Appeal from the Order of November 16, 2010 In the Court of Common Pleas of Berks County Criminal Division at No.: CP-06-CR-0003310-1997
The opinion of the court was delivered by: Platt, J.
BEFORE: MUSMANNO, WECHT, and PLATT*fn1 , JJ.
Appellant, Russell Edwin Folk, appeals pro se from the trial court's order denying by operation of law his motion for modification of sentence due to an alleged terminal illness. We affirm.
On May 6, 1998, a jury convicted Appellant of two counts of rape, three counts of involuntary deviate sexual intercourse, one count of sexual assault, three counts of indecent assault, one count of endangering the welfare of a child, and one count of corrupting a minor. Appellant's convictions stemmed from charges that he sexually abused his eight-year- old grandson over a period of two years. On June 26, 1998, the court sentenced Appellant to a term of five to twenty years' imprisonment on the rape charge, and consecutive terms of six months to five years on the endangerment and the corruption of minors charges, with the remaining charges merging for sentencing purposes for an aggregate sentence of six to thirty years' imprisonment. (See N.T. Sentencing, 6/26/98, at 16-18). This Court affirmed the judgment of sentence on July 9, 1999. (See Commonwealth v. Folk, No. 1159 Harrisburg 1998, unpublished memorandum at 8 (Pa. Super. filed July 9, 1999)).
Appellant subsequently filed a counseled petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, which the PCRA court denied on September 26, 2000. This Court affirmed the denial, and our Supreme Court thereafter denied his petition for allowance of appeal. (See Commonwealth v. Folk, 792 A.2d 613 (Pa. Super. 2001) (unpublished memorandum), appeal denied, 805 A.2d 520 (Pa. 2002)).
On April 26, 2010, Appellant filed a pro se motion for modification of sentence pursuant to 61 P.S. § 81, alleging symptoms of an unspecified terminal illness and requesting that his sentence be modified to time served. The motion was denied by operation of law, and the clerk of courts entered an order to this effect on November 16, 2010.*fn2 Appellant timely appealed.*fn3
Appellant raises one question for our review:
1. Did the trial court abuse its discretion by denying [Appellant]'s request for relief by a modification of sentence pursuant to 61 Pa.C.S. [sic] § 81 due to [Appellant]'s terminal illness, i.e. compassionate relief or mercy?
(Appellant's Brief, at 4).
Preliminarily, we note that, effective October 13, 2009, 61 P.S. § 81 was replaced by 42 Pa.C.S.A. § 9777.*fn4 See Act 33 of Aug. 11, 2009, P.L. No. 147, No. 33, § 4. The new statute changed the requirements a prisoner must meet in order to be removed from prison for medical treatment by establishing all seven factors by clear and convincing proof. See 42 Pa.C.S.A. § 9777(a)(1). Section 9777 became effective six months before Appellant filed the motion underlying the instant appeal. Therefore, we are bound to apply the statutory law of our Commonwealth as it stands in the resolution of Appellant's claim, and accordingly, we review Appellant's petition under 42 Pa.C.S.A. § 9777.*fn5
Under the original statute, when examining a challenge to the trial court's denial of a petition pursuant to 61 P.S. § 81, the relevant standard and scope of review were as follows: "The appellate court will review the trial court's decision for an error of law. As with all questions of law, the appellate standard of review is de novo and the appellate scope of review is plenary." Commonwealth v. Kositi, 880 A.2d 648, 652 (Pa. Super. 2005) (quoting In re: Private Criminal Complaint of Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc)).
Under the current statute, an inmate may petition the sentencing court for temporary transfer to a hospital, long-term care nursing facility or hospice care location pursuant to 42 ...