A.D. Barnett v. PBPP and DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alvin Derrick Barnett, :
Petitioner :
:
v. : No. 594 M.D. 2019
: Submitted: June 26, 2020
Pennsylvania Department of :
Probation and Parole and :
Pennsylvania Department :
of Corrections, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: October 9, 2020
Before this Court in our original jurisdiction are the preliminary
objections of the Pennsylvania Board of Probation and Parole1 (Board) and the
Department of Corrections (DOC) (collectively, Respondents) to a petition for
review in the nature of mandamus (Petition), filed by inmate Alvin Derrick Barnett
(Barnett), who is seeking recalculation of his prison sentence. For the reasons below,
we sustain Respondents’ preliminary objections and deny Barnett’s Petition.
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§6101, 6111(a). Also note,
the caption of this case (above) incorrectly identifies this entity as the Pennsylvania Department
of Probation and Parole.
I. Background and Procedural Posture
On April 29, 1985, Barnett was convicted of burglary and sentenced to
a term of incarceration of 1 to 10 years (Burglary Sentence). Petition at 3; Petition
Exhibit (Ex.) A. His minimum sentence date was April 29, 1986, and his maximum
sentence date was April 29, 1995. Id.
Between 1985 and 1993, Barnett served several years on his Burglary
Sentence and was granted various periods of parole during this same time. Barnett
was paroled on May 31, 1993, at which point he had served over five years and six
months of his Burglary Sentence. Petition at 3; Ex. B. Barnett’s new maximum date
was April 13, 1998. Id.
On October 27, 1993, while on parole, Barnett incurred additional
criminal charges,2 and on September 13, 1995, he was sentenced to an aggregate
term of 30 to 60 years. On February 21, 1997, his sentence was reduced to a term
of 28 to 60 years (Robbery Sentence). Ex. D. Barnett is currently serving this
sentence at State Correctional Institution (SCI) at Smithfield. Petition at 4. Barnett’s
new minimum sentence date was set at October 30, 2025, and his new maximum
sentence date became October 30, 2057. Ex. D.
Barnett contends that he received credit for his Robbery Sentence
beginning on October 28, 1993 (the date of his arrest), and served this sentence
through June 15, 2001. Petition at 5; Ex. D. On June 15, 2001, Barnett was returned
to custody on a parole violation with respect to his Burglary Sentence, even though
2
These charges were for robbery, aggravated assault, arson, causing a catastrophe, and
criminal attempt. Petition at 4.
2
it was beyond his “maximum” date of 1998, and he had already begun serving time
on his Robbery Sentence. Petition at 5; Ex. E. At that point, he began serving the
four years and three days remaining on his Burglary Sentence.3 Petition at 5; Ex. A
and Ex. B. Upon completion of the Burglary Sentence on June 18, 2005, Barnett
was re-entered to serve the remainder of his Robbery Sentence. Petition at 6.
Barnett contends that “for reasons unknown, the [DOC] did not
recommit [him] on his Burglary Sentence when he was arrested in 1993 as required
by 61 Pa.C.S. §6138(a)(5)(i).”4 Petition at 6. Barnett further argues that there is no
3
In his Petition, Barnett asserts that he was “purportedly returned for [sic] custody of a
parole violation with respect to the Burglary Sentence.” Petition at 5.
4
This is a reference to Section 6138(a) of the Prisons and Parole Code, 61 Pa. C.S.
§6138(a), which states, in pertinent part:
(a) Convicted violators.--
(1) A parolee under the jurisdiction of the board released from a
correctional facility who, during the period of parole or while delinquent on
parole, commits a crime punishable by imprisonment, for which the parolee
is convicted or found guilty by a judge or jury or to which the parolee pleads
guilty or nolo contendere at any time thereafter in a court of record, may at
the discretion of the board be recommitted as a parole violator.
...
(4) The period of time for which the parole violator is required to
serve shall be computed from and begin on the date that the parole violator
is taken into custody to be returned to the institution as a parole violator.
...
(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.
...
