Opinion
No. 524 M.D. 2013
06-05-2014
Michael Siluk, Jr., Petitioner v. John Wetzel, Secretary Pennsylvania Department of Corrections, Respondent
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Before this Court in our original jurisdiction are the preliminary objections of the Pennsylvania Department of Corrections (Department) to a petition for review in the nature of mandamus (Petition) filed by inmate Michael Siluk, Jr. (Siluk), pro se. Siluk asks this Court to direct the Department to recalculate his prison sentence. For the reasons set forth below, we sustain the Department's preliminary objections and dismiss Siluk's petition.
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).
Siluk is an inmate currently confined at the State Correctional Institution at Rockview (SCI-Rockview). On February 20, 2003, Siluk was sentenced on thirteen offenses in five criminal actions in the Court of Common Pleas of Dauphin County (sentencing court): CP 4194, CP 4196, CP 4197, CP 4198, and CP 4199. On count three of CP 4194 (sexual assault), the sentencing court sentenced Siluk to a "flat" ten year sentence. On count two of CP 4196 and count two of CP 4198 (both for aggravated indecent assault), the sentencing court again sentenced Siluk to flat ten year terms of confinement for each count. These sentences, in addition to the others imposed for four counts of rape, two counts of aggravated assault, two counts of robbery, one count of simple assault, and one count of involuntary deviate sexual intercourse, amounted to an aggregate sentence of 51 years and 9 months to 105 years.
Siluk filed a Post-Conviction Relief Act (PCRA) petition in 2005, alleging ineffective assistance of counsel. He did not allege that any of his sentences were illegal, although he did contend that his counsel was ineffective, in part, for allegedly failing to inform him about the so-called "Second Strike Law," set forth in Section 9714(a)(1) of the Sentencing Code. The sentencing court dismissed the PCRA petition, and, on appeal, the Superior Court affirmed the sentencing court's dismissal of the PCRA petition.
According to the Department's preliminary objections, the Department sent a letter to the sentencing court requesting the court to "correct the obvious and patent mistake of a flat [ten] year sentence." (Preliminary Objections (P.O.) ¶ 22.) The Department also stated in its preliminary objections that Siluk "lacks a clear right to relief as far as clarifying that the sentencing court intended to sentence Siluk to [ten] to [twenty] years for the three offenses at issue." (P.O. ¶ 23.) Additionally, two of the exhibits Siluk attached to his petition reference the changes the Department made to the sentencing. The first is a form, entitled DC-6E—Sentence Status Summary, dated January 23, 2007, and generated by the Department. (Petition Ex. F.) The second page of this document includes a section with "Remarks" concerning the sentencing, which provides in part: "Version 3 created to correct CP 4194, CT 3, CP 4196 CT 2 and CP 4198 CT 2 from flat sentences to 10Y-20Y sentences per correspondence received from the Office of Chief Counsel." (Id.) The second document is a response from the Records Supervisor of SCI-Rockview to Siluk's grievance concerning the sentencing alteration. In that response, the Records Supervisor stated that a request for a legal opinion was sent to "Central Office," which, she stated, prompted a letter to the sentencing judge requesting clarification of the sentence. (Petition Ex. H.) The response provides that
[The sentencing judge] responded stating that CP#4194, CT. 3 should be 10 years to 20 years. A second letter was written to Judge Lewis on 10/27/05 questioning the [other two] flat sentences as they were inadvertently left out in the previous letter. It was stated in that letter that if the sentences were to be 10 years to 20 years, Judge Lewis did not need to reply. Judge Lewis did not reply
and on 11/28/05, Randy Sears, Legal Counsel, informed [the previous Records Supervisor] to calculate the sentences at 10 years to 20 years as Judge Lewis did not reply.(Id.) Of course, at this stage of the proceedings, the Department's factual representations in its demurrer are insufficient to establish the substance of the sentencing judge's letter as fact. Nor do the exhibits Siluk attached to his Petition establish such a fact. Thus, while the Department presents an averment that it changed the original nature of the sentences to reflect the sentencing court's alleged clarification, we cannot regard those allegations as facts for the purpose of evaluating the merits of the Department's preliminary objections. We note, however, that, assuming that these events actually occurred, the aggregate sentence of 51 years and 9 months to 105 years remained the same because the three clarified sentences were to run concurrently with a ten to twenty year sentence for rape.
