Com. v. Ross, S.

• Court: Superior Court of Pennsylvania
• Decided: March 18, 2022
• Docket: 1979 EDA 2021
• Status: Unpublished

Opinion

J-S09041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SAMUEL THEODORE ROSS : : Appellant : No. 1979 EDA 2021

Appeal from the Order Entered January 8, 2021 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003055-1996

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 18, 2022

Appellant Samuel Theodore Ross files this pro se appeal from the

dismissal of his petition for writ of habeas corpus. As Appellant’s challenge to

the discretionary aspects of his sentence is not a cognizable claim in which

habeas relief could be granted, we affirm.

In 1997, Appellant entered an open guilty plea to third-degree murder,

robbery, burglary, and criminal conspiracy to commit burglary and robbery.

Appellant was sentenced to twenty to forty years’ imprisonment for the

murder charge, consecutive sentences of five to ten years’ imprisonment for

the robbery and burglary charges, and concurrent sentences of five to ten

years’ imprisonment on his conspiracy charges. Thus, Appellant received an

aggregate sentence of thirty to sixty years’ imprisonment.

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* Former Justice specially assigned to the Superior Court. J-S09041-22

On January 20, 1998, this Court affirmed the judgment of sentence on

appeal, specifically declining to review Appellant’s argument that his sentence

was manifestly excessive, as this Court found this claim did not raise a

substantial question for review. Appellant did not file a petition for allowance

of appeal to the Supreme Court.

Thereafter, Appellant filed numerous petitions (approximately eleven)

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq,

and all of these petitions were denied. Appellant’s most recent PCRA petition

was denied in 2019 as untimely filed. See Commonwealth v. Ross, 2816

EDA 2018 (Pa.Super. March 29, 2019) (unpublished memorandum).

On June 10, 2020, Appellant filed a “Petition for Common Law Habeas

Corpus Relief,” a “Petition to Supplement Newly Discovered Evidence for

Common Law Habeas Corpus Relief,” and a “Supplemental Petition for

Common Law Civil Habeas Corpus Relief.” On September 1, 2020, Appellant

filed a “Common Law Writ of Habeas Corpus.” In these filings, Appellant

argued that his sentence was excessive.

On January 8, 2021, the lower court dismissed Appellant’s filings finding

that Appellant’s claims challenging the discretionary aspects of his sentence

were not cognizable under habeas case law. Appellant filed this appeal and

complied with the trial court’s direction to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant argues on appeal that the lower court made an “unfair and

incorrect” ruling in finding that Appellant’s claim that his sentence was

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excessive was not cognizable in a habeas petition. Appellant’s Brief, at 12.

We disagree.

Our courts have held that “[h]abeas corpus is an extraordinary remedy

and is available after other remedies have been exhausted or ineffectual or

nonexistent. It will not issue if another remedy exists and is available.”

Commonwealth v. Smith, 194 A.3d 126, 138 (Pa.Super. 2018) (citing

Commonwealth ex rel. Johnson v. Bookbinder, 213 Pa.Super. 335, 247

A.2d 644, 646 (1968)).

The writ of habeas corpus “is not a substitute for appellate review.”

Commonwealth v. Wolfe, 605 A.2d 1271, 1273 (Pa.Super. 1992) (emphasis

in original) (citations omitted). See also Commonwealth v. Johnson, 732

A.2d 639, 644 (Pa.Super. 1999) (habeas corpus may not be used to litigate

claims that “may be raised in post-trial motions, on direct appeal, or litigated

pursuant to statutory post-conviction provisions, i.e., the PCRA”);

Commonwealth ex rel Maryanski v. Myers, 189 A.2d 305, 306 (Pa.Super.

1963) (“[a] writ of habeas corpus cannot be resorted to or used as a substitute

for an appeal or writ of error, or for a motion for a new trial”).

This Court expressly held in Wolfe that “a challenge to the discretionary

aspects of sentencing is not a proper basis for habeas corpus relief.” Wolfe,

605 A.2d at 1274 (citing Commonwealth ex rel. Camara v. Myers, 193

A.2d 642 (Pa.Super. 1963) (court's discretionary power in imposing sentence

is not subject to review on habeas corpus).

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As Appellant’s filings in the lower court focused on his claim that the

trial court abused its discretion in imposing an excessive sentence, we agree

with the trial court’s conclusion that Appellant’s claims are not cognizable

under the remedy of habeas corpus. Wolfe, supra. Further, Appellant’s

challenge to the trial court’s discretion in imposing his sentence was evaluated

in the regular course of appellate review. Appellant attempted to raise this

claim on direct appeal in claiming that his sentence was manifestly excessive,

but this Court found that Appellant had not raised a substantial question

entitling him to review. See also Commonwealth ex. rel. Firmstone v.

Russell, 175 A.2d 921, 923 (Pa.Super. 1961) (“[r]epetitious petitions for

habeas corpus may not be employed as devices to secure appellate review of

adjudicated matters”).

Accordingly, we conclude that the lower court did not err in finding that

Appellant was not entitled to habeas review.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/18/2022

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