(Footnote continued on next page…)
3
explanation for the DOC or the Board crediting four years and three days of time
served to his Burglary Sentence in 2001 and that the DOC should not have legally
taken any time after his maximum date on the Burglary Sentence. He contends that
the DOC and the Board were obligated to credit his incarceration from 1993 to 1998
to his Burglary Sentence in accordance with 61 Pa.C.S. §6138(a)(5)(i). Petition at
6. Barnett asserts that, if he received his due credit from the date he was arrested in
October 1993, his minimum date would be sometime in October 2021, rather than
in October 2025. Petition at 7. To address these contentions, Barnett filed a Petition
for Writ of Mandamus with this Court in our original jurisdiction.5 In response,
Respondents filed the preliminary objections which are currently before us.6
61 Pa.C.S. §6138(a)(1), (4), (5)(i).
5
“Where a trial court’s sentencing order is legal on its face . . . a prisoner may petition this
Court in our original jurisdiction seeking a writ of mandamus to compel DOC to properly compute
a prisoner’s prison sentence.” Barndt v. Pa. Dep’t of Corr., 902 A.2d 589, 598 (Pa. Cmwlth.
2006). This Court has held that because a sentence imposed by a trial court involves no discretion
on the part of DOC, mandamus may be used to compel DOC to compute a prisoner’s sentence
properly. Saunders v. Dep’t of Corr., 749 A.2d 553 (Pa. Cmwlth. 2000). “A writ of mandamus .
. . is an extraordinary remedy which compels official performance of a ministerial act or mandatory
duty, as opposed to a discretionary act. The purpose of mandamus is not to establish legal rights,
but to enforce those rights already established beyond [doubt].” Africa v. Horn, 701 A.2d 273, 275
(Pa. Cmwlth. 1997) (citations omitted). This Court has original jurisdiction over the present matter
pursuant to Section 761 of the Judicial Code, 42 Pa.C.S. §761.
6
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 (Pa. Cmwlth. 1994). However, the Court 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 (Pa. Cmwlth. 2007).
4
II. Arguments
A. Barnett’s Argument
Barnett seeks a Writ of Mandamus from this Court to compel
Respondents to recalculate his time served because, he alleges, it was unlawful to
apply time from his Robbery Sentence to his Burglary Sentence, from 2001 to 2005,
as his Burglary Sentence should have been completed by 2001. Petition at 7. Barnett
maintains that such a recalculation will reduce his minimum and maximum sentence
dates and potentially allow him earlier access to any parole programs that may be
offered to elderly inmates. In addition, “it would allow him to take advantage of
employment opportunities available to him through a family member and seek
medical attention for a heart condition.” Petition at 8.
Barnett seeks to compel Respondents “to correct the misapplication of
[his] time credit . . . in accordance with applicable statutory authority,” noting that
his Petition “is an appropriate action in mandamus and as such this Court has original
jurisdiction.” Barnett’s Br. at 1. Quoting Bronson v. Commonwealth Board of
Probation and Parole, 421 A.2d 1021, 1023 (Pa. 1980), Barnett asserts that “[a]
proceeding in mandamus is available to compel the [Board] to conduct a hearing or
correct a mistake in applying the law.” Barnett’s Br. at 1. Citing Saunders v.
Department of Corrections, 749 A.2d 553 (Pa. Cmwlth. 2000), Barnett asserts that
“[a] writ of mandamus may be used to compel [DOC] to compute a prisoner’s
sentence properly.” Saunders, 749 A.2d at 556; Barnett’s Br. at 1.
Barnett argues that he “does not seek a review of his sentence or a
determination of his parole, rather just the legal and proper application of his time
credit in accordance with applicable statutory authority.” Barnett’s Br. at 3.
5
Respondents, in their preliminary objections, argue that (1) this matter
falls within the Court’s appellate, not original, jurisdiction and was therefore
improperly raised, and (2) even if jurisdiction is proper, Barnett failed to satisfy the
elements necessary for the issuance of a Writ of Mandamus.
B. Board’s Argument
Relying on Bronson, 421 A.2d 1021, and McMahon v. Pennsylvania
Board of Probation and Parole, 470 A.2d 1337 (Pa. 1983), the Board states that “[i]t
is well established that challenges to the Board’s revocation and recalculation
decisions must be filed in this Court’s appellate jurisdiction.” Board’s Br. at 5. In
addition, the Board argues that Barnett may not now “revive his lapsed appeal rights
by filing an action in this Court’s original jurisdiction,” as “any challenge to Board
sentence calculations should have been filed in this Court’s appellate jurisdiction
long ago.” Board’s Br. at 4-5 (citing Lizzi v. Unemployment Comp. Bd. of Review,
353 A.2d 440 (Pa. 1976); Calloway v. Pa. Bd. of Prob. and Parole, 857 A.2d 218(Pa. Cmwlth. 2004)). Specifically, the Board argues that, to the extent Barnett
asserts “his original sentences were improperly calculated by the [DOC], he does not
state a claim against the Board.” Board’s Br. at 5. Citing Gillespie v. Department
of Corrections, 527 A.2d 1061 (Pa. Cmwlth. 1987), and Nickson v. Commonwealth
Board of Probation & Parole, 880 A.2d 21 (Pa. Cmwlth. 2005), the Board notes that
“it is well established that [the DOC], not the Board, is responsible for calculating
the minimum and maximum terms of prisoners committed to its jurisdiction.”
