*1 ¶ 21 The properly PCRA court
concluded that the petition was untimely
and not within any exception. 42 Pa. 9545(b). §§
C.S.A. Opinion, May
at 5. As there was error in no this conclu we
sion affirm on this basis.4
22If Order affirmed. Pennsylvania,
COMMONWEALTH of
Appellant
v. REEFER, Appellee.
Paul L.
Superior Court Pennsylvania.
Argued Sept.
Filed Jan. threshold, admittedly 4. As this satisfy Davis’ second Id.. PCRA Failure to the Lawson petition, required satisfy untimeliness, he was also yields like of a second dismissal Lawson, dictates of Commonwealth v. 519 Pa. subsequent petition. PCRA Id. We could (1988), proge- pe- likewise affirm the dismissal of the second Palmer, ny. Commonwealth v. 2002 WL separate tition this case on this basis. (December 2002). Davis has Miller, v. Commonwealth A.2d 1036 attempt strong prima made no to make the (Pa.Super.2001) (appellate affirm showing needed to demonstrate that a facie court). on basis different justice miscarriage have occurred. *2 Gilmore, At- Assistant District James R. Com., Pittsburgh, appellant. torney, Grubschmidt, Pittsburgh, Kurt A. appellee. LALLY-GREEN, BENDER,
Before: GRACI, JJ.
GRACI, J. Commonwealth, ap- Appellant, 2,May on from the order entered peals Appellee, modifying the sentence Reefer, twenty years from five to Paul years five twelve imprisonment by a imprisonment, followed three months nine months years seven period conditioned being probation probation, on Mr. Reefer in a residing court-approved transfer High- SCI Laurel lands, nursing facility.1 skilled After receiving careful re- Petitioner was view, reverse, following we original Naprosyn reinstate the medications: (Advil) sentence, recommitment, mg., Alprazolam mg., order and re- *3 Peri-Colace, Reglan mg., Tylenol 10 mand proceedings for further consistent tablets, 1000 mg., Nitoglycerin Maa- Opinion. with this 30cc., Nupercainal Ointment, lox Al- I.FACTUAL AND PROCEDURAL Inhaler, (buffered buterol ASA aspi- rin)
HISTORY Multivitamin, mg., 325 Vitamin 400IU, E mg., Colace 100 Peri-Co- ¶ 14, 1999, April 2 On Mr. Reefer filed a lace, Liptor mg., Gardizem 30 pro se “Petition for Modification of Sen- mg., Lopressor mg., Tagamet and Illness,” § tence Due to 61 P.S. seeking mg. a twenty year modification of the five to Paul currently 3. Reefer is under the serving rape, sentence that he was Skerl, care of Anton MD at SCI 8121(1), involuntary Pa.C.S.A. deviate Cresson and is receiving the follow- intercourse, 3123(1), sexual 18 Pa.C.S.A. ing medications: Tagamet 800mg., minors, corruption and 18 Pa.C.S.A. Peri-Colace, 20mg., Tylenol Isordil 27, 1999, On July 6301. the trial court Nitoglycerin, 1000 mg., tablets Albu- appointed represent counsel to Mr. Reefer. Inhaler, (buffered terol aspirin) ASA ¶ 25, 2000, July On Mr. Reefer’s ex- 325mg., Liptor 20mg. Lopressor and witness, pert Fox, deposed, Dr. Carla was 25mg. 6, 2000, and on October a hearing was frequency dosage 4. The of the during conducted which medical evidence medications listed in paragraphs presented on behalf of Mr. Reefer. supra, are set forth in Dr. 12, 2000, On October trial court direct- report Anton Skeri’s medical of No- ed that medical records and summaries of vember 2000 which has been pre- opinions be introduced in place of viously entered into evidence testimony live physi- from the treating Commonwealth. cians, and, 16, 2000, on November a second Court, Order 12/1/00. hearing during was held which Com- ¶ 5 Mr. filed Reefer a memorandum of presented monwealth its medical evidence. law with asserting ¶ 1, 2000, 4 On December the Common- 81 provides sentencing Section court wealth stipulated and Mr. Reefer to the prison- with broad a discretion following findings, in their words: 7, 2000, er’s sentence. On December Petitioner, Reefer, 1. Paul suffers from Commonwealth filed an answer to the disease, coronary inoperable heart memorandum, arguing that Section 81 al- peripheral vascular disease the trial to temporarily modify lows court pulmonary chronic obstructive dis- confinement, but ease. Such conditions a constitute confinement, length and that Section 81 serious chronic medical condition. avenue to address a 2. previously Paul Reefer was incarcer- question “quality” provided of care Highlands
