J-S19029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT RAMIREZ IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

NANCY GIROUX (SCI ALBION 

SUPERINTENDENT)

Appellee No. 1898 EDA 2015

Appeal from the Order entered June 3, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0206171-1999

BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 10, 2016

Appellant, Robert Ramirez, appeals pro se from the June 3, 2015 order 

entered in the Court of Common Pleas of Philadelphia County denying 

habeas corpus relief.1 In addition, Appellant has filed two motions for 

default judgment, stemming from the Commonwealth’s failure to file a brief 

in accordance with the extension granted by this Court. Further, Appellant 

has filed objections to the Commonwealth’s late-filed brief, asking this Court 

to enter an order releasing him from prison and to strike the brief from the 

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1 The order also denied Appellant’s requested relief pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. As explained 

herein, Appellant does not challenge the court’s denial of relief under the 

PCRA except in a passing reference to the PCRA in his brief. 
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docket.2 Following review, we deny Appellant’s motions for default 

judgment; dismiss his objections and deny the requested relief; and affirm 

the order denying habeas relief.

The lower court provided the following procedural history:

On June 20, 2000, following a jury trial, [Appellant] was 

convicted of first-degree murder, robbery, aggravated assault, 

criminal conspiracy, violation of the Uniform Firearms Act 

(“VUFA”), and possessing an instrument of crime. [Appellant] 

was sentenced to life plus ten to twenty years’ imprisonment. 

On June 19, 2002, the Superior Court affirmed [Appellant’s] 

judgment of sentence. The Pennsylvania Supreme Court denied 

allocatur on November 7, 2002.

[Appellant] filed a pro se PCRA petition on September 3, 2003. 

Counsel was appointed and subsequently filed a Finley no merit 

letter.[3] On June 24, 2004, the lower court dismissed 

[Appellant’s] PCRA petition.

On August 3, 2012, [Appellant] filed the current pro se PCRA 

petition, his second. [Appellant] submitted supplemental 

petitions seeking habeas corpus relief. Pursuant to Pennsylvania 

Rule of Criminal Procedure 907, [Appellant] was served with 

notice of the court’s intention to dismiss his PCRA petition and 

deny his Writ of Habeas Corpus on April 24, 2015. [Appellant] 

filed a response to the court’s Rule 907 notice on May 6, 2015. 

The lower court dismissed Petitioner’s [PCRA] petition as

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2 Our rules of appellate procedure do not provide for—or even contemplate—

entry of a “default judgment” for an appellee’s failure to file a timely brief. 

Although an appellee’s failure to file a brief in accordance with an extension 

will deprive the appellee of the right to present oral argument, Pa.R.A.P. 

2188, there is no corollary for a case submitted to this Court for disposition 

without argument. Further, although the Commonwealth filed its brief 

beyond the date of the extension granted, that late filing is immaterial in 

light of our disposition of the issues raised with regard to denial of habeas 

relief. Therefore, Appellant’s motions and objections are denied as moot. 

3 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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untimely on June 3, 2015. [Appellant] filed the instant, pro se 

notice of appeal to the Superior Court on June 16, 2015.

Lower Court Opinion, 7/10/15, at 1-2 (citations omitted).

In footnotes to its June 3, 2015 order, the lower court explained:

In his Petition for Writ of Habeas Corpus, [Appellant] disputed 

the legality of his sentence due to a lack of a sentencing order. 

Because [Appellant’s] claim falls outside the eligibility 

requirements of the PCRA, the lower court entertained his 

Petition for Writ of Habeas Corpus on the merits. See 42 

Pa.C.S.A. § 9543; Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 

2014).

Order, 6/3/15, at 1 n.1. Further:

Upon review, the record reveals that [the sentencing judge] 

entered a sentencing order in this matter on June 20, 2000. The 

original sentencing order is being maintained by the Clerk of 

Courts of this court as part of [Appellant’s] case file in this 

matter. Therefore, [Appellant’s] claim is clearly without merit 

and his petition is denied.

Id. at 1 n. 2.

In his Statement of Questions Involved, Appellant does not challenge 

the denial of his second PCRA petition. He challenges only the denial of 

habeas corpus relief in the four issues identified in his brief as follows:

I. Did the court err/abuse [its] discretion when it arbitrarily 

treated Appellant’s petition for writ of habeas corpus ad 

subjiciendum as a criminal appeal denying Appellant his 

constitutional right(s) to habeas corpus, access to the 

court, and due process of law?

II. Did the court err/abuse [its] discretion when it arbitrarily 

denied Appellant’s petition for writ of habeas corpus ad 

subjiciendum without issuing a rule to show cause order 

and/or requiring a response/answer from the respondent 

denying Appellant his constitutional rights(s) to habeas 

corpus, access to the court, and due process of law? 
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III. Did the court err/abuse [its] discretion when it arbitrarily 

denied Appellant’s petition for writ of habeas corpus ad 

subjiciendum while disregarding Appellant’s affidavit and 

declaration in support of his petition in violation of due 

process of law?

IV. Did the court err/abuse [its] discretion when it arbitrarily 

denied Appellant’s petition for writ of habeas corpus ad 

subjiciendum when the DOC is not in possession of any 

documentation authorized by law for the DOC to restrain 

Appellant’s liberties legally/lawfully and the Appellant is 

being held in the DOC under the Mental Health Procedures 

Act (MHPA) in violation of due process of law[?] 

 

Appellant’s Brief at 4.4

“Our standard of review of a trial court’s order denying a petition for a 

writ of habeas corpus is limited to an abuse of discretion.” Joseph, 96 A.3d 

at 369 (citation and brackets omitted). “Thus, we may reverse the court’s 

order where the court has misapplied the law or exercised its discretion in a 

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4 On pages 14 and 15 of his brief, in the course of addressing his fourth 

issue, Appellant contends his PCRA petition was timely filed. However, any 

challenge to the denial of PCRA relief is not suggested by his Statement of 

Questions Involved and, therefore, has been waived. Pa.R.A.P. 2116(a) 

(“No question will be considered unless it is stated in the statement of 

questions involved or is fairly suggested thereby”). Further, even if not 

waived, Appellant’s requested PCRA relief was based on retroactive 

application of Miller v. Alabama, 132 S.Ct. 2455 (U.S. 2012). Despite the 

fact Miller has since been held to apply retroactively, see Montgomery v. 

Louisiana, 136 S.Ct. 718 (U.S. 2016), its retroactive application does not 

help Appellant, who turned 18 on April 25, 1998, nearly eight months before 

he committed the December 21, 1998 murder that resulted in his life 

sentence. Miller, 132 S.Ct. at 2460. See also Commonwealth v. 

Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), appeal denied, 81 A.3d 75 

(Pa. 2013) (per curiam) (refusing to extend Miller to murderers who were 

not under the age of 18 at the time of their crimes).
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manner lacking reason.” Rivera v. Pa. Dep’t of Corrections, 837 A.2d 

525, 528 (Pa. Super. 2008) (citation omitted).

Although Appellant outlines four separate issues in his brief, his issues 

can jointly be summarized as follows:

Is Appellant entitled to habeas corpus relief for being unlawfully 

detained under 42 Pa.C.S.A. § 9764 without a written, signed 

and sealed sentencing order?

The lower court determined that his petitions for a writ of habeas 

corpus lacked merit and Appellant was not entitled to relief. We agree. 

Appellant filed petitions for habeas corpus in 2012, 2013 and 2014. In 

each petition, Appellant asserted that he was being unlawfully detained at 

SCI-Albion without a sentencing order, in violation of 42 Pa.C.S.A. 

§ 9764(a)(8) and (b)(5)(i).5 He explained that he attempted to obtain a 

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5 42 Pa.C.S.A. § 9764(a)(8) and (b)(5)(i) provide as follows:

(a) General rule.--Upon commitment of an inmate to the 

custody of the Department of Corrections, the sheriff or 

transporting official shall provide to the institution's records 

officer or duty officer, in addition to a copy of the court 

commitment form DC-300B generated from the Common Pleas 

Criminal Court Case Management System of the unified judicial 

system, the following information:

. . . 

(8) A copy of the sentencing order and any detainers filed against 

the inmate which the county has notice.

(b) Additional information.--Within ten days from the date 

sentence is imposed, the court shall provide to the county 

(Footnote Continued Next Page)
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copy of his sentencing order and was advised that the document he sought 

did not exist. Without “the original written signed and sealed sentencing 

order,” he contends, the Department of Corrections (“DOC”) has “no 

authentic legal authority to detain” him. Petition for Writ of Habeas Corpus, 

9/19/12, at Exhibit K. 

This Court considered and rejected the identical argument in Joseph. 

There, Joseph a/k/a Woodens, claimed that the DOC’s inability to produce a 

copy of his sentencing report constituted a fatal flaw requiring his immediate 

release. We noted: 

Woodens is not the first individual to assert this species of claim. 

In addition to the aforementioned holding in [Brown v. Pa. 

Dep’t of Corrections, 81 A.3d 814 (Pa. 2013) (per curiam)], 

our Commonwealth Court has adjudicated at least one similar 

appeal on the merits, albeit in an unpublished memorandum. In 

Travis v. Giroux, No. 489 C.D. 2013, 2013 WL 6710773 (Pa. 

