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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

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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.



____________________________________________


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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