Opinion
No. 221 M.D. 2013
10-29-2013
Robert E.J. Jackson, Petitioner v. Pa. Department of Corrections State Correctional Institution at Smithfield, Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Before the Court are preliminary objections in the nature of a demurrer filed by the Department of Corrections (Department) to Robert E. J. Jackson's pro se petition for review seeking a writ of mandamus. Concluding that Jackson has failed to establish a clear right to recalculation of his prison sentence, we grant the Department's preliminary objections and dismiss Jackson's petition.
Jackson is an inmate currently confined at the State Correctional Institution at Smithfield. Jackson was arrested on December 10, 2008, in Lebanon County for committing Theft by Deception, Forgery, and Identity Theft. He was sentenced on May 27, 2009, to a prison term of one to five years. Around the same time, Jackson was sentenced in Montgomery County for a parole violation. Jackson was paroled from his Lebanon County sentence on November 22, 2010. On February 13, 2012, Jackson was arrested in Delaware County on new charges. He was sentenced on May 8, 2012, to a prison term of nine to 24 months.
In his petition to this Court, Jackson contends that when the Department calculated his 2012 sentence, it violated his statutory and due process rights by removing 150 days that had been credited toward his 2009 sentence in Lebanon County. Jackson seeks an order from this Court compelling the Department to recalculate his sentence to account for the 150-day credit. On May 22, 2013, the Department filed preliminary objections to Jackson's petition in the form of a demurrer. The Department argues that Jackson's petition, which sounds in mandamus, does not establish a clear legal right to relief because it fails to include an order from the sentencing court crediting him 150 days toward his 2009 sentence. We agree.
A writ of mandamus compels the performance of a ministerial duty by a government official when (1) the petitioner demonstrates a clear legal right to relief, (2) the official owes the petitioner a duty, and (3) there are no other adequate remedies at law. Wilson v. Pennsylvania Board of Probation & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). "Mandamus is not available to establish legal rights, but is appropriate only to enforce rights that have been established." Id. A writ of mandamus cannot be used to compel an illegal act. Doxsey v. Pennsylvania Bureau of Corrections, 674 A.2d 1173, 1175 (Pa. Cmwlth. 1996).
"Preliminary objections will be sustained only where it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief." Wilson, 942 A.2d at 272. We must accept all well-pleaded material facts and inferences therefrom. Dodgson v. Pennsylvania Department of Corrections, 922 A.2d 1023, 1027-28 (Pa. Cmwlth. 2007). "We need not accept as true conclusions of law, unwarranted inferences, argumentative allegations, or expressions of opinion." Id. at 1028.
Examining the relevant statutory law, the Sentencing Code requires a court to give credit to a defendant "for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed." 42 Pa. C.S. § 9760(1). The principle underlying the statute is that a defendant should receive credit for time spent in custody prior to sentencing for a particular offense. Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008). However, once a defendant is sentenced by any Pennsylvania court, he is no longer in custody as a result of criminal charges for any other offense. Commonwealth v. Lloyd, 509 A.2d 868, 872 (Pa. Super. 1986). Consequently, because a defendant is deemed to be imprisoned "as a result of" the first conviction, he is not entitled to receive additional time credit for subsequent sentences imposed by other courts. Commonwealth v. Hollawell, 604 A.2d 723, 726 (Pa. Super. 1992) (holding that a defendant is not entitled to duplicative credit on two sentences because it would be a windfall).
Section 9760 in its entirety states that a court shall give credit in the following circumstances:
(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.42 Pa. C.S. §9760.
(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 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.
The Department argues that Jackson has failed to establish a right to relief because his petition does not attach an official court order from the Lebanon County sentencing court awarding him time credit. According to the Department, it sent a letter to sentencing Judge Samuel Kline requesting that he clarify his sentencing order with regard to time credit. Judge Kline responded that his sentencing order contained no language regarding credit and advised the Department to "take whatever action you deem is necessary under the law to calculate the appropriate credit." Petitioner's Brief, Exhibit D. The Department argues that because Jackson's sentence was correctly calculated, he is not entitled to relief and his petition should be dismissed.
