Opinion
No. 21 M.D. 2013
06-24-2015
Bret Sweeting, Petitioner v. Department of Corrections and Pennsylvania Board of Probation and Parole, Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
On January 14, 2013, Bret Sweeting (Sweeting), pro se, filed a Writ of Mandamus (which this Court treated as a Petition for Review) in this Court's original jurisdiction seeking to compel the Department of Corrections (DOC) and the Pennsylvania Board of Probation and Parole (Board) to credit Sweeting for the period from November 30, 1993, to February 7, 2005, towards the sentence he is currently serving at the State Correctional Institution, Dallas, (SCI-Dallas) and grant him immediate parole.
Initial Arrest and Sentence
In August 1993, Sweeting was arrested and found guilty of involuntary manslaughter, simple assault, possession of a weapon, possession with intent to deliver and conspiracy. Sweeting was sentenced on the involuntary manslaughter, simple assault and possession of a weapon charges on August 31, 1994 in Lycoming County to a term of two and one-half to five years.
"November 1994" Consecutive Sentences
Of Which DOC was Unaware
On November 3, 1994, Sweeting was sentenced on the possession with the intent to deliver and conspiracy charges by the Lycoming County Court of Common Pleas to a term of imprisonment of seven to eighteen years. On November 30, 1994, Sweeting was sentenced to three to nine years, consecutive to each other, for an aggregate sentence of ten to twenty-seven years. The ten to twenty-seven year sentence was to run consecutive to all other sentences imposed and remained to be served.
Sweeting Inadvertently Released After Serving 5 years
For his August 1993 Conviction
On November 30, 1998, Sweeting was inadvertently released. DOC avers that it received no paperwork and was unaware of the "November 1994" consecutive sentences. Sweeting should not have been released due to the other two November 1994 consecutive sentences remaining to be served.
Federal Arrest and Sentencing
While he was at liberty, on May 28, 1999, Sweeting was arrested for bank fraud by federal authorities, released on bail on August 30, 1999, and found guilty on September 15, 1999.
DOC avers that on September 15, 1999, it received a telephone call from the Federal Bureau of Investigation. As a result of the telephone call, DOC learned of the outstanding ten to twenty-seven-year state sentence that remained to be served by Sweeting. DOC immediately obtained a warrant for Sweeting's arrest.
Sweeting was sentenced to seventy-eight months' imprisonment on the federal charges on February 3, 2000, and he was imprisoned on his federal sentence until February 7, 2005. Sweeting was released to DOC on February 7, 2005, to complete the November 1994 consecutive sentences. DOC recalculated Sweeting's sentence to reflect a minimum of February 7, 2015, and a maximum of February 7, 2024.
Sweeting's Writ of Mandamus
On January 14, 2013, Sweeting filed a Writ of Mandamus seeking credit against the November 1994 sentence for the six years and sixty-nine day-period from November 30, 1998 (the date he was inadvertently released) to February 7, 2005 (the date he was released from federal prison). Sweeting avers that he had a right to serve his aggregate sentence uninterrupted from August 31, 1994, until December 31, 2006. But since he was released early, the starting dates of his November 1994 consecutive ten to twenty-seven year sentence began on February 7, 2005, instead of on November 30, 1998 (the date he was inadvertently released), and this resulted in a new minimum sentence date which expired on February 7, 2015, and a maximum sentence date to expire February 7, 2024. He seeks credit for six years and sixty-nine days (the time between the date he was inadvertently released and the date he was recommitted) owed him as result of DOC's "negligence."
By order dated May 13, 2013, this Court held that Sweeting's Writ of Mandamus was to be treated as a petition for review in this Court's original jurisdiction and ordered DOC and the Board to file an answer or otherwise plead within 30 days. DOC and the Board filed Preliminary Objections. DOC argued that Sweeting's Petition for Review should be dismissed because it was barred by the applicable statute of limitations for mandamus actions. The Board argued that it should be dismissed from the action because it had no role in calculating Sweeting's sentences. On July 23, 2013, the Board was dismissed from the case. DOC's Preliminary Objections were overruled and DOC was ordered to file an Answer to the Writ within 30 days.
DOC filed an Answer denying the allegations and New Matter to which Sweeting responded.
Sweeting's Motion For Summary Relief
On February 6, 2014, Sweeting filed a "Motion for Summary Relief" pursuant to Pennsylvania Rule of Appellate Procedure 1532(b), which provides:
At any time after the filing of the petition for review in an appellate or original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear.
Sweeting argued that his right to relief was clear and that he was entitled to receive credit for the six years and sixty-nine months from November 30, 1998, through February 7, 2005, and an order for immediate parole. DOC answered the Motion and denied Sweeting was entitled to the relief he requested.
On February 19, 2014, this Court, by Per Curiam Order, denied Sweeting's Motion for Summary Relief. This Court concluded, from the pleadings, Sweeting's right to relief was "far from clear." Specifically, this Court held:
Petitioner [Sweeting] seeks credit against the November 1994 sentence for the period from November 30, 1993 to
February 7, 2005. Summary relief may be granted only where no material fact is in dispute and where the applicant's right to relief is clear. Taglienti v. Department of Corrections, 806 A.2d 988 (Pa. Cmwlth. 2002). Having reviewed the pleadings, the court must conclude that material facts remain in dispute and that petitioner's [Sweeting's] right to relief is far from clear. From November 30, 1993 to November 30, 1998, petitioner [Sweeting] was serving his 2 1/2 to 5 year sentence, and his right to credit for that time period is not clear in that the November 1994 sentence was to run consecutive and an inmate is not entitled to duplicate credit for time served on unrelated charges. 42 Pa, C.S. §9760(4). It is clear that petitioner [Sweeting] is not entitled to sentence credit for time spent at liberty. It is not clear that petitioner [Sweeting] is entitled to credit for time spent serving his federal sentence or for time spent in federal custody prior to his release on bail.February 19, 2014, Order at 2.
After the February 19, 2014 Order was entered which denied Sweeting's Motion for Summary Relief, the case lingered on this Court's docket because, from what this Court discerns, DOC did not file a cross-motion for summary relief or otherwise seek dismissal of the Petition for Review.
In the meantime, Sweeting believed the February 19, 2014 Order effectively dismissed his petition for review. In an effort to obtain relief, Sweeting filed a federal Writ of Habeas Corpus under 28 U.S.C. §2254, in the United States District Court for the Middle District of Pennsylvania at No. 3:14-cv-001213. By Order dated October 27, 2014, the United States District Court for the Middle District of Pennsylvania stayed the federal proceedings until termination of the state court proceedings, specifically the instant Petition for Review.
Present Matter
Before the Court is Sweeting's "Motion for Expedited Judgment on the Pleadings."
Sweeting's motion is inappropriately entitled "Judgment on the Pleadings." A motion for judgment on the pleadings filed in an action in this Court's original jurisdiction is in the nature of a demurrer. A demurrer is filed in response to a complaint and, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. Clearly, Sweeting does not seek dismissal of his own petition for review. Further, but for the title, Sweeting's Motion for Expedited Judgment on the Pleadings is based on the exact same arguments as his Motion for Summary Relief which was previously denied. This Court may not revisit the Motion for Summary Relief. Sweeting has alleged nothing new and it actually appears as though he is now attempting to gain some finality so that he may proceed on his federal habeas corpus.
A motion for judgment on the pleadings addressed to this Court's original jurisdiction is in the nature of a demurrer, and we must consider as true the non-moving party's allegations of fact. We may consider against the non-moving party only those allegations admitted by the non-moving party. If the Court determines that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law, the Court shall enter judgment in favor of the moving party. Curley v. Smeal, 41 A.3d 916, 919 n. 3 (Pa. Cmwlth. 2012) (citations omitted). --------
The problem is that DOC has not sought the dismissal of the Petition for Review. In its response to the Motion for Summary Relief, DOC asked merely that Sweeting's Motion be "denied." Similarly, in response to Sweeting's Motion for Expedited Judgment on the Pleadings, DOC has asked that Sweeting's Motion be "denied." Even if this Court denies the Sweeting's Motion for Expedited Judgment on the Pleadings, the matter will remain active on the docket, unless and until DOC moves for dismissal.
Although this Court's review of this matter appears to demonstrate that summary relief could be granted to DOC, no motion for such relief is before this Court.
This Court has no alternative than to deny the Motion for Expedited Judgment on the Pleadings.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 24th day of June, 2015, Bret Sweeting's Motion for Expedited Judgment on the Pleadings in the above-captioned matter is hereby DENIED.
/s/_________
BERNARD L. McGINLEY, Judge