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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN WYATT
Appellant No. 2343 EDA 2015
Appeal from the Order June 30, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0603901-1990
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED JUNE 22, 2016
Kevin Wyatt appeals, pro se, from the June 30, 2015, order entered by
the Philadelphia County Court of Common Pleas that dismissed his petition
for writ of habeas corpus ad subjiciendum,1 seeking relief from the January
26, 2004, judgment of sentence to serve an aggregate term of 30 to 60
years’ imprisonment for third-degree murder and two counts of robbery.2
Wyatt contends the trial court erred in dismissing his petition for habeas
corpus relief, specifically claiming the Pennsylvania Department of
Corrections (“DOC”) failed to credit him with time served. After a thorough
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1
42 Pa.C.S. §§ 6501–6505.
2
18 Pa.C.S. §§ 2502(c) and 3701, respectively.
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review of the submissions by the parties, relevant law, and the official
record, we affirm.
Wyatt’s convictions stem from the 1990 shooting death of a jewelry
store employee. In 1992, a jury found Wyatt guilty of first-degree murder,
two counts of robbery, and criminal conspiracy.3 On June 1, 1993, the court
sentenced Wyatt to a term of life imprisonment for the murder conviction,
and two consecutive terms of 10 to 20 years in prison on the robbery
charges, to be served concurrently with the murder sentence.4 A panel of
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, 699 A.2d 735 (Pa. 1997).
Wyatt then filed a petition for relief pursuant to the Post Conviction
Relief Act (“PCRA”)5 on September 18, 1997, alleging trial and appellate
counsel ineffectiveness. The PCRA court denied relief, and a panel of this
Court affirmed the court’s dismissal of four of his five claims. However, the
panel granted relief and ordered a new trial on the charge of murder based
on trial counsel’s failure to object to an accomplice liability jury instruction.
Commonwealth v. Wyatt, 782 A.2d 1061 [02050 EDA 99] (Pa. Super.
____________________________________________
3
18 Pa.C.S. §§ 2502(a), 3701, and 903, respectively.
4
No further penalty was imposed with respect to the conspiracy charge.
5
42 Pa.C.S. §§ 9541-9546.
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2001) (unpublished memorandum). Both Wyatt and the Commonwealth
sought allocatur. The Pennsylvania Supreme Court denied the
Commonwealth’s petition on October 15, 2002, Commonwealth v. Wyatt,
809 A.2d 904 (Pa. 2002), and denied Wyatt’s petition on June 3, 2003,
Commonwealth v. Wyatt, 825 A.2d 1261 (Pa. 2003).
Subsequently, the matter returned to the trial court for a new trial
solely on the charge of first-degree murder. On January 26, 2004, Wyatt
entered a guilty plea to third-degree murder. That same day, the trial court
imposed a sentence of ten years to twenty years in prison, consecutive to
the previously imposed robbery sentences. No direct appeal was taken from
that conviction and sentence. Instead, since that time, Wyatt has inundated
the courts with numerous petitions,6 raising an assortment of requests and
claims. None of these petitions has provided Wyatt any relief.7
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6
Wyatt has filed several PCRA petitions with the common pleas court, and
has also filed numerous petitions for writ of habeas corpus in the United
States District Court for the Eastern District of Pennsylvania as well as
petitions for review in the Commonwealth Court of Pennsylvania.
7
Pertinent to this appeal, in December of 2005, Wyatt filed a PCRA petition,
alleging that he was entitled to credit for time served upon the judgment of
sentence entered on January 26, 2004. See Commonwealth v. Wyatt,
935 A.2d 27 [3233 EDA 2006] (Pa. Super. 2007) (unpublished memorandum
at 4). A panel of this Court found:
[T]o the extent that appellant has a complaint, it is with the
computation of his sentence by the Department of Correction
(DOC). Such a claim is not cognizable under the PCRA since an
allegation that the DOC miscalculated a sentence does not
(Footnote Continued Next Page)
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It merits mention that most recently, in December of 2010, Wyatt filed
a petition for writ of habeas corpus, which was not docketed until May 13,
2011.8 The case went dormant until Wyatt filed another petition for writ of
habeas corpus, which was docketed on February 19, 2014. In this petition,
Wyatt maintained the DOC miscalculated the credit for time served awarded
by the trial court. See Petition for Writ of Habeas Corpus, 2/19/2014, at ¶
8. The Commonwealth responded on June 13, 2014. The trial court treated
the petition as a PCRA petition, and after providing Pa.R.Crim.P. 907 notice,
the court dismissed the petition without a hearing on July 21, 2014. Wyatt
appealed. On April 24, 2015, a panel of this Court, in a published opinion,
determined the trial court erred in treating Wyatt’s petition as a PCRA
petition since his claim was not cognizable under the PCRA. See
_______________________
(Footnote Continued)
implicate the legality of a sentence imposed. Rather, a claim of
an erroneous calculation by the DOC should be filed directly with
the DOC or in an original action before the Pennsylvania
Commonwealth Court.