Jackson counters that Judge Kline did, in fact, award him credit for time served from December 10, 2008, to May 27, 2009, and that he never received any time credit from Montgomery County. Jackson contends that the Department violated the Sentencing Code and his due process rights when it calculated his 2012 sentence without including the time credit awarded by Judge Kline in 2009.
The Department is correct that Jackson has failed to include an order from Judge Kline crediting him for 150 days on his 2009 sentence. Instead, Jackson has attached to his petition the unsigned commitment form from the sentencing court. Petitioner's Brief, Exhibit A. Admittedly, this document states under "Recommendations of the Court" for Count 1 that Jackson should receive "[c]redit for time served at LCCF." Id. However, a commitment form is not the same as a court order. A court order is signed by a judge, entered into the docket, and overrides other statements or documents. Jones v. Department of Corrections, 683 A.2d 340, 342 n.2 (Pa. Cmwlth. 1996); see also Commonwealth v. Isabell, 503 Pa. 2, 12, 467 A.2d 1287, 1292 (1983). Because Jackson did not provide the sentencing order giving him "credit for time served at LCCF," he has failed to establish a clear right to a writ of mandamus directing the Department to recalculate his sentence.
In his Petition, Jackson fails to number the Lebanon County sentencing sheet, and the other exhibits are inconsistently numbered. For purposes of clarity in this opinion, exhibit references will be made to Jackson's Brief, which more clearly labels his exhibits.
Furthermore, as a matter of law, Jackson was not entitled to any credit from Judge Kline toward his sentence in Lebanon County. According to the signed sentencing order by Judge Furber in Montgomery County, Petitioner's Brief, Exhibit G, Jackson was remanded on May 15, 2009, to serve the remainder of his Montgomery County sentence commencing December 1, 2008. Therefore, Jackson was not entitled to any credit for his imprisonment in Lebanon County because the time he spent in Lebanon County was not "as a result of" the sentence imposed by Judge Kline in Lebanon County. It was the result of the sentence imposed by Judge Furber in Montgomery County.
Jackson's brief contains two exhibits marked as "C," one of which is the Montgomery County sentencing order. Because the sentencing order follows Exhibit F, this court will assume that Jackson intended to mark the exhibit as "G."
Contrary to Jackson's argument, for purposes of determining time credit under Section 9760, it is irrelevant whether Jackson was physically imprisoned in Montgomery County. See 42 Pa. C.S. §9760.
In addition, Jackson is incorrect that the Department violated his due process rights by not giving him the credit allegedly awarded by Judge Kline. Jackson cites 42 Pa. C.S. §5505, which requires any challenge to a sentencing order be made within thirty days of the order becoming final. Jackson argues that the Department did not give him an opportunity to oppose the Department's modification of his sentence and, further, the Department lacks the authority to adjudicate the legality of a sentence or to add or delete any conditions in a court sentencing order.
Section 5505 reads "[e]xcept as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed." 42 Pa. C.S. §5505. --------
This Court held in Brandt v. Department of Corrections, 902 A.2d 589 (Pa. Cmwlth. 2006), that the Department is permitted to send letters of inquiry to sentencing judges in order to clarify sentencing orders. Brandt concluded that such a letter does not violate an inmate's due process rights because an inmate's petition to this Court provides the process to challenge the outcome of the inquiry. Id. at 598. Contrary to Jackson's claim, the Department did not modify his sentence; it merely clarified that Judge Kline did not intend that Jackson receive duplicate credit but only the credit he was entitled to under the law. Commonwealth ex. rel. Powell v. Pennsylvania Department of Corrections, 14 A.3d 912, 918 (Pa. Cmwlth. 2011) ("It is clear that the Department in Brandt did not modify the prisoner's sentence based on the sentencing judge's clarification. Rather, the Department merely confirmed that the sentencing judge intended only that the prisoner receive the credit that he was entitled under the law."). Jackson is incorrect that the Department modified Judge Kline's sentencing order in violation of his due process and statutory rights.
For the foregoing reasons, we sustain the Department's preliminary objections and dismiss Jackson's petition for review.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 29th day of October, 2013, the Preliminary Objections of the Department of Corrections are SUSTAINED and the Petition for Review filed by Robert E.J. Jackson in the above-captioned matter is DISMISSED.
/s/_________
MARY HANNAH LEAVITT, Judge