               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Benchoff,                                 :
                       Appellant                 :
                                                 :
               v.                                : No. 916 C.D. 2015
                                                 : Submitted: October 2, 2015
Franklin County Payment Division                 :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                                  FILED: December 15, 2015

               Robert Benchoff, pro se, appeals the order of the Court of Common
Pleas of the 39th Judicial District, Franklin County Branch (trial court)1 dismissing
his complaint for the stated reason that it lacked subject matter jurisdiction.
Benchoff challenges the deductions made by the Franklin County Payment
Division (the County) from his inmate account. Benchoff asks this Court to
remand his complaint to the trial court for a decision on the merits of his
complaint. Discerning no merit to Benchoff’s jurisdictional argument, we affirm.
               On May 11, 2015, Benchoff filed a “Rule To Show Cause,”2
requesting the trial court to order the County to show why its garnishment of his

1
  We will refer to the “trial court” when addressing the proceedings that took place in the civil
action now before us; we will refer to the “sentencing court” when referring to Benchoff’s
criminal proceedings.
2
  In actuality, a trial court issues a rule to show cause upon petition seeking its issuance. See PA.
R.C.P. Nos. 206.4-206.6 (procedures for being granted a rule to show cause).
inmate account was an appropriate method for paying the costs imposed by the
sentencing court. Supplemental Reproduced Record at 1b (S.R.R. __). At issue
was a 1998 $540.40 assessment to reimburse the county sheriff’s office for
Benchoff’s transport from SCI-Waymart to a resentencing hearing.3 The trial court
dismissed Benchoff’s rule to show cause for lack of jurisdiction. The trial court
concluded that Benchoff should present his claim in a Post Conviction Relief Act
(PCRA)4 petition, filed under his criminal case caption and case number.
               On June 6, 2015, Benchoff appealed to this Court. Benchoff also filed
a motion for PCRA relief, as instructed by the trial court. The Commonwealth
responded by claiming the PCRA motion was untimely because it was Benchoff’s
third PCRA petition and was well beyond the one-year time bar. Further, Benchoff
did not raise any of the exceptions to the one-year deadline specified in Section
9545(a) and (b) of the PCRA.5 Benchoff’s judgment of sentence had become final


3
   In his “rule to show cause,” Benchoff also challenged two 1995 restitution awards totaling
$1316.43. However, in his brief to this Court, Benchoff states he is only seeking to challenge the
transportation cost assessment and has “waived” the “other claims regarding the restitution
imposed.” Benchoff Brief at 2.
4
  42 Pa. C.S §§ 9541-9546.
5
  It provides:
         (a) Original jurisdiction.--Original jurisdiction over a proceeding under this
         subchapter shall be in the court of common pleas. No court shall have authority to
         entertain a request for any form of relief in anticipation of the filing of a petition
         under this subchapter.
         (b) Time for filing petition.--
               (1) Any petition under this subchapter, including a second or
               subsequent petition, shall be filed within one year of the date the
               judgment becomes final, unless the petition alleges and the
               petitioner proves that:
                       (i) the failure to raise the claim previously was the
                       result of interference by government officials with
(Footnote continued on the next page . . .)
                                                2
on October 24, 2001, which made his first PCRA petition in 2004 untimely. In
2012, the sentencing court dismissed Benchoff’s second PCRA petition for the
same reason.
               On June 22, 2015, the sentencing court dismissed Benchoff’s third
PCRA petition. The trial court dismissed the petition for two reasons. First,
Benchoff failed to raise the issue of transportation costs in his prior PCRA
petitions. Section 9544(b) of the PCRA provides that issues not raised in a prior
post conviction proceeding are waived.6 Second, Benchoff’s third PCRA petition
was untimely and did not raise any grounds for an exception to the one-year statute
of limitations for filing a PCRA petition.


(continued . . .)
                        the presentation of the claim in violation of the
                        Constitution or laws of this Commonwealth or the
                        Constitution or laws of the United States;
                        (ii) the facts upon which the claim is predicated
                        were unknown to the petitioner and could not have
                        been ascertained by the exercise of due diligence; or
                        (iii) the right asserted is a constitutional right that
                        was recognized by the Supreme Court of the United
                        States or the Supreme Court of Pennsylvania after
                        the time period provided in this section and has
                        been held by that court to apply retroactively.
                (2) Any petition invoking an exception provided in paragraph (1) shall be
                filed within 60 days of the date the claim could have been presented.
                (3) For purposes of this subchapter, a judgment becomes final at the
                conclusion of direct review, including discretionary review in the Supreme
                Court of the United States and the Supreme Court of Pennsylvania, or at
                the expiration of time for seeking the review.
42 Pa. C.S. §9545(a), (b).
6
  It provides: “For purposes of this subchapter, an issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior
state postconviction proceeding.” 42 Pa. C.S. §9544(b).


                                                 3
              On appeal, Benchoff asserts that the trial court should address the
merits of the 1998 sentencing order and relieve Benchoff of the $540.40
assessment. He argues that the County is collecting an improper debt.7 The
County responds that the trial court did not err because only the sentencing court
can relieve him of this debt. Further, the proper defendant in such a proceeding is
the Commonwealth of Pennsylvania.
              We begin with a review of Benchoff’s criminal history. In 1995,
Benchoff was sentenced on two separate criminal convictions for incidents that
occurred on October 4, 1994, and December 25, 1994. On October 4, 1994, while
under a court order prohibiting him from having contact with his children,
Benchoff took his children from their school and threatened to kill himself and the
children. This resulted in a conviction for two counts of interference with custody.
On December 25, 2004, Benchoff broke into his estranged wife’s home and, in the
presence of the children, shot her with a stun gun and made numerous threats

7
 Benchoff also contends that the trial court’s order is a final order because it ended this claim
against the County in its entirety and directed him to pursue a futile PCRA petition. By
definition:
        A final order is any order that:
                (1) disposes of all claims and of all parties; or
                (2) is expressly defined as a final order by statute; or
                (3) is entered as a final order pursuant to subdivision (c) of this
                rule [involving multi-claim actions].
PA. R.A.P. 341. The finality of the order is not addressed by the trial court or the County. We
note that Pennsylvania Rule of Appellate Procedure 311(c) provides as follows for taking an
appeal as of right:
        An appeal may be taken as of right from an order in a civil action or proceeding
        changing venue, transferring the matter to another court of coordinate jurisdiction,
        or declining to proceed in the matter on the basis of forum non conveniens or
        analogous principles.
PA. R.A.P. 311(c).


                                               4
against her and her family. This resulted in a conviction for burglary, criminal
trespass and simple assault. Benchoff was sentenced consecutively on each of the
convictions, for an aggregate prison term of six to 34 years.
              Benchoff appealed to the Superior Court.            See Commonwealth v.
Benchoff, 700 A.2d 1289 (Pa. Super. 1997). The Superior Court determined that
his convictions for burglary and simple assault should have merged for sentencing
purposes because the crimes arose out of the same unlawful act. The sentence on
the charges of burglary, criminal assault and simple assault were vacated, and the
matter remanded for resentencing.
              On January 22, 1998,8 the sentencing court ordered the sheriff to
transport Benchoff from SCI-Waymart to the county prison for resentencing on
March 4, 1998. The order stated “[c]osts of said transportation to be paid by the
County of Franklin and taxed to the case in the above entitled matter.” S.R.R. 20b.
At the hearing, the sheriff introduced an invoice of $540.40 for costs of
transportation. S.R.R. 21b. It was added to the total amount Benchoff owed in
restitution, costs and fees.       Specifically, Benchoff was assessed $949.00 in
restitution and $1,075.40 in cost/fees.          On March 10, 1998, Benchoff was
sentenced to a term of six to 32 years, with a minimum release date of December
16, 2000, and a maximum release date of December 16, 2026.9 He was also
sentenced to “pay the costs of prosecution.” S.R.R. 13b.




8
  The transportation order incorrectly listed the year as “1997.” The Superior Court ordered
remand for resentencing on August 29, 1997. Benchoff agrees that the correct date was January
22, 1998. Benchoff Brief at 6.
9
  Benchoff is currently incarcerated at SCI-Camp Hill.


