N. Soler v. Com. of PA, DOC ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nelson Soler, :
Petitioner :
:
v. : No. 323 M.D. 2022
:
Commonwealth of Pennsylvania, :
Department of Corrections, :
Respondent : Submitted: March 10, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: May 3, 2023
Currently before us are Respondent Commonwealth of Pennsylvania,
Department of Corrections’ (DOC) preliminary objections to Petitioner Nelson
Soler’s (Soler) “Amended Petition for Review in Mandamus Challenging the
Sentencing Calculation of [DOC]” (Amended Petition). Through this Amended
Petition, which was filed in our original jurisdiction, Soler seeks mandamus relief
regarding what he contends is DOC’s failure to properly calculate the minimum and
maximum dates on a state-level carceral sentence that was imposed upon him in
2017. After thorough review, we overrule DOC’s preliminary objections in part,
sustain them in part, and dismiss the Amended Petition.
I. Background
The relevant facts, as averred by Soler and gleaned from the record, are as
follows. On March 17, 2016, the Pennsylvania Parole Board (Board)1 paroled Soler
on two state-level sentences that he had received in 2014, at which point the
maximum date on those sentences was September 23, 2018. DOC’s Br. in Support
of Prelim. Objs., App. B.2 In March 2017, Soler was arrested and charged in two
separate cases in the Court of Common Pleas of Lehigh County (Common Pleas)
with a number of drug-and-firearm-related crimes.3 Soler then pled guilty in
Common Pleas to two counts of possession with intent to deliver and one count of
unlawful possession of a firearm. On May 26, 2017, Soler received concurrent
sentences on those charges of four to eight years in state prison. Am. Pet. ¶¶1-2.
Thereafter, on October 5, 2017, the Board issued a decision in which it declared
Soler to be a convicted parole violator (CPV) due to his conviction in CP-39-CR-
1
At that point in time, the Board was known as the Pennsylvania Board of Probation and
Parole.
2
Soler avers in his Amended Petition that he was on parole at the time of his 2017
convictions, as well as that he had nearly three years remaining at that point on his original 2014
sentences upon which he had been paroled, and that the Board imposed backtime upon him as a
result of the 2017 convictions. See Am. Pet. ¶¶2-4, 6. He also attaches documentation thereto that
either provides details regarding his 2014 sentences or refers to the actions taken by the Board
towards him. See id., Exs. A, C-H. In light of this, we deem the details of the Board’s handling of
his parole situation to be incorporated by reference into the Amended Petition, and we may
accordingly consider the relevant exhibits that are included with DOC’s preliminary objections,
despite the fact that Soler failed to attach many of them to his Amended Petition. See St. Peter’s
Roman Cath. Parish v. Urban Redevelopment Auth. of Pittsburgh, 146 A.2d 724, 725 (Pa. 1958);
Detweiler v. Sch. Dist. of Borough of Hatfield, 104 A.2d 110, 113 (Pa. 1954).
We have filled in some of the informational gaps regarding Soler’s numerous convictions
3
by taking judicial notice of the particulars of his state-level criminal cases, as permitted by law.
See, e.g., Pa. R.E. 201(b)(2); Doxsey v. Com., 674 A.2d 1173, 1174 (Pa. Cmwlth. 1996). These
cases can be found under docket numbers CP-39-CR-0003354-2011, CP-13-CR-0000491-2013,
CP-39-CR-0000960-2017, CP-39-CR-0000961-2017, and CP-14-CR-0000402-2019.
2
0000961-2017, ordered him to serve 24 months of backtime on his 2014 sentences,
declined to award him credit for time served at liberty on parole, and recalculated
the maximum date on his 2014 sentences as May 19, 2020. Id. ¶6; DOC’s Br. in
Support of Prelim. Objs., App. B.4 The Board then issued a second decision on
December 15, 2017, in which it noted Soler’s conviction in CP-39-CR-0000960-
2017, but declined to take any additional action against him in response to that
conviction. DOC’s Br. in Support of Prelim. Objs., App. B. Subsequently, Soler was
charged with and pled guilty in the Court of Common Pleas of Centre County to one
count of possession of a weapon or implement for escape, for which he received a
sentence of three to six months on October 7, 2019, to be served consecutively to his
other sentences. Am. Pet. ¶11, Ex. A.
These convictions, and the sentences imposed as a result, eventually led to the
current dispute between Soler and DOC. Initially, DOC calculated the minimum and
maximum dates on Soler’s 2017 sentences as, respectively, April 27, 2021, and July
17, 2025. Id. ¶7, Ex. A. However, this changed on April 26, 2021, when DOC issued
a revised sentence status summary that reflected its new determination that the
minimum and maximum dates on the sentence Soler had received in CP-39-CR-
0000961-2017 were, respectively, December 5, 2024, and December 5, 2028. Id. ¶9.
Soler believed that DOC’s recalculations were wrong and sought to have DOC
conform its treatment of his 2017 sentences to what was, in his view, the proper
reading of those sentences, i.e., that they were supposed to run concurrently, both
with each other and with the aforementioned Board-imposed backtime, and that, as
4
The Board arrived at Soler’s new maximum date by using May 26, 2017, i.e., the date
upon which he was sentenced by Common Pleas on the March 2017 charges, as the date he
returned to the Board’s custody, and then calculated forward using the 1089 unserved days that he
had remaining on his 2014 sentences. See DOC’s Br. in Support of Prelim. Objs., App. B.
3
a consequence, DOC’s original minimum and maximum date calculations for those
sentences had been correct. Id. ¶¶14-22. First, Soler filed a “Petition to Correct
Record and Recalculate Sentence” (Correction Petition) with Common Pleas, which
Common Pleas granted on June 17, 2021. Id., Ex. B. In doing so, Common Pleas
ordered DOC to “correct the April 26, 2021 ‘Sentence Status Summary’ [regarding
CP-39-CR-0000961-2017] to accurately reflect a sentence minimum expiration date
of April 17, 2021, with a maximum date of July 17, 2025.” Id. In doing so, Common
Pleas explained that the sentences it had imposed in CP-39-CR-0000960-2017 and
CP-39-CR-0000961-2017 were supposed to run concurrently, but that DOC had
improperly treated the sentences as if Soler was required to serve them in
consecutive fashion. See id. n.1. DOC did not comply with Common Pleas’ order,
prompting Soler to file an administrative grievance with DOC on October 25, 2021,
through which he requested that DOC revise its calculations to reflect the concurrent
nature of his 2017 sentences. See id. ¶¶22-23, Ex. C. DOC denied Soler’s grievance
on November 3, 2021, on the basis that it had correctly calculated the minimum and
maximum dates for the sentence imposed in CP-39-CR-0000961-2017. Id. ¶24, Ex.
D. Soler administratively appealed this denial on November 14, 2021, but this effort
was ultimately unsuccessful, as DOC affirmed its disposition of his grievance on
May 12, 2022. Id. ¶¶25-29, Exs. E-H.
Having struck out with those efforts, Soler’s next move was to initiate the
instant mandamus action by filing a petition for review with our Court on June 13,
2022. Soler then submitted his Amended Petition on August 22, 2022, in which he
asserts that DOC has incorrectly calculated the minimum and maximum dates on the
sentence that was imposed in CP-39-CR-0000961-2017, in contravention of the
express terms of Common Pleas’ original sentencing order and of its order granting
4
his Correction Petition. See id. ¶¶9-21, 30-32. Accordingly, Soler seeks relief in the
form of a writ of mandamus “directing [DOC] to recalculate [this sentence’s]
minimum date to April 17, 2021[,] and [the] maximum date [to] July 17, 2025[,] in
accordance with [DOC’s] original February 11, 2021 [s]entence [s]tatus [s]ummary
and [Common Pleas’ orders].” Id., Wherefore Clause. In response, DOC filed the
preliminary objections that are the subject of this opinion.
