Opinion
No. 805 M.D. 2010
01-05-2012
Saul Launders, Petitioner v. Commonwealth of Pennsylvania, Department of Corrections, Suzanne N. Hueston, Chief Counsel, Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Before this Court, in our original jurisdiction, is an application for summary relief filed by Saul Launders (Launders), representing himself, requesting this Court grant his petition for review in the nature of mandamus. Specifically, Launders claims the Department of Corrections (DOC) did not institute his 2006 sentence as ordered by refusing to credit his sentence for time served prior to his sentencing. Upon review, we deny Launders's application for summary relief.
Launders is an inmate confined at the State Correctional Institution at Greensburg (SCI-Greensburg), but temporarily held in the Beaver County Jail. Launders's incarceration stems from two separate convictions. In 1998, Launders was convicted in the Philadelphia County Court of Common Pleas (trial court) of aggravated assault, and was sentenced to serve 5 to 10 years of incarceration (first state sentence). In 2003, the Board of Probation and Parole (Parole Board) released Launders on parole. In August 2004, while on parole, Launders was arrested and charged with drug related offenses. As a result of Launders's arrest, the Parole Board issued a warrant to commit and detain him. Thereafter, the trial court released Launders without imposing bail from the Philadelphia prison system to DOC custody consistent with the Parole Board's detainer.
Launders remained in DOC custody for approximately two years awaiting the disposition of his 2004 charges. In April 2006, the trial court found Launders guilty of the charged drug offenses, and sentenced him to seven to 14 years of incarceration with credit for time served (second state sentence). In 2010, Launders inquired to DOC whether he received credit toward his second state sentence for the time he served between his 2004 arrest and 2006 sentencing. DOC informed Launders it would not credit his second state sentence with his time served, because it counted that time against his first state sentence as part of his parole backtime.
In 2008, the Board of Probation and Parole closed Launders' case for the first state sentence and took no further action as to his conviction.
Launders then filed a petition for review in this Court's original jurisdiction in the nature of mandamus to compel DOC to grant him credit as the trial court ordered. DOC filed its answer and new matter, to which, Launders replied. Thereafter, Launders filed this application for summary relief.
A party may file an application for summary relief at any time after the filing of a petition for review in this Court's original jurisdiction. See Pa. R.A.P. 1532(b). Here, Launders seeks the type of mandamus relief envisioned in the Pennsylvania Rules of Civil Procedure for summary judgment, rather than peremptory judgment. Herrschaft v. Dep't of Corr., 949 A.2d 976 n.4 (Pa. Cmwlth. 2008) aff'd, 600 Pa. 365, 966 A.2d 544 (2009)(citing Pa. R.A.P. 1532, Official Note); Pa. R.C.P. No. 1098. Therefore, this Court may grant relief where there is no genuine issue of any material fact in dispute and the moving party is entitled to relief as a matter of law. See Herrschaft.
In his application for summary relief, Launders contends DOC did not properly implement his sentence. Specifically, Launders argues DOC violated its statutory duty in crediting his time served between 2004 and 2006 to his first state sentence rather than to his second state sentence. Launders does not dispute that he already received credit for the time he served between 2004 and 2006 on his first state sentence. Rather, Launders claims the trial court's sentencing order required DOC to credit the time again to his second state sentence. DOC must do so, as it lacks the discretionary authority to determine where to apply credit for time served.
In response, DOC contends it properly computed Launders's sentence consistent with the trial court's 2006 sentencing order and the Parole Act. Specifically, DOC claims, when a parolee is arrested and held, the parolee is required to serve his backtime on his original conviction before receiving credit for time served in anticipation of a new sentence.
Act of August 6, 1941, P.L. 861, as amended, added by the Act of August 24, 1951, P.L. 1401 formerly 61 P.S. §§331-331.34a, repealed by Section 11(b) of the Act of August 11, 2009, P.L. 147, as amended, 61 Pa. C.S. §§6101-6153.
The issuance of a writ of mandamus is an extraordinary remedy designed to compel the performance of a ministerial or mandatory duty of a state actor. Detar v. Beard, 898 A.2d 26 (Pa. Cmwlth. 2006); Saunders v. Dep't of Corr., 749 A.2d 553 (Pa. Cmwlth. 2000). This Court may only issue a writ of mandamus where: 1) the petitioner possesses a clear legal right to enforce the performance of a ministerial act or mandatory duty; 2) the defendant possesses a corresponding duty to perform the act; and, 3) the petitioner possesses no other adequate remedy. Detar.
This Court may issue a writ of mandamus to compel DOC to properly compute a prison sentence where a clear right to such relief is shown. McCray v. Dep't of Corr., 582 Pa. 440, 872 A.2d 1127 (2005); Lawrence v. Dep't of Corr., 941 A.2d 70 (Pa. Cmwlth. 2007) (citing Saunders). "No one, however, has a right and this Court, indeed, lacks the authority to compel an illegal act." Doxsey v. Bureau of Corr., 674 A.2d 1173, 1175 (Pa. Cmwlth. 1996). Therefore, mandamus will not lie to compel DOC's compliance with an illegal sentencing order. Id.
However, where an inmate seeks to challenge the legality of an aspect of an imposed sentence, a proper and adequate remedy is achieved through either a direct appeal or a collateral appeal for post conviction relief under the Post Conviction Relief Act, 42 Pa. C.S. §§9541-9546. Neely v. Dep't of Corr., 838 A.2d 16 (Pa. Cmwlth. 2003).
When a parole violator is convicted of a new crime and sentenced to additional incarceration, DOC is required to execute the sentencing court's order consistent with the applicable sections of the Parole Act. In pertinent part, Section 21.1(a)(1) of the Parole Act states:
We note, while Launders filed his petition after the Legislature repealed the 1941 Parole Act, it remains the applicable law, as it was in effect at the time Launders was paroled and subsequently rearrested. See Nieves v. Pa. Bd. of Prob. & Parole, 995 A.2d 412 (Pa. Cmwlth. 2010) (citing Bell v. Koppers Co., 481 Pa. 454, 392 A.2d 1380 (1978) (holding a statute relating to procedural matters is applicable to cases filed after its effective date, but a statute affecting substantive rights is applicable only if it is in effect at the time the cause of action arises)). --------
(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole ... commits any crime punishable by imprisonment, from which he is convicted ... may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, ... The period of time for which the parole violator is required to serve shall be computed from and begin on the date that he is taken into custody to be returned to the institution as a parole violator.61 P.S. §331.21a(a)(1) (emphasis added).
If a new sentence is imposed upon such parolee, the service of the balance of said term originally imposed shall precede the commencement of the new term imposed in the following cases:
(1) If a person is paroled from any State penal or correctional institution under the control and supervision of the Department of Justice and the new sentence imposed upon him is to be served in any such State penal or correctional institution.
Section 21.1(a) of the Act requires a parole violator to serve any sentence imposed for crimes committed on parole consecutively following any time remaining on the underlying sentence for which he was paroled. LeGrande v. Dep't of Corr., 894 A.2d 219 (Pa. Cmwlth. 2006). In order that the sentences truly run consecutively, a parole violator cannot accrue credit against a new sentence while still serving backtime on the underlying sentence. See Lawrence.
In addressing how Section 21.1(a) of the Act is to be applied, our Supreme Court explained that where a parole violator is in DOC custody on a Parole Board detainer, the time he spends in custody shall be credited against his original sentence. Gaito v. Pa. Bd. of Prob. & Parole, 488 Pa. 397, 412 A.2d 568 (1980). Our Supreme Court further clarified that if a parole violator is held on a Parole Board detainer and contemporaneously on new charges, his credit may still be attributed to his original sentence. Martin v. Pa. Bd. of Prob. & Parole, 576 Pa. 588, 840 A.2d 299 (2006).
In August 2004, while on parole, Launders was arrested, charged, and placed into custody. Thus, at that point, Launders was held on the new criminal charges as well as a Parole Board detainer. See Martin. As such, from the time Launders was in custody in 2004 until his 2006 sentencing, DOC was required to attribute Launders's time of incarceration to his first state sentence as backtime. See Gaito.
Consistent with Section 21.1(a)(1) of the Act, Launders's backtime for his underlying sentence must precede the commencement of any subsequent term or accumulation of credit for such subsequent term. See LeGrande. Therefore, DOC did not err in attributing Launders's time served between August 2004 and April 2006 to his parole backtime, and by not also crediting that same time period to his second state sentence. See Lawrence. See generally Doxey, 674 A.2d at 1175 ("[a] judge [is] precluded from ordering and, consequently, [DOC] is precluded from applying, credit for the period of imprisonment for a ... subsequent conviction if the individual is already in prison under a sentence ...").
We understand the trial court's standard provision for credit toward the second state sentence to mean any lawful time-served credit not previously granted. We do not understand the provision to mean double credit, which would be illegal. See Lawrence; Bright v. Pa. Bd. of Prob. & Parole, 831 A.2d 775 (Pa. Cmwlth. 2003) ("[C]redit ... may be granted only when it has not already been credited toward another sentence."). To hold otherwise would violate the Parole Act. See LeGrande. Therefore, Launders has not established a clear right to relief.
Accordingly, we deny Launders's application of summary relief.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 5th day of January, 2012, the application for summary relief filed by petitioner, Saul Launders, is DENIED.
/s/_________
ROBERT SIMPSON, Judge