F. Nellom v. PA Dept of Corrections, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Frank Nellom, Petitioner v. Pennsylvania Department of Corrections, Superintendent David DiGugliemo and Records Supervisor Thomas Rowlands of the State Correctional Institution at Graterford, Respondents BEFORE: : : : : : : : : : : : : No. 525 M.D. 2007 Submitted: April 4, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: June 26, 2008 Before this Court for disposition are the preliminary objections in the nature of a demurrer filed by the Pennsylvania Department of Corrections (Department) to the Petition for Writ of Mandamus (Petition) filed by Frank Nellom. Also before this Court for disposition is Nellom s Application for Summary Relief. On March 28, 1987, Nellom was arrested and charged with robbery, rape and involuntary deviate sexual intercourse (IDSI). On October 20, 1987, following a jury trial in the Court of Common Pleas of Philadelphia County (trial court), Nellom was adjudged guilty of the robbery charge, but a mistrial was declared with respect to the rape and IDSI charges because the jury was hopelessly deadlocked. On February 9, 1988, the trial court sentenced Nellom to serve a one to four-year term of imprisonment on his robbery conviction with credit for time served from March 29, 1987 to the date sentence was imposed. On May 10, 1988, following another jury trial in the trial court, Nellom was adjudged guilty of the rape and IDSI charges. On October 12, 1988, the trial court sentenced Nellom to serve an aggregate twelve to thirty-year term of imprisonment on these convictions, to be served consecutively to the one to fouryear robbery sentence. On August 29, 1989, the Pennsylvania Superior Court vacated the judgment of sentence imposed on his rape and IDSI convictions, and remanded the matter for a new trial on these charges. See Commonwealth v. Nellom, 565 A.2d 770 (Pa. Super. 1989). On October 15, 1990, Nellom was paroled from the robbery sentence to a detainer for the retrial on the rape and IDSI charges. On March 12, 1991, following a jury trial in the trial court, Nellom was adjudged guilty of the rape charge and not guilty of the IDSI charge. On June 25, 1991, the trial court sentenced Nellom to serve a six to twenty-year term of imprisonment [t]o run consecutive to any sentence now being served.... See Petition at ¶ 15. On November 2, 2007, Nellom filed the instant Petition in which he seeks to compel the Department to give him credit on the rape sentence under Section 9760 of the Sentencing Code.1 Nellom alleges that because the rape 1 42 Pa.C.S. § 9760. Specifically, Section 9760 provides, in pertinent part: After reviewing the information submitted ¦ the court shall give credit as follows: (1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a (Continued....) 2. sentence imposed by the trial court on June 25, 1991 directs that it is [t]o run consecutive to any sentence now being served ¦ , and because the robbery sentence expired on March 28, 19912, the provisions of Pa.R.Crim.P. 14063 in effect at that time required that the sentences be deemed to run concurrently and 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. (2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts. (3) If the defendant is serving multiple sentences, and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set aside since the commission of the offenses on which the sentences were based. 42 Pa.C.S. § 9760(1), (2) &(3). 2 The Department contends that the sentence imposed for Nellom s robbery conviction expired on June 28, 1991, three days after the sentence was imposed for his rape conviction. 3 The former Pa.R.Crim.P. 1406(a) stated, in pertinent part, that [w]henever a sentence is imposed on a defendant who is incarcerated for another offense, such sentences shall be deemed to run concurrent unless the judge states otherwise. See Petition at ¶ 14. In addition, the former Pa.R.Crim.P. 1406(b) provided, in pertinent part, that [a] sentence of imprisonment shall be deemed to commence and shall be computed from the date of commitment for the offense ¦ for which such sentence is imposed, which date shall be specified by the judge. Credit ¦ shall be given as provided by law for any days spent in custody ¦ for such offense ¦ prior to the imposition of sentence. Id. The former Pa.R.Crim.P. 1406 was renumbered and has been replaced by Pa.R.Crim.P. 705. 3. that he receive credit for additional periods of time.4 More specifically, Nellom [c]ontend[s] the trial court s instruction: sentence to run consecutive to any sentence now being served implied credit was to be withheld even if Petitioner was not serving any sentence [with which] the sentence imposed [could] be legally aggregated ¦. Petition at ¶ 12 (emphasis in original). Mandamus is an extraordinary writ. McCray v. Department of Corrections, 582 Pa. 440, 872 A.2d 1127 (2005); Bronson v. Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050 (1981). It will only be granted to compel performance of a ministerial duty where a petitioner establishes a clear legal right to relief and a corresponding duty to act by the respondent, and there exists no other adequate and appropriate remedy. McCray; Waters v. Department of Corrections, 509 A.2d 430 (Pa. Cmwlth. 