J-S22015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

TIMOTHY CHRISTOPHER GLASGOW,

Appellant No. 3076 EDA 2017

Appeal from the Order Entered September 6, 2017

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0003118-2001

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 16, 2018

Appellant, Timothy Christopher Glasgow, appeals from the order 

denying his habeas corpus petition for want of subject matter jurisdiction. 

Appellant claims that his only remedy lies in habeas review, whereas the trial 

court ruled that the Parole Act dictates that Appellant’s remedy lies with the 

Board of Probation and Parole and the Commonwealth Court. After careful 

review, we affirm. 

The trial court provided the relevant procedural history for this case as 

follows:

On May 13, 2003, [A]ppellant entered guilty pleas to five 

(5) counts of Burglary, and nolo contendere pleas to thirteen (13) 

counts of Theft by Unlawful Taking and one (1) count of Attempted 

Theft by Unlawful Taking. [A]ppellant burglarized the homes of

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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five (5) families, and also committed or attempted to commit 

fourteen (14) auto thefts. 

[A]ppellant also entered a nolo contendere plea in Lehigh 

County No. CR-3448-2002 to Criminal Solicitation to Commit 

Murder. [A]ppellant solicited an undercover state trooper to 

murder a witness in his other cases.

On July 23, 2003, after receipt and review of a presentence 

report, and at the conclusion of a sentencing hearing, [A]ppellant 

received a total sentence of not less than eighty-four (84) months 

nor more than one hundred sixty-eight (168) months in a state 

correctional institution. On August 8, 2003, post-sentence 

motions were denied. No appeals were filed.

On August 1, 2017, almost fourteen (14) years after 

[A]ppellant's judgment of sentence became final, he filed a 

"Petition for Writ of Habeas Corpus" (hereinafter Habeas Corpus). 

[A]ppellant in that petition outlined his history of incarceration, 

including his parole and subsequent recommitment on a parole 

violation. Based upon his petition, it appears that [A]ppellant was 

convicted of a new offense and sentenced to not less than four (4) 

years[’] nor more than eight (8) years[’] imprisonment. The relief 

[A]ppellant requested in his Habeas Corpus petition was his

"discharge from custody" on the charges for which sentence was 

imposed by this [c]ourt.

On September 6, 2017, the "Petition for Writ of Habeas 

Corpus" was denied without a hearing. A Notice of Appeal was 

filed on September 22, 2017. [A]ppellant was directed to file a 

Concise Statement pursuant to Pa.R.A.P. 1925(b) on October 3, 

2017. [A]ppellant[,] in his “1925([b]) Concise Statement of 

Matters Complained of on Appeal” objects to the action of the 

Pennsylvania Board of Probation and Parole, and the dismissal of 

his petition without a hearing.

Trial Court Opinion (TCO), 10/23/17, at 1-2 (footnotes omitted). 

Appellant now presents the following questions for our review:

A. Whether the sentencing court abused its discretion when it 

dismissed [A]ppellant’s writ of habeas corpus without a hearing 

after the [Pennsylvania Board of Probation and Parole, hereinafter 

“PBPP”] and [Department of Corrections, hereinafter “DOC”] failed 

to honor the maximum sentence imposed order after the 

maximum sentence had been served in its entirety but the [PBPP]
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and [DOC] refuses to release him from custody on that judiciallyimposed already[-]served maximum sentence?

B. Whether the sentencing court's “no less than” and “nor more

than” mandatory minimum and maximum sentencing order may 

be declared null, void and without legal effect or force, by the 

[PBPP] and the [DOC], legislative creatures [of the] legislative 

branch, when: 1) the “no less than” and “nor more than”

mandatory minimum and maximum sentencing order is the order 

giving the [PBPP] and [DOC] its legal jurisdiction and au[th]ority 

from the sentencing's start[/effective] date[, halfway served “no 

less than” minimum sentence date], and expiring 

[ending/completely served] “nor more than” mandatory 

maximum [sentence date]; and 2) when no delinquent time, no 

escape time, no absconding time, no service of another [sentence] 

time exists to justify the extending and altering of the “nor more 

than” mandatory maximum [sentence date] set by the sentencing 

court's order on sentencing day?

Appellant’s Brief at v (unnecessary capitalization omitted, some brackets in 

original).

