IN THE COMMONWEALTH COURT OF PENNSYLVANIA Reginald Johnson, : Petitioner : : v. : No. 272 M.D. 2014 : Submitted: December 12, 2014 Pennsylvania Department : Corrections, : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: April 20, 2015 Petitioner Reginald Johnson (Johnson) filed a Petition for Review in this Court s original jurisdiction, seeking an order in mandamus to direct the Pennsylvania Department of Corrections (DOC) to credit one of Johnson s criminal sentences for a period of time he was held in custody from May 30, 2012 to [d]ate. 1 (Petition for Review 13.) DOC filed preliminary objections to 1 Where a trial court s sentencing order is legal on its face,... a prisoner may petition this Court in our original jurisdiction seeking a writ of mandamus to compel DOC to properly compute a prisoner s prison sentence. Barndt v. Dep t of Corr., 902 A.2d 589, 598 (Pa. Cmwlth. 2006). A prisoner also may seek clarification or modification of a sentence thirty days after the entry of the sentencing order by filing a motion for modification of sentence nunc pro tunc in the court of common pleas, asserting that the sentence as recorded did not reflect the bargain or the intent of the court, a fact which did not become apparent until beyond the thirty day appeal period. Fajohn v. Dep t of Corr., 692 A.2d 1067, 1068 n.1 (Pa. 1997). A prisoner also may file a nunc pro tunc petition to the sentencing court [w]here a [sentencing] court s (Footnote continued on next page )
Johnson s Petition for Review, which are now before this Court. For the reasons expressed below, we overrule DOC s preliminary objections. Johnson avers the following facts in the Petition for Review. On January 23, 2012, Judge James Bradley of the Court of Common Pleas of Delaware County (sentencing court) sentenced Johnson to serve a four-to-eight year sentence for possession of firearm prohibited. (Pet. for Review 6; Pet. for Review, Ex. C, Section A.) On September 25, 2013, Judge James Nilon of the Court of Common Pleas of Delaware County sentenced Johnson to serve a three-to-six-year sentence for robbery, concurrently with Judge Bradley s earlier sentence. (Pet. for Review 7; Pet. for Review, Ex. B, Section A.) The September 25, 2013 sentencing order provided that the term of service of the three-to-six-year sentence was to be effective on May 30, 2012. (Pet. for Review, Ex. B, Section A.) Johnson avers that DOC erred in its calculation of the term of credit when it failed to award credit for the period beginning on May 30, 2012, as required by Section A of the sentencing order. Johnson asserts that he filed a DC-135 with DOC s [r]ecords department and that he received a written response from the records department indicating that the error would be corrected, but that DOC never issued a corrected DC-16-E status sheet. (Pet. for Review 10-11.) He avers that DOC s failure to credit time to his sentence beginning on May 30, 2012, has, in effect, changed his sentence by altering the minimum and maximum release dates. Johnson contends that DOC, by allegedly failing to credit (continued ) sentencing order is illegal on its face, and the prisoner seeks credit and, if denied, may appeal therefrom. Barndt, 902 A.2d at 598. 2
his three-to-six year sentence with pre-sentencing time he served from May 30, 2012, through September 25, 2013 (the date of his sentence), violated Section 9760 of the Sentencing Code, 42 Pa. C.S. 9760, and relevant holdings in this Court s decisions in Collins v. Department of Corrections, 848 A.2d 1026 (Pa. Cmwlth. 2004), and Oakman v. Department of Corrections, 893 A.2d 834 (Pa. Cmwlth. 2006), which require DOC to provide all lawful credit for time served on a sentence. Johnson contends that mandamus is an appropriate means of relief, based upon his claim that DOC has violated his constitutional rights and has a duty to apply the laws governing sentencing credits. Johnson also requests relief in the nature of a declaratory judgment, asserting that such relief is available for the purpose of determining whether DOC is acting in accordance with its statutory duties with regard to his claim for credit. Mandamus is an extraordinary writ designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and appropriate remedy. Sheffield v. Dep t of Corr., 894 A.2d 836, 840 (Pa. Cmwlth. 2006), affirmed, 934 A.2d 1161 (Pa. 2007). DOC is an administrative agency charged with faithfully carrying-out sentences imposed by the courts, and it is without authority to adjudicate the legality of a sentence or to add or delete sentencing conditions. McCray v. Dep t of Corr., 872 A.2d 1127, 1133 (Pa. 2005). Because the sentence imposed by a trial court is a question of law that involves no discretion on the part of [DOC], mandamus will lie to compel [DOC] to properly compute a prisoner s sentence. Barndt v. Dep t of Corr., 902 A.2d 589, 592 (Pa. Cmwlth. 2006). A writ of mandamus, however, cannot be used to compel an illegal act. Doxsey v. Bureau of Corr., 674 A.2d 1173, 1175 (Pa. 3
