A.E. Oliver v. PA DOC ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Edward Oliver, :
:
Petitioner :
:
v. : No. 491 M.D. 2019
: Submitted: September 25, 2020
Pennsylvania Department of :
Corrections, John E. Wetzel, :
Dorina Varner, Kevin Kauffman, :
W. Scott Walters, Andrea Wakefield, :
B. Linn, Constance Green, :
:
Respondents :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 19, 2021
Before this Court, in our original jurisdiction, is Respondents’1
Preliminary Objection (PO) in the nature of demurrer to the Petition for Review
(Petition) filed by Anthony Edward Oliver (Oliver). We are also presented with
Oliver’s Motion for Discovery. For the reasons that follow, we sustain Respondents’
demurrer, dismiss Oliver’s Petition, and deny his Motion for Discovery as moot.
1
The named Respondents are the Pennsylvania Department of Corrections (Department),
John E. Wetzel, Dorina Varner, Kevin Kauffman, W. Scott Walters, Andrea Wakefield, B. Linn,
and Constance Green.
I. Facts Averred
Oliver, an inmate currently incarcerated at the State Correctional
Institution (SCI) at Phoenix, initiated this action by filing a pro se Petition against
Respondents challenging the computation of his sentences and the collection of
court-ordered costs and restitution from his inmate account as violative of the
sentencing court’s order. According to the facts averred in the Petition and the
exhibits attached thereto,2 on June 23, 2011, Oliver was arrested and charged with
several counts of conspiracy, burglary, criminal trespass, and theft. Petition, ¶¶1-5.
On August 22, 2016, Oliver entered a negotiated plea of nolo
contendere for two counts each of conspiracy and burglary, at Philadelphia County
Court of Common Pleas Criminal Docket Nos. (Docket Nos.) CP-51-CR-0011716-
2011 and CP-51-CR-0011718-2011.3, 4 The sentencing court accepted the plea and
2
Oliver attached the following exhibits to his Petition: Commonwealth v. Oliver (Pa.
Super., No. 1126 EDA 2018, filed August 14, 2019); “Sentencing Court Order,” which includes:
Collection of Inmate Debts Notice (9/23/16), DC-300B Court Commitment Forms, and Colloquy
for Plea of Guilty/Nolo Contendere (8/22/16); Petition to Proceed In Forma Pauperis; and Motion
for Appointment of Counsel. Petition, Exhibits.
Additionally, Oliver attached the following exhibits to his Brief: Exhibit A – Plea Hearing
Transcript with Respect to Sentencing, 8/22/16 (excerpt); Exhibit B – Correspondence from
Defense Counsel, Laurie R. Jubelirer, Esq., regarding negotiated plea sentence; Exhibit C –
Department Memorandum from Kevin Kauffman to Andrea Wakefield regarding Department
Sentence Change, Inmate’s Request to Staff Member, and DC-16E- Sentence Status Summary;
and Exhibit D – Letter to the Philadelphia Prison System regarding Computation for Time Credit.
Petitioner’s Brief, Exhibits.
3
The Commonwealth nolle prossed the charges of trespass, theft, and receiving stolen
property. Petition, Exhibit – Sentencing Court Order.
4
This Court may take judicial notice of information contained in the publicly-available
criminal dockets in these matters. See Moss v. SCI-Mahanoy Superintendent Pennsylvania Board
of Probation and Parole, 194 A.3d 1130, 1138 n.11 (Pa. Cmwlth. 2018), appeal denied, 215 A.3d
562 (Pa. 2019); see also Commonwealth v. Bond, 532 A.2d 339, 342-43 (Pa. 1987).
2
sentenced Oliver to 2.5 years to 5 years on each count and ordered these new
sentences to run concurrently with each other and with any other sentence Oliver
was currently serving. The sentencing court also awarded credit for the time that he
had already served, which Oliver maintains is between June 23, 2011, the date of his
arrest, and August 22, 2016, the date of sentencing. In addition, the sentencing court
ordered the deferment of the collection of costs and restitution until after Oliver’s
release from custody. Petition, ¶¶6-8, Exhibit – Sentencing Court Order.
