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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TIMOTHY CHRISTOPHER GLASGOW,
Appellant No. 3076 EDA 201 7

Appeal from the Order Entered September 6 , 201 7 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP

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- CR

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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 rem edy 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 T aking. [A] ppellant burglarized the homes of

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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five (5) families, and also committed or attempted to co mmit fourteen (14) auto thefts. [A] ppellant also entered a nolo contender e plea in Lehigh County No. CR

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- 2002 to Criminal Solicitation to Commit Murde r. [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 les s 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]ppe llant'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 violati on. 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 dire cted 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 dism issal 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]J

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and [DOC] refuses to release him from custody on that judicially

imposed already[

- ] served maximum sentence?

B. W hether 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 th an” and “nor more than” mandatory minimum and maximum sentencing order is the order giving the [PBPP] and [DOC] its legal jurisdiction and a u[th] ority from the sentencing's start[/effective] date[, halfway served “no less than” minimum sentence date], and expi ring [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 th an” mandatory maximum [sentence date] set by the sentencing court's order on senten cing 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 ,
initia lly slated for May 1, 2015, an d 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 re medy 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 theJ

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[PBPP] .” Commonwealth v. Tilghman , 438 Pa.Super. 313, 652 A.2d 390, 391 (1995), aff'd , 54 3 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 pa role 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 p arole, an d to discharge from parole....” 61 P.S. § 331.17. The [PBPP] may exten d 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 jurisdic tion 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 dat e was wi thin 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 Probat

ion and Parole , 89 Pa. Cmwlth. 561, 49 3 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 isJ

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not a s ubstitute for appellate review. Commonwealth v. Wolfe , 413 Pa. Super. 583, 605 A.2d 1271 (1992); see Wilson v. Commonwealth, Burea u of Corrections , 85 Pa. Cmwlth. 32, 480 A.2d 392 (1984) (holding that a petition seeking the correction of the [PBPP] ’ s ac tion 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 C

orrections 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 date s 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 t o challenge the Board’ s recalculation of his maximum release

date. ” Id. The Reese Court concluded that “ the trial court did not ha ve jurisdiction to hear Richart’ s Petition ” because at “ the time he filed his PetitionJ

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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 ).

T he 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

re calculated 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 or iginal sentencing order alone. Any argument to the contrary

is meritless

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

e ffectively extended his maximum release date by 21 months, it did s o 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 alternativ e 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 a n 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 essentialJ

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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 backtime 1 of 21 m onths, 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 law 2 is a matter fully within the purview of the

Com monwealth 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.” Ree se , 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 c orrectional 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

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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
a gain 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.J

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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 o r 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