Essentially, in Appellant’s second issue, he claims that the PBPP lacked 

the authority to alter the projected date of the end of his maximum sentence, 

initially slated for May 1, 2015, and which he construes as the PBPP’s 

rendering the original sentencing order null and void. Relating back to his first 

issue, Appellant asserts that the trial court erred when it dismissed his habeas

petition without a hearing on the basis of a lack of subject matter jurisdiction 

because, he contends, the PBPP’s exclusive authority over parole matters did 

not extend beyond May 1, 2015, the original date envisioned for the end of 

his maximum term. Thus, Appellant contends, his remedy for his ostensible 

illegal confinement lies in habeas. 

Under Pennsylvania law, the authority to parole convicted 

offenders “is split between the common pleas courts and the 
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[PBPP].” Commonwealth v. Tilghman, 438 Pa.Super. 313, 652 

A.2d 390, 391 (1995), aff'd, 543 Pa. 578, 673 A.2d 898 (1996). 

“When an offender is sentenced to a maximum term of 

imprisonment of less than two years, the common pleas court 

retains authority to grant and revoke parole; when the maximum 

term is two years or more, authority to grant or revoke parole is 

vested in the [PBPP].” Id.

For prisoners whose maximum sentence is two years or 

more, the [PBPP] has exclusive power “to parole and reparole, 

commit and recommit for violations of parole, and to discharge 

from parole....” 61 P.S. § 331.17. The [PBPP] may extend the 

expiration of an offender’s maximum sentence upon his 

recommitment as a convicted parole violator. 61 P.S. § 331.21a; 

Eckert v. Pa. Bd. of Probation and Parole, 33 Pa. Cmwlth. 390, 

381 A.2d 1030 (1978).

A parolee may request administrative review of a [PBPP] 

determination, “relating to revocation decisions,” within thirty 

days of the mailing date of the [PBPP]’s determination. 37 Pa.

Code § 73.1(b)(1); accord Cadogan v. Commonwealth, Pa. Bd. 

of Probation and Parole 116 Pa. Cmwlth. 249, 541 A.2d 832, 833 

(1988) (construing former 37 Pa. Code § 71.5(h)). Appellate 

review of administrative parole orders, i.e., orders issued by the 

[PBPP] as opposed to parole orders issued by common pleas 

courts, is within the exclusive jurisdiction of the Commonwealth 

Court. Commonwealth v. McDermott, 377 Pa. Super. 623, 547 

A.2d 1236 (1988); see also Commonwealth v. Fells, 513 Pa. 

18, 518 A.2d 544 (1986) (holding that questions concerning

orders of the [PBPP] are in the appellate jurisdiction of the 

Commonwealth Court); Evans v. Pa. Dept. of Corrections, 713 

A.2d 741, 743 (Pa. Cmwlth. 1998) (holding that an appeal from a 

[PBPP] decision extending the defendant's maximum release date 

was within Commonwealth Court’s appellate jurisdiction). A 

parolee is required to exhaust all of his administrative remedies 

before he has a right to judicial review of an order of the [PBPP]. 

Evans, 713 A.2d at 743; St. Clair v. Commonwealth, Pa. Bd. 

of Probation and Parole, 89 Pa. Cmwlth. 561, 493 A.2d 146 

(1985).

The writ of habeas corpus is an extraordinary remedy that 

is available after other remedies have been exhausted or are 

ineffectual or nonexistent. Moore v. Roth, 231 Pa. Super. 464, 

331 A.2d 509, 511 (1974) (citation omitted). The writ will not 

issue if another remedy exists and is available. Id. The writ is 
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not a substitute for appellate review. Commonwealth v. Wolfe, 

413 Pa. Super. 583, 605 A.2d 1271 (1992); see Wilson v. 

Commonwealth, Bureau of Corrections, 85 Pa. Cmwlth. 32, 

480 A.2d 392 (1984) (holding that a petition seeking the 

correction of the [PBPP]’s action in aggregating a defendant’s two 

sentences does not sound in habeas corpus); cf. Brown v. Dept. 

of Corrections, 144 Pa. Cmwlth. 610, 601 A.2d 1345 (1992) 

(holding that a petition in which prisoners were directly 

challenging the legality of their continued detention, which was 

not grounded merely on an administrative calculation, was in the 

nature of habeas corpus).

Com., Dept. of Corrections v. Reese, 774 A.2d 1255, 1259–60 (Pa. Super. 

2001) (footnote omitted).