By notice dated September 23, 2016, the Department immediately
began making deductions from Oliver’s inmate account to satisfy his financial
obligations in accordance with Section 9728(b)(5) of the Sentencing Code (Act 84),
42 Pa. C.S. §9728(b)(5),5 and Department policy DC-ADM 005, “Collection of
Inmate Debts.” Petition, ¶9.
By notice dated September 27, 2016, Oliver received an updated
version of his Sentence Status Summary (DC-16E), which indicated that prison
officials had computed his sentence to include an “under/overlapping” sentence
structure. Oliver contends that this structure effectively increased his minimum
sentence imposed by the sentencing court from 2.5 to 5 years to 8 to 12 years.
Petition, ¶10.
On September 30, 2016, Oliver filed a grievance with the Department
challenging the calculation of his sentences and the premature collection of court-
ordered costs and restitution from his inmate account. On November 3, 2016, the
Department issued a “Grievance Rejection,” which explained that his grievance was
5
“[Act 84] provides a procedure for [the Department] to collect fines and court costs for
which a defendant is liable pursuant to a previous court order.” Freemore v. Pennsylvania
Department of Corrections, 231 A.3d 33, 35 n.2 (Pa. Cmwlth. 2020) (quoting Russell v. Donnelly,
827 A.2d 535, 537 (Pa. Cmwlth. 2003)).
3
rejected because “DC-ADM 804 makes no provisions for resubmitting a rejected
grievance more than one time . . .” and because the “grievance was not submitted
within 15 working days after the events upon which [the] claims are based.”
Petition, ¶¶11-13.
In response to Oliver’s request to the records department, the
Department advised Oliver that his new sentences at Docket Nos. “[CP-51-CR-
00]11718-2011 and [CP-51-CR-00]11716-2011 are running concurrently . . . no
where [sic] on the sentencing order does it say they are retroactive to the date of
arrest.” Petition, ¶14.
On February 2, 2017, Oliver filed another facility grievance, reasserting
that the Department illegally altered the sentencing court’s order. The Department
again rejected the grievance as untimely. Thereafter, Oliver filed a petition for relief
in the sentencing court pursuant to the Post Conviction Relief Act (PCRA), 42
Pa. C.S. §§9541-9551, which was denied. Oliver appealed that decision to the
Superior Court, which, by order dated August 14, 2019, declined jurisdiction over
the appeal and transferred the matter to this Court.6 The Superior Court advised that
Oliver’s challenges to the computation of time should be raised in an original
jurisdiction action in this Court, hence the present Petition. Petition, ¶¶16-23,
Exhibit – Superior Court Order at 2.
Oliver asserts that Respondents unlawfully altered the sentencing terms
and conditions of the nolo contendere plea entered by the sentencing court. More
particularly, he claims that the Department did not calculate his sentences to run
concurrently or credit time to which he was entitled. According to Oliver, the
Department’s calculation increased his minimum sentence by 2.5 years. Oliver
6
See Commonwealth v. Oliver (Pa. Cmwlth., No. 1285 C.D. 2019) (pending).
4
maintains that, had the Department correctly calculated his sentences, he would have
been eligible for release from incarceration at Docket Nos. CP-51-CR-0011716-
2011 and CP-51-CR-0011718-2011 on June 22, 2016. He also claims that
Respondents defied the sentencing order by immediately collecting costs and
restitution from his inmate account rather than deferring collection until his release
from incarceration. Oliver seeks a declaratory judgment that his sentence is illegal
and his negotiated plea is void, as well as a remand to the sentencing court.
In response, Respondents demur on the ground that the Petition is
legally insufficient for failure to state a claim upon which relief may be granted.
First, Respondents contend that the Department correctly calculated Oliver’s
sentences in accordance with the sentencing order and the law. Second, Respondents
assert that the Department is authorized to take monetary deductions from Oliver’s
inmate account to pay the court-ordered costs and restitution, where there is no
indication that the sentencing court directed the payment of these financial
obligations to be deferred until his release from incarceration. Respondents ask this
Court to sustain their demurrer and dismiss Oliver’s Petition.