II. Discussion
In its preliminary objections,5 DOC presents three arguments for why we
should dismiss Soler’s Amended Petition, which we reorder and summarize as
follows. First, this Court lacks jurisdiction to adjudicate the Amended Petition,
because the Board is an indispensable party to the matter, but Soler failed to name it
as a respondent. DOC’s Br. at 12-13. Second, Soler did not challenge the Board’s
October 5, 2017 decision, through which it declared him to be a CPV, imposed
5
In ruling on preliminary objections, we must accept as true all well-
pleaded material allegations in the petition for review, as well as 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. In order
to sustain preliminary objections, it must appear with certainty that
the law will not permit recovery, and any doubt should be resolved
by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits every
well-pleaded fact in the [petition for review] and all inferences
reasonably deducible therefrom. It tests the legal sufficiency of the
challenged pleadings and will be sustained only in cases where the
pleader has clearly failed to state a claim for which relief can be
granted. When ruling on a demurrer, a court must confine its
analysis to the [petition for review].
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted). “[C]ourts reviewing
preliminary objections may not only consider the facts pled in the [petition for review], but also
any documents or exhibits attached to it.” Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth.
2014).
5
backtime, and revoked credit for time served at liberty on parole, and consequently
failed to exhaust his administrative remedies. Id. at 7-11. Finally, Soler does not
have a clear right to relief, and has thus failed to state a viable mandamus claim,
because DOC properly calculated the minimum and maximum dates on the sentence
that was imposed in CP-39-CR-0000961-2017. Id. at 13-16.
DOC’s arguments regarding the allegedly indispensable nature of the Board
and about Soler’s putative failure to exhaust administrative remedies are without
merit. With regard to the former, “[t]he failure to join an indispensable party to a
lawsuit deprives the court of subject matter jurisdiction.” HYK Constr. Co. v.
Smithfield Twp., 8 A.3d 1009, 1015 (Pa. Cmwlth. 2010).
[The Supreme] Court has stated that a party is
indispensable “when his or her rights are so connected
with the claims of the litigants that no decree can be made
without impairing those rights.” Sprague v. Casey, . . . 550
A.2d 184, 189 ([Pa.] 1988). “[T]he basic inquiry in
determining whether a party is indispensable concerns
whether justice can be done in the absence of” him or her.
CRY, Inc. v. Mill Serv., Inc., . . . 640 A.2d 372, 375 ([Pa.]
1994). In undertaking this inquiry, the nature of the claim
and the relief sought must be considered. See id. at . . .
375-76.
....
While this joinder provision is mandatory, it is subject to
limiting principles. For example, where the interest
involved is indirect or incidental, joinder may not be
required
City of Philadelphia v. Com., 838 A.2d 566, 581 (Pa. 2003). Furthermore, when
considering whether a party is indispensable, a court must, at minimum, consider the
following questions:
1. Do absent parties have a right or interest related to the
claim?
2. If so, what is the nature of that right or interest?
6
3. Is that right or interest essential to the merits of the
issue?
4. Can justice be afforded without violating the due
process rights of absent parties?
Mechanicsburg Area Sch. Dist. v. Kline, 431 A.2d 953, 956 (Pa. 1981). As to the
latter,
a party must first exhaust its administrative remedies
before invoking this Court’s jurisdiction in challenging a
final agency adjudication. See Canonsburg [Gen. Hosp. v.
Dep’t] of Health, . . . 422 A.2d 141, 144 ([Pa.] 1980). The
courts must refrain from exercising equity jurisdiction
when there exists an adequate statutory remedy. Arsenal
Coal Co. v. [Dept. of Env’t Res.], . . . 477 A.2d 1333, 1338
([Pa.] 1984); Funk v. [Com.], 71 A.3d 1097, 1101 (Pa.
Cmwlth. 2012). The doctrine of exhaustion of
administrative remedies is intended to prevent the
premature interruption of the administrative process,
which would restrict the agency’s opportunity to develop
an adequate factual record, limit the agency in the exercise
of its expertise, and impede the development of a cohesive
body of law in that area. See Empire Sanitary Landfill, Inc.
v. [Dept. of Env’t Res.], . . . 684 A.2d 1047, 1054 ([Pa.]
1996); Shenango Valley Osteopathic [Hosp.] v. [Dept.] of
Health, . . . 451 A.2d 434, 438 ([Pa.] 1982); Bucks [Cnty.