In Reese, the DOC appealed from a pair of trial court orders that 

granted two habeas petitions on the basis that the petitioners’ maximum 

release date had passed. Analogous to Appellant’s circumstances in the case 

sub judice, the initially projected dates for the Reese petitioners’ completion 

of their maximum terms of incarceration were extended by the PBPP because 

the petitioners had reoffended while at liberty on parole. With regard to one 

petitioner, Reese, the Court determined that the remedy of habeas corpus was 

available to him because he filed his habeas petition after the PBPP’s 

recalculated maximum release date had expired. Id. at 1261. However, the 

other petitioner, Richart, filed his habeas petition before the PBPP’s 

recalculated maximum release date expired. The Reese Court determined 

that under those circumstances, “Richart was using his Petition for habeas 

corpus relief to challenge the Board’s recalculation of his maximum release 

date.” Id. The Reese Court concluded that “the trial court did not have 

jurisdiction to hear Richart’s Petition” because at “the time he filed his Petition 
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for a writ for habeas corpus, Richart’s maximum sentence, as calculated by 

the Board, had not expired.” Id (emphasis added). 

The crux of Appellant’s argument in his Brief is that the July 23, 2003 

sentencing order is binding and, therefore, cannot be extended by the PBPP. 

That argument is contrary to our decision in Reese, as Richart filed his habeas

petition after his original maximum release date, but before the PBPP’s 

recalculated maximum release date expired. Clearly, the PBPP can alter the 

calculation of a maximum release date from that which would have existed 

based on the original sentencing order alone. Any argument to the contrary 

is meritless.

As indicated in Appellant’s habeas petition, however, when the PBPP 

effectively extended his maximum release date by 21 months, it did so on 

June 16, 2015, ostensibly after the original maximum release date passed. 

See Habeas Petition, 8/1/17, at 3 ¶ 7 (unnumbered pages). Thus, Appellant 

appears to argue in the alternative that, even if the PBPP can extend a 

maximum release date under certain circumstances, it cannot do so after that 

date has passed. 

However, before we answer any such question on the merits, Appellant 

must convince us that a remedy cannot be found in an administrative appeal 

with the PBPP and, if unsuccessful, in the Commonwealth Court. Appellant 

provides scant argument on this point. The writ of habeas corpus can only 

apply “after other remedies have been exhausted or are ineffectual or 

nonexistent.” Reese, 774 A.2d at 1260. This threshold question is essential 
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habeas review. “The writ will not issue if another remedy exists and is 

available.” Id (emphasis added). Here, Appellant is effectively challenging

the PBPP’s issuance of backtime1 of 21 months, which is what caused him to 

remain incarcerated beyond the originally calculated maximum end date for 

his 2003 sentence. However, whether the PBPP’s issuance of backtime was

proper under existing law2is a matter fully within the purview of the 

Commonwealth Court because, as noted above, “[a]ppellate review of 

administrative parole orders, i.e., orders issued by the [PBPP] as opposed to 

parole orders issued by common pleas courts, is within the exclusive

jurisdiction of the Commonwealth Court.” Reese, 774 A.2d at 1260 

(emphasis added). This exclusive jurisdiction applies to orders “[t]o parole 

and reparole, commit and recommit for violations of parole and to discharge 

from parole all persons sentenced by any court at any time to imprisonment 

in a correctional institution[.]” 61 Pa.C.S. § 6132(a)(1)(i). 

Appellant styles his habeas petition as an attempt to “enforce” the terms 

of the 2003 sentencing order. However, we agree with the trial court that this 

claim is just a thinly veiled attack on the PBPP’s determination to issue 

____________________________________________

1 “‘Backtime’ is a penalty imposed by the Board for a violation of parole.” 

Santiago v. Pennsylvania Bd. of Probation and Parole, 937 A.2d 610, 

617 (Pa. Cmwlth. 2007). “By definition, ‘backtime’ is that part of an existing 

judicially imposed sentence that a parole violator is required to serve as a 

result of violating the terms and conditions of parole prior to being eligible to 

again apply for parole.” Id. 

2 Appellant claims that the PBPP’s issuance of backtime in this case was 

improper because it effectively failed to afford him credit for the time he was 

on parole, given the nature of his parole violation. 
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backtime for his parole violation. Moreover, Appellant has not provided a 

citation to any authority establishing an exception to the Commonwealth 

Court’s exclusive jurisdiction in these matters, and the circumstances of this 

case are not analogous to the petitioner in Reese who remained incarcerated 

after the expiration of the PBPP’s recalculated maximum end date. For these 

reasons, we conclude that the trial court did not err or otherwise abuse its 

discretion when it denied Appellant’s habeas petition for want of jurisdiction. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/16/18