As this Court recently explained in Mobley v. Coleman, 65 A.3d 1048 (Pa. Cmwlth. 2013):
[A] court cannot consider matters collateral to the complaint, but must limit itself to such matters as appear therein, and an effort to supply facts missing from the objectionable pleading makes the preliminary objection in the nature of a demurrer an impermissible "speaking demurrer."
According to the Petition and Exhibit G to the Petition, on or about December 16, 2011, Siluk filed in the sentencing court a "Petition to Correct and/or Modify Illegal Sentence Pursuant to the Court's Inherent Power to Correct an Illegal Sentence." In that petition to modify, Siluk (1) asserted that the flat term sentences were illegal (meaning that the sentencing court had a duty to provide a minimum and maximum), (2) referenced the fact that the Department had changed the sentences to be ten-to-twenty year terms, and (3) argued that the sentencing court should correct the illegality by indicating that the ten-year flat terms should be terms that contained a ten-year maximum (not a ten-year minimum).
On January 11, 2012, the sentencing court issued an order, denying the petition and providing that "[t]he sentence imposed on the second degree felonies was mandated under 42 Pa. C.S. § 9714." Siluk filed an untimely appeal, which the Superior Court quashed. Thus, the sentencing court's order itself appears to have approved the Department's action, because Siluk filed the modification petition after the sentencing court and the Department corresponded regarding clarification of the sentencing order, and the sentencing judge, aware of the Department's action, refused to grant Siluk's request for relief.
Siluk filed the Petition now before this Court, seeking a writ of mandamus that would compel the Department to calculate his sentence correctly. He contends that the Department illegally added thirty years to his sentence i.e., the back half of the new maximum twenty-year sentence for each of the three concurrent sentences. The parties seem to be in agreement that the initial order of the sentencing court was illegal under Section 9756(b)(1) of the Sentencing Code, 42 Pa. C.S. § 9756(b)(1), because it lacked a minimum and maximum period of confinement. Notwithstanding agreement as to the illegality of portions of the initial sentencing order, the Department filed preliminary objections in the nature of a demurrer, alleging that mandamus is inappropriate because Siluk failed to plead (1) a clear right to relief; (2) a corresponding duty in the Department; and (3) the lack of an alternative remedy. The Department contends that, in order to correct what it viewed as an obvious and patent mistake by the sentencing court's imposition of a flat sentence, the Department sent its clarification request to the sentencing court. Based upon the response the Department alleges to have received, the Department contends that Siluk has not and cannot demonstrate a clear right to relief.
Pursuant to Section 9756 of the Sentencing Code, a sentencing judge shall impose criminal sentences that contain both a minimum and a maximum period. It is well-settled that, "[i]n general, a sentence that does not contain a minimum and maximum term, i.e., a flat sentence, is an illegal order." Sturgis v. Doe, 26 A.3d 1221, 1224 (Pa. Cmwlth. 2011).
"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). The Department 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 the Department, mandamus will lie to compel the Department 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 cannot be used to compel an illegal act. Doxsey v. Bureau of Corr., 674 A.2d 1173, 1175 (Pa. Cmwlth. 1996).
The Department contends that Siluk does not have a clear right to relief because the sentencing court intended to sentence Siluk to ten to twenty years for the three offenses at issue, and, in fact, the sentencing court clarified its intent to the Department. As we noted above, the trial court initially imposed three flat ten year sentences for one count of sexual assault and two counts of aggravated indecent assault. The Department asserts that the sentencing court had the authority to clarify the order, which, by virtue of the flat sentence, contained a patent and obvious mistake.
In Commonwealth v. Powell, 14 A.3d 912 (Pa. Cmwlth. 2011), this Court addressed the Department's contention that the inmate's sole means to challenge an allegedly erroneous sentencing order was by a nunc pro tunc appeal to the sentencing court. This Court concluded that the inmate demonstrated a clear right to relief through his mandamus action. We observed that the courts must interpret sentencing orders in a manner that gives effect to the sentencing court's intentions. But, in attempting to determine a sentencing judge's intent, courts are confined to considering the language of the sentencing judgment, and they must not consider statements of a sentencing judge that are not included in the judgment. We quoted the Superior's Court's decision in Commonwealth ex rel. Woods v. Howard, 378 A.2d 370, 372-73 (Pa. Super. 1977), where that court held that when a sentencing court enters an erroneous judgment, a remedy lies by motion to the issuing court to make a correction in order to make the judgment "speak the truth, [b]ut the judgment imports verity when collaterally assailed." Powell, 14 A.3d at 916 (quoting Woods, 378 A.2d at 372-73).