ated SCI Laurel prisoner. a reply, to a Mr. Reefer filed on stating was transferred SCI Cresson argu- the Commonwealth’s may only At the June time his ment Section inter- 5, 2001, grant- nursing "personal guage facility” the trial “skilled On November petition facility.” change ed lan- note Mr. Reefer's See infra. skilled residing a court-approved transfer Reefer preted temporary to allow for the al- nursing facility.2 The new sentence Mr. “makes Reefer little sense” because imprisonment time tered the term temporary. Mr. is not Reefer’s illness probation on placed Mr. Reefer served 13, 2000, Mr. Reefer December On remain- the unserved equal for a term “Expert Report filed an Witness Medical imprisonment. term of original der of the Dr. Fox & Curriculum Vitae” 7, 2001, the May 8 On Commonwealth Mr. care at stated that Reefer’s medical creating an auto- of appeal, filed notice the State Institution at Cres- Correctional thus, Reefer was Mr. supersedeas; matic (“Cresson”) On inadequate. son Janu- the outcome of prison pending to remain in ary filed Commonwealth *4 See Pa.R.A.P. 1764 appeal. the Skerl, in Dr. Mr. report Reefer’s 1736(b). 2001, 9, May the court or- On Cresson, treating physician at stated that 1925(b) file a dered the Commonwealth to receiving adequate Mr. treat- Reefer Pa.R.A.P.1925(b), statement, and the Com- ment. 21,May so on 2001. monwealth did ¶ 2001, 2, February 7 On a final 4, 2001, an Mr. Reefer filed 9 On June held, during a hearing was which witness the automat- application for modification of help he for Mr. Reefer testified that could stay by the Commonwealth’s ic created skilled nursing into place Mr. Reefer a 3, 2001, July trial court the appeal. On facility care in court the event that application, directing granted Mr. Reefer’s granted petition and Mr. Reefer’s released nursing he to a be transferred skilled 2001, May 1, him. granted On the court of the facility pending the outcome Com- petition, Mr. Reef modifying Reefer’s Mr. appeal.3 monwealth’s years er’s sentence five twelve ¶10 imprisonment, by three months On Mr. followed October years probation, petitioned seven nine the trial court modifi months Reefer July 1 and probation being May Mr. cation of the conditioned on Parole, opinion, 555 Pa. 724 A.2d court stated that Probation and its trial reject (citations omitted). (1999) "the Parole Board continued to A [Mr. 321 n. applications parole... Reefer’s] [F]rom pa- prisoner has no entitlement to otherwise view, point Reefer's] he [Mr. has been Parole, these circum- role. See id. under doing system all that the correctional has stances, legislative grace vested is a matter of him, in demanded of behavior that the ordi Board. See the discretion of Parole nary re course should have resulted in his 391; Tilghman, at also 61 P.S. see 5/1/01, Opinion, This lease in 1994.” §§ It is not a matter of 331.17 and 331.21. by a consideration the trial Moreover, it is abso- concern for court. court and have motivated the decision to lutely have that Mr. Reefer irrelevant prisoners release Mr. Reefer. Parole of sen thought everything demanded of him he did years imprisonment more two tenced to than he should have been released and that exclusively such as Mr. Reefer is within are the exclusive now. These matters within province Pennsylvania of the Board of Proba and, Board, on this Parole discretion Tilgh tion and Parole. See Commonwealth v. man, record, why idea the Board has we have no Pa.Super. grant parole appropriate it not deemed (1995) (citations omitted); see also 61 P.S. a into which This is not matter Mr. Reefer. sentencing §§ 331.17 and 331.21. The court should) (or inquire. can courts right question of has to be heard a on parole, but does control the decision. See the Commonwealth’s 3. This Court denied parole system, 61 P.S. 331.18. Under our application for emergency reinstatement expiration minimum stay, Pennsylvania Su- and the the automatic considered for merely prisoner allows to be preme denied review. Pennsylvania Court parole. Rogers v. Board See orders, requesting language prisoner; Illness removal for treat- orders changed be from “skilled nursing ment
facility” “personal facility” since any person Whenever convict or is con- Mr. Reefer had obtaining trouble place- any jail, workhouse, fined reforma- nursing ment in “skilled facility.” On tory, school, or pen- or reform industrial 5, 2001, granted November the court Mr. itentiary, prison, house of correction or petition, Reefer’s with the condition that institution, penal other under con- provided.4 electronic monitoring be On viction or sentence of a or is so November the trial court ordered awaiting confined while or trial confined the release of Mr. Reefer from Cresson to for any other reason or and it purpose New Life Personal Home in Care McKees- shown to a court of proof record due port, Pennsylvania. that such convict or person ill, it and that is necessary that he or she 11 The Commonwealth now raises the institution, penal removed from such questions following for our review: the court power modify shall have I. Did err by illegally sentence, sentence, impose a suitable modifying appellee-Reefer’s sen- modify the order of confinement for tri- tence exceeding scope of the *5 al, be, may as the case and remedy provided by § 61 P.S. 81? the confinement or care of such convict II. the Did trial court err in determin- or person in some other suitable institu- that the ing state correctional sys- tion may where capable tem of providing Upon administered. recovery the adequate medical appellee- care to person, court shall recommit Reefer? him or her to the from institution Brief, Appellant’s at 4. he or she was removed. II. § 61 P.S. 81.5 DISCUSSION ¶ ¶ 12 The lower court based its modifica- 13 We will review the lower tion of Mr. Reefer’s sentence on 61 P.S. court’s order for an abuse of discretion. 