Allen v. Commonwealth

• Decision Date: 27 August 2014
• Docket Number: No. 187 M.D. 2014,187 M.D. 2014
• Citation: 103 A.3d 365
• Court: Pennsylvania Commonwealth Court
• Parties: Todd ALLEN, Petitioner v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF CORRECTIONS, Respondent.

103 A.3d 365

Todd ALLEN, Petitioner

v.COMMONWEALTH of Pennsylvania, DEPARTMENT OF CORRECTIONS, Respondent.

No. 187 M.D. 2014

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 27, 2014.

Decided Aug. 27, 2014.

Publication Ordered Nov. 5, 2014.

Todd Allen, pro se.

Vincent R. Mazeski, Assistant Counsel, Mechanicsburg, for respondent.

BEFORE: DAN PELLEGRINI, President Judge, and ROBERT SIMPSON, Judge, and ANNE E. COVEY, Judge.

Opinion

OPINION BY Judge SIMPSON.

Before this Court in our original jurisdiction is the preliminary objection in the nature of a demurrer of the Department of Corrections (DOC) to a petition for review in the nature of mandamus (petition) filed by inmate Todd Allen, representing himself. DOC challenges the legal sufficiency of the petition, asserting Allen lacks a clear right to the credit he seeks, DOC does not have a corresponding duty, and other adequate remedies exist. Also before us is Allen's application for summary relief (application). For the reasons that follow, we overrule DOC's preliminary objection, and we grant Allen's application.

I. Facts Averred

Allen filed the petition and application requesting this Court order DOC to award him credit for time served. In his filings, Allen avers the following facts. Allen is an inmate incarcerated at the State Correctional Institutional at Greene. Allen pled guilty and was convicted of possession with intent to deliver 4.5 grams of crack cocaine, under Section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act (the Drug Act),¹ which he claims is a second degree felony that carries a statutory maximum term of 10 years in prison. On December 11, 2003, the Court of Common Pleas of Philadelphia County (sentencing court) sentenced Allen to 11 ½ to 23 months of house arrest, plus 8 years of probation for this crime (original sentence).²

A. First Violation of Parole (VOP) Re–Sentence

On June 9, 2004, after Allen committed a technical violation of house arrest, the sentencing court revoked Allen's probation. In this first VOP re-sentencing, the court imposed a new sentence of two to four years' incarceration, plus a consecutive four years' probation. Allen served time from June 29, 2004 to January 12, 2007. On January 12, 2007, Allen was paroled.

On April 4, 2007, the Pennsylvania Board of Probation and Parole (Board) recommitted Allen on a technical parole violation. DOC held Allen in custody from April 17, 2007 to June 9, 2008, at which point he began serving the consecutive four years' probation. Credit for the service of time on Allen's first VOP re-sentencing is at issue here.

B. Second VOP Re–Sentence

Allen again violated his probation, and the sentencing court re-sentenced him. The court imposed four more years of probation on February 10, 2009.

C. Third VOP Re–Sentence

Then, on December 15, 2009, following another violation of probation, the sentencing court revoked Allen's probation and re-sentenced him to 59 to 119 months of incarceration, which equals 4 years, 11 months to 9 years, 11 months. Importantly, the sentencing court ordered “credit for any time previously served on this matter as determined by prisons.” Pet'r's Pet. for Review, Ex. B, (Tr. Ct. Order, 12/15/09, at 1).

Allen avers he served time from June 29, 2004 to January 12, 2007, and from April 4, 2007, to June 9, 2008, for a total of approximately three years and eight months (time served) on his first VOP re-sentence.³ He contends this time served should be credited to his third VOP re-sentence in accord with the sentencing court's order. He claims that when his time served is added to his third VOP re-sentence, it equals 8 years, 7 months to 13 years, 7 months, which exceeds the 10–year statutory maximum allowed for his original second degree felony conviction. Without credit applied, his third VOP re-sentence is illegal.

Allen requested DOC credit him with time served of three years and eight months in accordance with the third VOP re-sentencing order. DOC denied the request, responding that time spent in custody after sentencing is applied towards satisfaction of the sentence being served and that awarding the same period as a credit would constitute the application of a duplicate credit.

Significantly, Allen attached several documents to his petition: DOC's letter denying Allen's request for credit; the sentencing court's December 15, 2009 re-sentencing order; DOC's staff response to Allen's inmate request advising him he served three years, eight months on his first VOP re-sentence, page one of a three-page probation revocation court commitment form; and, a central repository record showing DOC maintained custody of Allen from April 17, 2007 to June 9, 2008. See Pet'r's Pet. for Review, Exs. A–E. Allen also attached part of the transcript from his Post–Conviction Relief Act⁴ (PCRA) hearing to his answer to DOC's preliminary objection as well as his brief. See Pet'r's Answer, Ex. B; Pet'r's Br., Ex. B.