Board’s Br. at 5-6. In sum, the Board argues that Barnett’s Petition does not state a
claim against it in this Court’s original jurisdiction, and thus, the Board’s preliminary
objections must be sustained, and Barnett’s Petition must be dismissed.
6
C. The DOC’s Argument
The DOC concurs in the Board’s argument that this Court should
sustain Respondents’ preliminary objections in regard to Barnett’s Petition because
the Court lacks jurisdiction where Barnett incorrectly seeks relief in this Court’s
original jurisdiction rather than its appellate jurisdiction.
Further, the DOC argues that Barnett has not alleged sufficient facts to
support an entitlement to mandamus relief. The DOC asserts that “the calculation
of [Barnett’s] sentences stems from the [Board’s] revocation and recalculation
procedures” and that “DOC correctly calculated [Barnett’s] sentences pursuant to
the court order[7] for the [R]obbery [S]entence and the [B]oard action for the
[B]urglary [S]entence. Accordingly, mandamus does not lie to compel the DOC to
calculate [Barnett’s] sentence in the manner he seeks.” DOC’s Br. at 9.
The DOC argues that Barnett failed to demonstrate a clear right to relief
that would require the issuance of a writ of mandamus, and although this Court may
compel the DOC to compute a prisoner’s sentence properly, Barnett did not establish
that the DOC improperly calculated his sentence. DOC’s Br. at 11. As the DOC
notes, following the imposition of his Robbery Sentence in 1995, Barnett returned
to state prison. At that time, he was designated as a “pending parole violator.” Id.;
Ex. B, i.e., the DOC’s May 23, 2018 “Moves Report.” Subsequently, following the
7
We note, here, that “[Barnett] previously sought relief in the Court of Common Pleas of
Allegheny County by way of a Petition for Post-Conviction Relief filed on October 29, 2015[,]
and Motion to Modify Sentence filed on April 16, 2018. Both actions were docketed at No. CP
02-CR-14068-1993 and denied by the sentencing court.” Petition at 2, n.1.
7
issuance of the Board’s action in June 2001,8 Barnett was returned to custody as a
parole violator with respect to his Burglary Sentence, and the DOC’s “Moves
Report” was changed to reflect this change in status. This 2001 Board action
triggered the application of 61 Pa.C.S. §6138.
When the DOC received the information from the Board regarding
Barnett’s backtime on his Burglary Sentence, his sentences were recalculated
accordingly. DOC’s Br. at 12. “[T]ime credit was applied for the time he served on
the [R]obbery [S]entence from October 28, 1993, through June 15, 2001(presumably
the date the [B]oard action was issued and he was ‘returned’ to serve his backtime).”
Id. From June 15, 2001, through June 21, 2005, Barnett served his backtime on the
Burglary Sentence, “following which he recommenced his [R]obbery [S]entence.”
Id. The DOC argues that, “[r]egardless of the order in which these sentences were
served, Barnett received all of the time credit to which he was entitled at both
dockets.” Id. The DOC asserts that, based on the information provided to it, it
properly calculated Barnett’s sentence, and, further, Barnett failed to establish the
DOC had a duty to calculate his sentences in the manner he suggests. DOC’s Br. at
13. The DOC argues that Barnett’s issues are with the Board and the Board’s
revocation procedures, not with the DOC’s calculation of his sentences, and that
Barnett should have raised these issues in this Court’s appellate jurisdiction when he
received the Board action in 2001. Accordingly, the DOC asserts, Barnett failed to
meet the elements required for the issuance of a Writ of Mandamus. Id.
8
As the DOC explains, Barnett did not attach a copy of this Board action to his Petition.
“[H]owever, based on his averment that he commenced service of his backtime on the Burglary
Sentence on June 15, 2001, a reasonable inference may be made that was the date of the [B]oard[’s]
action.” DOC’s Br. at 12 n.1.
8
III. Discussion
A. Jurisdiction
We first address the issue of whether this matter is properly filed in this
Court’s original jurisdiction.