Powell involved a question of whether the Department erred in concluding that a sentencing judge's order should be interpreted to apply sentences consecutively rather than concurrently. We held that the Department erred in accepting the sentencing judge's clarification letter, because that action constituted a modification rather than a clarification. We also observed that the sentencing court in that case was divested of jurisdiction to effect a modification, because the action came more than thirty days after the entry of the judge's resentencing order. See Section 5505 of the Judicial Code, 42 Pa. C.S. § 5505. We also observed, however, that exceptions to this rule exist, noting that "[a]fter expiration of the thirty-day limitation, a sentencing court retains the power to correct obvious and patent mistakes." Powell, 14 A.3d at 917 n.5. Thus, it appears that in this case, the sentencing court's action regarding Siluk's petition for modification was within its jurisdiction under Section 5505 of the Judicial Code, because the illegality of the flat-term sentences was an obvious and patent mistake.
It also appears that the trial court's submission of a letter, purportedly clarifying the intent to sentence Siluk to terms of ten to twenty years as opposed to flat sentences of ten years, may have been insufficient at that time to effect a modification of the terms.
Although we cannot rely upon the Department's speaking demurrer regarding the communications between the Department and the sentencing court, we conclude that Siluk's own pleadings and, by way of judicial notice, the trial court's opinion and order regarding Siluk's petition to the trial court seeking modification of his sentence, support for the Department's claim that Siluk has not demonstrated a clear right to the requested relief.
See Mobley, 65 A.3d at 1053.
Siluk attached the trial court's order to the Petition. Siluk attached a copy of the trial court's opinion to his brief in opposition to the Department's preliminary objections. "[G]enerally when considering preliminary objections in the nature of a demurrer, a court may not take judicial notice of the record in another case." Guarrasi v. Scott, 25 A.3d 394, 398 (Pa. Cmwlth. 2011). "This rule[, however], is subject to limited exceptions." Id. Courts may take judicial notice of a fact to which the parties have admitted "or which is incorporated into the complaint by reference to a prior court action." Styers v. Bedford Garage Mut. Ins. Co., 900 A.2d 895, 899 (Pa. Super. 2006). Here, Siluk specifically refers to and relies upon the trial court's order and Siluk attached to his brief in opposition to the preliminary objections the trial court's opinion issued in support of its order denying Siluk's petition to modify its sentencing order. Thus, we believe we may consider the trial court's opinion when we consider the nature of the underlying order in reviewing the question of whether the Department is correct in asserting that Siluk has not established a clear right to relief.
Initially, we note that the subject convictions are second degree felonies, punishable by sentences of up to ten years. See 18 Pa. C.S. § 1103. When a defendant is a "second strike" offender, however, he is subject to a longer, mandatory sentence:
18 Pa. C.S. §§ 3124.1 (sexual assault) and 3125 (aggravated indecent assault).
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary.
. . .
(a.1) Mandatory maximum.-- An offender sentenced to a mandatory minimum sentence under this section shall be sentenced to a maximum sentence equal to twice the mandatory minimum sentence, notwithstanding
18 Pa. C.S. § 1103 (relating to sentence of imprisonment for felony) or any other provision of this title or other statute to the contrary.42 Pa. C.S. § 9714(a)(1), (a.1).
Siluk does not dispute that he is subject to the Second Strike Law, but rather, he contends that he was not subject to the minimum mandatory sentence of ten years because the second strike provision only applies to one crime of violence in a criminal episode. He argues that these offenses arose from three different criminal episodes, all of which also included a count of rape. In each instance, he was sentenced to ten to twenty years for the rape offenses. Thus, he argues that, although the sentencing court could impose sentence enhancements for the rape charges, the three sentences at issue arose in the context of the rapes he committed (i.e., as part of a criminal episode). He contends, therefore, that the trial court could not impose the mandatory ten-year minimum sentence for the sexual assault and aggravated indecent assault charges, as well as for the rape charges. See Commonwealth v. McClintic, 909 A.2d 1241 (Pa. 2006).
