D. Lisby v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dormen Lisby, :
Petitioner :
:
v. : No. 506 M.D. 2020
: Submitted: February 4, 2022
Pennsylvania Department :
of Corrections, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: March 22, 2022
The Pennsylvania Department of Corrections (DOC) has filed
Preliminary Objections in the nature of a demurrer to a Petition for Review seeking
mandamus relief filed pro se by Dormen Lisby (Petitioner). Petitioner asserts that
DOC has miscalculated the minimum and maximum dates of his sentence. After
review, we sustain DOC’s Preliminary Objections and dismiss the Petition with
prejudice.1
Background
Petitioner is an inmate currently incarcerated at the State Correctional
Institution at Frackville (SCI-Frackville). On August 8, 1996, Petitioner was
arrested and charged with criminal homicide and related crimes. These new charges
were a violation of Petitioner’s existing probation. The Court of Common Pleas of
Philadelphia County (trial court) revoked Petitioner’s probation and, on April 10,
1
This Court has original jurisdiction over this matter. 42 Pa. C.S. § 761.
1997, resentenced Petitioner to three and one-half to seven years of incarceration
(VOP sentence).
Petitioner pleaded guilty to his new charges. On December 8, 1997, the
trial court sentenced Petitioner to an aggregate 25 to 50 years of incarceration
(homicide sentence). The court instructed DOC that Petitioner’s sentence was to be
served “concurrent[ly] with any other sentence [he] is now serving” and that he was
entitled to credit for time served from “8/8/96 to 12/8/97 if not already credited.”
Amended Pet. for Review, 4/29/21, at 9 (unpaginated), Commitment Order, 12/8/97
(Commitment Order).
DOC calculated that Petitioner’s minimum date for release was April
7, 2022, and his maximum date was April 7, 2047. Petitioner disputed this
calculation and filed a grievance asserting that this minimum date, as calculated by
DOC, was 26 years after his arrest instead of the 25 years imposed by the trial court.
Petitioner exhausted his administrative remedies without relief.
On September 1, 2020, Petitioner filed a Petition for Review with this
Court, seeking a writ of mandamus compelling DOC to recalculate the effective date
of his sentence to be “August 8, 1996[,] with the maximum expiry date of August 8,
2046.” Pet. for Review, 9/1/20, at 7. In response, DOC filed Preliminary Objections
in the nature of a demurrer, asserting that Petitioner was not awarded credit for time
served from April 10, 1997, to December 8, 1997, because such time was credited
to his VOP sentence. Preliminary Objections, 4/6/21, ¶ 21. Thus, according to DOC,
it was without legal authority to grant Petitioner the relief he sought. Id. ¶¶ 23-24.2
2
On April 23, 2021, Petitioner filed an “Amended Petition for Review,” in which Petitioner
did not allege any new claim, essentially repeating his initial averments and attaching several
relevant documents, including DOC’s response to his grievance and the trial court’s commitment
orders. We view this filing as a supplement to his Petition for Review.
2
Discussion
In ruling on preliminary objections in the nature of a demurrer, this
Court must accept as true all well-pleaded material facts and all inferences
reasonably deducible therefrom. Barndt v. Pa. Dep’t of Corr., 902 A.2d 589, 592
(Pa. Cmwlth. 2006). We will consider not only the facts pleaded in the petition for
review, but also any documents or exhibits attached to it. Lawrence v. Pa. Dep’t of
Corr., 941 A.2d 70 (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. A
demurrer must be sustained where it is clear and free from doubt that the law will
not permit recovery under the alleged facts; any doubt must be resolved by a refusal
to sustain the demurrer. Kretchmar v. Commonwealth, 831 A.2d 793 (Pa. Cmwlth.
2003).
A writ of mandamus is an extraordinary remedy. Hoyt v. Pa. Dep’t of
Corr., 79 A.3d 741, 742 (Pa. Cmwlth. 2013). It is “designed to compel the
performance of a ministerial act or mandatory duty.” Allen v. Dep’t of Corr., 103
A.3d 365, 369 (Pa. Cmwlth. 2014) (citation omitted). Mandamus does not establish
legal rights; the purpose of a writ of mandamus is to “enforce those rights already
established beyond peradventure.” Id. (citation omitted). Therefore, we “may only
issue a writ of mandamus where the petitioner possesses a clear legal right to enforce
the 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.” Detar v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth.
2006) (citation omitted).
