Com. v. Deaner

• Decision Date: 28 June 2001
• Citation: 779 A.2d 578
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Victor Nick DEANER, Appellant.
• Court: Pennsylvania Superior Court

779 A.2d 578

COMMONWEALTH of Pennsylvania, Appellee, v. Victor Nick DEANER, Appellant.

Superior Court of Pennsylvania.

Submitted March 26, 2001.

Filed June 28, 2001.

Victor N. Deaner, appellant, pro se.

Susan E. Moyer, Asst. Dist. Atty., Lancaster, for Commonwealth, appellee.

Before: JOHNSON, ORIE MELVIN, and KELLY, JJ.

KELLY, J.

¶ 1 Appellant, Victor Nick Deaner, asks us to determine whether the trial court erred when it denied, without a hearing, his "Petition for Modification of Sentence Due to Illness." We hold that the trial court properly denied Appellant's petition where Appellant did not make a prima facie showing that his claim merited relief under 61 P.S. § 81. Accordingly, we affirm.

¶ 2 The relevant facts and procedural history of this appeal are as follows. Appellant is a diabetic with an extensive medical history. Aside from the physical infirmities generally associated with diabetes, Appellant has experienced frequent complications. Appellant has more difficulty regulating his blood sugar levels than most diabetics. The disease has caused a loss of feeling in his extremities and a constant burning sensation below his skin. Appellant's diabetes has also rendered him impotent and is responsible for gangrene of his right foot. To combat the gangrene, Appellant has undergone numerous operations that require the progressive removal of more tissue and bone from his right foot and leg. Appellant has also been plagued by blood clots. In the past, these clots have required multiple groin surgeries. Appellant complains that he currently has a blood clot in his head that requires immediate attention. Finally, Appellant has a history of heart disease. He suffered two heart attacks in 1993 that required triple bypass surgery.

¶ 3 On May 10, 1995, Appellant pled guilty to aggravated assault¹ for the 1994 stabbing of his estranged wife. The remaining charges of attempted criminal homicide² and kidnapping³ were nol prossed. On July 6, 1995, the trial court sentenced Appellant to 7½ to 20 years' incarceration. After spending approximately four years in jail, Appellant filed a petition to modify his sentence due to illness on April 7, 1999. After reviewing Appellant's voluminous medical records, the trial court denied Appellant's petition without a hearing. Appellant filed the instant appeal in due course.

¶ 4 Appellant raises the following issue for our review:

SHOULD APPELLANT'S "PETITION FOR SENTENCE MODIFICATION DUE TO ILLNESS" BE REMANDED BACK [SIC] TO THE [TRIAL] COURTS FOR FURTHER CONSIDERATION OF APPELLANT'S SERIOUS MEDICAL CONDITIONS[?]

(Appellant's Brief at 5).

¶ 5 As a prefatory matter, we determine whether Appellant's petition is subject to the time constraints of Pennsylvania's Post Conviction Relief Act ("PCRA").⁴ It is well settled that any collateral petition raising issues with respect to remedies offered under the PCRA will be considered a PCRA petition. See generally Commonwealth v. Fahy, 558 Pa. 313, 331-32, 737 A.2d 214, 223-24 (1999)

; Commonwealth v. Peterkin, 554 Pa. 547, 552-53, 722 A.2d 638, 640 (1998). However, a petition raising a claim for which the PCRA does not offer a remedy will not be considered a PCRA petition. Id. Thus, "the question then becomes whether petitioner had an available remedy under the PCRA...." Commonwealth v. Lusch, 759 A.2d 6, 8 (Pa.Super.2000).

¶ 6 Here, Appellant's petition to modify his sentence was filed under 61 P.S. § 81 and does not challenge the propriety of his conviction or sentence. Instead, the relief Appellant ultimately seeks is a transfer, or sentence modification, to provide for his special medical needs. This claim is not contemplated under the PCRA, nor is such a remedy available under the PCRA. Therefore, we do not consider Appellant's petition as a PCRA petition. Consequently, his claim is not subject to the eligibility requirements and/or time constraints of that Act.⁵Id. We now proceed to the merits of Appellant's issue.

¶ 7 Appellant argues that the trial court did not consider any evidence of his medical condition when ruling on the merits of his petition. Appellant contends that the trial court should have held a hearing to evaluate the seriousness of his medical condition and the incompetent and inattentive care he has been afforded in prison. Appellant concludes that the trial court's refusal to hold a hearing denied him due process of law. We disagree.

¶ 8 Appellant's claim is governed by 61 P.S. § 81, which provides:

Whenever any convict or person is confined in any jail, workhouse, reformatory, or reform or industrial school, penitentiary, prison, house of correction or any other penal institution, under conviction or sentence of a court, or is so confined while awaiting trial or confined for any other reason or purpose and it is shown to a court of record by due proof that such convict or person is seriously ill, and that it is necessary that he or she be removed from such penal institution, the court shall have power to modify its sentence, impose a suitable sentence, or modify the order of confinement for trial, as the case may be, and provide for the confinement or care of such convict or person in some other suitable institution where proper treatment may be administered. Upon the recovery of such person, the court shall recommit him or her to the institution from which he or she was removed.

61 P.S. § 81 (emphasis added).

This statute clearly applies only to those prisoners who become seriously ill while in prison and, for the benefit of the ill prisoner as well as the rest of the prison population, should be transferred temporarily to a more suitable institution where he or she can be administered properly.

Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442, 445 (1980).

¶ 9 In a similar case, the Fulton County Court of Common Pleas addressed the issue Appellant raises. See Commonwealth v. Lanehart, 15 Pa.D. & C.4th 599 (Pa.Com.Pl.1992),

affirmed, 427 Pa.Super. 643, 625 A.2d 91 (1992),appeal denied, 537 Pa. 622, 641 A.2d 587 (1994). In Lanehart, the petitioner, an inmate at SCI-Camp Hill, suffered from paraplegia. In his petition for relief under Section 81, Lanehart alleged that the substandard medical care he received at Camp Hill led to infections in his legs. Without a hearing, the court denied Lanehart relief on his claims, stating:

[D]efendant was "ill" prior to going to prison or, more accurately, suffered from paraplegia and its attendant complications. Defendant has not alleged that he cannot be treated medically at Camp Hill, but rather that his medical care has been neglected, i.e. that bandages have not been changed frequently enough, he has not been administered proper antibiotics, and that the physicians who treat him are incompetent. The statute under which defendant has sought relief is not intended to address alleged general shortcomings in the provision of medical care in the state prison system, which is the thrust of defendant's complaint. Rather, it is intended to provide for the removal of the individual seriously ill inmate for his good and the good of the institution.

* * *

Defendant has attempted to raise questions about the quality of medical care provided to him in the environment of the state corrections system, rather than the issue that the statute addresses, i.e. that it is necessary that he be removed from the current institutional setting to provide for his medical needs.

Id. at 601. Explaining why it denied Lanehart a hearing, the court said:

We denied a hearing in this matter because the petition which sought one did not set forth a ground for relief under the statute. Although defendant appears to believe that it is a per se denial of due process to deny him a hearing, he has

...