Barnett argues that Respondents misapply Bronson in the current case
because the Court, there, found that the appellant’s complaints did not involve the
essential allegation for mandamus, i.e., “that there was a mistake in applying the law
or there was a failure of the Board to act” and that his complaints appeared “to be a
direct attack on the constitutionality of the entire parole revocation process.”
Bronson, 421 A.2d at 1024; Barnett’s Br. at 4. Barnett notes, however, that the Court
in Bronson reaffirmed that original jurisdiction exists where a petitioner seeks 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,” which is what Barnett argues is the
situation in the matter presently before us. Bronson, 421 A.2d at 1023; Barnett’s Br.
at 4.
Barnett also argues that Respondents in the present matter ignore our
Supreme Court’s determination in McCray v. Pennsylvania Department of
Corrections, 872 A.2d 1127, 1130 (Pa. 2005), which held that “[w]here discretionary
actions and criteria are not being contested, but rather the actions of [the DOC] in
computing an inmate’s maximum and minimum dates of confinement are being
challenged, an action for mandamus remains viable as a means for examining
whether statutory requirements have been met.” Id. at 1130-31. Barnett maintains
that he is seeking “review of the computation of his maximum date of confinement,
making an action for mandamus appropriate.” Barnett’s Br. at 5.
9
Based on our review of the facts and arguments of the parties, we are
unpersuaded by Barnett’s position. To the extent Barnett is challenging a Board
action from “long ago,” he has missed his window of opportunity and cannot now
revive an action that should have been brought in this Court’s appellate jurisdiction,
by all accounts, in 2001. Accordingly, we sustain the preliminary objections raised
by the Board and dismiss all claims against it in the current matter. Having
established same, we next consider whether Barnett has any right to relief in
mandamus against DOC.
B. Mandamus Action Against the DOC
The basis of Barnett’s mandamus action lies within Section
6138(a)(5)(i) of the Prisons and Parole Code. Barnett contends that this provision
required Respondents to allow him to finish the remainder of his Burglary Sentence,
when he was recommitted as a result of his arrest in 1993, rather than to immediately
begin serving time on his Robbery Sentence.
Barnett contends that the DOC did not apply his time credit properly
and in accordance with 61 Pa.C.S. §6138(a)(5)(i), and that he established a clear
right to enforce the performance of the DOC’s duty. Further, he contends that time
from his Robbery Sentence could not have lawfully been applied to his Burglary
Sentence from 2001 to 2005 because the Burglary Sentence should have been
completed by 2001. Petition at 7. Barnett argues that he has no other means of relief
except the present Petition for a Writ of Mandamus. Petition at 8.
Upon review, we sustain the DOC’s preliminary objections and
dismiss Barnett’s Petition. As Barnett provided no evidence to suggest that the DOC
10
did anything other than abide by the information it received from the Board, which
he failed to appropriately and timely challenge, and having not otherwise established
an entitlement to a recalculation of his sentence minimum and maximum dates, we
see no basis upon which Barnett could prevail in the present matter. As the DOC
correctly asserts herein: “[r]egardless of the order in which these sentences were
served, Barnett received all of the time credit to which he was entitled at both
dockets.” DOC’s Br. at 12. Any decision to be made about matters such as credit
for time spent at liberty on parole or backtime, Barnett’s status as a pending parole
violator or a convicted parole violator, and the timing of any such determinations in
this regard, were matters for the Board, not for the DOC. Accordingly, the DOC has
successfully demonstrated that Barnett cannot succeed on his Petition. Thus, the
DOC’s preliminary objections are sustained.
IV. Conclusion
Upon determining that we have no authority within our original
jurisdiction in regard to Barnett’s claims against the Board, and having determined
Barnett has failed to make a claim for which his requested relief may be granted
against the DOC, we sustain the preliminary objections of Respondents and dismiss
Barnett’s Petition.
______________________________
J. ANDREW CROMPTON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alvin Derrick Barnett, :
Petitioner :
:
v. : No. 594 M.D. 2019
:
Pennsylvania Department of :
Probation and Parole and :
Pennsylvania Department :
of Corrections, :
Respondents :
ORDER
AND NOW, this 9th day of October 2020, the preliminary objections
of the Department of Corrections and the Pennsylvania Board of Probation and
Parole are sustained. Accordingly, Petitioner, Alvin Derrick Barnett’s Petition for
Writ of Mandamus is dismissed.
______________________________
J. ANDREW CROMPTON, Judge