Thereafter, Oliver filed a Motion for Discovery seeking documents
material to the claims presented.7 Respondents’ PO and Oliver’s Motion for
Discovery are now before us for review.
7
Specifically, Oliver seeks Department policies related to collection of inmate debts,
population management, reception and classification, case summary and record office operations;
his complete parole file; DC-300B notices issued to Oliver on September 23, 2016, and May 3,
2018; and any and all documents material or relevant to the claims presented. Motion for
Discovery, at 3.
5
II. Discussion
A. Legal Standards
Pennsylvania Rule of Civil Procedure No. 1028(a)(4) provides that a
PO may be filed for legal insufficiency of a pleading (demurrer). Pa. R.C.P. No.
1028(a)(4). In ruling on POs in the nature of a demurrer, the Court must accept as
true all well-pleaded allegations of material fact, as well as inferences deducible
therefrom. Aviles v. Pennsylvania Department of Corrections, 875 A.2d 1209, 1211
n.3 (Pa. Cmwlth. 2005). In addition, courts reviewing POs may also consider any
documents or exhibits attached to the petition for review. Lawrence v. Pennsylvania
Department of Corrections, 941 A.2d 70, 71 (Pa. Cmwlth. 2007). It is not necessary
to accept as true any averments in the petition for review that conflict with exhibits
attached to it. Id. Conclusions of law, unwarranted inferences from the facts,
argumentative allegations, or expressions of opinion are not admitted. Portalatin v.
Pennsylvania Department of Corrections, 979 A.2d 944, 947 (Pa. Cmwlth. 2009).
A demurrer may be sustained only where it appears with certainty that the law will
not permit recovery under the allegations pleaded. County of Dauphin v. City of
Harrisburg, 24 A.3d 1083, 1089 (Pa. Cmwlth. 2011). Any doubt must be resolved
in favor of overruling a demurrer. Id. With these standards in mind, we review the
Department’s demurrer.
B. Sentence Calculation
First, Respondents demur to Oliver’s Petition on the ground that the
Department properly calculated his sentences. Oliver is not entitled to have his
sentences calculated in the manner he seeks. Although not labeled as such, Oliver’s
Petition sounds in mandamus because he is seeking to have this Court compel the
Department to take specific action regarding the calculation of his sentences. As
6
supported by Oliver’s own exhibits, the Department faithfully applied the terms in
the sentencing order as written.
The Department is an administrative agency charged with faithfully
carrying out the sentences imposed by the courts and is without authority “to
adjudicate the legality of a sentence or to add or delete sentencing conditions.”
McCray v. Pennsylvania Department of Corrections, 872 A.2d 1127, 1133 (Pa.
2005). “Because the sentence imposed by a [sentencing] 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.
Pennsylvania Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006).
Mandamus is the appropriate remedy to correct an error “where the sentencing order
clearly gives the inmate credit for the time period in question and [the] computation
does not comply with that credit.” Allen v. Pennsylvania Department of Corrections,
103 A.3d 365, 370 (Pa. Cmwlth. 2014). “However, mandamus is not available to
challenge [the Department’s] failure to give credit where the sentencing order is
either ambiguous or does not specify the credit at issue.” Id. “[M]andamus is not
an appropriate remedy to cure an illegal sentencing order.” Id. Finally, mandamus
is not available to compel the Department to perform an illegal act. Jackson v.
Vaughn, 777 A.2d 436, 438 (Pa. 2001); Fajohn v. Pennsylvania Department of
Corrections, 692 A.2d 1067, 1068 (Pa. 1997); Sturgis v. Doe, 26 A.3d 1221, 1224
(Pa. Cmwlth. 2011).