Servs.], Inc. v. [Phila.] Parking [Auth.], 71 A.3d 379, 388
(Pa. Cmwlth. 2013). “The doctrine operates as a restraint
on the exercise of a court’s equitable powers and a
recognition of the legislature’s direction to comply with
statutorily[]prescribed remedies.” Empire Sanitary, 684
A.2d at 1054.
Keystone ReLeaf LLC v. Pa. Dep’t of Health, 186 A.3d 505, 513 (Pa. Cmwlth. 2018).
In this instance, Soler challenges DOC’s calculations regarding the sentence he
received in CP-39-CR-0000961-2017, on the basis that DOC has failed to comply
with Common Pleas’ aforementioned orders, but he does not take issue with the
Board’s handling of his parole violations. See Am. Pet. ¶¶9-22, 30-32, Wherefore
Clause. As a result, the Board’s interests are not implicated in this instance, nor
7
would the administrative remedies that were available to Soler through the Board
have offered him the ability to secure the relief he now seeks. Accordingly, the Board
is not a party that is indispensable to this matter and Soler did not fail to exhaust his
administrative remedies.
We come to a different conclusion, though, regarding the merits of DOC’s
remaining argument, through which it demurs to Soler’s mandamus claim.
A proceeding in mandamus is an extraordinary remedy at
common law, designed to compel the performance of a
ministerial act or mandatory duty. Duncan v. [Pa. Dep’t of
Corr.], 137 A.3d 575, 576 (Pa. 2016); Allen . . . , 103 A.3d
[at] 370 . . . . “The purpose of mandamus is not to establish
legal rights, but to enforce those rights already established
beyond peradventure.” Allen, 103 A.3d at 369 (quoting
Detar v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth. 2006)).
“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
[respondent] possesses a corresponding duty to perform
the act; and (3) the petitioner possesses no other adequate
or appropriate remedy.” Id. at 370; accord Duncan, 137
A.3d at 576. “Mandamus can only be used to compel
performance of a ministerial duty and will not be granted
in doubtful cases.” Allen, 103 A.3d at 370.
“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.” Allen, 103 A.3d at 370. However, mandamus
is not available to compel the performance of an illegal
sentencing order. Duncan, 137 A.3d at 576; Fajohn v.
[Dep’t of Corr.], 692 A.2d 1067, 1068 (Pa. 1997);
Lawrence v. [Pa. Dep’t of Corr.], 941 A.2d 70, 72 (Pa.
Cmwlth. 2007); [Com.] v. Kelley, 136 A.3d 1007, 1013-14
(Pa. Super. 2016). When a parolee is convicted of a new
criminal offense committed while on parole and
punishable by prison time, the Board has the authority, in
its discretion, to recommit the parolee as a [CPV]. Section
8
6138(a) of the [Prisons and] Parole Code [(Parole Code)],
61 Pa C.S. § 6138(a). Upon recommitment of a parolee,
the Board may order him to serve some or all of the
remainder of his original sentence as backtime. Id. Where
the Board orders a parolee to serve backtime, this time
must be served before the commencement of the new term.
Id. Specifically, Section 6138(a)(5)(i) of the Parole [Code]
provides:
(5) If a new sentence is imposed on the parolee, the
service of the balance of the term originally
imposed by a Pennsylvania court shall precede the
commencement of the new term imposed in the
following cases:
(i) If a person is paroled from a State
correctional institution and the new sentence
imposed on the person is to be served in the
State correctional institution.
61 Pa C.S. § 6138(a)(5)(i). In other words, “the original
sentence and any new sentences must be served
consecutively rather than concurrently.” Kerak v. [Pa. Bd.
of Prob. & Parole], 153 A.3d 1134, 1138 (Pa. Cmwlth.
2016); accord Allen v. [Pa. Bd. of Prob. & Parole], 207
A.3d 981, 985-86 (Pa. Cmwlth. 2019). A “sentencing
judge has no authority to order” otherwise. Kerak, 153
A.3d at 1138 (quoting [Com.] v. Draper, 293 A.2d 614,
615 (Pa. Super. 1972)). The imposition of a new state
sentence to run concurrently with a parolee’s backtime on
the original sentence is considered an illegal sentence.