Cmwlth. Dec. 18, 2013), an appellant challenged the DOC’s 

authority to hold him in custody because, as in the present 

situation, the DOC was unable to produce a written sentencing 

order. Relying upon two holdings from the United States District 

Court for the Eastern District of Pennsylvania, the 

(Footnote Continued) _______________________

correctional facility the following information pertaining to the 

inmate:

 . . . 

(5) All of the following:

(i) A written, sealed sentencing order from the 

county.
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Commonwealth Court held that subsection 9764(a)(8) does not 

provide a cause of action for prisoners:

The current version of [42 Pa.C.S. § 9764(a)(8)] requires 

that a copy of the sentencing order be provided to the 

[DOC] upon commitment of an inmate to its custody. 

However, it does not create any remedy or cause of 

action for a prisoner based upon the failure to 

provide a copy to the DOC. The statute regulates the 

exchange of prisoner information between the state and 

county prison system, and does not provide a basis for 

habeas relief. Specifically, the Commonwealth Court 

emphasized that the appellant in Travis did not dispute 

that he had pleaded guilty and that he was sentenced 

upon that plea. Thus, even where there appeared to be no 

sentencing order in the possession of the DOC or the trial 

court, the Commonwealth Court held that subsection 

9764(a)(8) furnished no basis for relief where the 

appellant’s sentence was confirmed by the certified record. 

. . . .

Although the decisions of the Commonwealth Court are not 

binding upon this Court, they may serve as persuasive authority. 

Commonwealth v. Ortega, 995 A.2d 879, 885 (Pa. Super. 

2010); see also Petow v. Warehime, 996 A.2d 1083, 1088 n. 

1 (Pa. Super. 2010) (“[W]e may turn to our colleagues on the 

Commonwealth Court for guidance when appropriate.”). We find 

the reasoning presented in Travis to be probative and 

instructive. The language and structure of section 9764, viewed 

in context, make clear that the statute pertains not to the DOC’s 

authority to detain a duly-sentenced prisoner, but, rather, sets 

forth the procedures and prerogatives associated with the 

transfer of an inmate from county to state detention. None of 

the provisions of section 9764 indicate an affirmative obligation 

on the part of the DOC to maintain and produce the documents 

enumerated in subsection 9764(a) upon the request of the 

incarcerated person. Moreover, section 9764 neither expressly 

vests, nor implies the vestiture, in a prisoner of any remedy for 

deviation from the procedures prescribed within.

Joseph, 96 A.3d at 370-71 (emphasis in original, footnotes and citations 

omitted).
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Further, with regard to relief under habeas corpus:

When a petitioner is in custody by virtue of a judgment of 

sentence of a court of competent jurisdiction, the writ generally 

will not lie. The rationale for this limitation is the presumption of 

regularity which follows the judgment. The writ, as stated 

above, is an extraordinary remedy and, therefore, a judgment 

rendered in the ordinary course is beyond the reach of habeas 

corpus. That conviction cannot be put aside lightly, and it 

becomes stronger the longer the judgment stands. 

Consequently, habeas corpus generally is not available to review 

a conviction which has been affirmed on appeal. 

Id. at 372 (citations omitted).

In its opinion, the lower court recognized Appellant’s assertion that his 

“detention on a DC-300B Court Commitment form, rather than a written 

sentencing order is in contravention of 42 Pa.C.S[A.] § 9764(a)(8) and 37 

Pa. Code § 91.3.” Lower Court Opinion, 7/10/15, at 5. Citing Joseph, the 

court noted that the claim was not cognizable under the PCRA and was 

properly raised in a writ of habeas corpus. “Nevertheless, the [sentencing 

judge] entered a sentencing order in this matter on June 20, 2000. The 

Superior Court has held that even in the absence of a written sentencing 

order, the [DOC] retains detention authority.” Id. (citing Joseph for its 

“holding that the fact that the DOC did not possess sentencing order did not 

entitle [p]etitioner to habeas relief”).
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We find no merit in Appellant’s arguments6or any abuse of discretion 

on the part of the lower court. Therefore, we affirm the June 3, 2105 order.

Motions for default judgment denied. Objections dismissed and relief 

denied. Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2016

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6 To the extent Appellant’s issues as stated suggest procedural deficiencies 

in the lower court’s disposition of his habeas corpus writs, e.g., for failing to 

issue a rule to show cause, his contentions do not save his writs in light of 

the lack of any available remedy or cause of action based on a failure to 

provide a copy of the sentencing order to the DOC. See Joseph, 96 A.3d at 

370.