.
Discussion
The defendant in this case has appealed from the order of court denying his Petition for
Writ of Habeas Corpus. We denied the petition because it sought correction of the petitioner's
state prison records, a subject matter that properly belongs in the original jurisdiction of the
Commonwealth Court. See 42 Pa.C.S. 761; Alston v. Pa. Board of Probation and Parole, 79
A.2d 875 (Pa. Commw. 2002); McGriff v. Pa. Board of Probation and Parole, 613 A.2d 688 (Pa.
Commw. 1992)
Although styled as such, this action was not truly a petition for habeas corpus but rather
one seeking a writ of mandamus. The writ of habeas corpus is an extraordinary remedy that is
available after other remedies have been exhausted or are ineffectual or nonexistent. Moore v.
Roth, 331 A.2d 509, 511 (Pa. Super. 197 4). The writ will not issue if another remedy exists and
is available. Id. The defendant in this case was actually requesting this court to compel the
Department of Corrections to correctly calculate his sentence. In Bright v. Pennsylvania Board
of Probation and Parole, 831 A.2d 775, 777-78 (Pa.Commw. 2003), the Commonwealth Court
described the writ of mandamus as follows:
Mandamus will only be granted to compel
performance of a ministerial duty where the
plaintiff establishes a clear legal right to relief, a
corresponding duty to act buy the defendant, and a
lack of any other appropriate and adequate
remedy. . . .Mandamus is not proper to establish a
legal right, but is only appropriately used to
enforce those rights that have already been
established....A writ of mandamus will lie to
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CP-21-CR-171-1999
compel the Department of Corrections to properly
compute a prisoner's prison sentence....
831 A. 2d at 777-78. Such a writ of mandamus is properly before the Commonwealth Court
pursuant to 42 Pa.C.S. S 761. See Alston,. 799 A.2d at 875; McGriff, 613 A.2d at 688.
Upon our further review of this matter, we are satisfied that our dismissal ofMr. Kuhn's
petition was improper. Instead, his action should have been transferred to the Commonwealth
Court pursuant to 42 Pa.C.S. S 5103. See McNair v. Owens, 576 A.2d 95 (Pa. Commw. 1990).
Section 5103 provides:
(a) General rule- - If an appeal or other matter is
taken to or brought in a court or magisterial district
which does not have jurisdiction of the appeal or
other matter, the court or district justice shall not
quash such appeal or dismiss the matter, but shall
transfer the record thereof to the proper court or
magisterial district of this Commonwealth, where
the appeal or other matter shall be treated as if
originally filed in the transferred court or
magisterial district on the date first filed in a court
or magisterial district.
Because this matter is now on appeal, we lack jurisdiction to effect a transfer at this time.
May , 2005
Kevin A. Hess, 1.
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CP-21-CR-171-1999
Office of District Attorney
Daniel Blaine Kuhn, Pro Se
Inst. No. DZ-3111
P. O. Box 1000
S.C.!. Houtzdale
Houtzdale, P A 16698-1000
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