81, which reads: We will only reverse where the trial court Moreover, appeal an “[A]fter is taken ... trial court. it was not an inadver- counsel, tency longer court proceed ... no Mr. Reefer’s counsel further in requested change 1701(a); "personal care facili- the matter.” Pa.R.A.P. see also 42 for, ty” consciously after he 5505, looked but could However, Pa.C.S.A. under infra. find, nursing facility” a "skilled for Mr. circumstances, limited even where the trial Reefer. See Petition for Modification of Court normally jurisdic- court would be divested of Order, Further, the record does 10/26/01. tion, may power have patent it to correct not indicate that this Court authorized or and obvious mistakes. Commonwealth v. change directed the trial court to the lan- Klein, 566 Pa. A.2d guage nursing facility” "personal "skilled (2001) (stating patent that and obvious mis- Thus, facility.” court lacked record, takes include mistakes in the mistakes jurisdiction grant change. such a by or the clerk officer of inad- counsel). Moreover, vertencies the trial originally 5. Section 81 was enacted in 1919. any court "[t]ake action directed or au- form, original In its it read as follows: by application appellate thorized on enacted, c., Be Section 1. it & That 1701(b)(5). language court.” Pa.R.A.P. The person whenever convict is or confined nursing facility” “skilled trial court’s workhouse, any jail, reformatory, or re- original patent order is not a school, obvious form or industrial under sentence of mistake, record, it for was neither mistake in the a court of and it is shown to the proof record nor mistake or a clerk officer of court due that such convict or law, language That of Section 81 “misapplies judgment or its is confinement.6 v. unreasonable, ambiguous. See Commonwealth manifestly or the evidence Thomas, (Pa.Super.1999) that is a of record shows decision [its] language of a statute bias, (stating partiality, prejudice, result of or ill it “only where will bear two ambiguous Dunlavey, will.” Commonwealth v. (citations omitted). (citation meanings”) more
A.2d (Pa.Super.2002) omitted) (applying standard case involv- construing 16 “In the enactments 81). ing Section must legislature, appellate of the courts Statutory of the provisions refer to argues 14 The Commonwealth v. Construction Act.” Commonwealth illegally that the trial court modified Mr. (Pa.Su A.2d 1233-34 Campbell, 758 Reefer’s sentence. Brief at Appellant’s per.2000) (citing Key Sav. & Loan Ass’n v. 32-42. Specifically, the Commonwealth John, Inc., Pa.Super. Louis argues language in Section 81 1901). (1988); 1 Pa.C.S.A. “modify its sentence” refers to modifica statute, determining meaning “In of a tion of the at which the obliged we are to consider intent of the Reefer, being served. Id. Mr. on the other legislature give effect to inten hand, argues language also refers omitted). (citation “The tion.” Id. length to modification Ap of sentence. object interpretation of all and construc Brief pellee’s agree at 7-17. We with the tion of statutes is to ascertain and effectu Commonwealth and find that the lower Assembly. ate the intention of the General misapplied the law. construed, if Every possi statute shall be ¶ 15 “When the of a words statute are ble, provisions.” give effect all its clear free all ambiguity, the let- *6 1921(a)). § 1 (citing Pa.C.S.A. of ter it is to be disregarded under the the of the statute are not When words pretext of its pursuing spirit.” Campbell, explicit, the intention of the General As- 1231, 758 (Pa.Super.2000) (citing sembly may by be ascertained consider- 1921(b)). § The Pa.C.S.A. Common- matters: ing, among other interprets language “modify wealth its (1) necessity The for the occasion and sentence” Section 81 as modification of statute. confinement, place of while Mr. Reefer (2) it argues language also The circumstances under which may be interpreted as of was enacted. length modification of ill, thereof, person guilty of breach of and it is neces- be of the crime sary prison. that he or she be removed from such workhouse, 31, 1919, jail, reformatory, May or reform or Act of P.L. 356. school, pow- industrial the court shall have modify specifically sentence, 6. Motions to sentence are er to provided of Criminal Proce- for in Rules the confinement or care of such convict or 720 and 721. Both dure. See Pa.R.Crim.P. person in some other suitable institution may the Commonwealth and the defendant where be adminis- See Pa.R.Crim.P. 720 Upon seek modification. recovery person, of tered. motions seek to Sometimes those 721. the court shall recommit him or her to the (or workhouse, modify) place change of confinement.
