Opinion
No. 861 M.D. 2010
08-05-2011
Kareem Armstrong, Petitioner v. Department of Corrections et. al., Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
Before this court are the preliminary objections of the Pennsylvania Department of Corrections in the nature of a demurrer to the petition for review in the nature of mandamus filed in our original jurisdiction by inmate Kareem Armstrong, pro se, seeking an order directing the Department to credit him for time served from February 26, 2002 until July 13, 2005. The Department challenges the legal sufficiency of Armstrong's petition, asserting that Armstrong does not have a clear right to the credit he seeks. We sustain the Department's preliminary objections and dismiss Armstrong's mandamus petition.
On November 30, 2010, this court ordered this petition to be treated as a petition for review addressed to our original jurisdiction under Section 761 of the Judicial Code, 42 Pa. C.S. §761, as amended, and Pa. R.A.P. 1502. On May 2, 2011, due to Armstrong's failure to comply with our April 6, 2011 order regarding the timely filing of his brief in opposition to the Department's preliminary objections, we ordered that he was precluded from filing a brief.
The facts as alleged in the petition are as follows. Armstrong was arrested and charged with attempted murder and other offenses on February 26, 2002. He was subsequently convicted on July 23, 2002 and sentenced to an aggregate of twelve and one half to twenty-five years on September 4, 2002. On September 23, 2003, the victim died, resulting in murder charges being filed against Armstrong. On July 13, 2005, pursuant to a negotiated plea agreement, the Philadelphia District Attorney's Office agreed to drop the charges of general murder and murder in the first degree. Armstrong was sentenced to seventeen and one half to thirty-five years for the charge of third degree murder. This sentence merged with the sentence previously imposed for attempted murder.
Although we do not have the court's September 4, 2002 sentencing order before us, it appears that Armstrong was given credit for time served from February 26, 2002, the date of his arrest, until September 4, 2002, the date of his sentencing. See Petition for Review, Exhibit E, Sentence Status Summary, at p.1.
Under Section 9765 of the Sentencing Code, 42 Pa. C.S. §9765, "[w]here crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense."
On or about February 1, 2008, Armstrong filed a grievance with the Department seeking to correct his Sentence Status Summary sheet, asserting that as part of his plea agreement, his 17 ½ to 35 year sentence should have started on February 26, 2002 and not on July 13, 2005, the date the sentence was imposed, with a credit for time served from February 26, 2002 until July 13, 2005. However, as the sentencing court did not order credit for time served, the Department computed Armstrong's minimum and maximum dates from July 13, 2005, the date the sentence for third degree murder was imposed, and issued an updated DC16E- Sentence Status Summary. Armstrong's new minimum and maximum dates were calculated as January 13, 2023 and July 13, 2040.
See Petition for Review, Exhibit E.
On November 4, 2010, Armstrong filed his petition for review in the nature of mandamus in this court's original jurisdiction, requesting an order directing the Department to correct his sentence to give him credit for time served from February 26, 2002, the date he was initially arrested and charged with attempted murder, through July 13, 2005, the date he was sentenced following his plea bargain for third degree murder. Armstrong avers that the Department has refused to comply with the sentencing court's order, under which the sentence for third degree murder was to merge with the sentence for attempted murder. Armstrong contends that the Department's refusal to credit him for time served has resulted in a new sentence of 21 ½ to 38 years in violation of the plea agreement and Section 9760(2) of the Sentencing Code, 42 Pa. C.S. §9760(2). The Department filed its preliminary objections to the petition for review, which are before this court for disposition.
Petition for Review, No. 8, at 2. At the time the court imposed the sentence for third degree murder on July 13, 2005, Armstrong had been incarcerated since February 26, 2002, or 3 years, 4 months and 16 days.
Section 9760(2), provides that: "[c]redit 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 . . . ." Pursuant to Section 1102(d) of the Crimes Code, as amended, 18 Pa. C.S. §1102(d), the sentence for third degree murder is as follows: "Notwithstanding section 1103, a person who has been convicted of murder of the third degree . . . shall be sentenced to a term which shall be fixed by the court at not more than 40 years." Section 1103(1) further provides that the court may fix the term of imprisonment for a felony of the first degree (which includes third degree murder) at not more than 20 years. 18 Pa.C.S. §1103(1). Sentencing, however, is within the sound discretion of the sentencing court and that decision will not be disturbed absent an abuse of discretion. Commonwealth v. Shaffer, 722 A.2d 195 (Pa. Super. 1998). The sentencing guidelines are merely advisory, and a court may, in its discretion, sentence outside the guidelines. Id. When deviating from the guidelines, the court must state its reasons for the deviation on the record or in a contemporaneous written statement. Commonwealth v. Lawson, 650 A.2d 876 (Pa. Super. 1994). We are unable to comment in this regard, as we have neither the plea agreement nor the full transcription of the sentencing hearing. It is entirely possible that as part of his plea agreement, Armstrong agreed to waive his right to credit for time served. See Commonwealth v. Byrne, 833 A.2d 729 (Pa. Super. 2003) (defendant's waiver of credit for time served was a fundamental and integral term and condition of the plea agreement; as such, defendant could not avoid a specific term negotiated as part of the plea agreement). In any event, even if that is not the case, this is not the proper forum in which to seek relief from the sentencing court's alleged failure to award such credit. See Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000) (holding that a motion to correct an illegal sentence would be treated as a PCRA petition where the appellant did not file timely post-sentence motions or a direct appeal); Commonwealth v. Beck, 848 A.2d 987 (Pa. Super. 2004) (holding that a collateral challenge to the legality of a sentence for failure to credit for time served must be brought under the PCRA).
