J. Perez v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Perez, :
Petitioner :
:
v. : No. 77 M.D. 2020
: Submitted: October 16, 2020
Pennsylvania Department of :
Corrections, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: December 22, 2020
Before us is the preliminary objection in the nature of a demurrer filed
by the Pennsylvania Department of Corrections (DOC) to the petition for review
seeking mandamus relief filed by inmate John Perez (Perez), representing himself.
In his petition for review, Perez contends DOC improperly calculated his sentence
by not appropriately applying credit. Upon review, because DOC’s calculation is
consistent with the submissions of Perez, and the credit award, we grant DOC’s
demurrer and dismiss the petition for review with prejudice.
I. Background
Perez is an inmate at the State Correctional Institution (SCI) at Dallas.
He was initially incarcerated for charges related to Docket No. CP-51-CR-0000783-
2011 (C. C.P. Phila.). While out on bail, in September 2011, Perez was arrested on
new charges, for which he was sentenced to 20 to 40 years (for third-degree murder
and conspiracy), and 2 years, 6 months to 5 years, consecutive (for firearm
possession), for an aggregated sentence of 22 years and 6 months to 45 years
(Aggregated Sentence) of incarceration. Perez entered a negotiated guilty plea on
the new charges, Docket No. CP-51-CR-0000978-2012 (C. C.P. Phila.), on July 15,
2013. Perez attached a copy of the sentencing order on the new charges to his
petition for review, which states, in pertinent part:
The following conditions are imposed:
Credit for time served: Credit to be calculated by the Phila. Prison
System.
Other: This sentence is to run concurrently with the sentence imposed
on [the 2011 conviction]
....
This sentence shall commence on 7/15/2013.
See Pet. for Review, Ex. A-1 (Sentencing Order).
Perez filed a petition for review in mandamus, seeking an order
directing DOC to apply credit in accordance with the Sentencing Order. He contends
the credit set forth in his DC-16E Sentence Status Summary Sheet dated October 30,
2019 (Sentence Summary), is inconsistent with the Sentencing Order, which he
alleges directed credit for time served. Perez avers that he did not receive appropriate
credit, citing to a response to a credit inquiry he received from DOC in July 2019.
Therein, DOC informed Perez that he was not credited for time served on the Sentence
Summary because the Sentencing Order did not specify a credit.1 Id. ¶10.
Perez also cites a revised credit memorandum issued by Christopher
Thomas of the Philadelphia Department of Prisons2 on July 26, 2019, (Revised Credit
1
In a response dated July 8, 2019, a Records Specialist for DOC responded to Perez’s
credit inquiry, advising that there was no credit included in the Sentencing Order, and therefore,
DOC lacked the authority to change the Sentence Summary to include a credit.
2
Perez identifies Thomas as being affiliated with the Philadelphia Department of Prisons in
his brief in opposition to DOC’s preliminary objection. See Pet’r’s Br. in Opp’n, at 6. He also notes
(Footnote continued on next page…)
2
Memo) stating in relevant part that credit “should have been awarded 9/26/2011
(arrest date[)] to 01/03/2012 (date before being sentenced on CP-51-CR-0000783-
2011) and the date of sentence imposition of 7/15/2013. Since you were not yet
paroled on this docket when you were sentenced for CP-51-CR-0000978-2012, the
credit stops.” Pet. for Review ¶9 (quoting Revised Credit Memo).
DOC filed a preliminary objection in the nature of a demurrer, asserting
that Perez could not state a mandamus claim because he lacked a clear right to
additional credit. Significantly, DOC maintains that Perez received all credit he was
due, including the specific period for which he seeks credit, i.e., from his arrest date
in September 2011 to the date before sentencing on his initial charges, and the date
of the Sentencing Order.
II. Discussion
Perez’s mandamus claim cites a clear right to serve only the time as
directed in the Sentencing Order, which states credit shall be calculated by the
Philadelphia Prison System.3 The petition acknowledges that the Philadelphia
Department of Prisons, through Thomas, issued the Revised Credit Memo, stating
the credit to be applied. In their briefs, the parties focus on this application of credit.
