Opinion
No. 611 M.D. 2010
02-07-2013
Keith Gant, Petitioner v. Pennsylvania Board of Probation and Parole and Pennsylvania Department of Corrections, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Before this Court in our original jurisdiction is a motion for summary relief filed by Keith Gant (Petitioner), a former state correctional institution inmate, in connection with his petition for review in the nature of claim for mandamus (complaint) against the Pennsylvania Department of Corrections (DOC). Petitioner asserts he has a clear right to have DOC recalculate his maximum sentence date to afford him credit for a period of pre-sentence confinement. Upon review, we deny Petitioner's motion for summary relief.
Most of the activities material to this case occurred almost 20 years ago, and there is imprecision as to some of the dates. We repeat the averments of the parties, even though the accuracy of the partial narratives is in question.
In July 2010, Petitioner filed a complaint against DOC and the Pennsylvania Board of Probation and Parole (Board). Through his complaint, Petitioner alleged that in November 1989, he began serving a two-and-a-half to five year sentence of imprisonment. At that time, his minimum expiration date was May 1, 1992, and his maximum expiration date was November 1, 1994.
In late-1992, the Board paroled Petitioner with one year, ten months and nineteen days remaining on his original sentence.
Petitioner alleges that on July 16, 1993, he was arrested on several new charges, and bail was set but not posted. About two months later, "a preliminary/detention hearing was held on a parole violator warrant issued based on new criminal charges and technical violations." Pet. for Review in the Nature of a Claim for Mandamus at ¶10.
In May 1994, Petitioner was found guilty on the new charges. About six months later, Petitioner received a sentence of 15 to 30 years imprisonment on those charges.
The Board subsequently ordered Petitioner recommitted as a technical and convicted parole violator to serve the unexpired term of one year, ten months and nineteen days on his original sentence.
Based on these factual averments, Petitioner alleged that DOC erroneously recalculated his minimum release date as April 4, 2011. Specifically, he alleged that, based on his July 16, 1993, arrest on new charges, his minimum release date should be July 16, 2008, because the sentence is presumptively concurrent. Petitioner further alleged, even if his new sentence was imposed consecutive to the maximum backtime of one year, ten months and nineteen days, his minimum release date would be June 3, 2010 rather than April 4, 2011. Petitioner also alleged he exhausted his administrative remedies. Petitioner requested that this Court compel DOC to accurately compute his sentence and advance his parole eligibility date from April 4, 2011, to July 16, 2008, or June 3, 2010.
Both the Board and DOC filed preliminary objections to the complaint. In a per curiam order, this Court sustained the Board's preliminary objections and dismissed the Board as a respondent. However, we overruled DOC's preliminary objection in the nature of a demurrer because DOC relied on facts beyond those alleged in the complaint. We directed DOC to file an answer, which it did, together with new matter.
In its answer, DOC averred that the sentencing court directed that Petitioner receive pre-sentence credit for the period from May 16, 1994, through November 22, 1994, which it applied, resulting in a minimum sentence date of April 4, 2011. In support, DOC attached several DC-300B Court Commitment Forms. However, DOC did not attach the actual order from the sentencing court. Thereafter, Petitioner filed an answer to DOC's new matter.
This case remained dormant for approximately a year-and-a-half before this Court issued a rule to show cause why the case should not be dismissed for want of prosecution. Petitioner objected to dismissal of his suit. In turn, this Court issued an order discharging the rule to show cause and directing Petitioner to advance his case within 30 days.
Shortly thereafter, Petitioner filed a motion for summary relief. DOC filed an answer. This matter is now before us for disposition.
In support of his motion for summary relief, Petitioner argues he has supplied compelling evidence that he is entitled to credit toward the sentence on his new charges beginning at least as early as September 14, 1993. Petitioner further asserts DOC erred in determining his arrest on new charges occurred on February 2, 1994, because the documents attached to DOC's answer reveal his arrest actually occurred on September 21, 1993. Further, Petitioner argues, in its preliminary objections, DOC conceded that Philadelphia County prison officials informed DOC that Petitioner was owed credit for the period from September 14, 1993, through November 29, 1994.
Although Petitioner's complaint alleges he in entitled to credit as of July 16, 1993, in his motion for summary relief and accompanying brief to this Court, he now asserts he is entitled to credit beginning September 14, 1993. Petitioner does not explain this discrepancy.
In further support of his claim of entitlement to this pre-sentence credit, Petitioner points to the transcript of his sentencing hearing on the new charges, which he attached to his motion for summary relief. He also highlights a portion of a memorandum opinion of the Superior Court addressing his appeal from the judgment of sentence, which indicates his arrest on the new charges occurred on July 16, 1993. Additionally, citing Section 9760 of the Sentencing Code, 42 Pa. C.S. §9760 (relating to credit for time served), Petitioner contends he has a clear right to credit for all the time he served prior to his sentencing on the new charges, which, as DOC conceded, should begin at least as early as September 14, 1993.
This Section provides, as pertinent:
After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:
(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.