Claiming DOC disregarded the sentencing court's order, Allen seeks an order from this Court directing DOC to credit his third VOP re-sentence with the time served of three years and eight months. Allen argues that if DOC does not credit time served, his third VOP sentence exceeds the 10–year statutory maximum for the underlying second degree felony charge, which is illegal.

In response, DOC filed a preliminary objection in the nature of a demurrer to the petition, and an answer to the application. DOC asserts Allen does not have a clear right to relief because it is not clear whether the underlying criminal conviction carries a maximum of 10 or 15 years as cocaine is a schedule II narcotic. Allen is not entitled to credit for time served if the aggregated sentences do not exceed the statutory maximum. Additionally, DOC contends it does not have a duty to credit time served. Finally, DOC objects because alternative remedies are available to Allen.

II. Discussion

In ruling on an application for summary relief, the court must view the evidence of record in the light most favorable to the non-moving party and enter judgment only if there are no genuine issues as to any material facts and the right to judgment is clear as a matter of law. McSpadden v. Dep't of Corr., 886 A.2d 321 (Pa.Cmwlth.2005).

In considering a demurrer, we accept as true all well-pled material allegations in the petition, as well as all inferences reasonably deducible therefrom. Aviles v. Dep't of Corr., 875 A.2d 1209 (Pa.Cmwlth.2005). However, 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, courts reviewing preliminary objections may not only consider the facts pled in the complaint, but also any documents or exhibits attached to it. Lawrence v. Dep't of Corr., 941 A.2d 70 (Pa.Cmwlth.2007). It is not necessary to accept as true any averments in the complaint that conflict with exhibits attached to it. Id. A demurrer must be sustained where it is clear and free from doubt the law will not permit recovery under the alleged facts; any doubt must be resolved by a refusal to sustain the demurrer. Kretchmar v. Commonwealth, 831 A.2d 793 (Pa.Cmwlth.2003).

A proceeding in mandamus is an extraordinary remedy at common law, designed to compel the performance of a ministerial act or mandatory duty. McCray v. Dep't of Corr., 582 Pa. 440, 872 A.2d 1127 (2005) ; Detar v. Beard, 898 A.2d 26 (Pa.Cmwlth.2006). “The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure.”Detar, 898 A.2d at 29. This Court may only issue a writ of mandamus where: (1) the petitioner possesses a clear legal right to enforce the performance of a ministerial act or mandatory duty; (2) the defendant possesses a corresponding duty to perform the act; and, (3) the petitioner possesses no other adequate or appropriate remedy. Id. Mandamus can only be used to compel performance of a ministerial duty and will not be granted in doubtful cases. Id.

Notwithstanding, mandamus is an appropriate remedy to correct an error in DOC's computation of maximum and minimum dates of confinement where the sentencing order clearly gives the inmate credit for the time period in question and DOC's computation does not comply with that credit. Black v. Dep't of Corr., 889 A.2d 672 (Pa.Cmwlth.2005). However, mandamus is not available to challenge DOC's failure to give credit where the sentencing order is either ambiguous or does not specify the credit at issue. See McCray; Black; Aviles. In addition, mandamus is not an appropriate remedy to cure an illegal sentencing order. Aviles.

With these principles in mind, we examine DOC's demurrer and Allen's petition and application.

A. Clear Right to Relief

Allen contends he has a clear right to relief based on the express terms of the sentencing order. The sentencing court directed DOC to credit Allen with time previously served against his third VOP re-sentence. DOC refused to apply this credit. Without credit, Allen claims his combined sentence exceeds the statutory maximum, which is illegal. McCray (total confinement cannot exceed the legal maximum established for the crime); accord Commonwealth v. Williams, 443 Pa.Super. 479, 662 A.2d 658 (1995) (credit for time previously served in prison required where the failure to accord time credit would result in illegal aggregate sentence exceeding statutory maximum).

DOC objects, claiming Allen's right to relief is not clear. DOC contends Allen's challenge goes to the legality of the sentencing court's order, not its computation. DOC did not credit time served towards Allen's third VOP resentence because it applied this time towards satisfaction of the first VOP resentence. See Pet'r's Pet. for Review, Ex. A (DOC Ltr., 12/9/13, at 1). DOC asserts it is not required to credit time served where the aggregated sentences do not exceed the maximum term. In other words, it is DOC's position that there can be no credit for time...