jail, reformatory, or reform or Oftentimes, (or modify) they change seek to industrial school from which he or she was Accordingly, we length of sentence. removed. agree "modify language its sentence" person 2. so Section If removed un- interpreted can to mean provided in Section 81 be an of as in the der order act, place confinement escape, modification of of this shall he or and/or first section she, shall, offending, upon length so conviction of confinement. (3) The Assembly to be mischief remedied. mine what the intended General by “modify the language its sentence” in (4) object The to be attained. 81. Section (5) law, The any, including former if 1919, ¶ 17 In when Section was other upon statutes same enacted, 28,1905, February the Act P.L. subjects. similar 25, l,7§ that a indicated court’s “sentence” (6) The consequences of a particular “place imprison was to include interpretation. 1021, ment.” Under were Section courts persons directed who were to (7) The contemporaneous legislative imprisoned years for one or more to the history. penitentiary “state for the proper district.” (8) Legislative and in- administrative 28, 1905, 25, 1,§ Act of February P.L. terpretations of such statute. 31, 1860, amending 427, Act of March P.L. 1921(c)). (citing § There- Pa.C.S.A. Arbach, § See 74.8 Commonwealth v. fore, pursuant Statutory (stat 137, 311, (1934) Construc- Pa.Super. A. Act, that, tion we consider occasion for 28, Act ing February under the 1905, Section 81 and involving former statutes P.L. a prison courts could choose sentencing where, that were when existence er’s of confinement for exam defining Section order deter- “the ple, enacted act and fixing offense (19 1021), 31, 1860, § amending 7. P.S. § Act of March Act March P.L. It was July P.L. amended ofAct amended once before when Section 81 17, 1935, 1165, 1, P.L. repealed Act enacted, as to read follows: 202, 2(a)[377]. April P.L. Amending seventy-fourth AN ACT sec- act, entitled tion an "An act consoli- originally The Act as read follows: date, revise and amend the laws of this Consolidate, AN ACTTo Revise and Amend relating penal proceed- Commonwealth relating the Laws of this Commonwealth ings pleadings,” approved thirty- Proceedings Pleadings. Penal March, day eighteen first hundred and sixty, by repealing proviso thereof TITLE VI. General Provisions. prohibits imposing of sentences *7 expire days to between the of fifteenth No- separate solitary 74. Sentences of or con- February, vember and the fifteenth of of finement. any year. any person Whenever shall be to sentenced by any person Section 74. Whenever shall imprisonment separate at or be labor soli- confinement, tary any period imprisonment for not less by sep- sentenced to at labor year, imprisonment confinement, than one the and labor solitary any peri- arate or for performed be had shall and in the state year, imprisonment od not less than one penitentiary proper for the Provid- district: performed had and labor shall be and in the ed, nothing That this section contained Penitentiary for State district: prevent being person shall such from sen- Provided, nothing That in this section con- labor, imprisonment by sepa- tenced to and prevent person being tained shall such confinement, solitary county or rate in the labor, imprisonment by sentenced to and prisons by now law or hereafter authorized confinement, separate solitary or in the description: to receive convicts of like county prisons now or hereafter authorized also, provided, And no convict be That shall by descrip- law to receive convicts of a like by any sentenced court of this common- tion. wealth, penitentiaries to either of the there- of, any expire for term shall which between 28, 1905, 25, February § of 1. Act P.L. the fifteenth of November and the fifteenth year. February any of of such institution, or penal under conviction penalty expressly gives option”). such 1919, ... it Moreover, to of a court and is shown prior when Section 81 sentence enacted, proof that originally was there were several a court record due ill, seriously ... is and directing other courts such convict sentencing acts it that he or she be re- necessary place select confinement from be- institution, penal from such penitentiaries tween the state or the coun- moved See, power its court shall have ty prisons. example, April Act of ... for the con- 1848, 399, 4,§ sentence Act repealed by P.L. 8. or of such convict ... 