Petitioner also contends his complaint is not rendered moot by the fact that he was paroled on May 16, 2012, because a correct sentence calculation is necessary to determine his appropriate maximum sentence date and when his supervision ends. DOC does not challenge Petitioner's claim on this point. Thus, we do not address this issue further except to note that the maximum sentence date on the sentence on which Petitioner seeks credit has not yet expired. --------
DOC responds that Petitioner does not possess a clear right to the relief he seeks. Based on the documents attached to its answer and new matter, DOC asserts, it is clear that DOC already provided Petitioner with the pre-sentence credit directed by the sentencing court. DOC contends it is well-settled that it is only authorized to apply credit directed by a sentencing court. Because it already provided Petitioner with the pre-sentence credit directed by the sentencing court, DOC maintains, Petitioner lacks a clear right to the relief requested.
Summary relief is proper where the moving party establishes the case is clear and free from doubt, there are no genuine issues of material fact to be tried and the movant is entitled to judgment as a matter of law. Detar v. Beard, 898 A.2d 26 (Pa. Cmwlth. 2006).
A proceeding in mandamus is an extraordinary action at common law, designed to compel the performance of a ministerial act or mandatory duty. Id. The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure. Id. This Court may only issue a writ of mandamus where the petitioner possesses a clear legal right to enforce the performance of a ministerial act or mandatory duty, the defendant possesses a corresponding duty to perform the act, and the petitioner possesses no other adequate or appropriate remedy. Id. Mandamus can only be used to compel performance of a ministerial duty and will not be granted in doubtful cases. Id.
Further, our Supreme Court explains that DOC is an executive branch agency charged with faithfully implementing sentences imposed by the courts. McCray v. Dep't of Corr., 582 Pa. 440, 872 A.2d 1127 (2005). DOC lacks authority to adjudicate the legality of a sentence or to add or delete sentencing conditions. Id. Thus, "[DOC] ... has no power to change sentences, or to add or remove sentencing conditions, including credit for time served; this power is vested in the sentencing court." Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008) (citing McCray) (emphasis added).
Through his motion for summary relief, Petitioner here asserts he has a clear right to compel DOC to provide him with pre-sentence credit beginning at least as early as September 14, 1993. In support, he attached a transcript of his sentencing hearing. However, as Petitioner concedes, "[t]he oral pronouncement of sentence does not say a single word about what credit [Petitioner] should receive for 'time served.'" Pet'r's Br. at 13 (emphasis added). Indeed, a review of the attached sentencing transcript reveals no mention of credit for time served.
More importantly, the limited record before us does not contain a copy of the sentencing order. DOC's duty to apply credit for time served is only implicated when the sentencing court directs that such action be taken. McCray; Mann. Here, Petitioner points to no such direction from the sentencing court. Therefore, at this time, Petitioner cannot show that DOC possesses a duty to perform the act requested, a necessary element of a claim for mandamus.
In addition, Petitioner has not established that he lacks any other adequate or appropriate remedy. In particular, he does not assert that he attempted to raise his claim for credit with the sentencing court or through the direct appeal process. See Aviles v. Dep't of Corr., 875 A.2d 1209 (Pa. Cmwlth. 2005) (an original jurisdiction suit against DOC is not an appropriate remedy to cure an illegal sentence; rather, such a challenge is properly raised before the sentencing court, on direct appeal or by way of a petition under the Post Conviction Relief Act, 42 Pa. C.S. §§9541-46 (PCRA)); see also McCray. Thus, it does not appear that Petitioner availed himself of an adequate and available remedy.
Nevertheless, Petitioner points to an averment in DOC's preliminary objections that "Philadelphia County prison system officials informed [DOC] that Petitioner was owed credit from September 14, 1993 through November 29, 2004 for any periods of confinement not already applied to other sentence [sic] ...." Respondent Department of Corrections' Preliminary Objections to Pet. for Review at ¶19. However, as DOC notes in the remainder of that averment, this Court holds that statements from administrative personnel do not have the same force and effect as court orders, and DOC may not rely on such statements in determining what credit is appropriate. See Oakman v. Dep't of Corr., 903 A.2d 106 (Pa. Cmwlth. 2006). Neither Petitioner nor DOC has supplied this Court with an order of the sentencing court directing the credit Petitioner seeks. DOC may not award credit based on the statements of Philadelphia County prison officials. Id.
In addition, we reject Petitioner's argument that DOC must afford him the credit he seeks based on Section 9760 of the Sentencing Code, despite the fact the trial court made no mention of his right to this credit at the sentencing hearing. As stated, DOC is charged with faithfully implementing sentencing orders; in the absence of a sentencing order, DOC cannot simply interpret and apply a Sentencing Code provision to afford Petitioner the credit he seeks.
For these reasons, we deny Petitioner's motion for summary relief.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 7th day of February, 2013, the Motion for Summary Relief Pursuant to Pennsylvania Rule of Appellate Procedure 1532 and Incorporated Memorandum of Law filed by Petitioner Keith Gant is DENIED.
/s/_________
ROBERT SIMPSON, Judge