Opinion
No. 561 M.D. 2014
07-28-2015
Deshin Love, Petitioner v. Pennsylvania Department of Corrections, John E. Wetzel, Secretary of Corrections; John Kerestes, S.C.I. Mahanoy Superintendent; Kris Calkins, S.C.I., Mahanoy Records Specialist, Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Before this Court are the preliminary objections of the Pennsylvania Department of Corrections (DOC) to Deshin Love's (Love) petition for writ of mandamus in this Court's original jurisdiction.
Love is incarcerated at the State Correctional Institution at Mahanoy (SCI- Mahanoy). Upon Love's parole on January 2, 2014, his sentence calculation was reviewed and modified. Love sought clarification of this modification, and was allegedly informed for the first time that a letter from sentencing Judge Christopher Wogan, dated June 6, 2007, indicated that the Judge intended his sentence to run consecutively to a previously imposed sentence by Judge Joseph Dych, dated September 20, 2006.
On October 22, 2014, Love filed a Petition for Review in the Nature of Mandamus and alleged:
4. Review is sought of the action by the Pennsylvania Department of Corrections [DOC] and it's employee's [sic] in their official capacity where it illegally recalculated the petitioner's [Love] sentence without a lawful order from the sentencing court.
5. On 9-8-04 petitioner [Love] was arrested in Phila. county on charges of Drug-manufacture/Sale/Deliver or Possess w/ intent to, case number CP-51-CR-0509302-2005. On 4-8-04 petitioner [Love] posted bail on number CP-51-CR-0509302. On 4-8-05 petitioner [Love] was arrested in Phila. county on charges of Robbery-Inflict Serious Bodily Injury, Burglary, Firearms not to be carried w/o license, Criminal Conspiracy Engaging Robbery Inflict Serious Bodily Injury, Burglary, Firearms not to be carried w/o license, Criminal Conspiracy Engaging Robbery Inflict Serious Bodily Injury case number CP-51-CR-1205561-2005.
6. On 9-20-06 petitioner [Love] plead [sic] guilty to Drug/-Manufacture/Sale/Deliver or possess w/intent to before Judge Joseph Dych in Phila. county court of common pleas, case number CP-51-CR-0509302-2005. On 3-13-07 petitioner [Love] plead guilty to Robbery-Inflict Serious Bodily Injury before Judge Chris Wogan in Phila. county court of common pleas case number CP-51-CR-1205561-2005.
7. On 9-20-06 petitioner [Love] was sentenced by Judge Joseph Dych to a term of 4 to 10 years on charges of Drug-Manufacture/Sale/Deliver or possess w/intent to. Judge Joseph Dych's sentence was to run concurrent to any other to any other sentence and petitioner [Love] received credit for time served. On 3-13-07 petitioner [Love] was sentenced by Judge Chris Wogan to a term of 8 to 20 years on charges of Robbery-Inflict Serious Bodily Injury, burglary, Firearms not to be carried w/o a license, Criminal Conspiracy Engaging Robbery-Inflict
Serious Bodily Injury. Judge Chris Wogan's sentence was to run concurrent to Judge Joseph Dych's sentence and petitioner [Love] received credit for time served.
8. Following sentencing petitioner [Love] was committed to serve sentences in a state correctional institution where he remained without release.
9. On 1-2-14 petitioner [Love] was granted parole, however petitioner's [Love] sentence calculation was reviewed as part of the processing for his release on parole. On 1-14-14 petitioner [Love] received a new sentence status summary from Kris Calkins. Kris Calkins changed petitioner's [Love] maximum from 4-2-27 to 4-2-35 increasing petitioner's [Love] overall sentence.
10. Petitioner [Love] informed Kris Calkins that Judge Chris Wogan's sentence should run concurrent to Judge Joseph Dych's sentence, Kris Calkins responded that there is a letter on file authored by Judge Chris Wogan stating that his sentence [sic] run consecutive to Judge Joseph Dych's sentence.
11. Petitioner [Love] requested that Kris Calkins provide a sentencing order for which the recalculation was based on [sic], petitioner [Love] received a letter authored by Judge Chris Wogan dated 6-6-07.
12. Judge Chris Wogan lacked Jurisdiction to modify his 3-13-07 sentencing orders at the time he sent the 6-6-07 clarification letter. Judge Chris Wogan never notified the petitioner [Love] that there would be a modification to his sentence.
