Opinion
No. 328 M.D. 2013
01-30-2014
Troy R. Mullen, Petitioner v. Department of Corrections, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is a pro se mandamus petition for review filed in our original jurisdiction by Troy R. Mullen (Mullen), an inmate currently incarcerated at the State Correctional Institution-Graterford. Mullen seeks an order compelling the Pennsylvania Department of Corrections (DOC) to credit a period of approximately 22 months when he was previously incarcerated against a one-to-five year sentence that he is presently serving. DOC has filed a preliminary objection in the nature of a demurrer to the petition for review. For the reasons set forth below, we sustain DOC's demurrer and dismiss the petition for review.
In ruling on a demurrer, this Court must accept as true all well-pleaded allegations of material facts in the petition for review, as well as all of the inferences reasonably deducible from those facts. Black v. Pennsylvania Department of Corrections, 889 A.2d 672, 675 n.5 (Pa. Cmwlth. 2005). The Court, however, is not required to accept as true conclusions of law, unwarranted factual inferences, argumentative allegations, or expressions of opinion. Dodgson v. Pennsylvania Department of Corrections, 922 A.2d 1023, 1027-28 (Pa. Cmwlth. 2007).
Mullen was convicted on January 15, 2004 of aggravated assault and of carrying a firearm without a license. (Petition for Review ¶6 & Exhibit A.) He was in custody from February 27, 2003 to May 4, 2004 awaiting trial and sentencing on those charges and other charges arising out of the same incident. (Petition for Review ¶¶8, 18(A) & Exhibit A.) On May 4, 2004, Mullen was sentenced on the aggravated assault conviction to a term of incarceration of time in custody to 18 months and was sentenced on the firearms conviction to five years' probation to run concurrently with the aggravated assault sentence. (Petition for Review ¶7 & Exhibit A.)
Mullen was also convicted on four other, less serious related charges at his January 2004 trial, but no additional sentence was imposed for any of those other offenses, most of which were treated as merged in the aggravated assault or firearms convictions for sentencing purposes. (Petition for Review ¶¶6-7 & Exhibit A.) Those other convictions are not at issue here.
According to Mullen's petition for review, he was released from custody on May 4, 2004, but was arrested on September 14, 2005 and was held from September 21, 2005 to July 17, 2007 on a probation violation detainer. (Petition for Review ¶¶9, 11, 18(B).) On July 17, 2007, Mullen was found in violation of his probation for the firearms conviction, his probation was revoked, and he was resentenced to four years' probation and released from custody. (Petition for Review ¶10 & Exhibit B.) In September 2008, Mullen was again arrested and was held from September 18, 2008 to March 4, 2009 on a detainer for violation of his probation. (Petition for Review ¶¶12-13, 18(C).) On March 4, 2009, Mullen was again found in violation of his probation, his probation was revoked, and he was resentenced on his 2004 firearms conviction to a one-to-five year term of incarceration. (Petition for Review ¶13 & Exhibit C.) In this sentencing order, the trial court stated as conditions: "Other - DEFENDANT FOUND IN VIOLATION: PROBATION REVOKED, Pay Court Cost & Fines, Credit for Time Serviced [sic], Detainer Lifted." (Petition for Review Exhibit C.)
DOC has given Mullen credit for the period that he was held on the September 2008 detainer in computing his minimum and maximum imprisonment dates, but did not give him credit for the period from September 21, 2005 to July 17, 2007 when he was in custody on a different detainer for his earlier probation violation. (Petition for Review Exhibit D.) Mullen asserts in his petition for review that DOC was required to give him credit for that 2005-2007 21-month, 26-day period in custody and that if that period is credited to his one-to-five year sentence, he has fully served that sentence. (Petition for Review ¶¶14-15, 17.)
Although Mullen's maximum date was originally calculated by DOC as September 18, 2013, he was paroled and reincarcerated in 2012, resulting in an extension of the maximum date to February 6, 2014. (Petition for Review ¶18 (C), (D) & Exhibit D.) Mullen was apparently also paroled and reincarcerated again in 2013. (See Respondent's Br. at 5; Petitioner's 7/25/13 and 11/14/13 Address Changes; Petition for Review Exhibit E.) The record does not indicate his current maximum sentence date. --------
Mandamus is an extraordinary remedy used to compel the performance of a ministerial act or mandatory duty. McCray v. Pennsylvania Department of Corrections, 582 Pa. 440, 447, 872 A.2d 1127, 1131 (2005); Black v. Pennsylvania Department of Corrections, 889 A.2d 672, 674 n.3 (Pa. Cmwlth. 2005); Aviles v. Pennsylvania Department of Corrections, 875 A.2d 1209, 1211 (Pa. Cmwlth. 2005). It is well established that mandamus is available only where the plaintiff or petitioner has a clear legal right to the relief requested, the defendant or respondent has a corresponding duty to perform the requested act, and there is no other appropriate and adequate remedy. McCray, 582 Pa. at 447, 872 A.2d at 1131; Hoyt v. Pennsylvania Department of Corrections, 79 A.3d 741, 742 (Pa. Cmwlth. 2013); Black, 889 A.2d at 674 n.3; Aviles, 875 A.2d at 1211. Mandamus may be used only to enforce established legal rights, not to determine whether such rights exist. Aviles, 875 A.2d at 1211.