Petitioner asserts that DOC miscalculated the minimum and maximum
dates of his homicide sentence. See Petitioner’s Br. at 1-2. According to Petitioner,
3
despite clear instructions from the trial court that his sentences were to be served
concurrently and that he was entitled to credit for time served, DOC failed to award
him any credit for time served from April 10, 1997, to December 8, 1997. See id. at
3-4. Additionally, Petitioner disputes the manner in which DOC subtracted days
from the date his homicide sentence commenced, suggesting that this “subtraction
method” facilitated DOC’s manipulation of his minimum date of release from
incarceration. See id. at 5. Petitioner’s claims are without merit.3
A sentence shall “be construed so as to give effect to the intention of
the sentencing judge. The text of the sentencing order is determinative of the court’s
sentencing intentions and the sentence imposed.” Allen, 103 A.3d at 371 (citations
omitted). DOC must “faithfully implemen[t] sentences imposed by the courts.”
Comrie v. Pa. Dep’t of Corr., 142 A.3d 995, 1001 (Pa. Cmwlth. 2016) (citation
omitted).
“As part of the executive branch, DOC lacks the power to adjudicate
the legality of a sentence or to add or delete sentencing conditions.” Detar, 898 A.2d
at 30 (citation omitted). “Where a sentencing court clearly gives credit . . . for time
served, it is DOC’s duty to carry out that sentencing order.” Allen, 103 A.3d at 372
(citation omitted). However, it is well settled that a prisoner is not entitled to credit
for time served on an unrelated offense or applied on another sentence. See Jackson
v. Vaughn, 777 A.2d 436 (Pa. 2001); Taglienti v. Dep’t of Corr., 806 A.2d 988 (Pa.
Cmwlth. 2002).
3
Petitioner also asserts that DOC miscalculated credit toward his VOP sentence. See
Petitioner’s Br. at 2-3. That is inaccurate. Petitioner began serving his VOP sentence on April 10,
1997. He completed serving that sentence on April 10, 2004. See Petitioner’s Amended Pet. for
Review at 12 (unpaginated), Sentence Status Summary. Regardless, Petitioner’s assertion is
irrelevant because this VOP sentence ran concurrent to his sentence for criminal homicide and
expired long before the homicide sentence.
4
The relevant facts are clear. Petitioner was arrested for homicide and
related crimes on August 8, 1996, and he has remained in custody since that date.
These charges were a violation of his existing probation, which was revoked on April
10, 1997, and resulted in the VOP sentence. On December 8, 1997, the trial court
imposed the homicide sentence. The trial court instructed that the homicide sentence
would run concurrently with any other sentence Petitioner was currently serving and
that Petitioner was entitled to credit for time served, provided it had not been credited
to another sentence. See Commitment Order.
Petitioner received no credit toward his VOP sentence for time served
from August 8, 1996, to April 10, 1997. See Petitioner’s Amended Pet. for Review
at 7 (unpaginated), Memo of Myrtis A. Gordon. Therefore, Petitioner was entitled
to 245 days credited toward his homicide sentence. Conversely, because Petitioner
began serving his VOP sentence on April 10, 1997, DOC had no authority to credit
Petitioner any additional time toward his homicide sentence. See Commitment
Order.
In calculating Petitioner’s minimum and maximum dates, DOC
subtracted the 245-day credit from the actual date of his homicide sentence. This
credit for time served effectively altered the date on which Petitioner began serving
his homicide sentence. In other words, although the trial court actually imposed
sentence on December 8, 1997, the credit awarded Petitioner translates into an
effective date of April 7, 1997, i.e., 245 days earlier. From this effective date, DOC
properly calculated that Petitioner’s minimum date would be twenty-five years and
his maximum date would be fifty years thereafter. Thus, Petitioner’s minimum date
is April 7, 2022, and his maximum date is April 7, 2047. See Petitioner’s Amended
Pet. for Review at 8 (unpaginated), Grievance Review Response.
5
Conclusion
DOC has carried out Petitioner’s homicide sentence properly,
calculating Petitioner’s credit for time served as instructed by the trial court.
Accordingly, we sustain DOC’s Preliminary Objections and dismiss Petitioner’s
Petition for Review with prejudice.
LORI A. DUMAS, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dormen Lisby, :
Petitioner :
:
v. : No. 506 M.D. 2020
:
Pennsylvania Department :
of Corrections, :
Respondent :
ORDER
AND NOW, this 22nd day of March, 2022, the Preliminary Objections
in the nature of a demurrer filed by the Pennsylvania Department of Corrections are
sustained, and the Petition for Review filed by Dormen Lisby is dismissed with
prejudice.
LORI A. DUMAS, Judge