Opinion
No. 437 M.D. 2014
02-27-2015
Keith Silfies, Petitioner v. Pennsylvania Dept. of Corrections, Diane Yale, Records Sup. (SCI-Dallas), Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Before this Court for disposition in our original jurisdiction is the Preliminary Objection to Petition for Review (PO) in the nature of demurrer filed by the Pennsylvania Department of Corrections (Department) and Diane Yale, Records Sup. (SCI-Dallas) (collectively "the Department"), to the pro se Petition for Writ of Mandamus (Petition) filed by Keith Silfies. Silfies, a current inmate at the State Correctional Institution at Dallas (SCI-Dallas), petitioned this Court to order the Department to award him six years credit for the time already served as part of the first component of a split sentence toward his re-sentence, which was imposed after his probation was revoked. Also before this Court for disposition is Silfies' Motion for Summary Judgment. For the reasons that follow, we will sustain the Department's PO and dismiss the Motion for Summary Judgment as moot.
The relevant facts as averred by Silfies in the Petition and the attached exhibits are as follows. On June 8, 2005, Silfies pled guilty to multiple burglaries in the Court of Common Pleas of Lehigh County (trial court). (Petition, History ¶ 1.) As part of the plea agreement, all burglary sentences ran concurrently and Silfies received a split sentence of two and a half to six years incarceration followed by ten years probation. (Petition, History ¶ 1.) On December 3, 2010, Silfies completed the prison portion of his split sentence and was released on probation, as per the second component of his sentence. (Petition, History ¶ 2.)
On October 18, 2011, Silfies' probation was revoked due to a technical violation and, on April 3, 2012, his probation was revoked due to a DUI Conviction. (Petition, History ¶¶ 3-4.) After each of these two instances, Silfies was re-sentenced to ten years probation. (Petition, History ¶¶ 3-4.) On July 17, 2012, his probation was revoked a third time; however, this time he was re-sentenced to five to ten years in prison. (Petition, History ¶ 5.) As part of the re-sentencing for his violation of probation (VOP sentence), the trial court ordered that he "be given credit for all time spent in custody resulting from these criminal charges[,] for which sentence is being imposed." (Petition, History ¶ 5; Ex. A, Trial Ct. Probation Violation Order (VOP Order).) Silfies calculates that he served the entire six years of the first part of the split sentence and has served over two additional years on his VOP sentence for a total of eight plus years in custody. (Petition at 1-2.) On August 14, 2014, Silfies requested that SCI-Dallas credit his VOP sentence with the six years he served as part of the first component of the split sentence; however, SCI-Dallas denied his request. (Petition, History ¶ 6.) At present, the Department has only given Silfies credit for 119 days spent in custody between when he was arrested for violating his probation and re-sentenced. (Petition at 2; Ex. D, Inmate's Request to Staff Member.)
Silfies filed the instant Petition requesting a Writ of Mandamus that would order the Department to credit him six years toward the VOP sentence for time he previously served for the first part of the split sentence and to change his maximum release date to March 21, 2016. Silfies alleges that, by not crediting him the six years, the Department has failed to comply with the explicit wording of the trial court's VOP Order. The Department filed a PO in the nature of demurrer contending that Silfies has failed to plead a clear right to relief. Following the filing of the PO, Silfies filed the Motion for Summary Judgment seeking judgment in his favor because the Department did "not present any objections or defenses to the Writ of Mandamus." (Motion for Summary Judgment ¶ 2.) The Department asserts, inter alia, that Silfies' Motion for Summary Judgment is premature. We will first address the Department's PO.
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, 262 (Pa. Cmwlth. 2004). However, "courts reviewing preliminary objections may not only consider the facts pled in the complaint, but also documents or exhibits attached to it." Lawrence v. Department of Corrections, 941 A.2d 70, 71 (Pa. Cmwlth. 2007). Preliminary objections in the nature of a demurrer "should be sustained only in cases that are clear and free from doubt and only where it appears with certainty that the law permits no recovery under the allegations pleaded." Sweatt v. Department of Corrections, 769 A.2d 574, 577 (Pa. Cmwlth. 2001).
"[M]andamus is an extraordinary action at common law and is available only to compel the performance of a ministerial act or mandatory duty 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, 872 A.2d 1127, 1131 (Pa. 2005). Further, "[t]he purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure." Aviles v. Department of Corrections, 875 A.2d 1209, 1211 (Pa. Cmwlth. 2005) (emphasis added); see also Detar v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth. 2006) (concluding that "[m]andamus can only be used to compel performance of a ministerial duty and will not be granted in doubtful cases"). This "Court has routinely entertained Petitions for Review in the nature of mandamus seeking orders to compel the Department to apply credit for time served." McCray, 872 A.2d at 1130.
In support of the PO, the Department argues that the trial court's VOP Order is a form order that does not spell out specific dates for credit or state that credit is to be given for the six years previously served. The Department contends that, because the language in the VOP Order is not clear, mandamus is not available. In addition, a five to ten year sentence with a six year credit for previously served time is illogical. The Department alleges that a more logical interpretation of the VOP Order is that the two components of the split sentence are to be viewed separately and that "only the time spent in custody during the 10 year second component is to count as credit toward the VOP sentence." (PO ¶ 29.) Further, the Department avers that, under the Sentencing Code, Silfies is not entitled to double credit for both components of the split sentence, and that the six years for which Silfies "seeks credit . . . was already credited toward service of the first component of the split sentence." (PO ¶ 36.)
42 Pa. C.S. §§ 9701-9799.9. --------
In response, Silfies argues that the trial court fashioned the VOP sentence around the six years previously served in order to make him eligible for immediate release. In Commonwealth ex rel. Powell v. Department of Corrections, 14 A.3d 912 (Pa. Cmwlth. 2011), this Court stated that, "[a] sentence is to be construed so as to give effect to the intention of the sentencing judge." Id. at 915 (quotation omitted). Silfies argues that, because the VOP Order states Silfies was to be given credit for all the time spent in custody, the trial court clearly intended to credit the six years served under the first component of the split sentence toward the VOP sentence. Moreover, Silfies argues that the Department, as an administrative agency, cannot adjudicate the legality of sentences and that it was, therefore, without authority to change the terms of his sentence. Thus, Silfies maintains that mandamus is the proper action to compel the Department to comply with the trial court's VOP Order and credit him the six years already served toward his VOP sentence.
In order to assess whether Silfies is entitled to pursue a mandamus action, further discussion of cases in this area is warranted. In McCray, the petitioner's probation was revoked and, when the trial court re-sentenced him, it did not credit him with time served prior to the revocation of his probation. McCray, 872 A.2d at 1129. Consequently, the petitioner filed a writ of mandamus to compel the Department to award him credit. Id. On appeal from this Court, our Supreme Court concluded that, rather than seek mandamus with this Court, the petitioner should have expressed his concerns over the lack of credit given "by raising an objection [in the sentencing court], which would have allowed the trial court to clarify its decision" and would have preserved the issue for appeal. Id. at 1132. Thus, our Supreme Court held that the petitioner "failed to avail himself of the remedy available to him" and that a mandamus action was inappropriate for the matter. Id.; see also Aviles, 875 A.2d at 1213-14 (holding that where the "right to relief [for credit is] far from clear," rather than bring a mandamus action, the appropriate remedy is to raise the credit issue with the sentencing court so that it can clarify its sentence).
With respect to whether the petitioner in McCray had a clear right to relief, the Supreme Court concluded that, under the Sentencing Code, the maximum term of the VOP "sentence combined with the time previously served on the original sentence [cannot] exceed the statutory maximum penalty for the criminal charge." McCray, 872 A.2d at 1132. However, because those concerns were not present and nothing in the Sentencing Code mandated that the VOP sentence be credited with the earlier time served, the Supreme Court concluded that the petitioner did not have a clear right to relief. Id. Similarly, because the trial court's VOP sentence did not order that the petitioner receive credit for time served, the Supreme Court held that the Department did not have a duty to credit him with time previously served. Id. at 1133.
Following McCray, in Oakman v. Department of Corrections, 893 A.2d 834 (Pa. Cmwlth. 2006), this Court further explained the circumstances when a mandamus action is appropriate. In Oakman, the petitioner alleged that his VOP sentence specifically gave him credit for over two years he served as part of the first component of a split sentence for burglary. Id. at 836. Explaining McCray, this Court concluded that McCray "held that where a VOP sentence does not award credit or the award of credit is ambiguous, the defendant is required to express his concerns about this matter by raising an objection to the sentencing court to clarify its sentence, not seek mandamus." Id. at 837 (emphasis added.) Therefore, this Court held that "[m]andamus, then, is available as a remedy if it can be established that the trial court's sentencing order clearly gives credit against the VOP sentence for time served on the original split sentence." Id. (emphasis added); see also Black v. Department of Corrections, 889 A.2d 672, 677 (Pa. Cmwlth. 2005) (holding that mandamus is an appropriate remedy where an order makes clear that a new sentence is inclusive of an original sentence, but that mandamus is not available where the re-sentencing order does not clearly give credit for the original sentence).
In the instant case, because the trial court's VOP Order does not give Silfies a clear legal right to credit on his VOP sentence for time served under the first component of the split sentence, we conclude that mandamus is inappropriate. McCray, 872 A.2d at 1131-32. The VOP Order is a form order containing various boxes, of which several were checked by the trial court. (VOP Order.) The trial court checked boxes indicating that it conducted a hearing due to Silfies' probation violation and that Silfies had violated the conditions of his probation. (VOP Order.) Further, the trial court checked boxes stating that Silfies' probation was revoked and that he was "re-sentenced to: pay the costs of prosecution[,] . . . a period of incarceration of not less than five years nor more than ten years[,] . . . and [that] credit be given [Silfies] for all time spent in custody, as a result of these criminal charges for which sentence [was] being imposed." (VOP Order (alterations added) (emphasis in original).) Given that the VOP Order specifically states that it arose from Silfies' probation violation and that Silfies was being re-sentenced for violating the conditions of his probation, on its face the VOP Order only involves Silfies' VOP sentence and does not, in any way, acknowledge the first component of his split sentence. Because the VOP Order solely addressed the VOP sentence, the provision in the VOP Order giving Silfies credit for time spent in custody resulting from the criminal charges for which the sentence was imposed indicates that Silfies was to only be given credit for the time spent in custody following the violation of his probation. Thus, the VOP Order does not provide any support for Silfies' averment that the trial court intended to award him credit on his VOP sentence for the time served under the first component of the split sentence.
Moreover, even if we determined that the VOP Order was somehow ambiguous regarding the particular times spent in custody that Silfies is entitled to credit toward his VOP sentence, he would still not be entitled to pursue this mandamus action. As we concluded in Oakman, where the award of credit is ambiguous the defendant should raise an objection with the trial court, asking it to clarify its order. Oakman, 893 A.2d at 837. Therefore, rather than pursue an action in mandamus, Silfies could have objected to the VOP Order and asked the trial court to clarify whether it intended to give him credit for the time spent in custody under the first component of the split sentence. Id.; Aviles, 875 A.2d at 1213-14. Silfies, however, failed to pursue this remedy. Because the VOP Order does not clearly give credit on the "VOP sentence for time served on the original split sentence," Silfies has not demonstrated a clear legal right and mandamus will not lie in this case. Oakman, 893 A.2d at 837.
Accordingly, for the foregoing reasons the Department's PO is sustained. Because we sustain the Department's PO, Silfies' Motion for Summary Judgment is dismissed as moot.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, February 27, 2015, "Respondents' Preliminary Objection to Petition for Review" is SUSTAINED and Petitioner's Petition for a "Writ of Mandamus" is DISMISSED with prejudice. It is further ORDERED that Petitioner's Motion for Summary Judgment is DISMISSED as moot.
/s/ _________
RENÉE COHN JUBELIRER, Judge