J-S05015-24
2024 PA Super 91
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMON SHAWN WHEELER :
:
Appellant : No. 624 WDA 2023
Appeal from the Order Entered May 18, 2023
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001294-2019,
CP-11-CR-0001296-2019, CP-11-CR-0001301-2019
BEFORE: PANELLA, P.J.E., KING, J., and BENDER, P.J.E.
OPINION BY PANELLA, P.J.E.: FILED: May 3, 2024
Damon Shawn Wheeler appeals from an order denying his motion
seeking relief in the form of direction to the Department of Corrections
concerning credit for time served in his above-captioned criminal matters.1
We affirm.
At trial court docket number 1301-2019, a jury convicted Wheeler of
four counts of conspiracy to possess with the intent to deliver and one count
of criminal use of a communication facility.2 On June 22, 2020, the trial court
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1 Wheeler filed a pro se appeal containing three docket numbers, in violation
of our Supreme Court’s holding in Commonwealth v. Walker, 185 A.3d 969
(Pa. 2018). Because the trial court issued a single order addressing the three
docket numbers in tandem, we accept this pro se appeal for review pursuant
to Commonwealth v. Larkin,
235 A.3d 350 (Pa. Super. 2020) (en banc).
2 18 Pa.C.S.A. §§ 903 and 7512(a).
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sentenced him to serve an aggregate term of incarceration of six to twelve
years, with credit for time served.
On March 15, 2022, at trial court docket number 1294-2019, Wheeler
pled guilty to one count of conspiracy to manufacture, deliver, or possess
Fentanyl.3 The trial court sentenced Wheeler to serve a term of five to ten
years’ incarceration, with credit for time served. The same day, at docket
number 1296-2019, Wheeler pled guilty to one count of possession with intent
to deliver or manufacture Fentanyl.4 Again, the trial court sentenced him to
serve a term of five to ten years of incarceration, with credit for time served.
Wheeler filed neither post-sentence motions nor direct appeals.
On March 13, 2023, at each of the three docket numbers, Wheeler filed
a pro se “motion to modify credit order.”5 The trial court held a hearing and
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3 18 Pa.C.S.A. § 903 and 35 P.S. § 780-113(a)(30).
4 35 P.S. § 780-113(a)(30).
5 It is undisputed that on September 2, 2021, Wheeler filed a petition for relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546,
addressing his convictions under the three docket numbers. The PCRA court
dismissed the petition on December 2, 2023, and this Court affirmed that
decision on April 4, 2024. See Commonwealth v. Wheeler, 23 WDA 2023,
____ Pa. Super. ___ (Pa. Super. filed 4/4/24) (unpublished memorandum).
Therefore, the instant motion was filed while the PCRA petition was pending.
However, as discussed infra, this motion was not cognizable under the PCRA.
Therefore, it did not run afoul of our Supreme Court’s mandate in
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), which prohibits the
filing of a subsequent PCRA petition while a prior PCRA petition is pending.
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on May 18, 2023, entered an order denying Wheeler’s motion. 6 This appeal
followed.
In his pro se brief to this Court, Wheeler speculates that the trial court’s
order somehow removed the credit for time served provision of his sentences
at docket numbers 1294-2019 and 1296-2019, which essentially amounts to
a request for resentencing.7 See Appellant’s Brief, at v.
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6 The pertinent text of the trial court’s order follows:
1. [Wheeler’s] Motion to Modify Credit Order is DENIED.
2. The [c]ourt finds no error in the Sentencing Orders that would
impact the Department of Corrections’ calculations of credit for
time served.
3. In the way of further explanation, the [c]ourt determined that at
cases 1294-2019, count 2 and 1296-2019, count 1, the effective
date of sentence is March 15, 2021. It appears no credit is
available at this sentence as a result of it being credited to the
case at 1301-2019. Based upon the [c]ourt’s review, it appears
the Department of Corrections’ calculations are accurate.
4. Any issues or disputes regarding credit for time served
calculations made by the Department of Corrections must be
raised before the Commonwealth Court of Pennsylvania.
Order, 5/18/23, at 1-2.
7 We observe Wheeler declares in his brief that “[a]s a pro se litigant, [his]
pleadings are held to standards less than an attorney.” Appellant’s Brief, at 2.
However, Wheeler is not entitled to any particular advantage because he lacks
legal training. “Although this Court is willing to liberally construe materials
filed by a pro se litigant, pro se status confers no special benefit upon the
appellant.” Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005)
(citation omitted). “To the contrary, any person choosing to represent himself
in a legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.”
Id. (citation omitted).
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Before we address the merits of his claim, we first consider whether the
relief sought in Wheeler’s motion is cognizable under the PCRA or properly
brought before the trial court. This Court has explained that “[a] challenge to
the trial court’s failure to award credit for time spent in custody prior to
sentencing involves the legality of sentence and is cognizable under the
PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super 2007)
(citation omitted).
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. Wyatt, 115 A.3d 876, 880 (Pa. Super. 2015) (citation
omitted); see also, 42 Pa.C.S.A. § 761(a)(1) (“The Commonwealth Court
shall have original jurisdiction of all civil actions or proceedings … [a]gainst
the Commonwealth government, including any officer thereof, acting in his
official capacity….”).
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Upon review of the record, it is apparent that the trial court did award
Wheeler credit for time served. See Sentencing Orders, Docket No. 1301-
2019, 6/22/20, at 1-2; Docket No.1294-2019, 3/15/21, at 1; and Docket No.
1296-2019, 3/15/21, at 1. Our further review of the record reflects that
Wheeler is arguing that the Department of Corrections misapplied his credit
for time served. Specifically, in his motion filed with the trial court, Wheeler
presented the following as a basis for relief:
The DOC rule and law, that is being cited to not comply with the
[c]ourt’s 6/22/20 and 3/15/21 signed Sentencing Orders for
Credit for Time Served in Custody applies to sentences when the
person was on parole, probation or serving a sentence prior to the
new charged offense resulting in a new conviction and new
imposed sentence. That is not the case in this matter and
therefore, the rule and law is inapplicable, but mistakenly
being applied, and used to not comply with the judicial
mandates, terms, conditions and the manner of the
attached Sentencing Orders of 6/22/20 and 3/15/21.
Motion, 3/13/23, at 2, ¶ 7 (verbatim) (emphasis in original).
Because the trial court granted credit for time served at the time it
imposed the sentences and Wheeler does not challenge the legality of an
alleged failure to award credit for time served, the claim is not cognizable
under the PCRA. Moreover, because the claim raised by Wheeler in his motion
to the trial court challenges the Department of Corrections’ application of his
credit for time served, the challenge was not properly before the trial court.
See Wyatt, 115 A.3d at 880. Accordingly, we affirm the trial court’s order
denying relief on the basis that it lacked jurisdiction. Our affirmance of the
trial court’s decision is without prejudice to Wheeler’s right to pursue his
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challenge to the Department of Corrections computation of credit in an original
action in the Commonwealth Court.8
Order affirmed.
DATE: 05/03/2024
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8 We decline to transfer this appeal to our sister court because the
Commonwealth’s Court’s case law precludes it from employing its original
jurisdiction to engage in appellate review of this issue as presented. See
Commonwealth v. Schill, 647 A.2d 695, 696 (Pa. Cmwlth. 1994)
(dismissing case and stating that “although this court has jurisdiction to
adjudicate a time credit issue concerning the department, this type of case
must be addressed to our original jurisdiction … and cannot be brought in a
post-conviction relief challenge initiated in a court of common pleas.”).
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