Cmwlth. 1996). In this case, DOC demurs to Johnson s Petition for Review based upon its assertion that Johnson has not pleaded facts showing that he has a clear right to relief. 2 DOC contends that the September 25, 2013 sentencing order contains an internal inconsistency, because it simultaneously provides that the sentence shall be effective on May 30, 2012, and that Johnson should receive such credit for time served as he is entitled by the laws of the Commonwealth. (Pet. for Review, Ex. B, Section F). DOC could not apply the sentencing court s direction to use May 30, 2012, as the effective date of the sentence, because it instead followed the sentencing court s direction in Section F of the sentencing order that Johnson should receive such credit for time served as he is entitled by the laws of the Commonwealth of Pennsylvania. (Pet. for Review, Ex. B, Section F.) DOC contends that the provision directing a credit for time beginning on May 30, 2012, would result in a double credit for the period of time between May 30, 2012, and September 25, 2013, and that Section 9760(1) of the Sentencing Code does not 2 In ruling on preliminary objections, we accept as true all well-pleaded material allegations in the petition for review and any reasonable inferences that we may draw from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994). The Court, however, is not bound by legal conclusions, unwarranted inferences from facts, argumentative allegations, or expressions of opinion encompassed in the petition for review. Id. We may sustain preliminary objections only when the law makes clear that the petitioner cannot succeed on his claim, and we must resolve any doubt in favor of the petitioner. Id. When considering preliminary objections in the nature of a demurrer, we may sustain a demurrer only when a petitioner has failed to state a claim for which relief may be granted. Clark v. Beard, 918 A.2d 155, 158 (Pa. Cmwlth. 2007). Moreover, we have held that a demurrer cannot aver the existence of facts not apparent from the face of the challenged pleading. Martin v. Dep t of Transp., 556 A.2d 969, 971 (Pa. Cmwlth. 1989). 4
authorize double-credit. 3 Thus, DOC argues that it cannot credit Johnson for that period of time and also apply the provisions of the Sentencing Code. DOC s argument, which occupies a mere one and one-quarter page of its brief, cites only Section 9760(1) of the Sentencing Code in support of its position. DOC neither explains how Section 9760(1) supports its position nor does it cite any case law in support of its position. Section 9760 of the Sentencing Code provides in its entirety as follows: After reviewing the information submitted under [S]ection 9737 [of the Sentencing Code] (relating to report of outstanding charges and sentences) the court shall give credit as follows: (1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal. (2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original 3 DOC appears to contend that Johnson received credit for the time he was incarcerated between May 30, 2012, and September 25, 2013, on his sentence that was imposed on January 23, 2012, and if he were to receive credit for that same time period on his sentence imposed on September 25, 2013, he would be receiving double-credit for that time period. 5
charge and any subsequent charge for the same offense or for another offense based on the same act or acts. (3) If the defendant is serving multiple sentences, and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set aside since the commission of the offenses on which the sentences were based. (4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence. 42 Pa. C.S. 9760. We have held that the first three scenarios outlined in Section 9760 do not permit a sentencing court to provide a prisoner with credit for time served on another unrelated offense. Taglienti v. Dep t of Corr., 806 A.2d 988, 992 (Pa. Cmwlth. 2002). The fourth scenario outlined in Section 9760 makes it clear that time credit on a sentence can only be given when it has not already been credited against another sentence. Id. We have interpreted Section 9760(4) as making clear that time credit on a sentence may be granted only when it has not already been credited toward another sentence. Bright v. Pa. Bd. of Prob. and Parole, 831 A.2d 775, 778 (Pa. Cmwlth. 2003) (citations omitted). Moreover, we have held that [n]either Section 9760 nor any other provision of the [Sentencing] Code [4] allows a defendant to receive credit against 4 42 Pa. C.S. 9701-9799.41. 6
more than one sentence imposed for multiple convictions of separate and unrelated charges. Id. 5 Whether Johnson may receive credit in the traditional sense, however, mischaracterizes the facts as set forth in Johnson s petition for review. This is not a situation where a prisoner is merely seeking credit for time served prior to a sentence being imposed. Here, Johnson contends in his petition for review that the sentencing court directed that his sentence be effective May 30, 2012, and DOC essentially is not calculating his minimum and maximum sentence expiration dates using the effective date of his sentence. Johnson seeks to require DOC to recognize the effective date of his sentence as May 30, 2012 not September 25, 2013. DOC appears to suggest, through its double credit argument, that the sentencing court was without authority to fix an effective date for Johnson s sentence that began before the sentence was imposed. However, DOC does not present any legal argument regarding that issue. DOC, therefore, has not fully addressed the matters before