In ruling on preliminary objections in the nature of a demurrer, this court must accept as true all well-pleaded material facts and all inferences reasonably deducible therefrom. Barndt v. Dep't of Corr., 902 A.2d 589 (Pa. Cmwlth. 2006). Conclusions of law and unjustified inferences are not so admitted. Griffin v. Dep't of Corr., 862 A.2d 152 (Pa. Cmwlth. 2004). In addition, "[a] demurrer will not be sustained unless the face of the pleadings shows that the law will not permit recovery, and any doubts should be resolved against sustaining the demurrer." Barndt, 902 A.2d at 592 (citation omitted).
A writ of mandamus is an extraordinary remedy compelling the performance of a ministerial act or mandatory duty and may only be issued where there is a clear right in the petitioner and a corresponding duty in the respondent and a lack of any other appropriate and adequate remedy. Fordyce v. Clerk of Courts, Forest County, 869 A.2d 1049 (Pa. Cmwlth. 2005). As the sentence imposed by a court "involves a question of law and involves no discretion on the part of DOC, a writ of mandamus will lie to compel DOC to properly compute a prisoner's prison sentence." Barndt, 902 A.2d at 592.
The Department contends that Armstrong should have sought relief in the sentencing court rather than with this court as the Department may not alter a trial court's sentence. McCray v. Dep't of Corr., 582 Pa. 440, 872 A.2d 1127 (2005). The Department asserts that, in the alternative, Armstrong may seek relief under the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-9546, which has been designated by the General Assembly as the means for obtaining collateral relief regarding an illegal sentence. We agree.
Section 9760 of the Sentencing Code, Credit for time served, provides:
After reviewing the information submitted under section 9737 . . . 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 give 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 charge and any subsequent charge for the same offense or for another offense based on the same act or acts.
The principle underlying section 9760 is "that a defendant should be given credit for time spent in custody prior to sentencing for a particular offense." Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007) (citation omitted). However, while the Department is charged with applying the sentence as imposed by the trial court, as an executive agency, it has no power to change sentences, or to add or remove sentencing conditions, including credit for time served; this power is vested in the sentencing court. See McCray v. Dep't of Corr., 582 Pa. 440, 443, 872 A.2d 1127, 1133 (2005). Therefore, while mandamus will lie to compel the proper calculation of credit awarded to an inmate and not applied by the Department, this is not the case herein.
In Black v. Department of Corrections, 889 A.2d 672, 674 (Pa. Cmwlth. 2005), citing McCray, we noted that, "[w]here the actions of the Department in computing an inmate's maximum and minimum dates of confinement are being challenged, an action for mandamus remains viable as a means for examining whether statutory requirements have been met." If the alleged error is attributed to an ambiguity in the sentence imposed, proper redress may be sought by filing a writ of habeas corpus ad subjiciendum with the trial court for clarification and/or correction of the sentence imposed. Commonwealth v. Perry, 563 A.2d 511, 513 (Pa. Super.1989).
As pointed out by the Department in its brief, the sentencing court simply did not order the credit for time served that Armstrong now seeks to have this court enforce by issuing a writ of mandamus to the Department. Even where the Department believes the sentence is illegal, it must follow the sentencing court's order until it has been told by the sentencing court not to do so. See Oakman v. Dep't of Corr., 903 A.2d 106 (Pa. Cmwlth. 2006). In Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 356 (Pa. Cmwlth. 2007), we held that, "[p]ursuant to Melhorn v. Pennsylvania Board of Probation and Parole, 589 Pa. 250, 908 A.2d 266 (2006)] and McCray, where a sentencing court does not give an inmate full credit for time served, the inmate's remedy is in the trial court and through the direct appeal process, not through the Board."
However, where, as here, the petitioner challenges the legality of the trial court's alleged failure to award credit for time served as required by law in imposing sentence, that is considered a challenge to the sentence which is cognizable as a due process claim in a PCRA proceeding, which is the exclusive forum for collateral attack on the legality of a sentence. Commonwealth v. Walker, 428 A.2d 661 (Pa. Super 1981). Armstrong should have raised an objection with the sentencing court regarding its failure to credit him with time served from February 26, 2002 until July 13, 2005, in order to allow it to clarify or correct its order.
Armstrong failed to pursue other remedies at his disposal, which were available in the trial court and through the direct appeal process. Moreover, Armstrong failed to sustain his initial burden of establishing a clear legal right to relief. Finally, as the Department did not have a duty to allow credit for time served when the trial court did not so provide in its sentencing order, mandamus will not lie to compel the Department to so credit him. Accordingly, the Department's preliminary objection in the nature of a demurrer will be sustained and Armstrong's petition dismissed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 5th day of August, 2011, the preliminary objection in the nature of a demurrer filed by the Pennsylvania Department of Corrections is SUSTAINED, and the petition for review filed by Kareem Armstrong is hereby DISMISSED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge