Opinion
No. 17 M.D. 2011
11-19-2012
Francis O'Neill, Petitioner v. Commonwealth of Pennsylvania Pennsylvania Department of Corrections, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court is a pro se motion for judgment on the pleadings filed by Francis O'Neill (O'Neill), an inmate currently incarcerated at the State Correctional Institution (SCI) at Huntingdon. On March 25, 2011, O'Neill filed with this Court an Amended Petition for Review in the Nature of Mandamus asserting that the Pennsylvania Department of Corrections (Department) incorrectly recorded his sentences on his convictions to be served consecutively, while the Department maintains that O'Neill's sentence has been properly recorded. For the reasons that follow, we deny O'Neill's motion.
"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 has a duty to credit inmates for "all statutorily mandated periods of incarceration." McCray v. Pennsylvania Department of Corrections, 582 Pa. 440, 450, 872 A.2d 1127, 1133 (2005). However, the Department is an executive agency charged with implementing the sentences handed down by the courts and does not have the power to adjudicate the legality of a sentence or to modify the sentencing conditions without first receiving instruction to do so from the sentencing court. Id.
In 1981, O'Neill was sentenced by the Court of Common Pleas of Philadelphia County (trial court) for his conviction on the charges of third degree murder, criminal conspiracy and three counts of aggravated assault. A copy of the actual sentencing order was not attached to the petition, but, O'Neill attached a certified document from Michelle Ursone, clerk of the trial court's appeals unit, which purports to be a true and correct copy of O'Neill's docket entries providing that his sentence for a conviction of aggravated assault, listed as Bill 7907-866, was to run concurrently with his sentence for another aggravated assault conviction, listed as Bill 7907-873. O'Neill asked that the Department be mandated to recalculate his sentence so that his convictions are served concurrently, which would reduce his sentence from the minimum 25 to a maximum 50 years imprisonment that he would have to serve if the sentences were served consecutively.
The Department filed a preliminary objection alleging that it properly calculated O'Neill's sentence. By order dated September 29, 2011, this Court sustained the preliminary objection and dismissed the petition for review on the basis that the record evinced that the only portions of O'Neill's sentence which were to run concurrently were those regarding two of his aggravated assault charges, while the rest of his sentence was to run consecutively. Both parties filed motions for reconsideration. The Department sought reconsideration on the basis that this Court found that O'Neill's sentence was calculated as a minimum of 25 years and a maximum of 50 years, but the Department actually calculated his sentence as 30 to 50 years. (Respondent's Application for Relief dated October 3, 2012, at 2.) O'Neill maintained that the docket entries should be relied upon and his sentence should therefore be reduced to represent the terms running concurrently. This Court granted both applications for reconsideration.
After reconsideration was granted, the Department submitted an application for relief which requested that this Court permit a "Supplement to Indictment" document, received from the sentencing court, to be attached to its brief and included in the record. The document contains an order stating that 7907-866 is to run consecutively to 7907-873 and it is signed by Judge Joseph Murphy. (Exhibit A to Respondent's Application for Relief, at 1.) We granted that application by order dated October 9, 2012.
O'Neill has filed a motion for judgment on the pleadings, contending that the docket entries provide that the sentences at issue are to run concurrently. The Department contends that the Supplement to Indictment, purportedly signed by the sentencing judge, provides that those sentences are to run consecutively.
This Court reviews a motion for judgment on the pleadings pursuant to Pa. R.C.P. No. 1034 to determine whether there exists a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Curley v. Smeal, 41 A.3d 916 (Pa. Cmwlth. 2012). "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." Id. at 919 n.3 (citing Pa. R.C.P. No. 1034(b)). The Court may only consider the pleadings themselves and any documents properly attached thereto. Bergdoll v. Kane, 694 A.2d 1155, 1157 (Pa. Cmwlth. 1997), aff'd, 557 Pa. 72, 731 A.2d 1261 (1999). --------
The docket entries offered by O'Neill and the Supplement to Indictment, apparently signed by the sentencing judge and which appears to be written in the same hand with regard to Bill 7907-866 for aggravated assault, differ in that the docket entries provide for the sentences to run "concurrently" while the supplement provides for the sentences to run "consecutively" to 7907-873. Because there is a valid issue of material fact and he is not entitled to a judgment as a matter of law, O'Neill's motion for judgment on the pleadings is denied.
Accordingly, O'Neill's application for judgment on the pleadings is denied.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 19th day of November, 2012, the motion for judgment on the pleadings filed by Francis O'Neill is denied.
/s/_________
DAN PELLEGRINI, President Judge