Perez contends he did not receive appropriate credit whereas DOC counters that it
applied the credit he seeks in accordance with the Revised Credit Memo, as evinced
in the Sentence Summary.
an interest in amending his petition to name Thomas as a respondent; however, we do not consider
this request as Perez did not properly seek amendment and his request is mooted by our disposition.
3
This Court recognizes that the Sentencing Order here did not specify the amount of credit,
but instead directed that credit be calculated by the Philadelphia Prison System. A sentencing order
directing the amount of credit is different from one that directs the calculation of credit. See
Bernardini v. Dep’t of Corr. (Pa. Cmwlth., No. 650 M.D. 2016, filed Sept. 1, 2017), 2017 WL
3798537 (unreported). Here, the Sentencing Order manifests an intent to award credit as calculated
by the prison; hence, the Revised Credit Memo is the proper source for credit for time served.
3
In reviewing preliminary objections, we must accept as true all well-
pled allegations of material facts, as well as all inferences reasonably deducible from
those facts. Key v. Pa. Dep’t of Corr., 185 A.3d 421, 423 n.3 (Pa. Cmwlth. 2018).
However, this Court is not required to accept as true any unwarranted factual
inferences, conclusions of law, or expressions of opinion. Id. Moreover, we are not
bound by allegations in the pleading that are inconsistent with any documents properly
appended to the pleading. Allen v. Pa. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth.
2014). Only where the pleading is “facially devoid of merit,” should the demurrer be
sustained. Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 406 (Pa. Cmwlth.
1990) (en banc) (citation omitted). It must be clear the law will not permit recovery,
and any doubt must be resolved in favor of the non-moving party. Key.
A mandamus claim is an extraordinary form of relief for clear rights.
Detar v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth. 2006). The purpose of mandamus is
not to establish legal rights, but to enforce those rights already established beyond
peradventure. Id. This Court may only issue a writ of mandamus where the petitioner
possesses a clear legal right to enforce performance of a ministerial act or mandatory
duty, the respondent possesses a corresponding duty to perform the act, and the
petitioner possesses no other adequate or appropriate remedy. Id.DOC has a mandatory duty to “faithfully implemen[t] sentences
imposed by the courts,” and to properly compute an inmate’s sentence. Comrie v.
Pa. Dep’t of Corr., 142 A.3d 995, 1001 (Pa. Cmwlth. 2016). Mandamus relief is
thus appropriate when a calculation challenge involves the misapplication or failure
to apply credit for time served. See Allen (overruling DOC’s demurrer to mandamus
claim seeking credit in accordance with sentencing order). With regard to the award
or application of credit, DOC lacks authority to diverge from the Sentencing Order,
4
as the calculation of credit is a purely administrative function. See Oakman v. Dep’t
of Corr., 903 A.2d 106, 109 (Pa. Cmwlth. 2006).
Here, Perez appended to his mandamus petition the Revised Credit
Memo completed by Thomas on July 26, 2019. It advises that Perez was awarded
credit from the arrest date of September 26, 2011, to January 3, 2012, and the date
of sentencing on his Aggregated Sentence, July 15, 2013. To the extent Perez
specifies the period for which credit is due, it corresponds directly to the credit set
forth in this Memo.
To establish a clear right to sentencing credit, it is incumbent on the
inmate to specify the timeframe to which the credit pertains. See Allen. In this case,
Perez does not identify any time served for which he did not receive credit pursuant
to the Revised Credit Memo. Indeed, the credit Perez identified is applied as shown
in the Sentence Summary. Therefore, he did not show a clear right to a different
credit calculation than that already performed by DOC upon receiving the Memo.
III. Conclusion
Because Perez did not establish a clear right to the credit he seeks to
have applied to his Aggregated Sentence beyond the amount DOC already credited,
we sustain DOC’s demurrer, and dismiss the petition for review with prejudice.
______________________________
J. ANDREW CROMPTON, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Perez, :
Petitioner :
:
v. : No. 77 M.D. 2020
:
Pennsylvania Department of :
Corrections, :
Respondent :
ORDER
AND NOW, this 22nd day of December 2020, the preliminary
objection of the Pennsylvania Department of Corrections is SUSTAINED, and John
Perez’s petition for review is DISMISSED with prejudice.
______________________________
J. ANDREW CROMPTON, Judge