D. Wheeler, Sr. v. DOC ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Damon Wheeler, Sr., :
Petitioner :
:
v. : No. 196 M.D. 2021
: Submitted: March 18, 2022
Department of Corrections, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: June 1, 2022
Damon Wheeler, Sr. (Petitioner), has filed a pro se second amended petition
for review in our original jurisdiction, requesting that we direct the Department of
Corrections (Department) to credit additional time served toward his sentence of
incarceration, and that we “dismiss” any fines, costs, or restitution he currently pays.
The Department responds by filing an amended preliminary objection in the nature
of a demurrer. After careful review, we sustain the amended preliminary objection
and dismiss Petitioner’s second amended petition for review with prejudice.
I. Background
Petitioner filed an initial petition for review on June 10, 2021, followed by an
amended petition for review on July 28, 2021, and a second amended petition for
review on August 2, 2021. Petitioner avers he is serving sentences of incarceration
related to three Cambria County docket numbers: CP-11-CR-0001294-2019 (Docket
1294), CP-11-CR-0001296-2019 (Docket 1296), and CP-11-CR-0001301-2019
(Docket 1301). Petitioner avers that he was first arrested in connection with his
crimes on May 11, 2019, and that he remained incarcerated continuously after that
date. According to Petitioner, the Cambria County Court of Common Pleas (trial
court) imposed sentence at Docket 1301 on June 22, 2020, and at Dockets 1294 and
1296 on March 15, 2021. Petitioner attaches sentencing orders from his cases to his
second amended petition for review, all of which direct that he receive credit for
time served. Despite this, Petitioner avers that the Department granted him credit
from only July 19, 2019, until his first sentencing on June 22, 2020.1 Petitioner
argues he should receive additional credit from the date of his initial arrest on May
11, 2019, until July 19, 2019, and from his first sentencing on June 22, 2020, until
his second sentencing on March 15, 2021.
Petitioner further avers that the trial court sentenced him to pay an aggregate
of $600 and no other fines, costs, or restitution. Petitioner argues that trial courts
imposing fines, costs, and restitution must hold a hearing to consider, among other
things, the defendant’s pecuniary gain from the crime and the ability to meet family
responsibilities. He avers there were no pecuniary gains from his crimes and that
his family responsibilities will prevent him from paying financial penalties. Thus,
Petitioner requests that this Court “dismiss[] with prejudice” all financial penalties
against him.2 Second Am. Pet. for Rev. ¶ 3q.
1
Petitioner explains in his brief that he was incarcerated upon his arrest in Philadelphia on May
11, 2019, and then transferred to Cambria County Prison on July 19, 2019. Pet’r’s Br. at 1.
2
In addition, Petitioner claims for the first time in his brief that the Department already deducted
the $600 it says he owes and yet continues to collect money from him. Pet’r’s Br. at 2, 5-6, 22-
23.
2
The Department filed a preliminary objection in the nature of a demurrer on
September 9, 2021, followed by an amended preliminary objection in the nature of
a demurrer on October 14, 2021. Petitioner filed an answer on November 29, 2021.
The Department avers Petitioner did not attach all relevant sentencing documents to
his second amended petition for review, most notably his Form DC-300B at Docket
1301.3 The Department provides this Court with Petitioner’s Form DC-300B, which
indicates that the trial court granted Petitioner 340 days of credit for time served at
Docket 1301, corresponding to the period from July 19, 2019, until Petitioner’s first
sentencing on June 22, 2020. The form further indicates that the trial court imposed
fines of $200, costs of $2,499.23, and a charge of $60 toward the Crime Victim’s
Compensation Fund. The Department avers the trial court ordered Petitioner’s credit
for time served and the financial penalties of his sentence. It contends that it has no
power to modify the sentence, and that, if Petitioner wanted to challenge his credit
for time served or any financial penalties, the trial court was the correct forum to do
so.
II. Discussion
In ruling on the Department’s amended preliminary objection, this Court must
limit its review to Petitioner’s second amended petition for review and any attached
documents or exhibits. Freemore v. Dep’t of Corr., 231 A.3d 33, 37 (Pa. Cmwlth.
2020) (quoting Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010)). While
“we accept as true all well-pleaded material allegations in the petition for review and
any reasonable inferences that we may draw from the averments,” we need not
3
At the time an inmate enters the Department’s custody, the sheriff or other transporting official
must provide, among other things, a copy of the inmate’s sentencing order and “a copy of the court
commitment form DC-300B generated from the Common Pleas Criminal Court Case Management
System . . . .” 42 Pa.C.S. § 9764.