13. Judge Chris Wogan's 6-6-07 clarification letter was illegal and untimely, the department of corrections [DOC] should not have recalculated the petitioner's sentences to run consecutive based on Judge Chris Wogan's 6-6-07 clarification letter.
14. As a result of the department of corrections [DOC] unlawful recalculation of the petitioner's sentence he was
unfairly deprived from release on parole which had already been granted.Petition for Review in the Nature of Mandamus, October 22, 2014, (Review Petition), Paragraphs 4- 15 at 1-5. (Emphasis added.)
15. Petitioner [Love] exhausted available administrative remedies by filing a grievance and grievance appeals against the department of corrections [DOC] illegal recalculation of his sentence. Petitioner [Love] has no appropriate and adequate remedy if this court denies relief.
DOC preliminarily objects in the nature of a demurrer and asserts that Love failed to establish a clear, legal right to the modification of his sentence as currently calculated. Specifically, DOC asserts:
16. The thorough record of documentation outlined by the Petitioner [Love] and referenced in his pleading evidence that the Department [DOC] has properly calculated his sentence based upon the sentencing orders generated by the trial courts and the clarification letter received by the sentencing judge....
17. Based upon the clarification from Judge Wogan, the Department [DOC] appropriately modified its internal sentence calculation document to reflect the consecutive nature of the sentence imposed.
18. Judge Wogan's true intent in sentencing the Petitioner [Love] was for his sentence to run consecutively to a sentence previously imposed by Judge Dych; Judge Wogan made that intention clear in his sentencing letter and the Department [DOC] lawfully utilized that clarification to carry out the true will of the sentencing court.
19. Petitioner [Love] asks this Court to disrupt the will of the sentencing court by compelling the Department
[DOC] to ignore the clarification provided by Judge Wogan in properly effectuating the sentence he imposed.DOC's Preliminary Objections to Love's Application for Summary Relief, November 24, 2014, Paragraphs 16-20, at 4-5.
20. Petitioner [Love] provides no compelling reasons, based in law or in equity, why a proper sentence should not be imposed as originally intended by the sentencing court.
In considering preliminary objections, this Court must consider as true all the well-pleaded material facts set forth in the petitioner's petition and all reasonable inferences that may be drawn from those facts. Mulholland v. Pittsburgh National Bank, 174 A.2d 861, 863 (Pa. 1961). Preliminary objections will be sustained only in cases clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Werner v. Zazyczny, 681 A.2d 1331 (Pa. 1996).
Mandamus is an extraordinary writ designed to compel performance of a ministerial act or mandatory duty where exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and appropriate remedy. Princeton Sportswear Corporation v. Redevelopment Authority, 333 A.2d 473 (Pa. 1975).
Essentially, Love contends that DOC improperly calculated his sentence based upon Judge Wogan's clarification letter.
In reviewing the modified sentence imposed by Judge Wogan, this Court is guided by decisions of the Superior Court. "A sentence...is to be construed so as to give effect to the intention of the sentencing judge." Commonwealth v. Green, 335 A.3d 392, 393 (Pa. Super. 1975) (quoting U.S. ex rel. Speaks v. Brierly, 417 F.2d 597, 600 (3d Cir. 1969), cert. denied, 397 U.S. 1051, (1970)). "[T]o determine this intention the court will limit itself to the language of the judgment despite...statements of the sentencing judge which are not incorporated in it." Id. at 393. Furthermore,
[t]he only sentence known to the law is the sentence or judgment entered upon the records of the court. If the entry is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth. But the judgment imports verity when collaterally assailed. Until corrected in a direct proceeding, it says what it was meant to say, and this by an irrebuttable presumption. In any collateral inquiry, a court will close its ears to a suggestion that the sentence entered in the minutes is something other than the authentic expression of the sentence of the judge.Commonwealth ex rel. Woods v. Howard, 378 A.2d 370, 372-73 (Pa. Super. 1977) (quoting Hill v. U.S. ex rel. Wampler, 298 U.S. 460, 464, (1936))(citations omitted).
Accordingly, to determine Love's sentence, this Court must limit its inquiry to the language embodied in Judge Wogan's March 13, 2007, Order:
Count 1- 18 §3701 §§A1l- Robbery-Inflict Serious Bodily Injury
To be confined for a Minimum Term of 60 months and a Maximum Term of 144 months at___.
The following conditions are imposed:
Other- Time served: To receive credit for time served. Permitted to serve time in Federal custody.
Other- Concurrent: To run concurrent to Judge DuBois sentence.
....
