J-S19028-15
2015 PA Super 96
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN WYATT
Appellant No. 2343 EDA 2014
Appeal from the PCRA Order July 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0603901-1990
BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.
OPINION BY JENKINS, J.: FILED APRIL 24, 2015
Appellant Kevin Wyatt appeals from the order of the Philadelphia
County Court of Common Pleas treating his petition for writ of habeas corpus
as a petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. § 9541 et seq., and dismissing it as untimely. Although we agree
the trial court should not have treated the petition for writ of habeas corpus
as a PCRA petition, we deny relief. The appropriate vehicle for Appellant’s
claim is an original action filed in the Commonwealth Court of Pennsylvania,
not a petition for writ of habeas corpus.
In a previous appeal, this Court summarized the factual and
procedural history as follows:
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Following a 1992 trial, a jury found Appellant guilty of first-
degree murder, two counts of robbery, and criminal
conspiracy,[1] all stemming from the 1990 shooting death
of a jewelry store employee. On June 1, 1993, the trial
court sentenced Appellant to a term of life imprisonment
for the murder conviction and two consecutive terms of 10
years to 20 years in prison on the robbery charges, to be
served concurrently with his life sentence for murder. This
Court affirmed his judgment of sentence and our Supreme
Court denied his petition for allowance of appeal.
Commonwealth v. Wyatt, 688 A.2d 710
(Pa.Super.1997), appeal denied, 548 Pa. 681, 699 A.2d
735 (1997).
Appellant filed his first PCRA petition on September 18,
1997, alleging trial and appellate counsel ineffectiveness.
The PCRA court denied relief and this Court affirmed the
PCRA court’s rejection of four of his five claims. However,
we granted relief and ordered a new trial based on trial
counsel’s failure to object to an accomplice liability jury
instruction. Commonwealth v. Wyatt, 782 A.2d 1061
(Pa.Super.2001) (unpublished memorandum). Both
Appellant and the Commonwealth sought allocatur. Our
Supreme Court denied the Commonwealth’s petition on
October 15, 2002, Commonwealth v. Wyatt, 570 Pa.
698, 809 A.2d 904 (2002) (table), and denied Appellant’s
petition on June 3, 2003, Commonwealth v. Wyatt, 573
Pa. 697, 825 A.2d 1263 (2003) (table).
The case returned to the trial court for a new trial on the
charge of first-degree murder. On January 26, 2004,
Appellant entered a guilty plea to third-degree murder.[2]
The trial court imposed a sentence of ten years to twenty
years in prison, consecutive to the previously-imposed
robbery sentences.
On December 29, 2005, Appellant filed a second PCRA
petition, which was dismissed as untimely. This Court
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1
18 Pa.C.S. §§ 2502(a), 3701, and 903, respectively.
2
18 Pa.C.S. § 2502(c).
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affirmed the dismissal and our Supreme Court denied
Appellant’s petition for allowance of appeal.
On May 9, 2008, Appellant filed his third PCRA petition,
followed by a supplemental petition on November 24,
2008. In his third petition, Appellant challenged his
robbery convictions, claiming ineffectiveness resulting from
inadequate compensation paid to counsel for indigent
defendants. The PCRA court dismissed the petition as
untimely.
Commonwealth v. Wyatt, slip op., No. 3024 EDA 2009, at 2-3 (Pa.Super.
filed July 20, 2010). We affirmed the dismissal of the third PCRA petition.3
When the trial court re-sentenced Appellant following his guilty plea to
third-degree murder, the trial court ordered that Appellant “receive credit for
all time in this case.” Sentencing Order, 1/26/2004.
In December 2010, Appellant filed a petition for writ of habeas corpus
alleging the Department of Corrections erred in computing his sentence. 4
See, e.g., Petition for Writ of Habeas Corpus, received Dec. 7, 2010, at 7.
____________________________________________
3
Appellant has also filed numerous petitions for writ of habeas corpus in the
United States District Court for the Eastern District of Pennsylvania and has
filed petitions for review in the Commonwealth Court of Pennsylvania.
4
Appellant filed a “Petition for Writ of Habeas Corpus,” which the clerk of
quarter sessions received on December 7, 2010, and docketed on May 13,
2011. He filed an “Amended Petition for Writ of Habeas Corpus Pursuant to
42 Pa.C.S. § 6502, and Article I, § 14 of the Pennsylvania Constitution,”
which the clerk of quarter sessions received on December 10, 2010, and
docketed on February 11, 2011. On February 19, 2014, Appellant filed
another “Petition for Writ of Habeas Corpus.” Appellant’s Brief discusses
only his February 19, 2014 filing. The Commonwealth and the trial court
discuss all three filings, with the trial court stating Appellant filed his petition
on February 11, 2011, and filed two successive pro se pleadings. Opinion,
7/21/2014, at 1.
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On June 13, 2014, the Commonwealth filed a response. On June 23, 2014,
the trial court treated Appellant’s petition as a PCRA petition and issued
notice of its intent to dismiss the PCRA petition without a hearing pursuant
to Pennsylvania Rule of Criminal Procedure 907. On July 7, 2014, Appellant
filed a response to the notice of intent. On July 21, 2014, the trial court
issued an order and opinion dismissing Appellant’s petition as untimely.