1965, 1237, finement 27, 5;§ December P.L. Act of other where 19, 1850, 3, some suitable institution February 89, § repealed P.L. may proper treatment be administered. 2, 1; 1937, 2779, § July Act of P.L. Upon recovery person, 19, 1863, 2, January § Act of P.L. re- him or her to the shall recommit 28, 1978, by Act of pealed April P.L. which or was institution from he she 2(a)[413].9 Thus, § a court’s “sentence” removed. place included the at which the sentence was to served. It was against be this terms its By very P.S. backdrop historical that Section 81 was then, context, historical we find that prison- enacted. As it relates sentenced the lan- Assembly General intended ers, sentencing Section 81 allows a guage “modify its in Section 81 sentence”
[wjhenever any ... confined refer at which convict to modification any penitentiary being ... ... or served.10 other 9. A those current version of acts is statute considered in the construction Pa.C.S.A. states but not be considered to control.” Id. that: shall Boring (citing Group, Ins. v. Erie Pa.Su- persons partial All sentenced to total or (1994); per. 1 Pa. for: confinement 1924). C.S.A. (1) years maximum terms of five or more 31, 1919, May On when Section 81 shall be committed to the Bureau of Cor- enacted, confinement; Authorizing its title read: "AN ACT rection for per- (2) of record to remove convicts courts years maximum terms of two or more workhouses, jails, sons confined in tories, reforma- years may but less than five be committed schools, who and reform industrial Bureau of Corrections for confine- institutions; ill, are other county ment or be committed to a providing penalties prison.” breach prison jurisdiction within May Act P.L. The Act court; once, January on so amended (3) maximum terms of less than two Authorizing ACT courts of title read: "AN years county pris- shall be to a committed persons con- record to remove convicts and jurisdiction on within the of the court workhouses, reformatories, jails, re- fined in except as facilities become available schools, pris- *8 penitentiaries, form or industrial by designated on dates in areas ons, penal other houses correction or proclamations declaring Governor institutions, ill, other who are to facilities, availability of State correctional institutions; penalties providing persons may to be committed 1966, 26, January prison.” Act breach of Bureau of Correction for confinement. (emphasis added to reflect the lan- P.L. 1593 42 Pa.C.S.A. 9762. amendment). guage by the Our exami- added Moreover, part always "the a of a title 81 the title under which Section nation of and, such, may as statute ordinance or that Section 81 our conclusion falls reinforces enactment, construing considered in but it place at the sentence is refers to the which conclusive, particularly length is in no sense when being not to the served and body import ambiguity there is no in the stat- That is the authoriza- sentence. Campbell, ute or 758 A.2d ... to institutions.” ordinance itself.” tion to "remove other omitted). "[Tjhe title, (citation suggests any or language No in the act its title at 1237 headings, in sentence. preamble, and other divisions of a reduction 1144
¶ Moreover,
language
18
severity
during
of or
so
as the term
long
context,
Section 81 and its historical
as
the original
imposed
which
was
sentence
above,
noted
yield
does not
the conclusion
not expired”);
had
v.
Commonwealth Zel-
Assembly
General
authorizing
was
129,
nick,
171,
202 Pa.Super.
195 A.2d
173
the sentencing courts to
the length
shorten
(1964) (stating that
court has full
“[t]he
of the
Directing
sentence.
those courts to
power
original
to reconsider the
sentences
prisoners
“recommit” such
contradicts
and to reduce or
them so long
increase
as
such a
virtually
construction and would
the term
during
original
which
sen-
write that word out of the statute. Words
imposed
not expired”).
tence
had
The
in statutes
not to be
are
considered sur
legislature
time in
a
extended the
Lassiter,
plus. Commonwealth v.
554 Pa.
sentence could be
modified
the term
586,
657,
(1998)(citation
660
omit
thirty
of court to
days
1959. See Act of
ted).
Instead, we are to
effect
give
to
June
P.L. 342. That extension
every
Our
word.
construction does so.
persists today.
See 42 Pa.C.S.A.
