Commonwealth ex rel. Ware, L. v. Ferguson, T.

• Court: Superior Court of Pennsylvania
• Decided: April 6, 2017
• Docket: Commonwealth ex rel. Ware, L. v. Ferguson, T. No. 853 WDA 2016
• Status: Unpublished

Opinion

J-596031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF EX REL. LUTHER L. WARE PENNSYLVANIA V.

TAMMY S. FERGUSON

APPEAL OF: LUTHER L. WARE NO. 853 WDA 2016

Appea| from the Order Dated May 13, 2016 In the Court of Common P|eas of C|earfie|d County Civil Division at No(s): 2016-785-CD

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J. MEMORANDUM BY SOLANO, J.: FILED APRIL 06, 2017

Pro se Appe||ant, Luther L. Ware, appeals from the order dismissing his petition for a Writ of habeas corpus. Appe||ant contends the court erred by dismissing the petition. We vacate the order below and remand With instructions.

According to the record, Appe||ant Was convicted of various drug charges and sentenced to an aggregate sentence of e|even-and-a-ha|f to twenty-five years' imprisonment at Docket Nos. CP-17-CR-734-2014 and CP- 17-CR-239-2015. In February of 2016, Appe||ant filed Post Conviction Relief

Act (“PCRA")1 petitions at both dockets. The court appointed PCRA counsel

1 42 Pa.c.s. §§ 9541-9546.

in March of 2016, and in February of 2017, PCRA counsel filed counseled PCRA petitions that have not yet been resolved by the PCRA court.

Meanwhi|e, at the docket number for this case, No. 2016-785-CD, the court docketed Appe||ant's pro se petition for a writ of habeas corpus on May 13, 2016.2 His petition alleged that the Commonwea|th improperly withheld exculpatory evidence, the search warrant was invalid, and counsel was not appointed to represent him at his preliminary hearing. Pet. for Writ of Habeas Corpus, dated 4/27/16, at 2. The court dismissed Appe||ant's petition on May 13, 2016. Appe||ant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement. Appe||ant also filed an untimely amended Ru|e 1925(b) statement raising additional issues.

As a prefatory matter, we ascertain whether Appe||ant's petition for a writ of habeas corpus should have been construed as a PCRA petition. The PCRA provides: “The action established in this subchapter sha|| be the sole means of obtaining co||atera| relief and encompasses a|| other common |aw and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis." 42

Pa.C.S. § 9542; see 42 Pa.C.S. § 6503(b) (“Where a person is restrained by

2 Appe||ant dated the petition Apri| 27, 2016, but it is unclear when Appe||ant mailed the petition. See Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006) (recognizing that under the “prisoner mailbox ru|e" a document is deemed filed when placed in the hands of prison authorities for mailing).

virtue of sentence after conviction for a criminal offense, the writ of habeas corpus shall not be available if a remedy may be had by post-conviction hearing proceedings authorized by law”). We have stated: The PCRA sets forth its scope as fo||ows: This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction. 42 Pa.Cons.Stat.Ann. § 9542 (emphasis supplied). In construing this language, Pennsylvania [c]ourts have repeatedly held that the PCRA contemplates challenges to the propriety of a conviction or a sentence. Commonwealth v. Masker, 34 A.3d 841, 843 (Pa. Super. 2011) (eh bahc), appeal denied, 47 A.3d 846 (Pa. 2012). In the current action, all of Appe||ant's claims in his petition challenge the propriety of his convictions at Docket Nos. CP-17-CR-734-2014 and CP-17-CR-239-2015, and relief for those claims therefore is authorized under the PCRA. Therefore, the PCRA court erred by not construing Appe||ant's petition for a writ of habeas corpus as a PCRA petition. See id. We note that the court appointed PCRA counsel for Appe||ant in March of 2016. The PCRA court docketed the instant pro se petition on May 13, 2016. The PCRA court should have forwarded Appe||ant's pro se petition to Appe||ant's PCRA counsel. See Commonwealth v. ]ette, 23 A.3d 1032,

1044 (Pa. 2011) (holding, “we reiterate that the proper response to any pro

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se pleading is to refer the pleading to counsel, and to take no further action on the pro se pleading unless counsel forwards a motion"). Accordingly, we vacate the PCRA court's May 13, 2016 order dismissing Appe||ant's pro se PCRA petition, and remand with instructions to have the PCRA court forward that petition to Appe||ant's PCRA counsel. See Pa.R.Crim.P. 576(A)(4).

Order vacated. Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

J seph D. Seletyn, Es . Prothonotary

Date: 4[6[2017