Opinion
No. 704 M.D. 2012
02-06-2014
Terrance Washington, Petitioner v. L. Bloom, R. Johnson, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court are the preliminary objections of L. Bloom and R. Johnson, employees of the Pennsylvania Department of Corrections (Department), to a pro se petition for review in the nature of a request for a writ of mandamus filed by Terrance Washington (Washington) claiming that the Department failed to properly compute the sentences he is now serving. We sustain the preliminary objections and dismiss the petition for review.
Washington is an inmate at the State Correctional Institution at Somerset (SCI-Somerset). He was arrested and charged in connection with five robberies of liquor stores involving the use of firearms in Philadelphia in 1996. While awaiting trial on those charges in the Court of Common Pleas of Philadelphia County (trial court), Washington was placed on house arrest with electronic monitoring. He removed the electronic ankle monitor and committed three additional robberies involving the use of firearms in 1997. In January 1998, following a two-day jury trial, Washington was adjudged guilty of four counts of robbery; two counts of criminal conspiracy; two counts of violating the Uniform Firearms Act (UFA); and two counts of possessing an instrument of crime (PIC) with respect to the charges arising out of two of the robberies. Subsequently, he also entered an open guilty plea on 17 additional counts of robbery, criminal conspiracy, UFA, PIC and theft of firearms with respect to the charges arising out of the remaining six robberies.
On February 24, 1998, the trial court sentenced Washington to an aggregate 35- to 70-year term of imprisonment. However, due to an error in the paperwork, Washington was only sentenced on seven of the eight docketed cases. As a result, on December 17, 1998, Washington was sentenced on the eighth docketed case to a 5- to 10-year term of imprisonment.
On December 14, 1998, prior to sentencing on the eighth case, Washington filed a pro se motion to file an appeal nunc pro tunc of the judgment of sentence imposed on the other seven cases. In January 2000, Washington filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§9541-9546, that the trial court denied. However, on appeal, the Superior Court remanded the matter for a determination of which cases required the reinstatement of his direct appeal rights nunc pro tunc because his 1998 pro se motion should have been treated as a timely PCRA petition. In October 2003, his direct appeal rights were reinstated for the seven other cases and the Superior Court affirmed his convictions and the judgments of sentence in October 2005. Washington filed a second pro se PCRA petition, and an amended petition, which the trial court dismissed in August 2008 as without merit. Washington filed a notice of appeal with the Superior Court which was transferred to the trial court and dismissed as untimely. In November 2008, Washington filed another PCRA petition seeking the reinstatement of his appeal rights nunc pro tunc which was dismissed by the trial court in February 2011. In September 2012, the Superior Court reversed the trial court's order and retained jurisdiction; reinstated Washington's appeal rights, nunc pro tunc, as to the trial court's August 2008 order, and directed the parties to brief the issues preserved in Washington's prior appeal of the trial court's August 2008 order. That appeal is currently pending before the Superior Court at Docket No. 532 EDA 2011. A footnote in the trial court's Pa. R.A.P. 1925(a) opinion filed in that matter indicates that the 5- to 10-year term imposed in December 1998 was a concurrent term of imprisonment.
On March 9, 1999, Washington's counsel sent him a letter indicating that he had contacted the Clerk of Courts who confirmed with the trial court that the 5- to 10-year term was, in fact, concurrent and not consecutive to the other term of imprisonment, and that the Clerk of Courts would be shortly writing a new Commitment to be sent to the prison. By letter dated June 2, 1999, Washington's counsel sent the trial court's Clerk of Quarter Sessions a letter indicating that while the 5- to 10-year term was to be served concurrently with the 35- to 70-year term, the Clerk of Courts sent the wrong paperwork to the prison which stated that a consecutive term of imprisonment had been imposed. The letter also stated that as of May 18, 1999, the prison's Records Room was still waiting for a certified copy of the paperwork correcting the purportedly incorrect sentence.
In 2011 and 2012, Washington submitted requests to Department staff and a grievance, alleging that the Department incorrectly calculated his sentence by imposing the 5- to 10-year term consecutively. However, the Department's responses stated that the sealed court order on file indicates that the 5- to 10-year term is to be served consecutively to the 35- to 70-year term imposed in the other docketed cases, and that while the Department submitted several requests to the Clerk of Quarter Sessions' Office, no response or other written verification had been received from the trial court indicating that the sentences were to be served concurrently.
In December 2012, Washington filed the instant petition seeking mandamus relief in which he alleges that the Department, through its employees, had erroneously calculated his aggregate sentence to be a 40- to 80-year term of imprisonment by imposing the 5- to 10-year term consecutively to the 35- to 70-year term while the trial court actually imposed a concurrent term of imprisonment. Washington attached to the petition copies of his requests to Department staff and his grievance; the 1999 letters that his counsel sent to him and to the Clerk of Quarter Sessions; and part of the trial court's Pa. R.A.P. 1925(a) opinion filed in the Superior Court PCRA appeal indicating in a footnote that it had imposed a concurrent 5- to 10-year term of imprisonment in December 1998. He argues that these official court documents support his assertion that the 5- to 10- year sentence is to be served concurrently with the 35- to 70-year term of imprisonment. The Department filed preliminary objections alleging that Washington's petition for review fails to establish a clear legal right to the relief he seeks because he fails to identify or allege the existence of a trial court written judgment of sentence indicating that the two terms of imprisonment are to be served concurrently rather than consecutively, thereby requiring the recalculation of his 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 Department of Corrections, 47 A.3d 162, 165 n.2 (Pa. Cmwlth. 2012).
"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 Department 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. All doubts must be resolved against sustaining the demurrer. Bundy v. Beard, 924 A.2d 723, 725 n.2 (Pa. Cmwlth.), aff'd, 596 Pa. 103, 941 A.2d 646 (2007), cert. denied, 553 U.S. 1098 (2008).
As this Court has explained:
"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 despite ... statements of the sentencing judge which are not incorporated in it." Furthermore,
Commonwealth ex rel. Powell v. Pennsylvania Department of Corrections, 14 A.3d 912, 915-16 (Pa. Cmwlth. 2011) (citations omitted).[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.
As a result, 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 Dep't of Corrections, 582 Pa. 440, 450, 872 A.2d 1127, 1133 (2005).
Given the facts here, it is clear that Washington cannot establish a clear right to relief. The pleadings in this case show that the December 1998 judgment of sentence imposed by the trial court and sent to the Department states that Washington should serve the 5- to 10-year term consecutive to the previously imposed 35- to 70-year term. The actions of the Department, as indicated in the pleadings, demonstrate its intent to faithfully implement that written sentence and to give effect to its provisions. Washington's assertion that the 5- to 10- year term should be served concurrently with the 35- to 70-year term would require the Department to disregard the written sealed order that it received from the trial court. Clearly, such a construction of the sentences would be contrary to the expressed written intent of the trial court and, as part of the Executive Branch, the Department is absolutely powerless to alter the sentences in such a manner. McCray.
Accordingly, the preliminary objections are sustained and the petition for review is dismissed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 6th day of February, 2014, the preliminary objections of L. Bloom and R. Johnson are sustained and the petition for review is dismissed.
/s/_________
DAN PELLEGRINI, President Judge