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. Oakman v. Pennsylvania Department of Corrections, 903 A.2d 106, 108-09 (Pa. Cmwlth. 2006); Black, 889 A.2d at 677. It cannot be used, however, to challenge DOC failure to give credit where the sentencing order is either ambiguous or does not provide the credit at issue and the sentence without the credit does not result in incarceration for the offense that exceeds the maximum sentence. McCray, 582 Pa. at 448-51, 872 A.2d at 1132-33; Hoyt, 79 A.3d at 742-43; Black, 889 A.2d at 675-77; Aviles, 875 A.2d at 1212-14. The requirements for mandamus cannot be satisfied in those circumstances because there is no clear right to relief and because the inmate has an adequate and more appropriate alternative remedy of seeking modification or clarification of the sentence in the trial court. McCray, 582 Pa. at 448-50, 872 A.2d at 1132-33; Hoyt, 79 A.3d at 742-43; Black, 889 A.2d at 675-77; Aviles, 875 A.2d at 1212-14.
The exhibits to the petition for review establish that Mullen cannot satisfy the requirements for mandamus. The March 4, 2009 sentencing order does not clearly require credit for the 2005-2007 period at issue here. While the trial court provided for credit for time served in conjunction with its finding that he violated his probation in 2008 and its lifting of the 2008-2009 detainer, DOC has given Mullen full credit for the time that he was in custody on that detainer. In 2005-2007, Mullen was in custody on a different detainer for a separate, earlier probation violation. Even if the sentencing order's language could be interpreted as giving credit for time served on other detainers, it is also possible that the trial court took the 2005-2007 time in custody into account in its 2007 sentence of probation, rather than incarceration, and intended to give credit in its 2009 sentence only for the time served on the probation violation before it. The sentencing order's credit for time served is therefore, at best, ambiguous with respect to the 2005-2007 period.
DOC's duty is to faithfully implement sentences imposed by the trial courts, not to clarify or correct errors in a sentence. McCray, 582 Pa. at 450, 872 A.2d at 1133; Hoyt, 79 A.3d at 742. Because the sentencing order does not unambiguously require the credit that Mullen seeks, Mullen's remedy is to seek modification or clarification of the sentence from the trial court. McCray, 582 Pa. at 448-51, 872 A.2d at 1132-33; Hoyt, 79 A.3d at 743; Black, 889 A.2d at 677; Aviles, 875 A.2d at 1214.
In addition, failure to give credit for the 2005-2007 period does not cause Mullen's total period of incarceration with respect to the firearms conviction to exceed the statutory maximum sentence. The maximum sentence for this offense is seven years of incarceration. 18 Pa. C.S. § 6106(a)(1); 18 Pa. C.S. § 1103(3). Mullen has had three periods of pre-trial incarceration, the period from February 27, 2003 to May 4, 2004, the period from September 21, 2005 to July 17, 2007, and the period from September 18, 2008 until his March 2009 sentencing. However, DOC has given Mullen full credit against his one-to-five year sentence for the 2008-2009 period and he received credit for the entire 2003-2004 period against his prison sentence for his separate aggravated assault conviction. The total imprisonment for Mullen's firearms conviction, including all pre-trial confinement, thus consists of the five-year maximum imposed by his 2009 sentence and the 21 month and 26 day confinement on the 2005 detainer, a period of six years, nine months and 26 days. Because this is less than the seven-year maximum sentence for the offense, Mullen cannot show that the failure to credit the 2005-2007 period that he was in custody makes his sentence illegal and cannot establish the clear right to relief required for mandamus. McCray, 582 Pa. at 449-50, 872 A.2d at 1132; Aviles, 875 A.2d at 1212-13.
Accordingly, we sustain DOC's preliminary objection and we dismiss Mullen's petition for review.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 30th day of January, 2014, 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 Troy R. Mullen is DISMISSED.
/s/_________
JAMES GARDNER COLINS, Senior Judge