Count 4- 18 §6106 §§A1- Firearms Not To Be Carried W/O License
To be placed on Probation for a Maximum Term of 2 years to be supervised by___.
This sentence is to be served consecutive to:
CP-51-CR-1205561-2005 Ct #14 Confinement
Count 14- 18 §903 §§A1- Criminal Conspiracy Engaging Robbery-Inflict Serious Bodily Injury
To be confined for a Minimum Term of 36 months and a Maximum Term of 96 months at....
The following conditions are imposed:
Other- Time Served: To receive credit for time served.
Permitted to serve in Federal Custody.
This sentence is to be served consecutive to:
Judge Wogan's Original Order, March 13, 2007, at 1-2. (Emphasis added.) Significantly, nowhere in his original Order does Judge Wogan reference Judge Dych's sentencing Order.CP-51-CR-1205561-2005 Ct #1 Confinement
Honorable Jan E. DuBois of the United States District Court of the Eastern District.
On May 3, 2007, the DOC apparently sought clarification from Judge Wogan regarding his March 13, 2007, Order.
The DOC's letter is not included in the record before this Court, however, Judge Wogan referenced the DOC's letter in his alleged "clarification letter." Love's Application for Summary Relief; Exhibit A.
Judge Wogan's response to the DOC's letter indicated that the "sentence I imposed is almost totally concurrent with the Federal Sentence [of Judge DuBois], but it is consecutive to Judge Dych's sentence." Clarification Letter, June 6, 2007, at 1. (Emphasis added.)
In Commonwealth of Pennsylvania, ex. rel Darryl Powell v. Pennsylvania Department of Corrections, 14 A.3d 912 (Pa. Cmwlth. 2011), an inmate initiated a mandamus action to compel the DOC to treat his three criminal sentences as running concurrently, as stated in the trial court's sentencing order. Thirty-six months after entry of the sentencing order, the DOC sent a letter to the sentencing court and requested clarification. In response, the trial court amended its sentencing order so that two sentences were to run consecutively to the third sentence. On appeal, this Court determined that the trial court's amendment was untimely and illegal because the trial court lacked jurisdiction at the time it ordered the amendment.
A sentencing court may modify a sentencing order only in limited circumstances. Section 5505 of the Judicial Code provides: "Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding prior termination of any term of court, if no appeal from such order has been taken or allowed." 42 Pa.C.S. § 5505. (Emphasis added.) Generally, once the thirty-day period has passed, the trial court lacks jurisdiction to modify a sentencing order. Powell, 14 A.3d at 917, citing Commonwealth v. Quinlan, 639 A.2d 1235, 1238 (Pa. Super. 1994).
After expiration of the thirty-day time limitation, a sentencing court retains the power to correct obvious and patent mistakes. Quinlan, 639 A.2d at 1239. Notwithstanding, the alleged error here- Judge Wogan's failure to expressly direct whether Love's sentences are to run consecutively or concurrently to Judge Dych's sentences- is neither patent nor obvious. "An omission from an original sentence...is not a patent error per se." Id. at 1239. Furthermore, "[t]he presumption that the written sentencing order is what the sentencing judge intended increases with the length of time that the written sentencing order goes unchallenged." Id. at 1240.
In the present case, Love allegedly was not notified of the DOC's May 3, 2007, written communication to Judge Wogan, and he alleges he was not notified of Judge Wogan's June 6, 2007, clarification letter until he was to be paroled. Review Petition, Paragraphs 10-12 at 4. This Court will not allow the DOC to accomplish through administrative back-channels that which the sentencing court may not achieve in its own right. Powell, 14 A.3d at 917. Further, Judge Wogan's March 13, 2007, original sentencing Order was silent as to whether Love's sentences were to run consecutively or concurrently to Judge Dych's sentence. Accordingly, it is unclear whether Judge Wogan's June 6, 2007, letter was a modification of Love's sentence or merely a clarification.
Because there are outstanding questions of law and fact in this record, this Court denies the preliminary objections of DOC and directs the DOC to file an Answer within 30 days.
Love also filed an Application for Summary Relief in which he essentially seeks the same relief that he seeks in his petition for review. Because this Court denies the preliminary objections in the nature of a demurrer because there are outstanding questions of fact, this Court defers review of the application for summary relief. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 28th day of July, 2015, the preliminary objections of the Respondents are denied. This Court directs the Respondents to file an Answer within 30 days. This Court defers review of Petitioner's Application for Summary Relief because there are outstanding questions of fact.
/s/_________
BERNARD L. McGINLEY, Judge