3
accept legal conclusions, unwarranted factual inferences, argumentative allegations,
or opinions. Williams v. Wetzel, 178 A.3d 920, 923 (Pa. Cmwlth. 2018) (citing Meier
v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994)). We will sustain a preliminary
objection in the nature of a demurrer only if “it is clear and free from doubt that the
law will not permit recovery under the facts alleged.” Comrie v. Dep’t of Corr., 142
A.3d 995, 1000 n.10 (Pa. Cmwlth. 2016) (citing Allen v. Dep’t of Corr., 103 A.3d
365, 369 (Pa. Cmwlth. 2014)).
We begin our review by considering whether we may sustain the amended
preliminary objection based on information in Petitioner’s Form DC-300B, which
Petitioner did not reference in, or attach to, his second amended petition for review.
This constitutes an impermissible “speaking demurrer.” Smith v. Pa. Emps. Benefit
Tr. Fund, 894 A.2d 874, 877 n.3 (Pa. Cmwlth. 2006) (en banc) (citing Martin v.
Dep’t of Transp., 556 A.2d 969 (Pa. Cmwlth. 1989)). The Department proposes that
we review the Form DC-300B under a limited exception to the rule against speaking
demurrers. This exception applies to “‘documents filed in support of a demurrer
where a [petitioner] has averred the existence of certain . . . documents and premised
his cause of action upon those documents.’” Richardson v. Wetzel, 74 A.3d 353,
358 n.4 (Pa. Cmwlth. 2013) (quoting Barndt v. Dep’t of Corr., 902 A.2d 589, 591
n.2 (Pa. Cmwlth. 2006)). The Department’s position is tenuous because Petitioner
does not aver that the Form DC-300B exists, and he relies entirely on the text of the
trial court’s sentencing orders to pursue his claims. We therefore decline to rely on
the Form DC-300B when rendering our decision in this case.
Nonetheless, even excluding Petitioner’s Form DC-300B from our review, we
conclude we must sustain the Department’s amended preliminary objection. This
Court may take judicial notice of information contained in public dockets. Moss v.
4
SCI – Mahanoy Superintendent Pa. Bd. of Prob. & Parole, 194 A.3d 1130, 1137
n.11 (Pa. Cmwlth. 2018) (citing Deyarmin v. Consol. Rail Corp., 931 A.2d 1 (Pa.
Super. 2007)). Review of Petitioner’s public dockets readily demonstrates that he
has failed to state a claim for which we may grant him relief.
We first address Petitioner’s contention that he should receive credit for time
served starting on May 11, 2019, rather than July 19, 2019, and that he should receive
credit from his first sentencing on June 22, 2020, at Docket 1301 until his second
sentencing on March 15, 2021, at Dockets 1294 and 1296. As Petitioner maintains,
the trial court’s sentencing orders award him credit for time served at all three of his
cases. While the orders do not specify a particular amount of credit, Petitioner’s
public dockets indicate that the trial court’s June 22, 2020 sentence at Docket 1301
included a credit of 340 days. This supports the Department’s assertion that the trial
court determined Petitioner would receive credit beginning in July 2019, and that
the Department is complying with the trial court’s directive. It is the Department’s
duty to implement an inmate’s sentence. McCray v. Dep’t of Corr., 872 A.2d 1127,
1133 (Pa. 2005). While an inmate may file a petition for review requesting that the
Department correct a mistake in computing a sentence, the Department has no power
to modify a sentence at the inmate’s request. Id. at 1130-33. Even accepting for the
sake of argument that the trial court’s sentencing orders are ambiguous as to credit
for time served, Petitioner should have sought clarification from the trial court. See
Oakman v. Dep’t of Corr., 893 A.2d 834, 836-37 (Pa. Cmwlth. 2006) (citing Black
v. Dep’t of Corr., 889 A.2d 672 (Pa. Cmwlth. 2005)).
Moreover, although the trial court’s sentencing orders indicate that Petitioner
would receive credit for time served at all three cases, the public dockets indicate
that Petitioner’s sentences at Dockets 1294 and 1296 do not include credit. This is
5
consistent with our law, which provides that credit on a particular sentence “can only
be given when it has not already been credited against another sentence.” Taglienti
v. Dep’t of Corr., 806 A.2d 988, 992 (Pa. Cmwlth. 2002) (citing 42 Pa.C.S. § 9760).
Once the trial court granted Petitioner credit at Docket 1301 for the period from his
initial incarceration until his first sentencing on June 22, 2020, it could not grant that
credit again at Dockets 1294 and 1296. Similarly, once Petitioner began serving his
sentence at Docket 1301, he was no longer earning credit toward a future sentence.
His claim that he should receive credit for the time he was incarcerated between his
first sentence on June 22, 2020, and his second sentence on March 15, 2021, fails.