“When a sentence is imposed on a defendant who is sentenced for
another offense, the judge shall state whether the sentences shall run concurrently or
consecutively. If the sentence is to run concurrently, the sentence shall commence
from the date of imposition unless otherwise ordered by the judge.” Section 705(B)
7
of the Pennsylvania Rules of Criminal Procedure, Pa. R. Crim. P. 705(B) (emphasis
added); see Bernardini v. Pennsylvania Department of Corrections (Pa. Cmwlth.,
No. 650 M.D. 2016, filed September 1, 2017), slip op. at 1.8
Here, the sentencing court ordered that the new sentences imposed at
Docket Nos. CP-51-CR-0011716-2011 and CP-51-CR-0011718-2011 were to run
concurrently to each other as well as any other sentences that Oliver was serving at
that time. Petition, Exhibit – Sentencing Court Order. According to the Sentence
Status Summary, Oliver’s new sentences are running concurrently and are
designated as overlapping and concurrent with a previously imposed 8- to 12-year
sentence that Oliver was then serving. Petitioner’s Brief, Exhibit C – DC-16E -
Sentence Status Summary. Upon review, the Department has properly followed the
sentencing order and calculated the new sentences as running concurrently, not
consecutively, with each other and any other sentence that he is serving. Id.As for the effective date of the new sentences at Docket Nos. CP-51-
CR-0011716-2011 and CP-51-CR-0011718-2011, Oliver does not allege that the
sentencing court ordered these sentences to commence on any date other than the
date on which the sentences were imposed. According to Oliver’s exhibits, he was
sentenced on August 22, 2016; the section for the “effective date of sentence” was
left blank. Petition, Exhibit – Sentencing Court Order. Absent any indication that
these sentences were to commence on a date other than the date of sentencing, the
Department correctly applied August 22, 2016, as the effective date, as reflected on
the Sentence Status Summary. Petitioner’s Brief, Exhibit C – DC-16E – Sentence
Status Summary.
8
Section 414(a) of this Court’s Internal Operating Procedures authorizes the citation of
unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as
binding precedent. 210 Pa. Code §69.414(a).
8
Oliver also claims that Respondents failed to properly apply credit as
awarded by the sentencing court. Section 9760 of the Sentencing Code governs
inmate credit providing:
(1) Credit against the maximum term and any minimum
term shall be given to the defendant for all time spent in
custody as a result of the criminal charge for which a
prison sentence is imposed or as a result of the conduct on
which such a charge is based. Credit shall include credit
for time spent in custody prior to trial, during trial, pending
sentence, and pending the resolution of an appeal.
42 Pa. C.S. §9760(1) (emphasis added). This means that a defendant must be given
credit for any days spent in custody before imposition of his sentence, but only if
such commitment is attributable to the offense for which the sentence was imposed.
Commonwealth v. Infante, 63 A.3d 358, 367 (Pa. Super. 2013); Bernardini, slip op.
at 3. Section 9760 of the Sentencing Code “does not contemplate credit for time
served to be awarded twice.” Barndt, 902 A.2d at 595; accord Bernardini, slip op.
at 3.
Here, the sentencing court ordered that the credit was to be calculated
by the Philadelphia Prison System. See Docket Nos. CP-51-CR-0011716-2011, CP-
51-CR-0011718-2011. Oliver “is attempting to equate a directive to calculate credit
with an award of credit.” Bernardini, slip op. at 3. There is no indication that the
sentencing court intended for Oliver to receive any credit to which he was not
entitled in contravention of the Sentencing Code. The sentencing court simply
ordered Oliver’s new sentences to run concurrently with each other and with any
sentence that Oliver was already serving, with credit for time served. The sentencing
court did not award Oliver with specific time to be applied to his new sentences.
Even the DC-300B Court Commitment Form attached to Oliver’s Petition reflects
he was to receive “0 Days” of credit at Docket Nos. CP-51-CR-0011716-2011, CP-
9
51-CR-0011718-2011. Consequently, Oliver has failed to state a claim upon which
relief may be granted. Thus, we sustain Respondents’ demurrer in this regard.
C. Act 84 Deductions
Second, Respondents demur on the basis that Oliver has failed to
establish that the Department lacked authority pursuant to Act 84 to deduct funds
from his inmate account for the payment of court-ordered costs and restitution.
According to Respondents, the funds are properly being deducted based on the
sentencing order, which imposed these financial obligations without any delay
language.
Act 84 authorizes the Department to make monetary deductions from
an inmate’s account to pay court-ordered fines, costs, and restitution.