Duncan, 137 A.3d at 576; Kelley, 136 A.3d at 1013-14;
see Lawrence, 941 A.2d at 72. Although sentencing courts
are generally authorized to impose sentences to run
consecutively or concurrently under Section 9721 of the
Sentencing Code, 42 Pa. C.S. § 9721, they are not
empowered to direct a new sentence to run concurrently
with a prisoner’s state parole violation sentence in
violation of the Parole Code. See Duncan, 137 A.3d at
576; Kelley, 136 A.3d at 1013-14; see Lawrence, 941 A.2d
at 72.
9
Bivens v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 192 M.D. 2018, filed Mar. 11, 2020),
slip op. at 4-6, 2020 WL 1171089, at *2-*3.6
Returning to the matter at-hand, it is evident that Common Pleas’ sentencing
order was unlawful, as it effectively directed that Soler was to serve his 2017
sentences concurrently with the CPV backtime imposed upon him by the Board
regarding his 2014 sentences. See Am. Pet., Ex. B. Given this, DOC lacked legal
authority to abide by Common Pleas’ calculations regarding the minimum and
maximum dates on Soler’s 2017 sentences. Soler thus does not possess a clear right
to mandamus relief regarding DOC’s handling of the sentence that was imposed
upon him in CP-39-CR-0000961-2017.7
6
Pursuant to section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value.
7
Though the issue is not part of this matter, we must also take issue with the Board’s and
Soler’s apparent belief that Soler could serve his sentence for CP-39-CR-0000960-2017
concurrently with the aforementioned Board-imposed backtime. Soler avers in his Amended
Petition that “the . . . Board noted his conviction on CP-3[9]-CR-000960-2017 and ran it
concurrently with the [backtime] the . . . Board gave [him] for the parole violation.” Am. Pet. ¶5.
Additionally, DOC stated, in its November 3, 2021 denial of Soler’s administrative grievance, that
the Board informed Soler on October 13, 2021, that “[his] sentence at [CP-39-CR-000960-2017]
was running concurrently with [the CPV] back time [sic] [the Board had imposed] because the
Board [had] noted that conviction.” Am. Pet., Ex. D; cf. DOC’s Br. in Support of Prelim. Objs.,
App. B (Board decision in which it noted Soler’s conviction in CP-39-CR-000960-2017, referred
to the CPV backtime it had imposed upon him in CP-39-CR-000961-2017, and declined to take
any additional action against him). As just discussed, though, Section 6138(a)(5)(i) of the Parole
Code mandates that Board-imposed backtime on an original sentence be served before a parolee
can begin serving a new, state-level sentence. See 61 Pa C.S. § 6138(a)(5)(i); Palmer v. Pa. Bd. of
Prob. & Parole, 134 A.3d 160, 165 (Pa. Cmwlth. 2016) (“[T]he Board may not impose backtime
to run concurrently with a new sentence for an offense committed while on parole.”). Thus, by
law, Soler could not begin serving his sentences for CP-39-CR-000960-2017 or CP-39-CR-
000961-2017 until he had completed that backtime.
10
III. Conclusion
In accordance with the foregoing analysis, we overrule DOC’s preliminary
objections regarding Soler’s putative failure to join all indispensable parties and
exhaust his administrative remedies, sustain DOC’s demurrer to Soler’s mandamus
claim, and dismiss the Amended Petition.
____________________________
ELLEN CEISLER, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nelson Soler, :
Petitioner :
:
v. : No. 323 M.D. 2022
:
Commonwealth of Pennsylvania, :
Department of Corrections, :
Respondent :
ORDER
AND NOW, this 3rd day of May, 2023, it is hereby ORDERED:
1. Respondent Commonwealth of Pennsylvania, Department of
Corrections’ (DOC) preliminary objections regarding Petitioner Nelson
Soler’s (Soler) putative failure to join all indispensable parties and exhaust his
administrative remedies are OVERRULED;
2. DOC’s preliminary objection in the nature of a demurrer to
Soler’s mandamus claim is SUSTAINED;
3. Soler’s “Amended Petition for Review in Mandamus
Challenging the Sentencing Calculation of [DOC]” is DISMISSED.
____________________________
ELLEN CEISLER, Judge