D. Ahiem v. DOC ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Davine Ahiem, :
:
Petitioner :
:
v. : No. 398 M.D. 2019
: Submitted: March 11, 2022
Department of Corrections, :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: November 30, 2022
Davine Ahiem (Inmate), an inmate at the State Correctional Institution
at Fayette, acting pro se, filed a petition for review in our original jurisdiction
asserting that the Department of Corrections (Department) improperly deducted
funds from his inmate account to pay sentenced costs and fines under Section 9728
of the Sentencing Code, 42 Pa. C.S. §9728, commonly referred to as Act 84.1 Inmate
1
In relevant part, Section 9728(b)(5)(i) of the Sentencing Code, 42 Pa. C.S. §9728(b)(5)(i),
requires the Department to make monetary deductions of at least 25% of deposits made to inmate
accounts for the purpose of collecting restitution, costs under Section 9721(c.1) of the Sentencing
Code, 42 Pa. C.S. §9721(c.1), filing fees, and any other court-ordered obligation. Section
9728(b.2) of the Sentencing Code, 42 Pa. C.S. §9728(b.2), provides that an inmate shall be liable
for costs even if the trial court fails to issue a court order directing that mandatory costs be paid.
Section 9728(c) of the Sentencing Code, 42 Pa. C.S. §9728(c), provides that costs and fines may
be collected even after the maximum term of incarceration.
asks this Court to order the Department to cease all deductions and return all funds
that were taken. Inmate does not dispute the Department’s authority to make
deductions or the amount of costs and fines imposed, but disputes only the timing of
the Department’s deductions. Inmate argues that the Department’s deductions
violate the trial court’s oral instructions at his sentencing hearings, wherein the trial
court stated that “fines and costs to be paid during the period of parole.” See
Inmate’s Petition for Review at unnumbered p. 2, Exhibit A and Exhibit B to
Inmate’s Petition for Review.2
Before us are the Department’s preliminary objections to Inmate’s
petition for review. In its first preliminary objection (PO 1), the Department avers
that Inmate’s petition for review failed to conform with Pa.R.Civ.P. 1022 by failing
to include numbered paragraphs. In its second preliminary objection (PO 2), the
Department asserts a demurrer under Pa.R.Civ.P. 1028(a)(4), averring that Inmate
failed to state a claim upon which relief may be granted. After careful review, we
overrule PO 1, sustain PO 2, and dismiss Inmate’s petition for review.
On March 27, 2017, and March 28, 2017, Inmate pleaded guilty to one
count of aggravated assault and related charges, after which the Court of Common
Pleas of Philadelphia County (trial court) imposed a sentence of 10-20 years’
incarceration, costs totaling $749.50, and other conditions not relevant here. See
2
Inmate initiated this action by filing a Motion to Stop Act 84 Deductions, which this Court
treated as a Petition for Review. Thereafter, the Court ordered Inmate to file an amended Petition
for Review which named the Department as respondent, and for Inmate to properly serve the
Department and the Attorney General, which Inmate did. Inmate later sent a letter to the Court
asking about the status of his case, to which he attached what he termed an Amended Petition for
Review. Inmate’s motion and petitions are substantively identical, in that each filing seeks relief
from the timing of the Department’s deductions. For ease of reference, we will refer to Inmate’s
filings collectively as a petition for review.
2
Exhibit to Department’s Preliminary Objections.3 In each of the trial court’s
sentencing orders, under the heading “Mandatory Court Costs-Court Costs,” the trial
court stated that Inmate “is to pay imposed mandatory court costs.” Id.
We agree with the Department that Inmate’s petition for review fails to
comply with Pa.R.Civ.P. 1022 in that it fails to include numbered paragraphs.
However, because Inmate’s petition seeks relief on the single ground of the timing
of the Department’s deductions, and Inmate’s petition for review did not prevent the
Department from filing a comprehensible response, we overrule the Department’s
PO 1.