Id. at 8.
Furthermore, Wyatt challenged the DOC’s calculation in the
Commonwealth Court on at least three occasions, and the Commonwealth
Court decided the DOC properly calculated his sentence. See Wyatt v.
Beard, Docket No. 558 M.D. 2007, 2008 WL 9405258 (Pa. Commw. 2008)
(unpublished memorandum), aff'd, 979 A.2d 847 (Pa. 2009).
8
Additionally, in December of 2010, Wyatt filed an amended petition for writ
of habeas corpus, which was not docketed until February 11, 2011.
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Commonwealth v. Wyatt, 115 A.3d 876, 880 (Pa. Super. 2015).
However, the panel also noted the following:
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, 386 Pa. Super. 534,
563 A.2d 511 (1989)).
Wyatt, 115 A.3d at 879.
Therefore, the panel concluded that “a petition for writ of habeas
corpus is not the proper vehicle to raise [Wyatt’s] claim. Rather, [Wyatt’s]
claim [was] cognizable as an original action in the Commonwealth Court [of
Pennsylvania].” Id. Accordingly, it denied relief by affirming the court’s
dismissal of the petition.
Instead of filing a petition with the Commonwealth Court, Wyatt filed
the current pro se petition for writ of habeas corpus ad subjiciendum on May
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22, 2015, claiming that his sentence was “misinterpreted by the Bureau of
Corrections Records Department.” Petition for Writ of Habeas Corpus Ad
Subjiciendum, 5/22/2015, at 4.
The trial court again provided Rule 907 notice on May 26, 2015, and
Wyatt filed a pro se response on June 2, 2015. On June 30, 2015, the court
found the following: “Because [Wyatt] improperly filed it as another petition
for writ of habeas corpus, despite the clear directions of the Superior Court
in [Commonwealth v. Wyatt, 115 A.3d 876 (Pa. Super. 2015)], [Wyatt]’s
petition is dismissed.” Trial Court Opinion, 6/30/2015, at unnumbered 1-2.
This timely appeal followed.9
We note Wyatt’s sole argument on appeal is a facsimile of his petition
for writ of habeas corpus ad subjiciendum. Specifically, Wyatt argues, “This
petition is properly construed as a challenge to repeated illegal actions by
the Bureau of Corrections” and the “judge who imposed his legal sentence …
is best qualified to consider prison official ‘incorrect computation’ of its court-
ordered sentence that [Wyatt] is to ‘receive credit for all time served in this
case[.’”] Wyatt’s Brief at 4, 5. Moreover, he asserts, “Based on this record,
prison officials erroneously argue[d] that the trial court’s written sentencing
order in this case did not state that it would commence from the date of
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9
The court did not order Wyatt to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). On August 10, 2015, the
trial court issued an opinion under Pa.R.A.P. 1925(a), adopting its June 30,
2015, opinion, which discussed its rationale for dismissing Wyatt’s petition.
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[Wyatt]’s first life concurrent sentence in 1990 for the same act or acts.”
Id. at 5. Additionally, he states, “This ping-pong game the Bureau of
Corrections is playing with [his] January 26, 2004 court-ordered sentence
would almost be comical if petitioner had not been in custody pass[ed] his
court-ordered minimum term.” Id. at 3.
Our standard of review regarding a writ of habeas corpus is well-
settled:
On appeal, a trial court’s decision to grant or deny a petition for
a writ of habeas corpus will not be reversed absent an abuse of
discretion. Instead, it involves bias, prejudice, partiality, ill-will,
manifest unreasonableness, or a misapplication of the law. In
contrast, a proper exercise of discretion conforms to the law and
the facts of record.
Commonwealth v. Carroll, 936 A.2d 1148, 1152–1153 (Pa. Super. 2007),
appeal denied, 947 A.2d 735 (Pa. 2008).
We note that in essence, Wyatt attempts to argue there is an error
that is attributable to an ambiguity in his sentence pursuant to Heredia,
supra,10 and therefore, a petition for writ of habeas corpus ad subjiciendum
is his proper avenue of relief. We find that his argument fails for several
reasons.
First, both the trial court and the Commonwealth agree that based
upon Wyatt’s previous filings, he has waived any claim that his January 26,
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10
See also Wyatt, 115 A.3d at 879.
