Opinion
No. 561 M.D. 2012
05-17-2013
Shameek Adams, Petitioner v. Dept. of Corrections Records, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Before this court in our original jurisdiction are the preliminary objections of the Pennsylvania Department of Corrections (DOC) to a petition for review in the nature of mandamus filed, pro se, by inmate Shameek Adams asking this court to direct DOC to credit his sentence with time served. We overrule DOC's preliminary objections.
In his petition for review, Adams claims that DOC inappropriately changed his minimum sentence date to October 27, 2013, without crediting him for 119 days of time served between April 24, 2008, and August 21, 2008. Adams includes the calculation that he believes is appropriate, which leads to a minimum sentence date of June 30, 2013.
Adams is currently an inmate at the State Correctional Institution at Frackville. On February 9, 2004, Adams received an 18- to 36-month sentence (original sentence) for drug manufacture/sale/delivery or possession with intent to deliver. Adams states that his maximum sentence date for the original sentence was October 19, 2007. Conversely, paperwork from the Pennsylvania Board of Probation and Parole (Board) indicates that Adams did not complete his original sentence until March 13, 2009. (Board Letter, 7/9/12, at 1.) From the record before us, we cannot determine when the Board relinquished jurisdiction over Adams.
The record is murky on this maximum sentence date. It is unclear as to when and why the original maximum sentence date of August 2, 2007, became October 19, 2007. We can only gather that Adams owed 78 days in backtime, which accounts for the difference. The record is also unclear as to why Adams owed backtime in addition to the original sentence.
We note that Adams has made numerous attempts to resolve the situation with DOC and the Board. Adams has asked the Board to examine its records regarding the original sentence expiration date. The Board found the request to be moot because, regardless of whether Adams completed his original sentence on March 13, 2009, or October 19, 2007, he is no longer under the supervision of the Board. (Board Letter, 7/9/12, at 1.)
On April 24, 2008, authorities arrested Adams for delivery of a controlled substance. Adams remained in prison until August 22, 2008, when he posted bail. On October 24, 2008, he pled guilty to five counts of delivery of a controlled substance. On October 27, 2008, the Court of Common Pleas of Delaware County (trial court) sentenced him to 5 to 10 years (new sentence). Based on this new sentence, DOC calculated his minimum sentence date as October 27, 2013. Adams, in his petition, asks this court to compel DOC to properly compute the calculation of his sentence reflecting all appropriate credit.
DOC argues in its preliminary objections that Adams' petition for review seeking mandamus should be rejected because Adams failed to establish a clear legal right to the relief he seeks. We disagree.
Pa. R.C.P. No. 1028(a)(4) states:
(a) [p]reliminary objections may be filed by any party to any pleading and are limited to the following grounds:
"In ruling on a demurrer, we must accept as true all well-pled material allegations in the petition for review, as well as all inferences reasonably deducible from the allegations." Aviles v. Pennsylvania Department of Corrections, 875 A.2d 1209, 1211 n.3 (Pa. Cmwlth. 2005). "To sustain a demurrer, it must appear with certainty [that] the law will not permit recovery; any doubt must be resolved by a refusal to sustain the demurrer." Id.
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(4) legal insufficiency of a pleading (demurrer).
Adams seeks a writ of mandamus to modify his minimum sentence date. "The [c]ourt may issue a writ of mandamus to compel the performance of a mandatory duty or a ministerial act only where (1) the petitioner has a clear legal right to enforce the performance of the act, (2) the [respondent] has a corresponding duty to perform the act and (3) the petitioner has no other adequate or appropriate remedy." Saunders v. Pennsylvania Department of Corrections, 749 A.2d 553, 556 (Pa. Cmwlth. 2000).
DOC maintains that when calculating an inmate's sentence, it must rely on sentencing orders from the sentencing court. DOC argues that Adams has failed to provide any sentencing documentation granting credit. We disagree.
When an offender does not post bail on new charges and is held in custody on the new charges, the time spent in custody is credited to the new sentence. See Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 403-04, 412 A.2d 568, 571 (1980). Because Adams did not post bail and served 119 days from April 24, 2008, to August 21, 2008, on the new charges, his new sentence should be credited with this time served. Given his sentence date of October 27, 2008, and his 5- to 10-year sentence, if Adams received the 120 days of credit toward the new sentence, his minimum sentence date would be June 30, 2013.
Adams' pleadings included several corroborating documents. The "Certificate of Imposition of Judgment of Sentence" issued by the trial court states that the 5- to 10-year sentences are "to run concurrent to each other" and that Adams is "Credited for Time Served." The "DC16E - Sentence Status Summary" (DC 16E) verifies Adams' effective sentence date of October 27, 2008, and his 5- to 10-year sentence. It also notes that DOC removed credit for the period Adams spent out of prison on bail between August 22, 2008, and October 22, 2008.
DOC's "Final Appeal Decision," however, does not address the very essence of Adams' grievance; i.e., that despite the trial court's sentencing order that Adams is to be credited for time served, Adams received no credit for time served between April 24, 2008, and August 21, 2008.
Moreover, the minimum sentence date that Adams is contesting, October 27, 2013, seemingly includes DOC's credit adjustment for the period from August 22, 2008, to October 22, 2008. --------
To reiterate, we will grant a demurrer only where it is certain that the law will not permit recovery. Aviles, 875 A.2d at 1211 n.3. Based on Adams' pleadings, we find that significant doubt exists about whether Adams was granted credit to which he was entitled for the period from April 24, 2008, to August 22, 2008. Accordingly, we deny DOC's demurrer.
DOC also argues that Adams' petition should be rejected as improperly constructed because it is not divided into consecutively numbered paragraphs. We disagree.
Pa. R.C.P. No. 1022 states:
[e]very pleading shall be divided into paragraphs numbered consecutively. Each paragraph shall contain as far as practicable only one material allegation.Pa. R.C.P. No. 1022 must be applied with great flexibility. General State Authority v. Sutter Corporation, 356 A.2d 377, 380 (Pa. Cmwlth. 1976). "[T]he test of compliance is the difficulty or impossibility one has in answering the complaint." Id. We will not reject Adams' petition because we find it intelligent and not difficult or impossible for DOC to answer.
Accordingly, we overrule DOC's preliminary objections.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 17th day of May, 2013, we overrule the preliminary objections filed by the Pennsylvania Department of Corrections.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge