Opinion
No. 601 M.D. 2012
05-31-2013
Joseph Swanson, Petitioner v. Pennsylvania Department of Corrections, Pennsylvania Board of Probation and Parole, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court are the preliminary objections of the Pennsylvania Department of Corrections (Department) to a pro se petition for review filed by Joseph Swanson (Petitioner) claiming that the Department improperly calculated his sentence. For the reasons that follow, we sustain the preliminary objections and dismiss the petition for review.
On November 5, 1996, Petitioner pled guilty in the Court of Common Pleas of Erie County (trial court) to two counts of criminal conspiracy (Counts 1 and 3) and one count each of theft by unlawful taking (Count 2) and aggravated assault (Count 4). On January 9, 1997, the trial court sentenced Petitioner on the criminal convictions. Count 1 was nolle prossed. The trial court sentenced Petitioner to nine to 18 months in Erie County Prison, effective May 19, 1996, on Count 4.
On September 17, 1997, the trial court revoked Petitioner's probation, sentencing Petitioner to a two-and-one-half to ten-year term of imprisonment on Count 3, and to a concurrent one to seven-year term of imprisonment on Count 2. The trial court also imposed a parole revocation sentence as to Count 4, imposing the original nine to 18-month sentence in Erie County Prison effective September 13, 1996, and crediting Petitioner for the 369 days he served. The parole revocation sentence expired on March 18, 1998.
The record is unclear, but apparently, Petitioner initially received a probationary sentence for Counts 2 and 3.
It is also apparent that Petitioner was paroled from his conviction on Count 4 but subsequently violated the terms of his parole.
On January 6, 1999, the trial court sentenced Petitioner on four other criminal convictions - two counts of statutory sexual assault (Counts 1 and 2) and two counts of indecent assault of a person less than 16 years of age (Counts 3 and 4). As to Count 1, the court imposed a state sentence of two to four years "to be served consecutive to the state parole revocation sentence" from 1997. (January 6, 1999 Sentencing Order). As to Count 2, the court imposed a state sentence of two to four years to be served consecutively to Count 1. Counts 3 and 4 consisted of costs and merged. Based on the effective date of March 18, 1998, the Department established a minimum release date of September 13, 2004, and a maximum release date of March 13, 2016.
Petitioner filed a petition for review seeking mandamus relief in this Court's original jurisdiction, arguing that the 1999 sentencing order states that the initial two to four-year term is to be served consecutive to the state parole revocation sentence, which had already expired prior to the imposition of the 1999 sentence. Therefore, Petitioner argues, it follows that the 1999 two to four-year sentences would begin on the date the parole revocation sentence expired and, thus, run concurrently with the 1997 two-and-one-half to ten-year sentence.
Relief in mandamus will be granted to compel the performance of a ministerial act where the plaintiff establishes a clear legal right to relief and a corresponding duty to act by the defendant. Williams v. Pennsylvania Dept. of Corrections, 47 A.3d 162, 165 n.2 (Pa. Cmwlth. 2012).
The Department filed preliminary objections in the nature of a demurrer arguing that Petitioner has failed to establish a clear legal right to relief from the sentence calculations. The Department explains that although Count 1 of the 1999 sentence requires the sentence to be served consecutively to the state parole revocation sentence from 1997, the parole revocation sentence was a county sentence, which expired prior to the imposition of the 1999 sentence. The Department argues that the 1999 sentence was not meant to run consecutively to the parole revocation sentence, but rather, consecutively to the two-and-one-half to ten-year state probation revocation sentence.
In ruling upon preliminary objections in the nature of a demurrer, the Court must accept as true all well-pled facts and all reasonable inferences deducible therefrom, and it must determine whether the facts pled are legally sufficient to permit the action to continue. Gordon v. Pennsylvania Dept. of Corrections, 16 A.3d 1173, 1176 n.2 (Pa. Cmwlth. 2010). In that a demurrer results in the dismissal of a suit, it 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. Id.
The Pennsylvania Board of Probation and Parole (Board) also filed preliminary objections in the nature of a demurrer arguing that because it did not calculate Petitioner's maximum sentence date, there is no case or controversy against it and that it does not have the authority to grant the relief Petitioner seeks. The Board also argued that this Court lacked original jurisdiction because challenges to Board revocation and recalculation decisions must be filed in this Court's appellate jurisdiction. By order dated January 8, 2013, this Court sustained the Board's preliminary objections and dismissed the Board as a Respondent. --------
When calculating an inmate's sentence, the Department must rely on the sentencing orders and court commitment forms that it receives from the sentencing court. "The Department is an executive branch agency that is charged with faithfully implementing sentences imposed by the courts. As part of the executive branch, the Department lacks the power to adjudicate the legality of a sentence or to add or delete sentencing conditions." McCray v. Pennsylvania Dept. of Corrections, 582 Pa. 440, 450, 872 A.2d 1127, 1133 (2005).
Given the facts here, it is clear that Petitioner cannot establish a clear right to relief. As the Department notes in its brief, there was no "state parole revocation sentence" as the 1999 sentencing order provides, and the county parole revocation had already expired. The only remaining sentence to which the 1999 sentence could have run consecutively is the two-and-one-half to ten-year probation revocation sentence from 1997. Even if we accept Petitioner's argument that the trial court's sentencing order related to some parole revocation, we cannot infer, as Petitioner argues, that the trial court intended the 1999 sentence to run concurrently to the 1997 sentence in the absence of any language indicating that intent. See Commonwealth, ex rel. Powell v. Pennsylvania Dept. of Corrections, 14 A.3d 912, 915-16 (Pa. Cmwlth. 2011) ("A sentence...is to be construed so as to give effect to the intention of the sentencing judge. ... [T]o determine this intention the court will limit itself to the language of the judgment.") (Citations omitted).
Accordingly, the preliminary objections of the Department are sustained and the petition for review is dismissed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 31st day of May, 2013, the preliminary objections of the Pennsylvania Department of Corrections are sustained, and Joseph Swanson's petition for review is dismissed.
/s/_________
DAN PELLEGRINI, President Judge