                                             5
            This leads to the issue before the Court, which is whether the trial
court had subject matter jurisdiction over Benchoff’s claim against the County
presented in his “rule to show cause.” We begin with a review of the relevant case
law precedent.
            In Commonwealth v. Williams, 909 A.2d 419 (Pa. Cmwlth. 2006), an
inmate challenged a withdrawal from his inmate account to pay an assessment for
transportation. He filed a petition under the caption and docket number for his
criminal case. The sentencing court concluded that it lacked jurisdiction, and
Williams appealed.     We held that “[c]osts must not be assessed except as
authorized by law, and the Commonwealth bears the burden of justifying such
costs by the preponderance of evidence.” Id. at 420-21. We concluded, therefore,
that the challenge belonged before the sentencing court and, thus, ordered a
remand.
            In Neely v. Department of Corrections, 838 A.2d 16 (Pa. Cmwlth.
2003), an inmate was ordered by the sentencing court to pay a fine of $50,000.
The inmate filed an action against the Department of Corrections to stop the
deductions from his inmate account for payment on this obligation. In response to
the Department’s preliminary objections, we held

            the avenue to challenge the payment of criminal fines is in a
            direct appeal or in post conviction relief under the Post
            Conviction Relief Act, 42 Pa. C.S. §§ 9541-9546. These are
            adequate remedies by which an offender in custody may
            challenge any aspect of the sentence.

Id. at 19. Accordingly, we sustained the Department’s preliminary objections and
dismissed the inmate’s petition.




                                        6
             Likewise, in Commonwealth v. Lyons, 830 A.2d 663 (Pa. Cmwlth.
2003), we identified the proceedings available to an inmate seeking to challenge a
sentence to pay costs, fines and restitution. We listed the available options as
follows:

             1) a motion for modification of the sentence under Pa. R.Crim.
             P. 720, which must be made within 10 days of the imposition of
             sentence; 2) a direct appeal of the sentence under Pa. R.A.P.
             Rules 901-911, notice of which must be given within 30 days of
             the imposition of sentence; 3) a petition for postconviction
             relief under the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541
             9546, which must be filed within one year of the date the
             judgment of sentence becomes final; or 4) a petition to amend
             an order of mandatory restitution made during a sentencing
             hearing, which may be filed at any time. 18 Pa.C.S. §
             1106(c)(2)(iii); see Com. v. Burke, 801 A.2d 1257 (Pa. Super.
             2002).

Lyons, 830 A.2d at 665.
             Because Benchoff’s challenge has been lodged more than a decade
after his sentencing order, it is too late for him to pursue a motion for modification
or a direct appeal under Pennsylvania Rules of Appellate Procedure 901-911.
Because he is not challenging an order of restitution, the fourth petition identified
in Lyons is irrelevant. This leaves the third petition, i.e., a petition for post
conviction relief, which is precisely what the trial court held to be the appropriate
procedure.
             Further, as explained in Williams, it is the Commonwealth’s burden to
justify the costs imposed on Benchoff. Accordingly, the appropriate defendant is
the Commonwealth, not the County.
             Benchoff’s most recent PCRA petition has been dismissed, but that
decision is not before us. The only question is whether the trial court erred in

                                          7
dismissing Benchoff’s action against the County. As established in Williams, Neely
and Lyons, Benchoff was properly directed by the trial court to seek whatever
relief may be available to him from the sentencing court.
            For the above-stated reasons, we affirm the trial court.

                                             ______________________________
                                             MARY HANNAH LEAVITT, Judge




                                         8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Benchoff,                     :
                   Appellant         :
                                     :
           v.                        : No. 916 C.D. 2015
                                     :
Franklin County Payment Division     :


                                   ORDER


           AND NOW, this 15th day of December, 2015, the order of the Court
of Common Pleas of the 39th Judicial District (Franklin County Branch), dated
May 18, 2015, is AFFIRMED.

                                         ______________________________
                                         MARY HANNAH LEAVITT, Judge