We next consider Petitioner’s challenge to the imposition of fines, costs, and
restitution. Regarding the first aspect of Petitioner’s claim, the trial court expressly
imposed certain financial penalties against him in its sentencing orders. Petitioner’s
argument appears to be that the trial court failed to follow the proper procedure and
consider the necessary factors when imposing those penalties.4 Because Petitioner
is challenging the trial court’s ability to impose the financial aspects of his sentence,
we conclude once again that the correct forum for Petitioner to pursue relief was the
trial court. George v. Beard, 824 A.2d 393, 396 (Pa. Cmwlth. 2003) (“[W]hile in
custody under sentence, an offender’s sole avenues to challenge payment of financial
aspects of the sentence are direct appeal or postconviction proceedings.”). As we
explained, it is the Department’s duty to implement Petitioner’s sentence. McCray,
4
For example, Petitioner invokes factors such as the defendant’s pecuniary gain from the crime
and the ability to pay. These factors relate to a trial court’s authority to impose a fine at sentencing.
42 Pa.C.S. § 9726(b)-(d) (providing, in relevant part, that a trial court may impose a fine in addition
to a sentence of confinement where, “the defendant has derived a pecuniary gain from the crime,”
but that the trial court shall not impose a fine “unless it appears of record that: . . . the defendant is
or will be able to pay the fine . . . .”).
6
872 A.2d at 1133. The Department lacks the power to modify Petitioner’s sentence
at his request. Id. at 1130-33.
Petitioner raised the second aspect of his claim, that the Department continues
to collect money from him despite having already deducted everything he owes, for
the first time in his brief. Because we must limit our review to the second amended
petition for review and any attached documents or exhibits, we cannot consider this
belated argument. See Freemore, 231 A.3d at 37. Even reaching the merits of this
argument, it would fail. Petitioner avers that the trial court sentenced him to pay an
aggregate of $600 and no other costs, fines, or restitution. Upon review, the trial
court’s sentencing orders direct Petitioner at Docket 1301 to pay $200 “for the use
of Cambria County,” $200 for the Substance Abuse Education Fund, and $200 for
the Special Administration Fund. Second Am. Pet. for Rev., Exs. Significantly, the
trial court also ordered Petitioner to pay the costs of prosecution. The public docket
lists a variety of costs, with the outstanding balance of all financial penalties totaling
over $1,300. Petitioner is simply mistaken in his belief that the trial court ordered
him to pay a total of only $600.5
III. Conclusion
We agree with the Department that Petitioner failed to state a claim for which
we may grant relief regarding his credit for time served and financial penalties. As
a result, we sustain the Department’s amended preliminary objection in the nature
5
The trial court also sentenced Petitioner to pay the costs of prosecution at Dockets 1294 and 1296
but included handwritten notations that payment should begin after Petitioner’s release.
7
of a demurrer, and we dismiss Petitioner’s second amended petition for review with
prejudice.6
_____________________________
STACY WALLACE, Judge
6
Petitioner attached a trial court order dated May 25, 2021, to his initial petition for review. This
order reads, “after a hearing with the Defendant pro se, and upon explanation of jurisdiction of the
Court, the Defendant’s Motion for Time Credit is DENIED.” Pet. for Rev., Exs. The order also
appears on Petitioner’s public docket at Docket 1301. This suggests that Petitioner has already
sought relief in the trial court, and that the trial court denied relief on jurisdictional grounds. We
are cognizant of the troubling possibility that Petitioner sought relief in the trial court, that the trial
court instructed Petitioner to seek relief here, and that we are now indicating that Petitioner should
have sought relief in the trial court, when the trial court has already declined to address Petitioner’s
claims. It is not our intent to “toss [Petitioner’s] claims back and forth, rather than adjudicating
those claims . . . .” Stockton v. Wetzel, 228 A.3d 1289, 1290 (Pa. 2020) (Wecht, J., concurring).
Rather, we conclude that our law requires us to dismiss. To the extent Justice Wecht’s concurring
statement in Stockton suggests we should transfer this case, rather than dismissing, we cite for its
persuasive value our recent unreported opinion in Burton v. Wetzel (Pa. Cmwlth., No. 130 M.D.
2021, filed Feb. 10, 2022). In that case, we concluded that we could not transfer a petition for
review action to the Court of Common Pleas, as the respondent in this Court was the Department’s
Secretary, John E. Wetzel, and the necessary respondent before the Court of Common Pleas would
be the Commonwealth, with the district attorney representing its interests. See also Lee v. Pa. Bd.
of Prob. & Parole, 251 A.3d 842, 848 (Pa. Cmwlth. 2021) (explaining that this Court could not
“simply transfer this matter to its original jurisdiction against an unnamed party”).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Damon Wheeler, Sr., :
Petitioner :
:
v. : No. 196 M.D. 2021
:
Department of Corrections, :
Respondent :
ORDER
AND NOW, this 1st day of June 2022, Respondent Pennsylvania
Department of Corrections’ amended preliminary objection in the nature of a
demurrer is SUSTAINED and the second amended petition for review of Petitioner
Damon Wheeler, Sr., is DISMISSED with PREJUDICE.
______________________________
STACY WALLACE, Judge