Opinion
No. 118 M.D. 2013
03-13-2014
Maurice Foley, Petitioner v. Pennsylvania Department of Corrections, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Before the Court are the Department of Corrections' preliminary objections to a petition for a writ of mandamus filed, pro se, by Maurice Foley, who is currently incarcerated for a technical parole violation. Foley contends that he is entitled to a recalculation of his prison sentence. Concluding that the petition does not establish a clear right to relief, we sustain the Department's preliminary objections.
Foley, formerly an inmate at the State Correctional Institution at Albion, is currently incarcerated in the United States Penitentiary in Atwater, California. His criminal history is a complicated one. On December 2, 1992, Foley was convicted of burglary in the second degree and sentenced to a term of incarceration of 11½ to 23 months in the Erie County prison, followed by a three-year term of probation. On two occasions Foley was paroled on the burglary sentence, but each time his parole was revoked. On September 12, 1998, Foley completed the maximum 23-month term of incarceration for the burglary conviction and was released to begin serving his three-year term of probation. However, he violated his probation and was returned to the Erie County prison on October 13, 1998. As a result, the Erie County Court of Common Pleas (trial court) revoked his probation and sentenced Foley to a term of imprisonment of 10 months to 60 months, effective December 13, 1996. The sentencing court also awarded Foley 728 days of credit for time served.
Foley was first released on parole on April 22, 1993. Foley was recommitted on August 16, 1994, and parole was revoked on September 22, 1994. On March 24, 1995, Foley was again released on parole, but Foley was recommitted on October 13, 1997, and parole was revoked on January 2, 1998.
In his Amended Petition, dated July 29, 2013, Foley identifies the following dates for which he believes he is entitled to credit: May 5, 1992, to May 6, 1992; December 2, 1992, to April 22, 1993; August 16, 1994, to March 24, 1995; October 13, 1997, to September 12, 1998; and October 13, 1998, to December 10, 1998. Foley's Amended Petition at 7. By our calculation, these date ranges total 759 days. Ultimately, the discrepancy between 728 and 759 days is moot because we hold Foley is not entitled to any additional credit.
Foley appealed the probation violation sentence, and on September 9, 1999, the Superior Court adjusted his sentence to 10 months to 59 months. On March 28, 2000, Foley was again released on parole, but by May 5, 2000, Foley had absconded and was declared delinquent. On April 18, 2003, Foley was apprehended and re-committed as a technical parole violator.
The Superior Court held that Foley's probation violation sentence of 60 months was unlawful because Foley was originally sentenced to 59 months on the burglary conviction, split between 23 months of imprisonment and 36 months of probation.
On June 3, 2003, the Pennsylvania Board of Probation and Parole issued a decision that calculated Foley's maximum sentence date to be August 27, 2006. Foley petitioned for this Court's review, contending that the Department erred in its sentence calculation because it did not include a 728-day credit ordered by the sentencing court. On September 17, 2003, the Department sent an inquiry to the sentencing judge, requesting clarification of the sentencing order. On October 8, 2003, the sentencing judge responded that the sentencing order was not intended to give Foley duplicative credit, which would, in any case, be unlawful.
While Foley's 2003 appeal was pending before this Court, Foley pled guilty to unrelated federal charges on April 29, 2004. Foley was sentenced to 27 ½ years on July 29, 2005, and was transferred to federal prison on September 2, 2005. Foley received credit on his federal sentence for time served in state prison from April 17, 2003, to September 2, 2005, and is not seeking to apply this credit to his state sentence.
Initially, this Court overruled the Department's preliminary objections in light of our decision in McCray v. Department of Corrections, 807 A.2d 938 (Pa. Cmwlth. 2002), rev'd, 582 Pa. 440, 872 A.2d 1127 (2005). See Foley v. Department of Corrections, (Pa. Cmwlth., No. 826 M.D. 2003, filed December 7, 2004) (Foley I). However, after our Supreme Court overruled McCray, we denied Foley's motion for judgment on the pleadings and entered judgment in favor of the Department. Foley v. Department of Corrections (Pa. Cmwlth., No. 826 M.D. 2003, filed September 8, 2005) (Foley II).
