Opinion
J-S49005-15 No. 399 MDA 2015
08-07-2015
JUSTIN DAVID CARBAUGH, Appellant v. TREVOR WINGARD, Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 2, 2015
In the Court of Common Pleas of York County
Civil Division at No(s): 2015-SU-228-49
BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Justin Carbaugh, appeals pro se from the trial court's February 2, 2015 order denying his "Petition for Writ of Habeas Corpus." After careful review, we are constrained to vacate that order and remand for the appointment of counsel.
While the facts of the underlying case are not pertinent to our disposition of this appeal, we summarize the procedural history of Appellant's case as follows. On October 7, 2011, Appellant was convicted, following a jury trial, of voluntary manslaughter and abuse of a corpse. He was sentenced on November 21, 2011, to an aggregate term of 6 to 12 years' incarceration, followed by 4 years' probation. Appellant did not file a direct appeal. Therefore, his judgment of sentence became final on December 21, 2011, at the expiration of the thirty-day time-period for seeking review with this Court. See 42 Pa.C.S. § 9545(b)(3) (stating judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Pa.R.A.P. 903(a) ("Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.").
On January 23, 2015, Appellant filed the "Petition for Writ of Habeas Corpus Ad Subjiciendum" (hereinafter "the Petition") underlying the instant appeal. Appellant named Trevor Wingard, the Superintendent of the State Correctional Institution at Somerset (where Appellant is detained), as the defendant. In the Petition, Appellant presented the following six claims:
1. Were the statutory provisions, court rules and other established principles of law properly followed/enforced during the prosecution and sentencing of [Appellant]?Petition, 1/23/15, at 4.
2. What statutes endowed the judge with the statutory authorization to impose a sentence upon [Appellant] and were those statutes unambiguously stated on [Appellant's] "sentencing order?"
3. Was [Appellant] lawfully committed to the custody of the Department of Corrections?
4. Was [Appellant], by information, charged with valid laws as defined by an enacting clause?
5. Did the court[] possess personal or subject matter jurisdiction at the time [Appellant] was charged or anytime thereafter?
6. Does the "sentencing order" or "criminal information" sheet for [Appellant] contain a seal of the court to authenticate the document?
On January 30, 2015, the trial court issued an order denying Appellant's Petition. That order was entered on the docket on February 2, 2015. Appellant filed a pro se notice of appeal on March 2, 2015. The court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely complied with that order, presenting seven issues for review.
However, we decline to address the merits of Appellant's arguments, as it is apparent that he was denied his right to counsel in what effectively constituted his first petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. As this Court has explained:
It is well-settled that the PCRA is intended to be the sole means of achieving post-conviction relief. 42 Pa.C.S. § 9542; Commonwealth v. Haun , 613 Pa. 97, 32 A.3d 697 (2011). Unless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus. [ Commonwealth v.] Fahy , [737 A.2d 214,] 223-224 [(Pa. 1999)]; Commonwealth v. Chester , 557 Pa. 358, 733 A.2d 1242 (1999). Issues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition. See Commonwealth v. Peterkin , 554 Pa. 547, 722 A.2d 638 (1998); see also Commonwealth v. Deaner , 779 A.2d 578 (Pa. Super. 2001) (a collateral petition that raises an issue that the PCRA statute could remedy is to be considered a PCRA petition). Phrased differently, a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus.Commonwealth v. Taylor , 65 A.3d 462, 465-466 (Pa. Super. 2013).
Here, in Appellant's Petition, he essentially claimed that his sentence is illegal and the trial court lacked jurisdiction and/or authority to prosecute him. Both of these claims are cognizable under the PCRA. "When an action is cognizable under the PCRA, the PCRA is the 'sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose[.]'" Jackson , 30 A.3d at 518 (quoting 42 Pa.C.S. § 9542). Therefore, the court erred by not treating Appellant's writ of habeas corpus petition as a PCRA petition.
See 42 Pa.C.S. § 9543(a)(2)(vii), (viii); see also Commonwealth v. Jackson , 30 A.3d 516, 518 (Pa. Super. 2011) ("The PCRA 'provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief.'") (quoting 42 Pa.C.S. § 9542); Commonwealth v. Stout , 978 A.2d 984, 987 (Pa. Super. 2009) (concluding that a claim challenging the trial court's jurisdiction or "authority to prosecute" the defendant is a cognizable PCRA claim).
Additionally, Pennsylvania Rule of Criminal Procedure 904 directs that "when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief." Pa.R.Crim.P. 904(C) (emphasis added). In Commonwealth v. Stossel , 17 A.3d 1286, 1290 (Pa. Super. 2011), we held "that where an indigent, first-time PCRA petitioner was denied his right to counsel - or failed to properly waive that right - this Court is required to raise this error sua sponte and remand for the PCRA court to correct that mistake." This is true even when the petition is untimely on its face. See Commonwealth v. Smith , 818 A.2d 494, 499 (Pa. 2003) (holding that "an indigent petitioner, who files his first PCRA petition, is entitled to have counsel appointed to represent him during the determination of whether any of the exceptions to the one-year time limitation [of the PCRA] apply").
In the present case, Appellant's Petition is clearly his first under the PCRA. Additionally, Appellant sought in forma pauperis status, and the Commonwealth stipulated that he was entitled to that designation. See Commonwealth's "Answer to Rule on In Forma Pauperis Petition," 1/29/15 (Docket Entry 10). Nothing in the record suggests that Appellant waived his right to counsel. Therefore, we are compelled to conclude that the court erred by not appointing counsel to represent Appellant in the disposition of his first PCRA petition. Accordingly, we vacate the court's order denying Appellant's Petition and remand for the appointment of counsel.
Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015