As to PO 2, Pa.R.Civ.P. 1028(a)(4) permits preliminary objections to
be filed for “legal insufficiency of a pleading (demurrer).” When ruling on
preliminary objections, this Court shall sustain such objections and dismiss the
petition for review only in cases that are clear and free from doubt that the law will
not permit recovery. In ruling on a preliminary objection in the nature of a demurrer,
this Court must accept as true all well-pleaded allegations in the petition and all
inferences reasonably deduced therefrom. The Court need not accept as true
conclusions of law, unwarranted inferences from facts, argumentative allegations,
or expressions of opinion. A demurrer will not be sustained unless the face of the
petition for review shows that the law will not permit recovery, and any doubts
should be resolved against sustaining the demurrer. Stone and Edwards Insurance
Agency, Inc. v. Department of Insurance, 616 A.2d 1060, 1063 (Pa. Cmwlth. 1992)
(internal citations omitted). “[D]ocuments attached as exhibits, documents
3
The Department also attached its preliminary objections and the trial court’s orders as
Exhibit C to its Brief. By order dated December 2, 2021, this Court directed Inmate to file a brief
in response to the Department’s preliminary objections, which Inmate did not do. Pursuant to our
December 2, 2021 order, we will proceed without Inmate’s brief.
3
referenced in the [petition for review], as well as facts already of record may also be
considered.” Fraternal Order of Police Lodge No. 5, by McNesby v. City of
Philadelphia, 267 A.3d 531, 542 (Pa. Cmwlth. 2021).
Under the applicable standard of review, we must sustain the
Department’s demurrer. Contrary to Inmate’s averment, the Department did not err
when it commenced deductions from his inmate account to pay for the mandatory
costs imposed as part of his sentence, as documented in the trial court’s orders. It is
well established that Section 9728(b)(5) of the Sentencing Code authorizes the
Department “to make monetary deductions from an inmate’s account to pay court
ordered fines and costs” and does not require “prior court authorization as a threshold
condition.” Boyd v. Pennsylvania Department of Corrections, 831 A.2d 779, 782
(Pa. Cmwlth. 2003).
Inmate does not allege that the trial court’s sentencing orders were in
any way ambiguous, incomplete, or improper. In fact, Inmate does not reference the
trial court’s sentencing orders at all. See Inmate’s Petition for Review. Instead,
Inmate focuses on the trial court’s statements at his sentencing hearings, where the
trial court stated that “[f]ines and costs to be paid during the period of parole,” to
support his claim that the Department should not have collected fines and costs while
he is incarcerated, and should have delayed collection until Inmate is in parole status.
We must reject Inmate’s assertion because the clear text of the trial court’s orders
governs his sentence, including the imposition of costs, and collections from his
inmate account. Freemore v. Pennsylvania Department of Corrections, 231 A.3d
33, 39 (Pa. Cmwlth. 2020).
In Commonwealth v. Borrin, 80 A.3d 1219, 1226-27 (Pa. 2013), our
Supreme Court stated:
4
In Pennsylvania, the text of the sentencing order, and not
the statements a trial court makes about a defendant’s
sentence, is determinative of the court’s sentencing
intentions and the sentence imposed. See Commonwealth,
ex rel. Powell v. Depart[ment] of Corrections, 14 A.3d
912, 915-16 (Pa. Cmwlth. 2011); Commonwealth v.
Green, [335 A.2d 392, 393 (Pa. Super. 1975)]. As we have
stated, the “signed sentencing order, if legal, controls over
oral statements of the sentencing judge not incorporated
into the signed judgment of sentence.” Commonwealth v.
Isabell, [467 A.2d 1287, 1292 (Pa. 1983)] (internal
quotation marks and citations omitted).
Unlike the factual scenario presented in Lambing v. Pennsylvania Department of
Corrections (Pa. Cmwlth., No. 488 M.D. 2017, filed July 23, 2020),4 where the text
of the sentencing order was ambiguous on the timing of collecting imposed costs,
the trial court’s orders here clearly state that Inmate “is to pay imposed mandatory
court costs” without any reference to a delay in collections.
Accordingly, because we conclude that Inmate has not established a
clear right to relief, we overrule the Department’s PO 1 regarding the form of
Inmate’s petition for review, sustain the Department’s PO 2 in the nature of a
demurrer, and dismiss Inmate’s petition for review.
__________________________________
MICHAEL H. WOJCIK, Judge
4
See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Davine Ahiem, :
:
Petitioner :
:
v. : No. 398 M.D. 2019
:
Department of Corrections, :
:
Respondent :
ORDER
AND NOW, this 30th day of November, 2022, we overrule the
Department of Corrections’ preliminary objection as to the form of Davine Ahiem’s
Petition for Review, sustain the Department of Corrections’ preliminary objection
in the nature of a demurrer, and dismiss the Petition for Review.
__________________________________
MICHAEL H. WOJCIK, Judge