S. Burton v. J.E. Wetzel (Sec'y. of Corrections)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean Burton, :
Petitioner :
:
v. :
:
John E. Wetzel (Secretary of :
Corrections), : No. 130 M.D. 2021
Respondent : Submitted: December 17, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 10, 2022
Before this Court is the Pennsylvania Department of Corrections
(DOC) Secretary John E. Wetzel’s (Respondent) Preliminary Objection to Sean
Burton’s (Petitioner) Petition for Review (Petition) filed in this Court’s original
jurisdiction. After review, this Court sustains the Preliminary Objection and
dismisses the Petition.
Facts
On March 21, 2011, a jury found Petitioner guilty of first-degree
murder, and, on May 24, 2011, the Delaware County Common Pleas Court
(sentencing court) sentenced him to life imprisonment without parole. See Petition
¶ 1; see also Petition Ex. B. The sentencing court ordered Petitioner to pay
restitution to Cathy Stropas, the victim/decedent’s mother, in the amount of
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
$8,254.79 for funeral expenses. See id. Petitioner recently discovered that Cathy
Stropas passed away on January 13, 2015. See Petition ¶ 3; see also Petition Ex. A.
Notwithstanding, DOC began making deductions from Petitioner’s inmate account
on May 13, 2015, for the funeral expenses. See id. Specifically, DOC has been
taking deductions from the nominal gifts of money Petitioner’s family and friends
have sent to his account, as well as his inmate pay, which is $55.00 per month. See
Petition ¶ 2.
On April 19, 2021, Petitioner filed the Petition requesting that “this
Honorable Court issue an ORDER terminating the order of the [sentencing] court
and reimburse all the funds taken from [P]etitioner’s inmate account with interest.”
Petition at 2. By July 8, 2021 Order, this Court directed Respondent “to file an
answer or otherwise plead within 30 days from the exit date of this order.” Id. On
August 5, 2021, Respondent filed the Preliminary Objection, alleging that
Petitioner’s request to terminate his restitution obligation must be directed to the
sentencing court.
Discussion
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced
therefrom. The Court need not accept as true conclusions
of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. In order to sustain
preliminary objections, it must appear with certainty that
the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the [petition for review in the
nature of a] complaint and all inferences reasonably
deducible therefrom. It tests the legal sufficiency of the
challenged pleadings and will be sustained only in cases
where the pleader has clearly failed to state a claim for
2
which relief can be granted. When ruling on a demurrer,
a court must confine its analysis to the [petition for review
in the nature of a] complaint.
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (emphasis added;
citations omitted). “‘[C]ourts reviewing preliminary objections may not only
consider the facts pled in the [petition for review], but also any documents or exhibits
attached to it.’ Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).”
Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 311 n.1 (Pa. Cmwlth. 2019).
Here, Respondent argues that the Petition should be dismissed because
Petitioner must seek modification of his restitution order by filing a motion with the
sentencing court, rather than by a civil action seeking an injunction against
Respondent.
This Court has explained: “[I]f an inmate seeks to end [what is
commonly known as] Act 84 deductions by removing financial obligations from
his original sentence, the request to modify sentence should be heard by the
common pleas court regardless of the place of confinement.”2 Commonwealth v.
Parella, 834 A.2d 1253, 1256 (Pa. Cmwlth. 2003) (emphasis added).
2
On June 18, 1998, the General Assembly passed Act 84, which amended Section 9728 of
the Sentencing Code, 42 Pa.C.S. § 9728, by adding subsection (b)(5). Section 9728(b)(5) of the
Sentencing Code permits DOC to collect fines, costs, and restitution from inmate prison accounts
and forward the funds to the sentencing county. Section 9728(b)(5) of the Sentencing Code states,
in relevant part:
Deductions shall be as follows:
(i) [DOC] shall make monetary deductions of at least 25% of
deposits made to inmate wages and personal accounts for the
purpose of collecting restitution, . . . and any other court-ordered
obligation.
(ii) [DOC] shall:
(A) Be authorized to make monetary deductions from inmate
wages and personal accounts for the purpose of collecting
restitution, . . . and any other court-ordered obligation or fees
owed to the county jail or prison related to the inmate’s
incarceration.
3
An offender may request modification of a sentence in one
of several ways: 1) a motion for modification of the
sentence under [Pennsylvania Rule of Criminal
Procedure] 720, which must be made within 10 days of the
imposition of sentence; 2) a direct appeal of the sentence
under [Pennsylvania Rules of Appellate Procedure] 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. [See Section 1106(c)(2)(iii) of the Crimes
Code,] 18 Pa.C.S. § 1106(c)(2)(iii); see Comm[onwealth]
v. Burke, 801 A.2d 1257 (Pa. Super. 2002).
Commonwealth v. Lyons, 830 A.2d 663, 665 (Pa. Cmwlth. 2003) (emphasis added).
Because Petitioner “has clearly failed to state a claim for which relief can be granted”
by this Court, Respondent’s Preliminary Objection is sustained. Torres, 997 A.2d
at 1245.
This Court acknowledges that, pursuant to Section 5103(a) of the
Judicial Code: “A matter which is within the exclusive jurisdiction of a court . . . of
this Commonwealth but which is commenced in any other tribunal of this
Commonwealth shall be transferred by the other tribunal to the proper court . . .
of this Commonwealth . . . .” 42 Pa.C.S. § 5103(a) (emphasis added). However, in
the instant case, Respondent is not a party to the criminal action at the criminal
docket. Rather, the Commonwealth’s interests in the criminal matter are represented
by the District Attorney. See Commonwealth v. Jury, 636 A.2d 164 (Pa. Super.
1993). Because the District Attorney is not named in the caption of Petitioner’s
(B) Deduct an amount sufficient to satisfy any outstanding
restitution, . . . or other court-ordered obligations before
releasing funds on deposit.
42 Pa.C.S. § 9728(b)(5).
4
Petition, rather than transfer the matter to the sentencing court, this Court must
dismiss the Petition. See Borsello v. Colleran, 833 A.2d 1213, 1215 (Pa. Cmwlth.
2003) ([T]rial court did not err in not transferring case to this Court because, inter
alia, “the [Pennsylvania] Board [of Probation and Parole, the proper party,] is not a
party named in the caption of the petitioner’s petition.”).
For all of the above reasons, Respondent’s Preliminary Objection is
sustained, and the Petition is dismissed.
_________________________________
ANNE E. COVEY, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean Burton, :
Petitioner :
:
v. :
:
John E. Wetzel (Secretary of :
Corrections), : No. 130 M.D. 2021
Respondent :
ORDER
AND NOW, this 10th day of February, 2022, the Pennsylvania
Department of Corrections Secretary John E. Wetzel’s Preliminary Objection to
Sean Burton’s Petition for Review (Petition) is SUSTAINED, and the Petition is
DISMISSED.
_________________________________
ANNE E. COVEY, Judge