42 Pa. C.S. §9728(b)(5); Boyd v. Pennsylvania Department of Corrections, 831
A.2d 779, 782-84 (Pa. Cmwlth. 2003). Act 84 does not require prior court
authorization as a threshold condition before funds may be deducted from an
inmate’s account. See George v. Beard, 824 A.2d 393, 396-97 (Pa. Cmwlth. 2003).
A sentencing court’s order governs the Department’s collections from inmate
accounts. Freemore v. Pennsylvania Department of Corrections, 231 A.3d 33, 39
(Pa. Cmwlth. 2020).
In accordance with Act 84, the Department developed collection
guidelines set forth in Section 3 of DC-ADM 005. Of particular relevance here,
Section 3.A.2.a, provides:
2. The Business Manager/designee shall:
a. If the Department is in possession of a court order
or sentencing transcript, then the Business
Manager/designee shall determine if the order that
10
imposes financial obligations on the inmate defers the
payment of those obligations to a later date or event
(‘delay language’). If so, collection of costs as a result of
that court order must not begin until the date or event
indicated in the court order. In all such cases, the specific
terms of a court order will control. Questions concerning
the terms of a court order shall be referred to the Act 84
Coordinator.
Section 3.A.2.a of DC-ADM 005 (italic emphasis added; original emphasis
omitted).9
As this Court recently explained:
Once in possession of the sentencing order, the SCI’s
business manager must determine if it expressly “defers
the payment of those obligations to a later date or event”
and, only if it does, may the Department delay making
deductions from an inmate account therefor. DC-ADM
005 Section 3.A.2.a (emphasis omitted). Otherwise,
Section 9728(b)(5)(i) of Act 84 mandates that “[t]he
[Department] shall make [the] monetary deductions . . . .”
42 Pa. C.S. §9728(b)(5)(i).
Freemore, 231 A.3d at 41 (footnote omitted).
Here, the sentencing court imposed costs and restitution, but there is no
written direction regarding deferment in the sentencing order. See Petition, Exhibit
– Sentencing Court Order; see also Docket Nos. CP-51-CR-0011716-2011 and CP-
51-CR-0011718-2011. Neither the DC-300B Court Commitment Form or the
colloquy for plea of guilty/nolo contendere document support Oliver’s contention
regarding deferment. See Petition, Exhibit – Sentencing Court Order.
9
The Department’s Collection of Inmate Debts policy is available at
https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/005%20Collection%20of%
20Inmate%20Debts.pdf (last visited on June 22, 2021).
11
However, the testimony excerpt from the August 22, 2016 sentencing
hearing, which Oliver attached to his brief, appears to support Oliver’s claim that
deferment was part of his negotiated plea agreement. Therein, the following
exchange occurred between Oliver’s defense counsel and the sentencing court:
THE COURT: Before we proceed, there’s also the issue
of restitution and it sounds like it is not contested; is that
correct, [Defense Counsel]?
[DEFENSE COUNSEL]: Correct.
THE COURT: I do order restitution in the amount of, I
believe the total amount was $3,600 --
[PROSECUTION]: Correct.
THE COURT: -- and that will be payable to the University
of Pennsylvania. That is also a condition of your sentence,
do you understand that Mr. Oliver?
THE DEFENDANT: Yes.
THE COURT: Okay.
[DEFENSE COUNSEL]: Yes. He asked if that will be
deferred until he’s out of custody, correct?
THE COURT: Yes, it will be deferred until you are
released from custody, . . . .
Petitioner’s Brief, Exhibit A, Plea Hearing Transcript, 8/22/16, at 44. Because
Oliver provided only an excerpt from the transcript, it is unclear what transpired
following this exchange. Nevertheless, we must accept as true all well-pled
allegations of material fact that deferment was agreed to at the sentencing hearing.
Petition, ¶23.
12
Notwithstanding, Oliver has still failed to state a claim upon which
relief may be granted. The fact remains that the sentencing court’s oral statements
regarding deferment are not reflected in the sentencing documents. See Petition,
Exhibit – Sentencing Court Order; see also Docket Nos. CP-51-CR-0011716-2011
and CP-51-CR-0011718-2011. Pennsylvania courts have consistently recognized
that the sentencing court’s oral statements, which are not incorporated into the
written judgment signed by the sentencing court, are not a part of the judgment of
sentence. Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa. 2013); Joseph v.