5505
¶ 19
note that
We also
a trial court’s
(stating that a
a
may modify
trial court
power to
a
modify
imposed
sentence that it
days
within thirty
entering
after
has always been limited.
re Mos
See In
long
its order so
there is
appeal).
as
no
kowitz,
(1938)
183,
498,
329 Pa.
196 A.
502
1701(a) (precluding
See also Pa.R.A.P.
(stating
legally
“[a]
court
taken)
court action after an
appeal
resentence a
term
criminal after the
has
720(B)(3)(a) (stating
Pa.R.Crim.P.
a
amend,
ended...
permissible
If it were
a
modify
trial court
sentence within
modify or reverse sentences without this
days after
timely
120
a defendant files a
limitation the entire
administration
post-sentence
modify
motion to
his or her
justice
criminal
would be disrupted and
sentence).
result”);
manifest
would
abuses
Common
¶
Harrison,
case,
20
the instant
wealth v.
the time
Pa.Super.
(1940)
A.2d
limits for
(stating
modifying
pursuant
a sentence
“[a]fter
term,
1701(a)
a court without
authority
inter
Pa.C.S.A.
Rule
of the
fere either by increasing
reducing
the Pennsylvania
Appellate
Rules of
Proce
punishment imposed”);
720(B)(3)(a)
Commonwealth ex dure, and Rule
of the Pennsyl
Smith,
rel. Nagle v.
154 Pa.Super.
36 vania Rules of Criminal Procedure have
(1944)
A.2d
a
(stating
court
Thus,
expired.
appears
the trial court
may not legally resentence a criminal after
been
power
have
without
ended);
the term has
Commonwealth ex
of Mr.
length
Reefer’s sentence.
495, 159
Nagle
rel
v. Myers,
Pa.Super.
view
Section
its historical
W.e
(1960)
(stating that
sen
context,
a limited exception
as
tencing court
without
power
alter
which,
temporal
to this
limitation
years
expiration
sentences sixteen
after
language,
change
allows
court to
term of
at which
sentences were
place of confinement
not the length.
but
imposed so
to make
as
them concurrent
Further,
that,
we note
since its
instead
in
penalty
of consecutive where
enactment,
original
only
this Court has
flicted was not in excess of that prescribed
Section
times.
addressed
81 seven
See
law);
Gaynor
Commonwealth ex rel.
v.
*9
Lightcap,
Commonwealth v.
806 A.2d 449
81,
409,
Maroney,
Pa.Super.
199
A.2d
184
562;
(Pa.Super.2002); Dunlavey, 805 A.2d
(1962) (stating
410
that
was within the
“[i]t
Tuddles,
Commonwealth v.
court abused its discretion since it ordered [Dunlavey] dissenting opinion. permanently released.” Tuddles, conditions”); A.2d decide SCI medical 11. The court must whether capable (stating intended to providing adequate that Section is not Cresson is complaint neglect prisoner’s a care to Reefer. In to show address Mr. order Deaner, medication); necessary that he be treatment and that it is removed (stating Section "not intend peti at 581 81 is medical treatment under Section a shortcomings alleged general allege facility ed to address must that his lacks the tioner the state provision of medical care in him or that its collective resources treat omitted); (citation Light prison system”) endangered by his health is illness. Dunla cf. that, (stating where a petitioner’s allega cap, 806 at 453 vey, A A.2d at 564. "progressed to disease has facility prisoner’s liver that his lacks resources tions a life- point it has go quality neglect where become beyond him must treat threatening only available inability and the of the situation treatment address transplant” a liver adequate facility care. a liver prison prisoner, available” to the (stating prison transplant ade is "not provides that a at 565 prima claim prisoner made prepar been has quate care where it "has and is facie 81). prisoner’s] under Section ing [the handle and all *10 1146
BENDER, J., Concurring sentence, modify impose its a suitable Dissenting. sentence, or modify the order of confine- trial, be, and ment for as the case
¶ 1 I agree with majority provide for the confinement or care 2,May 2001 granting order relief under 61 person such or other convict in some However, 81 must P.S. be reversed. I (1) because, view, write institution treat- separately my in suitable where clear, meaning section 81 is so we do ment Upon administered. have to legislative history; examine its recovery of person, shall (2) we do not remand for a have to him recommit or her to the institution hearing because the record contains no he or she was removed. evidence that SCI lacks the re- Cresson notes, 61 P.S. As the we majority provide sources to Appellant’s interpreta- turn our rules of statutory treatments and needs. tion the meaning to ascertain of a statute. First, 2 in interpret order obligation legisla- Our is to determine the phrase “modify the as used in sentence” 61 and to intent. ture’s intent effectuate that the