We reject Siluk's contention that the rape offenses were enhanced pursuant to Section 9714(a)(1) of the Sentencing Code. Although the sentencing court imposed a sentence of ten to twenty years for the three rape convictions, rape is a first degree felony that is punishable by a term of up to twenty years. See 18 Pa. C.S. § 3121; 18 Pa. C.S. § 1103. Such a term would not have been inappropriate even for a first time offender, and, thus, the sentencing court did not need to employ the Second Strike Law in order to sentence Siluk to a term of ten to twenty years for the rapes. Second, Siluk relies solely on the document attached to his Petition as proof that the sentencing court enhanced the rape offenses as well as the other sex-related charges. (Petition, Ex. B.) This document, however, is not a sentencing order. As we stated above, courts are generally bound by the language of the sentencing order and may not look to other indications of intent. Powell; Jones v. Dep't of Corr., 683 A.2d 340, 342 n.2 (Pa. Cmwlth. 1996); see also Commonwealth v. Isabell, 467 A.2d 1287, 1292 (Pa. 1983). The sentencing order contains no language suggesting that the sentencing court intended to apply the Second Strike Law to Siluk's rape convictions.
We note also that the convictions under CP 4194 include a conviction for aggravated assault, for which the sentencing court also imposed a ten to twenty year sentence. Certain aggravated assaults are classified, like rapes, as first degree felonies subject, like rape, to a term of twenty years. See 18 Pa. C.S. § 2702. Thus, although the sentencing court imposed a maximum sentence of 20 years, it had the authority to impose such a term without reference to the Second Strike Law.
Additionally, Siluk's own legal challenge to the Department's calculation via his petition to modify the sentencing order resulted in the sentencing court's issuance of an order confirming the Department's sentencing calculations. In denying Siluk's petition to modify, the sentencing judge specifically explained that he intended to impose the enhanced sentences of ten to twenty years on the second degree felony convictions rather than flat ten year sentences. We note again that Siluk failed to file a timely appeal of the sentencing court's order denying the petition to modify. Consequently, Siluk can no longer complain that the Department is calculating his sentences based upon a sentencing order that, on its face, includes illegal sentences. To the extent that Siluk contends that the sentencing court erred in applying sentence enhancements to the second degree felony convictions, Siluk could have appealed the sentencing court's denial of the petition to modify. Mandamus cannot be used to revive lapsed appeal rights. Lizzi v. Unemployment Comp. Bd. of Review, 353 A.2d 440, 441 (Pa. 1976).
Moreover, we agree with the Department that Siluk had alternative remedies available to him through the filing of a PCRA petition and through the filing with the sentencing court of a petition nunc pro tunc to modify the sentence. Siluk availed himself of both. In his PCRA petition, he failed to raise the issue. With regard to his petition to modify the sentencing order, he failed to timely appeal the sentencing court's denial of the petition. Siluk's failure to raise an issue or file a timely appeal does not negate the existence of those alternative remedies.
Accordingly, we sustain the Department's preliminary objections in the nature of a demurrer and dismiss Siluk's petition for review.
Having found that Siluk failed to establish a clear right to relief, it is unnecessary to address the Department's arguments that Siluk failed to plead a corresponding duty in the Department and a lack of alternative remedy. --------
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 5th day of June, 2014, it is hereby ordered that Respondent's preliminary objections in the nature of a demurrer are SUSTAINED, and Petitioner Michael Siluk, Jr.'s petition for review in the nature of mandamus is DISMISSED. As a result, Petitioner's application for summary relief filed April 17, 2014, is DISMISSED AS MOOT.
/s/_________
P. KEVIN BROBSON, Judge
Mobley, 65 A.3d at 1053. "A limited exception to this general prohibition is recognized where a plaintiff avers the existence of a written agreement and relies upon it to establish his cause of action." Martin, 556 A.2d at 971. In those instances, "a defendant may properly annex that agreement without creating an impermissible speaking demurrer since the agreement is a factual matter arising out of the complaint itself." Id. The limited exception is not implicated in the case now before the Court.