In McCray, this Court adopted the minority opinion from Commonwealth v. Bowser, 783 A.2d 348 (Pa. Super. 2001). We held that an inmate was entitled to credit for all time spent in custody because "'[t]o do otherwise would be to impose two separate sentences on appellant for a single crime.'" McCray, 807 A.2d at 942 (quoting Bowser, 783 A.2d at 352 (Olszewski, J., dissenting)). However, our Supreme Court reversed, holding that there was no clear right to mandamus relief for credit when the combined total confinement components of the original and violation of probation sentences did not exceed the legal maximum for the crimes committed. McCray, 582 Pa. at 450, 872 A.2d at 1132.
Presently, Foley seeks a writ of mandamus compelling the Department to reduce his maximum sentence date by 728 days. In its preliminary objections, the Department argues that Foley cannot establish a clear legal right to relief because the sentencing judge clarified that the sentence order did not intend to give Foley a second 728-day credit. We agree.
A writ of mandamus compels the performance of a ministerial duty by a government official when (1) the petitioner demonstrates a clear legal right to relief, (2) the official owes the petitioner a duty, and (3) there are no other adequate remedies at law. Wilson v. Pennsylvania Board of Probation and Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). "Mandamus is not available to establish legal rights, but is appropriate only to enforce rights that have been established." Id. A writ of mandamus cannot be used to compel an illegal act. Doxsey v. Pennsylvania Bureau of Corrections, 674 A.2d 1173, 1175 (Pa. Cmwlth. 1996).
"Preliminary objections will be sustained only where it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief." Wilson, 942 A.2d at 272. We must accept all well-pleaded material facts and inferences therefrom. Dodgson v. Pennsylvania Department of Corrections, 922 A.2d 1023, 1027-28 (Pa. Cmwlth. 2007). "We need not accept as true conclusions of law, unwarranted inferences, argumentative allegations, or expressions of opinion." Id. at 1028.
Finally, the Sentencing Code requires a court to give credit to a defendant "against the maximum term and any minimum term . . . for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based." 42 Pa. C.S. §§9760(1)-(2).
Section 9760 of the Sentencing Code provides that a court shall give credit in the following circumstances:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.42 Pa. C.S. §§9760(1), (2).
(2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.
At the outset, we note that this Court has already held that the maximum sentence date calculated by the Board is lawful. We explained that "adding all the sentencing dates [Foley] received yields a total sentence of incarceration of less than 10 years, which is the maximum sentence [Foley] could have received for burglary." Foley II, slip op. at 6 (emphasis omitted). See also McCray, 582 Pa. at 456, 872 A.2d at 1136 (Castile, J., concurring) ("[A Violation of Probation] judge adequately 'credits' a defendant for 'time spent in custody' so long as he does not impose a VOP sentence which, when combined with the initial sentence, exceeds the statutory maximum.").
Turning to the arguments of the parties, the Department argues that it relied upon the sentencing judge's response to its inquiry that the court did not intend to award duplicative credit. In Oakman v. Department of Corrections, 903 A.2d 106 (Pa. Cmwlth. 2006) (Oakman II), this Court held that the Department must carry out the trial court's order granting the inmate credit for time served, even if illegal. However, the Department notes that in this case it sent its letter to the sentencing judge three years before Oakman II was decided. Further, this Court has approved the judge-letter inquiry process in Barndt v. Department of Corrections, 902 A.2d 589 (Pa. Cmwlth. 2006). Finally, the Department contends that this Court has construed Oakman II not to apply in cases where a court improperly directs the parole violator to receive duplicative credit, citing Lawrence v. Department of Corrections, 941 A.2d 70 (Pa. Cmwlth. 2007).