majority legis- P.S. examines the Berryman, Commonwealth v. Pa.Su- history lative of that particular statute and (1994). per. In “former involving sentencing statutes so, doing give “[w]e are to of a the words were existence when Section 81 was plain meaning.” statute their and ordinary I a reading enacted[.]” conclude that Also, “[t]he Id. words are to be considered plain language a section as whole grammatical their context.” Id. reveals that legislature intended to courts with discretion [Sjections of statutes are iso- not to be confinement, only they lated from the context in which length See, e.g., confinement. Common- interpreta- such that an arise individual Lisboy, wealth v. Pa.Super. tion is accorded one section which does (1990) A.2d we (stating are not to into not take account the sec- related legislative history resort examination of the same tions of statute. do Statutes meaning when of statute plain). is not exist sentence sentence. Their ¶ 3 The following emphasized language and sentences com- comprise sections in the statute in favor of militates this posite their purpose. stated conclusion: Lurie, (quoting Id. Commonwealth v. § 81. of prisoner; Illness removal for (1990)). Pa. “Fur- ther, a statute should be as a interpreted any Whenever person convict or con- whole, giving provi- ... effect to all of its workhouse, any jail, fined in reforma- word, Every if or possible. sions school, tory, or reform or pen- industrial provision of a statute is some intended for itentiary, prison, of correction or house purpose accordingly given must be institution, any penal other under con- (cita- Berryman, 649 effect.” A.2d at 966 viction or sentence of a or is so omitted). “[L]anguage which is ca- tions while or awaiting confined confined than pable meaning of more one can be purpose other reason or and it is clear and unmistakable the context proof to a court of due
shown
record
the selection
usage by
meaning
of the
person
that such convict or
ill,
which is neither forced nor
necessary
strained.” Id.
and that it
that he
penal
all,
are
give
we
“most
she be removed
insti-
statute the
from such
tution,
power
the court
Penal
possible.”
shall have
sensible construction
*11
they
as
sentencing statutes
statutes,
look at other
particular,
in
are to be construed
year
the
section
strictly.
Id.
which was
existed
majori-
the
example,
For
was enacted.
81
¶
my opinion,
only
In
is
one
there
February
Act
to the
of
ty cites
section 81.
interpretation
reasonable
of
this statute
and
explains
P.L.
plain language
When the
of section 81
(which
and in
word,
enacted in 1905
exis-
whole,
was
giving
read as a
to each
effect
enacted),
at the time section 81
yet
each
in the context
tence
interpreting
word
section,
persons
of
to
who
only
the entire
the
reasonable
courts
directed
permitted
imprisoned
conclusion is that
the court is
one or more
to be
for
were
only
of
of a
place
to alter the
confinement
I under-
penitentiary.
to the state
years
prisoner.
ill
in section
seriously
Phrases
mandating the
that statutes existed
stand
the
81 such
“recommit him or her to
as
lengths
of confinement for certain
of
place
institution from which
or she was re-
he
notes,
and,
simi-
majority
as the
sentences
moved,”
“provide
and
care in some
for
today,
lar statutes exist
see
Pa.C.S.
institution,”
other
the
suitable
instruct
however,
9762;
I
agree
these
do
it
permitted
court on how is
to effectuate
sentencing
any bearing
other
statutes have
language
the
section
purpose of
81. This
interpretation of section 81.
on our
legislature
only
reveals that
intended
¶
Finally,
supports
case law
con-
to
modify
place
allow courts to
may only
clusion that
only
long
confinement and
as re-
for so
pursuant
confinement
to section
place of
quired
necessary
treatment
provide
to
Dunlavey,
In Commonwealth v.
to
prisoner
original
institution
appellant
(Pa.Super.2002),
A.2d 562
provide.
unable
petition
filed a
under section
(Dunlavey)
5 This conclusion is
bolstered
granted
petition
the trial court
and
and
placement’ of section 81 in the
scheme
Dunlavey’s original sentence of
modified
our
is enti-
consolidated statutes. Title 61
twenty years’ imprisonment
seven
tled,
Institutions,”
“Penal
Correctional
at 563.
years’ probation.
fifteen
entitled,
Chapter
of Title 61
“Re-
order, we
reversing the trial court’s
stated:
ception
Generally.”
and Care
Inmates
[ajppellate
[sec-
courts have found
sections,
1 is divided
Chapter
into several
prisoners
applies only to those
81]
tion
particular,
falls under
section
in prison
ill
become
while
who
heading
Re-
general
“Transfer and
and,
prisoner
ill
as
for the benefit of the
transfer of Inmates.”
included
Sections
prison population,
the rest
well as
general heading
under this
are
section
temporarily to a
should be transferred
(“Transfer
institutions; petition
between
where medical
more suitable institution
order;
re-
pleas;
consent of common
properly.
care can be administered
transfer”);
(“Escape
prisoner
section 82
Further,
prisoners
allege
must
course,
treatment”); and, of
removed for
prison
necessary for
to leave
it is
them
(“Illness
removal
prisoner;
section
prison
is unable to
because
treatment”).
headings
The
under
care,
prison-
medical
and the
adequate
only
81 are included refer
section
return
their medical
ers must
when
place,
inmates
the transfer of
complete.
shortening
reference
make no
sentences
reason.
Dunlavey,
564. As we stated
Id. at
of a
only
allows
for a
section 81
necessary
if it were
to examine
6 Even
transfer
institution
to a more suitable
history
prisoner
legislative
particular
of this
can
her
needs
statute,
should
his or
I do
believe that we
where
*12
met.
81 does
provide
caret,]” or,
Section
not
for the
adequate
with
medical
in other
permanent release of a prisoner.
words,
Id. at
prison
that
system
medical
Similarly,
n. 6.
in Commonwealth v.
lacks the
provide
resources to
the neces-
Tuddles,
(Pa.Su
782 A.2d
sary
Lightcap,
treatment.
Id. See also
per.2001), we
petitioner,
concluded that a
(“In
A.2d at 451-52
order to obtain relief
who sought release on house arrest or
petitioner
under 61 P.S.
a
must make
permission
jail
to leave the
unattended for
prima
a
claim
modification of
for
facie
appointments,
medical
not eligible
prima
or
To make a
transfer.
relief under section 81 because section 81
claim, petition
a
allege
must
that his
facie
only provides a court
authority
with
facility
current
lacks the resources to treat
“
transfer an inmate to ‘some other suit
him
compromises
or
his illness
able institution where be
collective health of the
holding
institution
”
administered.’
(quoting
at 563
61 him.”).
81)
in
(emphasis
original).
P.S.
Clearly,
¶ Complaints
about inadequate medi
a plain reading of section 81 and reference
cal care
quality
or about the
of care re
to relevant case law
reveals
courts do
facility
ceived
the current
do not estab
have
discretion to shorten
judg
prima
lish a
case
relief under
facie
ment of sentence under section 81. For
452-53;
Lightcap,
section 81.
806 A.2d at
reasons,
these
necessary
it is not
to delve
Deaner,
v.
Commonwealth
legislative
into the
history of section 81 to
(Pa.Super.2001).
In Lightcap,
ap
ascertain
meaning
of this statute.
pellant (Lightcap) petitioned for relief un
view,
Secondly,
in my
there
no
der section
alleging that his liver dis
need to remand this case for an additional
progressed
point
ease had
to the
where he
hearing. The trial court established a
transplant
need of a liver
and that
complete
record
taking testimony and
facility
state correctional
where he was
holding hearings, yet there is no evidence
incarcerated was
to provide
unable
this
to support
grant
the trial court’s
of relief
treatment. We
that Lightcap’s
concluded
under section 81.
petition
prima
established a
case for
facie
requires
9 Section 81
a petitioner to
and,
relief under section 81
since the trial
show
“due proof’ that he or she is
court dismissed his petition without a
“seriously ill”
necessary
and “that it is
hearing, we remanded for a hearing on the
he or she be removed from such penal
issue of what Lightcap’s medical needs
institution,”
61 P.S.
“either because
were and whether the state correctional
the inmate’s disease can not be treated
institution where he was incarcerated was
prison
quarantine.
as means of
capable
meeting
Light-
those needs.
The correct
applied
standard to have been
cap,
ny, hearings gravity was on the Ap-
pellant’s complaints condition and about quality received at SCI Cres- if Even SCI in- providing
son. Cresson care, yet
adequate has the resources care, necessary relief is not view, In my
available under section failed
Appellant to establish his “dis- See prison.”
ease can not be treated
Dunlavey, Accordingly, at 564. I
would reverse the trial court’s order relief
granting under section *15 Pennsylvania,
COMMONWEALTH of
Appellee
v.
Joseph LEVIN, Appellant.
Superior Pennsylvania. Court of
Argued Oct.
Filed Jan. McDermott, Philadelphia,
Barbara A. appellant.