Opinion
No. 127 M.D. 2011
02-07-2012
Albert Knight, Petitioner v. Department of Corrections, Brian V. Coleman, Superintendent, Sally Travis-Jamison Records Room, Supervisor of State Correctional Institution at Fayette, Pa. Robert J. Durison, Dir. CMR/PPS, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court is the preliminary objection in the nature of a demurrer of the Department of Corrections (Department) to a petition for review in the nature of mandamus filed pro se by Albert Knight (Petitioner). Petitioner, an inmate at the State Correctional Institution (SCI) at Fayette, petitioned this Court to order the Department to credit him for all time served stemming from his 1999 convictions for receiving stolen property and unauthorized use of a motor vehicle and subsequent probation violation sentences pursuant to Section 9760 of the Sentencing Code (Code). For the reasons that follow, we deny the Department's preliminary objection.
42 Pa. C.S. §9760. The Code provides, in relevant part:
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.
(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.
The facts as related in the petition are as follows. On December 9, 1999, Petitioner was convicted in the Court of Common Pleas of Philadelphia County (trial court) of receiving stolen property and unauthorized use of a motor vehicle. He was sentenced on March 21, 2000, to 11½ to 23 months imprisonment followed by three years of probation. On September 25, 2000, Petitioner was transferred from Philadelphia County Prison to an in-patient treatment program where he remained until January 1, 2001. Petitioner was again sentenced on November 19, 2002, to 11½ to 23 months in prison followed by three years of probation for violating his probation. He was again imprisoned for violating his probation on April 20, 2006, and was sentenced to 3½ to 7 years' imprisonment on the original charges and 6 months to a year for violating his probation to be served consecutively.
Petitioner filed a pro se Post-Conviction Relief Act (PCRA) petition on October 30, 2006, and an amended petition was filed by appointed counsel on November 15, 2007. On March 20, 2008, the trial court issued an order correcting Petitioner's sentence on the original charges and sentencing him to "three and a half (3 ½) to seven (7) years in a State Correctional Institution with credit for all time served for this case" for the receiving stolen property conviction. (Trial Court's March 20, 2008 Order at 1.)
Petitioner subsequently filed requests with the Department's records department inquiring on the status of his corrected sentence on September 25, 2009, and August 17, 2010. The Department responded to both requests stating that no changes were to be made at the time. Petitioner submitted another request on February 18, 2011. On February 19, 2011, the Clerk of Quarter Sessions sent a memorandum to the Department stating that Petitioner was to be given credit for time served "while incarcerated in the Philadelphia County Prison System, while waiting trial" for the periods from August 22, 1999, through September 25, 2000; December 17, 2001, through November 19, 2002; and for August 28, 2006. (Exhibit A to Respondents' Preliminary Objections at 1 (emphasis added).) In response to that memorandum, the Department informed Petitioner that his Sentence Status Summary was "correct with paperwork that has been received," (Exhibit I to Respondents' Brief), and Petitioner's sentence status summary reflected said credit. (See Exhibits D and I to Respondents' Brief.)
Petitioner then filed a Petition for Review, which was later amended, seeking mandamus to compel the Department to give him additional credit for the periods from November 19, 2002, through April 16, 2003; February 23, 2005, through March 23, 2006; and April 20, 2006, through August 17, 2006, based on the trial court's March 20, 2008, order granting him "credit for all time served for this case." (Trial Court's March 20, 2008 Order, at 1.) The Department filed preliminary objections in the nature of a demurrer alleging that Petitioner has not alleged facts to show that he has a right to mandamus or that the Department has a duty to award him any further credit than that set forth in the February 19, 2011 memorandum. The Department further stated that "Petitioner's remedy, if any, is with the [trial] court." (Preliminary Objection filed October 11, 2011, at 4.)
In ruling on preliminary objections in the nature of a demurrer, we must admit all well-pleaded material facts and any inferences reasonably deduced therefrom. Danysh v. Department of Corrections, 845 A.2d 260 (Pa. Cmwlth. 2004) (citing Reider v. Bureau of Corrections, 502 A.2d 272 (Pa. Cmwlth. 1986)). A demurrer should only be sustained in cases that are clear and free from doubt and only where it appears with certainty that the law will not permit recovery. Danysh. When considering a demurrer, a court must limit itself to matters contained within the complaint itself. Stilp v. Commonwealth, 910 A.2d 775, 791 (Pa. Cmwlth. 2006).
"A proceeding in mandamus is an extraordinary action at common law and is available only to compel the performance of a ministerial act or mandatory duty [as opposed to a discretionary act] where there exists no other adequate and appropriate remedy; there is a clear legal right in the plaintiff, and a corresponding duty in the defendant." McCray v. Department of Corrections, 582 Pa. 440, 447, 872 A.2d 1127, 1131 (2005) (citing Jackson v. Vaughn, 565 Pa. 601, 777 A.2d 436 (2001). The Department "is an administrative agency bound to follow the trial court's order." Oakman v. Department of Corrections, 903 A.2d 106, 109 (Pa. Cmwlth. 2006). --------
The Department contends because Petitioner has not shown that the sentencing court has ever given him credit for the periods of time that were at issue and it has no "power to adjudicate the legality of a sentence or to add or delete sentencing conditions," Detar v. Department of Corrections, 898 A.2d 26, 29-30 (Pa. Cmwlth. 2006) (citing McCray v. Department of Corrections, 582 Pa. 440, 872 A.2d 1127 (2005)), its demurrer should be granted. That argument is based on its contention that it has complied with the trial court's March 20, 2008 order directing that Petitioner receive credit for all time served because it has given him credit for all the time set forth in the February 19, 2011 memorandum from the Philadelphia Court of Quarter Sessions to the Department, which it attached as Exhibit A to its preliminary objections. Until Petitioner has produced a credit memorandum similar to Exhibit A, it argues that Petitioner's mandamus action should be dismissed because it has given him credit to all the time it is aware that he has served.
As to whether Petitioner's remedy is with the trial court, this is not a case where an inmate is seeking to add or delete a sentencing condition but is merely seeking to have the March 20, 2008 sentencing order awarding him credit for all time served on his 1999 convictions followed. Because Petitioner is seeking to have the sentencing order enforced and the sentence imposed by a trial court is a question of law that involves no discretion on the part of the Department, mandamus will lie to compel the Department to properly compute a prisoner's sentence. Barndt v. Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006). We reject the Department's contention that Petitioner's remedy is to petition the sentencing court nunc pro tunc for reconsideration or modification of his sentence.
Insofar as the Department's argument that Petitioner must seek relief from the sentencing court is based on that February 19, 2011 memorandum from the Philadelphia Clerk of Quarter Sessions, the Department ignores that it is the entity charged with calculating all the time inmates serve against a sentence. Moreover, even if we assume that memorandum prepared by a records clerk is somehow the equivalent to a sentencing order, the memorandum only provides that Petitioner "be credited with time [s]erved while incarcerated in the Philadelphia County Prison System, while waiting trial," and makes no mention of credit for any period of incarceration after sentencing. Because Petitioner is seeking credit for periods of time after sentencing, the Department's reliance on that memorandum is misplaced.
Accordingly, because Petitioner has pled that he was not given credit for certain periods of time, and the Department has not shown based on those facts that he has not set forth a cause of action cognizable in mandamus, the preliminary objections filed by Department are overruled.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 7th day of February, 2012, the preliminary objection filed by Respondent Pennsylvania Department of Corrections is hereby denied, and the Department of Corrections has thirty days to file a responsive pleading.
/s/_________
DAN PELLEGRINI, President Judge