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HomeMy WebLinkAbout94-1370 criminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TIMOTHY RAY SWEGER 94-1370 CRIMINAL TERM IN RE: PETITION FOR MODIFICATION OF SENTENCE PURSUANT TO 61 P.S. SECTION 81 OPINION AND ORDER OF COURT BAYLEY, J., July 29, 1999:-- On May 2, 1995, petitioner, Timothy Ray Sweger, was sentenced on a count of involuntary deviate sexual intercourse to undergo imprisonment in a state correctional institution for a term of not less than five years or more than ten years, to date from July 22, 1994. He was sentenced to a concurrent term of imprisonment of not less than five years or more than ten years on a count of rape. He was assessed the costs of prosecution on counts of statutory rape, furnishing liquor to minors and two counts of terroristic threats. Petitioner is currently serving his state sentences at SCI Coal Township. He has filed a petition for modification of sentence pursuant to 61 P.S. Section 81 that provides: Whenever any convict or person is confined in any jail, workhouse, reformatory, or reform or industrial school, penitentiary, prison, house of correction or any other penal institution, under conviction or sentence of a court, or is so confined while awaiting trial or confined for any other reason or purpose and it is shown to a court of record by due proof that such convict or person is seriously ill, and that it is necessary that he or she be removed from such penal institution, the court shall have power to modify its sentence, impose a suitable sentence, or modify the order of confinement for trial, as the case may be, and provide for the confinement or care of such convict or person in some other suitable institution where proper treatment may be administered. Upon the recovery of such person, the court 94-1370 CRIMINAL TERM shall recommit him or her to the institution from which he or she was removed. (Emphasis added.) Petitioner avers: (i) Petitioner, who is incarcerated at the S.C.I. located at Coal Township, Pa. 17866 is suffering from Melanoma Cancer. His condition is LIFE THREATING and he is in immediate need of EXTENSIVE MEDICAL TREATMENT and probably hospice care (developing) which neither the S.C.I. at Coal Township, nor any other prison has ADEQUATE MEDICAL FACILITIES to provide. (ii) Defendant has been told that his condition is in fact TERMINAL, and based on the progression of the disease he will probably die. (iii) Petitioner has served in excess of 5 years of imposed imprisonment. (iv) Because of petitioner's TERMINAL DISEASE, this Court is requested to MODIFY Petitioner's SENTENCE to a term of probation or some other suitable sentence which will permit his immediate release from prison to seek and obtain MEDICAL TREATMENT and die with dignity surrounded by his family .... (Emphasis added.)~ Jurisdiction of a motion under 61 P.S. Section 81 "[m]ust be addressed to the court which imposed the contested sentence, i.e., the court of common pleas." Warren v. Department of Corrections, 151 Pa. Commw. 46 (1992). Although he avers that he is in need of extensive medical treatment for which no prison has adequate medical facilities, petitioner seeks relief in the form of a modification of sentence "[t]o a term of probation or some other suitable sentence which will permit his immediate release from prison to seek and obtain MEDICAL TREATMENT and die with dignity surrounded by his family." The authority in 61 P.S. Section 81 is limited to modifying a sentence already imposed to "[p]rovide for the confinement or care of such convict.., in ' This requested relief is in the same set of documents in which petitioner also petitions for relief under the Post-Conviction Relief Act. 42 Pa.C.S. § 9541 et seq. We have issued a separate order and opinion on that petition. -2- 94-1370 CRIMINAL TERM some other suitable institution" subject to recommitment "upon recovery." This authority to modify such a sentence relates only to the place of "confinement or care" and not to the term of the sentence. The statute is not a vehicle to avoid dying in prison and it does not grant this court authority to place petitioner on "probation or some other suitable sentence" from which petitioner can then be released and go about obtaining medical treatment, which is what he seeks. We will not hold a hearing on the petition under 61 P.S. Section 81 where the relief sought is not authorized by the statute. AND NOW, this ORDER OF COURT day of July, 1999, IT IS ORDERED that the motion of Timothy Ray Sweger for a modification of sentence pursuant to 61 P.S. Section 81 to a "term of probation or some other suitable sentence," IS DISMISSED. Jaime Keating, Esquire For the Commonwealth Timothy Ray Sweger, CT-5510, Pro se SCI Coal Township 1 Kelley Drive CoalTownship, PA 17866 :saa -3-