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2004, sentencing order was ambiguous.11 The trial court found the
following: “[Wyatt] attempts to take another bite at the apple and claims in
his petition for writ of habeas corpus that the Department of Corrections has
failed to credit [him] with serving twelve and one half years of
incarceration.” Trial Court Opinion, 6/30/2015, at unnumbered 2. Indeed,
as the prior Wyatt panel noted:
[Wyatt]’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 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, [Wyatt] 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 ([Wyatt]
challenges the “prison authorities misinterpretation of the trial
court’s court-ordered credit for all time served in this case”);
[Wyatt]’s Brief, at 4–5 ([Wyatt]’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, [Wyatt] has
waived any claim that the trial court order was ambiguous.
Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775, 780
(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).
Wyatt, 115 A.3d at 880 n.5.
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11
See Trial Court Opinion, 6/30/2015, at unnumbered 2, n.2;
Commonwealth’s Brief at 9.
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Accordingly, we also find the claim waived. See Chadwick v.
Caulfield, 834 A.2d 562, 566-567 (Pa. Super. 2003) (finding that although
“the doctrine of res judicata does not apply to habeas corpus proceedings[.]
… In order to discourage repetitive petitions and to provide a degree of
finality, it is settled that, absent unusual circumstances or an intervening
change of law, a court may refuse to entertain a contention which has been
fully considered on a prior petition for collateral relief.”), quoting
Commonwealth ex rel. Bordner v. Russell, 221 A.2d 177, 179 (Pa.
1966);12 see also Commonwealth ex rel. Frey v. Banmiller, 135 A.2d
816, 816 (Pa. Super. 1957) (holding that defendant’s second petition for writ
of habeas corpus, which raised substantially similar questions as those
raised in his first petition for habeas corpus, was properly dismissed).
Second, assuming arguendo that Wyatt had not waived this issue, we
would find it to be meritless as there is no ambiguity to his January 26,
2004, sentence as it is evident from the 2008 decision by Commonwealth
Court:
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12
Moreover, in Bordner, this Court also stated:
[E]ven a contention which was not previously considered on the
merits may be foreclosed if the question could have been raised
on a prior petition but was deliberately withheld in order to
preserve a claim for a subsequent petition. The ‘waiver’ imputed
under such circumstances has traditionally been articulated in
terms of an ‘abuse of the writ.’
Bordner, 221 A.2d at 179-80 (citations omitted).
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We note that [Wyatt] has now filed three separate petitions for
review alleging the same facts and the same legal issues before
this Court. In the present petition for review, [Wyatt] adds the
phrase “newly discovered records” in an attempt to differentiate
this third filing from his previous petitions for review. As noted
above, the “newly discovered records” refers to our Superior
Court’s August 8, 2007, opinion citing the trial court’s sentencing
order dated January 26, 2004, which directed that [Wyatt]
receive credit for all time served.
Nevertheless, [Wyatt] neglects the fact that neither the
Secretary nor the Department of Corrections has ever disputed
that [Wyatt] should receive credit for time served as of August
14, 1991. Essentially, Petitioner is once again challenging the
manner in which his sentences were calculated. However, we
have previously concluded that the evidence of record in
[Wyatt]’s case reveals that the sentences were properly
calculated/aggregated and that [Wyatt] is really seeking
what amounts to an impermissible double credit. [Wyatt]
has not and cannot point to any legal authority entitling him to
such double credit.
Additionally, and more significantly, although [Wyatt] attempts
to create an issue in this third petition for review based on
“newly discovered records,” his factual allegations and his
recitation of legal issues in this petition and his prior petitions
are indistinguishable. As this Court has previously considered
those allegations and legal arguments, and has issued decisions
and orders in which it dismissed [Wyatt]’s prior petitions for
review based on their identical substantive facts and legal
issues, we conclude that the re-litigation of those issues is
prohibited by the doctrine of collateral estoppel.
Wyatt v. Beard, No. 558 M.D. 2007, 2008 WL 9405258, at *3 (emphasis
added).13 Therefore, even if Wyatt’s claim was properly preserved, it would
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13
We note we are not bound by the decisions of the Commonwealth Court.
Commonwealth v. Thomas, 814 A.2d 754, 759 n.2 (Pa. Super. 2002).
Nevertheless, this decision is pertinent and persuasive authority and helpful
in our review of the issue presented.
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be meritless. Accordingly, we conclude that the trial court properly treated
Wyatt’s claim under habeas review and agree that he was not entitled to
relief.
Order affirmed.
Judge Dubow joins the memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2016
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