On August 7, 2014, Appellant filed a timely notice of appeal and a
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b). On August 22, 2014, the trial court issued
an opinion adopting its July 21, 2014 opinion as its Rule 1925(a) opinion.
Appellant raises the following issue on appeal:
Whether the trial court conducted a reasonable, and
independent investigation of the facts and the relevant
legal principles before denying the motion for habeas
corpus as an untimely filed PCRA petition?
Appellant Brief at 1.
The PCRA provides:
The action established in this subchapter shall be the sole
means of obtaining collateral relief and encompasses all
other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect,
including habeas corpus and coram nobis. This subchapter
is not intended to limit the availability of remedies in the
trial court or on direct appeal from the judgment of
sentence, to provide a means for raising issues waived in
prior proceedings or to provide relief from collateral
consequences of a criminal conviction.
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42 P.C.R.A. § 9542. Accordingly, if the PCRA offers a remedy for an
appellant’s claim, it is the sole avenue of relief and the PCRA time limitations
apply. Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super.2013).
This Court has clarified the different claims a prisoner may raise
regarding credit for time served and the mechanisms for raising such claims:
If the alleged error is thought to be the result of an
erroneous computation of sentence by the Bureau of
Corrections, then the appropriate vehicle for redress would
be an original action in the Commonwealth Court
challenging the Bureau’s computation. If, on the other
hand, the alleged error is thought to be attributable to
ambiguity in the sentence imposed by the trial court, then
a writ of habeas corpus ad subjiciendum lies to the trial
court for clarification and/or correction of the sentence
imposed.
It [is] only when the petitioner challenges the legality of a
trial court’s alleged failure to award credit for time served
as required by law in imposing sentence, that a challenge
to the sentence [is] deemed cognizable as a due process
claim in PCRA proceedings.
Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa.Super.2014) (quoting
Commonwealth v. Perry, 563 A.2d 511 (Pa.Super.1989)).
In his petition for writ of habeas corpus, Appellant maintains the
Department of Corrections (“DOC”) miscalculated the credit for time served
awarded by the trial court. Petition for Writ of Habeas Corpus, filed February
19, 2014, at ¶ 8.5 This claim is not cognizable under the PCRA. See
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5
Appellant’s December 7, 2010 and December 10, 2010 filings claim both
that the DOC improperly calculated his credit and that the trial court’s order
was ambiguous. See, e.g., Petition for Writ of Habeas Corpus, received
(Footnote Continued Next Page)
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Heredia, 97 A.3d at 395. Accordingly, the trial court erred in treating
Appellant’s petition as a PCRA petition. However, a petition for writ of
habeas corpus is not the proper vehicle to raise his claim. Rather,
Appellant’s claim is cognizable as an original action in the Commonwealth
Court. See McCray v. Pa. Dept. of Corrections, 872 A.2d 1127, 1131
(Pa.2005) (“Where discretionary actions and criteria are not being contested,
but rather the actions of the Department in computing an inmate’s
maximum and minimum dates of confinement are being challenged, an
action for mandamus remains viable as a means for examining whether
statutory requirements have been met.”); Heredia, 97 A.3d at 395.6
_______________________
(Footnote Continued)
Dec. 7, 2010, at 2-4. His most recent filing of February 19, 2014, however,
only argued the DOC improperly calculated the credit. See Petition for Writ
of Habeas Corpus. Further, in his Rule 1925(b) statement and appellate
brief, Appellant only argues the DOC erred in its calculation; he does not
challenge the trial court’s order. Statement of Matters Complained of on
Appeal, at ¶ 3 (Appellant challenges the “prison authorities misinterpretation
of the trial court’s court-ordered credit for all time served in this case”);
Appellant’s Brief, at 4-5 (Appellant’s “disagreement was not with the trial
court’s . . . judgment of sentence . . ., but with the Department of
Corrections misinterpretation and/or miscalculation” of the credit for time
served). Thus, Appellant has waived any claim that the trial court order was
ambiguous. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.2005)
(any issue not in Rule 1925(b) statement is waived); Commonwealth v.
Heggins, 809 A.2d 908, 912 n.2 (Pa.Super.2002) (issues waived where not
contained in statement of questions presented or in any argument portion of
the brief).
6
Appellant has challenged the DOC’s calculation in the Commonwealth
Court of Pennsylvania at least three times, and the Commonwealth Court
has determined the DOC properly calculated his sentence. Wyatt v. Beard,
558 MD 2007, 2008 WL 9405258, at *3 (Pa.Cmwlth.Ct. July 25, 2008). The
(Footnote Continued Next Page)
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Because Appellant’s claim is not cognizable under the PCRA or in a
petition for writ of habeas corpus, we affirm the trial court’s dismissal of the
petition. See Commonwealth v. Clouser, 998 A.2d 656, 661 n.3
(Pa.Super.2010) (Superior Court can affirm trial court order on any basis).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
_______________________
(Footnote Continued)
Supreme Court of Pennsylvania affirmed this determination. Wyatt v.
Beard, 979 A.2d 847 (Pa. 2009).
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