Commonwealth v. Folk

40 A.3d 169, 2012 Pa. Super. 63, 2012 WL 758919, 2012 Pa. Super. LEXIS 100
CourtSuperior Court of Pennsylvania
DecidedMarch 9, 2012
StatusPublished
Cited by5 cases

This text of 40 A.3d 169 (Commonwealth v. Folk) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Folk, 40 A.3d 169, 2012 Pa. Super. 63, 2012 WL 758919, 2012 Pa. Super. LEXIS 100 (Pa. Ct. App. 2012).

Opinion

OPINION BY PLATT, J.:

Appellant, Russell Edwin Folk, appeals pro se from the trial court’s order denying by operation of law his motion for modifi[171]*171cation of sentence due to an alleged terminal illness. We affirm.

On May 6, 1998, a jury convicted Appellant of two counts of rape, three counts of involuntary deviate sexual intercourse, one count of sexual assault, three counts of indecent assault, one count of endangering the welfare of a child, and one count of corrupting a minor. Appellant’s convictions stemmed from charges that he sexually abused his eight-year-old grandson over a period of two years. On June 26, 1998, the court sentenced Appellant to a term of five to twenty years’ imprisonment on the rape charge, and consecutive terms of six months to five years on the endangerment and the corruption of minors charges, with the remaining charges merging for sentencing purposes for an aggregate sentence of six to thirty years’ imprisonment. (See N.T. Sentencing, 6/26/98, at 16-18). This Court affirmed the judgment of sentence on July 9, 1999. (See Commonwealth v. Folk, No. 1159 Harrisburg 1998, unpublished memorandum at 8, 742 A.2d 1148 (Pa.Super. filed July 9, 1999)).

Appellant subsequently filed a counseled petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541-9546, which the PCRA court denied on September 26, 2000. This Court affirmed the denial, and our Supreme Court thereafter denied his petition for allowance of appeal. (See Commonwealth v. Folk, 792 A.2d 613 (Pa.Super.2001) (unpublished memorandum), appeal denied, 569 Pa. 700, 805 A.2d 520 (2002)).

On April 26, 2010, Appellant filed a pro se motion for modification of sentence pursuant to 61 P.S. § 81, alleging symptoms of an unspecified terminal illness and requesting that his sentence be modified to time served. The motion was denied by operation of law, and the clerk of courts entered an order to this effect on November 16, 2010.1 Appellant timely appealed.2

Appellant raises one question for our review:

1. Did the trial court abuse its discretion by denying [Appellant’s request for relief by a modification of sentence pursuant to 61 Pa.C.S. [sic] § 81 due to [Appellant’s terminal illness, i.e. compassionate relief or mercy?

(Appellant’s Brief, at 4).

Preliminarily, we note that, effective October 13, 2009, 61 P.S. § 81 was replaced by 42 Pa.C.S.A. § 9777.3 See Act [172]*17233 of Aug. 11, 2009, P.L. No. 147, No. 33, § 4. The new statute changed the requirements a prisoner must meet in order to be removed from prison for medical treatment by establishing all seven factors by clear and convincing proof. See 42 Pa. C.S.A. § 9777(a)(1). Section 9777 became effective six months before Appellant filed the motion underlying the instant appeal. Therefore, we are bound to apply the statutory law of our Commonwealth as it stands in the resolution of Appellant’s claim, and accordingly, we review Appellant’s petition under 42 Pa.C.S.A. § 9777.4

Under the original statute, when examining a challenge to the trial court’s denial of a petition pursuant to 61 P.S. § 81, the relevant standard and scope of review were as follows: “The appellate court will review the trial court’s decision for an error of law. As with all questions of law, the appellate standard of review is de novo and the appellate scope of review is plenary.” Commonwealth v. Kositi, 880 A.2d 648, 652 (Pa.Super.2005) (quoting In re: Private Criminal Complaint of Wilson, 879 A.2d 199, 214 (Pa.Super.2005) (en banc)).

Under the current statute, an inmate may petition the sentencing court for temporary transfer to a hospital, long-term care nursing facility or hospice care location pursuant to 42 Pa.C.S.A. § 9777, which provides, in relevant part:

§ 9777. Transfer of inmates in need of medical treatment.
(a) Inmates committed to custody of department. — If an inmate is committed to the custody of the department, the department, the inmate or a person to whom the court grants standing to act on behalf of the inmate may petition the sentencing court to temporarily defer service of the sentence of confinement and temporarily remove the inmate committed to the custody of the department, or other facility, for placement in a hospital, long-term care nursing facility or hospice care location. The following shall apply:
(1) The sentencing court may approve the petitioner’s request to temporarily defer service of the sentence of confinement and place the inmate in a hospital or long-term care nursing facility under electronic monitoring by the department upon clear and convincing proof that all of the following apply:
(i) The medical needs of the inmate can be more appropriately addressed in the hospital or long-term care nursing facility.
(ii) The hospital or long-term care nursing facility requested by the peti[173]*173tioner has agreed to accept the placement of the inmate and to provide necessary medical care.
(iii) The inmate is seriously ill and is expected by a treating physician to not live for more than one year.
(iv) There are no writs filed or detain-ers lodged against the inmate and the inmate is not subject to any court order requiring the inmate’s presence.
(v) The placement in the hospital or long-term care nursing facility does not pose an undue risk of escape or danger to the community. In making this determination, the sentencing court shall consider the inmate’s institutional conduct record, whether the inmate was ever convicted of a crime of violence, the length of time that the inmate has been imprisoned and any other factors the sentencing court deems relevant.
(vi) The hospital or long-term care nursing facility has agreed to notify the department and the court of any material changes in the health status of the inmate, the nature of the care provided or other information required by the department.
(vii) Each agency representing the Commonwealth at a proceeding which resulted in an order committing or detaining the inmate, the State or local correctional facility housing the inmate and any registered crime victim have been given notice and an opportunity to be heard on the petition.

42 Pa.C.S.A. § 9777(a)(l)(i)-(vn).

In construing the enactments of the legislature, appellate courts must refer to the provisions of the Statutory Construction Act. In determining the meaning of a statute, we are obliged to consider the intent of the legislature and give effect to that intention. The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.

Reefer, supra at 1141 (citations and quotation marks omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
40 A.3d 169, 2012 Pa. Super. 63, 2012 WL 758919, 2012 Pa. Super. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-folk-pasuperct-2012.