Glunt, 96 A.3d 365, 371 (Pa. Super. 2014); Commonwealth v. Hodge, 369 A.2d 815,
820 (Pa. Super. 1977); Commonwealth v. Green, 335 A.2d 392, 393 (Pa. Super.
1975); Commonwealth v. Foster, 324 A.2d 538, 539 (Pa. Super. 1974);10 see
Commonwealth v. Isabell, 467 A.2d 1287, 1292 (Pa. 1983) (“Generally, the signed
sentencing order, if legal, controls over oral statements of the sentencing judge not
incorporated into the signed judgment of sentence.”). “In Pennsylvania, the text of
the sentencing order, and not the [oral] statements a trial court makes about a
defendant’s sentence, is determinative of the court’s sentencing intentions and the
sentence imposed.” Borrin, 80 A.3d at 1226; see Commonwealth, ex rel. Powell v.
Pennsylvania Department of Corrections, 14 A.3d 912, 915-16 (Pa. Cmwlth. 2011);
Green, 335 A.2d at 393. Thus, the sentencing order controls over oral statements of
the sentencing judge not included in the signed judgment of sentence. Borrin, 80
A.3d at 1226; Isabell, 467 A.2d at 1292.
The Department is duty bound to follow the sentencing order as written,
not the oral statements made by the sentencing court at the sentencing hearing.
10
Although the decisions of the Superior Court are not binding upon this Court, they may
serve as persuasive authority. Lerch v. Unemployment Compensation Board of Review, 180 A.3d
545, 550 (Pa. Cmwlth. 2018).
13
Borrin, 80 A.3d at 1226; Isabell, 467 A.2d at 1292. The sentencing order does not
defer the payment of fines, costs, and restitution to a later date or event. See Petition,
Exhibit – Sentencing Court Order; see also Docket Nos. CP-51-CR-0011716-2011
and CP-51-CR-0011718-2011. Absent any delay language in the sentencing order
itself, Section 9728(b)(5)(i) of Act 84 mandates that “[t]he [Department] shall make
[the] monetary deductions,” which the Department did. 42 Pa. C.S. §9728(b)(5)(i).
Because the sentencing order did not direct deferment, the Department was under no
duty to defer collection. Consequently, Oliver has failed to state a claim upon which
relief may be granted.11 Therefore, we sustain Respondents’ demurrer in this regard.
D. Motion for Discovery
In light of our disposition that Oliver has failed to state a claim upon
which relief may be granted based upon his well-pled allegations of fact, which we
have accepted as true, the discovery of evidence to support those allegations would
be a futile exercise. Therefore, we dismiss Oliver’s Motion for Discovery as moot.
III. Conclusion
Based on the foregoing, we conclude that Oliver has not established a
clear right to the requested relief. We, therefore, sustain Respondents’ demurrer,
and dismiss Oliver’s Petition and Motion for Discovery.
MICHAEL H. WOJCIK, Judge
Judge Cohn Jubelirer did not participate in the decision of this case.
11
Oliver’s only recourse is to petition the sentencing court for a modification of his
sentencing order, nunc pro tunc, to accurately reflect the agreed-upon terms of his plea bargain.
See Fajohn, 692 A.2d at 1068 n.1.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Edward Oliver, :
:
Petitioner :
:
v. : No. 491 M.D. 2019
:
Pennsylvania Department of :
Corrections, John E. Wetzel, :
Dorina Varner, Kevin Kauffman, :
W. Scott Walters, Andrea Wakefield, :
B. Linn, Constance Green, :
:
Respondents :
ORDER
AND NOW, this 19th day of July, 2021, Respondents’ preliminary
objection in the nature of demurrer is SUSTAINED; Petitioner’s Petition for Review
is DISMISSED; and Petitioner’s Motion for Discovery is DISMISSED AS MOOT.
__________________________________
MICHAEL H. WOJCIK, Judge