the Court, and has failed to establish that the law 5 In Bright, Bright, a prisoner at the State Correctional Institution at Mahanoy, filed in this Court s original jurisdiction a petition for review in the nature of an action in mandamus against DOC, seeking credit for time served before sentencing and requesting that DOC be required to correct his maximum term expiration date. Bright became incarcerated on robbery charges during the first two weeks of January in 1993. On October 21, 1993, he pled guilty to ten counts of robbery. The court of common pleas sentenced him to concurrent sentences of four-to-ten years. DOC calculated his maximum term expiration date to be October 21, 2003. In 2002, Bright filed the mandamus action in our Court, averring that DOC had miscalculated his maximum term expiration date by failing to comply with the sentencing order. Bright averred that the sentencing order provided that he was to receive credit for time served before sentencing (January 1993 to October 21, 1993) on all ten sentences. We opined that to do so would grant Bright double credit on multiple sentences for unrelated offenses, noting that Bright was sentenced to four[-]to[-]ten year concurrent prison sentences on ten convictions of separate, unrelated charges. Bright, 831 A.2d at 779. 7
makes clear that the petitioner cannot succeed on his claim. See Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994). Thus, we must resolve any doubt in favor of the petitioner at this preliminary stage of the proceedings. 6 Id. 6 With regard to the validity of the effective date established by the sentencing order, we previously have held that a sentencing judge cannot direct that a sentence commence on a date prior to the date of sentencing when the defendant is serving time on an unrelated charge. Doxsey, 674 A.2d at 1175 (emphasis added). This holding, however, was based on former Pennsylvania Rule of Criminal Procedure 1406(c), which at that time provided: When, at the time sentence is imposed, the defendant is imprisoned under a sentence imposed for any other offense or offenses, the instant sentence which the judge is imposing shall be deemed to commence from the date of imposition thereof unless the judge states that it shall commence from the date of expiration of such other sentence or sentences. Id. at 1175-76 (emphasis added). Our Supreme Court, however, amended and renumbered former Rule 1406 as Pennsylvania Rule of Criminal Procedure 705, effective April 1, 2001. Rule 705 does not provide that a sentence shall be deemed to commence from the date of imposition thereof unless the judge states that it shall commence from the date of expiration of such other sentence or sentences. See Pa. R. Crim. P. 705 and former 1406(c). In fact, Rule 705 does not address when a sentence begins. Rather, it provides that the judge shall state the date the sentence is to commence, and [i]f the sentence is to run concurrently,... [it] shall commence from the date of imposition unless otherwise ordered by the judge. Pa. R. Crim. P. 705 (emphasis added). Moreover, now-chief Justice Saylor in his dissenting opinion in Jackson v. Vaughn, 777 A.2d 436 (Pa. 2001), opined that former Rule 1406(c) was not designed to divest the sentencing court of the ability to fashion truly concurrent sentences concerning two offenses committed prior to final sentencing on either. Jackson, 777 A.2d at 442. Potentially relevant to the matter now before the Court, he also opined that the new Rule 705, which was not applied in Jackson, changes the availability of time credit in certain situations for defendants sentenced after the effective date of the change. He seemed to suggest that sentencing courts under new Rule 705 have some ability to fashion truly concurrent sentences even when sentencing occurrs on different dates. Here, we note that Johnson was sentenced after the effective date of Rule 705. The sentencing court ordered the effective date of his sentence to begin prior to the date it was imposed and also ordered that the sentence run concurrently with a sentence imposed at an earlier date. It is unclear if the two sentences concerned related charges. We also note that the (Footnote continued on next page ) 8
Accordingly, we will overrule DOC s preliminary objection to the Petition for Review and direct DOC to answer Johnson s Petition for Review. P. KEVIN BROBSON, Judge (continued ) amendment to former Rule 1406(c) removed language which seemingly would have prohibited the sentencing court from structuring the sentence in that manner. Furthermore, courts have not analyzed this change in the new Rule 705. This Court s ultimate disposition of this matter may be dependent upon these circumstances, which DOC has not addressed in support of its preliminary objection based on demurrer. 9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Reginald Johnson, : Petitioner : : v. : No. 272 M.D. 2014 : Pennsylvania Department : Corrections, : Respondent : O R D E R AND NOW, this 20th day of April, 2015, the Preliminary Objection filed by the Department of Corrections (DOC) to the Petition for Review filed by Reginald Johnson is OVERRULED. It is hereby ORDERED that DOC shall file an answer to the Petition for Review within thirty days of the date of this order. P. KEVIN BROBSON, Judge