Foley counters that he is not seeking double credit. He also contends that neither the Department nor the sentencing judge has the authority to modify his sentence five years after its imposition. In support, Foley points to Commonwealth ex rel. Powell v. Department of Corrections, 14 A.3d 912 (Pa. Cmwlth. 2011). Foley argues that, as in Powell, the Department is attempting to modify his sentence with its so-called clarification inquiry to the sentencing judge. Foley also argues his Fifth, Sixth, and Fourteenth Amendment rights under the U.S. Constitution were violated by the Department and sentencing judge.
Powell is distinguishable. In that case, after being contacted by the Department, the sentencing judge rewrote Powell's sentences to run consecutively as opposed to concurrently, as the original order stated. Here, the sentencing judge did not change the language of the sentencing order but, rather, clarified that the original sentencing order did not intend to award duplicate credit to Foley. See id. at 918 ("It is clear that the Department in Barndt did not modify the prisoner's sentence based on the sentencing judge's clarification. Rather, the Department merely confirmed that the sentencing judge intended only that the prisoner receive the credit that he was entitled under the law.").
Likewise, Oakman II, 903 A.2d 106, is distinguishable. In Oakman II, there was no dispute the trial court intended to award credit toward Oakman's sentence. Because the Department, as an administrative agency, lacked the authority to modify the trial court's sentence, we ordered the Department to follow the sentence imposed by the court, even if the Department believed the sentence to be illegal. In the present case, by contrast, the sentencing judge clarified that the court did not intend to impose an illegal sentence by giving Foley duplicate credit for the same time served. See Foley I, slip op. at 7 (noting the sentencing court's order was unclear about whether the sentence included credit for time served). Further, as explained above, this Court has already held that Foley is not legally entitled to the credit he seeks.
The December 10, 1998, sentencing order stated that Foley shall undergo the following imprisonment:
PAROLE/PROBATION REVOCATION SENTENCE CT 1: WESTERN PENITENTIARY 10 MONTHS TO 60 MONTHS EFFECTIVE 12/13/96. THIS EFFECTIVE DATE INCLUDES 728 DAYS CREDIT FOR TIME SERVED.Exhibit A, Petition for Review. The order was ambiguous. It was not clear whether the order intended to give Foley an additional 728 days of credit or whether the trial court had included the 728 days of credit in calculating the sentence. Therefore, the Department sought clarification. The sentencing judge responded that the order did not intend to grant duplicative credit. It did not change the language of the order. --------
We agree with the Department that Barndt, 902 A.2d 589, is controlling on the question of whether the Department's inquiry of the sentencing judge was appropriate. In Barndt, this Court held that the Department may seek clarification of a sentencing order. Barndt concluded that an inquiry letter does not violate an inmate's due process right to be heard because an inmate's appeal to this Court provides the process to challenge the outcome of the inquiry. Further, an inmate may petition the sentencing court for reconsideration, modification, or clarification of the original sentencing order. That process has been followed here. The Department sought clarification from the sentencing judge, and Foley has petitioned this Court for review. Accordingly, we reject Foley's contentions that his Fifth, Sixth, and Fourteenth Amendment rights under the U.S. Constitution were violated.
Because this Court previously has held that Foley is not entitled to the 728 days of credit he seeks, and because the Department properly obtained written clarification from the sentencing judge on the meaning of the sentencing order, we sustain the Department's preliminary objections and dismiss Foley's petition for a writ of mandamus.
/s/_________
MARY HANNAH LEAVITT, Judge President Judge Pellegrini dissents. ORDER
AND NOW, this 13th day of March, 2014, it is hereby ORDERED that the Pennsylvania Department of Corrections' preliminary objections in the above-captioned matter are SUSTAINED and Maurice Foley's amended petition for a writ of mandamus is DISMISSED.
/s/_________
MARY HANNAH LEAVITT, Judge