1986). Mandamus is not proper to establish legal rights, but it is only appropriately used to enforce those rights which have already been established. Id. In addition, preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material and relevant factual averments, and all inferences fairly deducible therefrom. Barndt v. Department of Corrections, 902 A.2d 589 (Pa. Cmwlth. 2006). Preliminary objections in the nature of a demurrer 4 The Department s Sentence Status Summary (DC16) sheet, attached as an exhibit to both the Petition and to Nellom s Brief in Opposition to Preliminary Objections, indicates under Commitment Credit that Department has given Nellom the following credit on the sentence for the rape conviction: (1) the period from his initial arrest on March 28, 1987 to the imposition of sentence for the robbery conviction on February 8, 1988; (2) the period from the imposition of sentence for the first rape conviction on October 12, 1988 to the date that the Superior Court vacated that sentence and remanded the case for a new trial on August 29, 1989; and (3) for the period from his parole from the robbery sentence on October 16, 1990 to the imposition of sentence for the instant rape conviction on June 25, 1991. Thus, Nellom is seeking credit on the sentence imposed for the instant rape conviction for the period of February 8, 1988 to October 12, 1988, and for the period of August 29, 1989 to October 15, 1990. See Petition at ¶ 12. 4. will not be sustained unless the face of the pleadings shows that the law will not permit recovery, and any doubts should be resolved against sustaining the demurrer. Id. In support of its preliminary objections, the Department argues that the presumption that the rape sentence should run concurrently with the robbery sentence, under the former Pa.R.A.P. 1406, is not applicable in this case because the trial court specifically stated that it was to be served consecutively to the robbery sentence. We agree. It is well settled that a criminal sentence is to be construed so as to give effect to the intent of the sentencing judge. Commonwealth v. Kennedy, 868 A.2d 582 (Pa. Super. 2005). To determine the intent of the sentencing judge, review of the sentence is limited to the written language of the judgment of sentence. Id. In addition, with respect to the Department s duty in this regard, the Pennsylvania Supreme Court has previously noted: It is beyond cavil that the Department has a duty to credit ¦ all inmates, for all statutorily mandated periods of incarceration ¦. The Department is an executive branch agency that is charged with faithfully implementing sentences imposed by the courts. As part of the executive branch, the Department lacks the power to adjudicate the legality of a sentence or to add or delete sentencing conditions ¦. McCray, 582 Pa. at 450, 872 A.2d at 1133. The written judgment of sentence imposed by the trial court in this case specifically indicates its clear intention that Nellom should serve his rape sentence consecutive to the previously imposed robbery sentence. The actions of the Department, as indicated in the pleadings, demonstrate its intent to faithfully 5. implement the sentence that was imposed and to give effect to all of its provisions. Nellom s assertion that the rape sentence should be served concurrently with the robbery sentence would require the Department to completely disregard both the written judgment of sentence and the intent of the trial court, and to grant Nellom credit on the rape sentence for time that he served on the robbery sentence. Clearly, such a construction of the rape sentence would be contrary to the expressed intent of the trial court and, as part of the Executive Branch, the Department was absolutely powerless to alter the rape sentence in such a manner. McCray. Moreover, and more importantly, the pleadings in this case demonstrate that Nellom is not entitled to mandamus relief because he did not avail himself of an adequate and appropriate remedy. In McCray, an inmate filed a petition for review in this Court in which he alleged that the Department had failed to properly calculate his sentence following the revocation of his probation. McCray also filed an application for summary relief sounding in mandamus in which he alleged that the sentencing court had imposed two separate sentences of incarceration for the same crime in violation of the Fifth Amendment to the United States Constitution. The Department argued that McCray was not entitled to mandamus relief because, inter alia, he had failed to exhaust his available remedies, citing the Department s Inmate Grievance System and the sentencing court. Ultimately, this Court granted the requested summary relief, and the Supreme Court reversed this Court on appeal. In considering whether the Department s Inmate Grievance System provided an adequate and appropriate remedy, the Supreme Court stated: [T]he Department is disingenuous in asserting that this is the appropriate mechanism to entertain a legal challenge to an application for credit for time served. If the 6. Department has no authority to correct or clarify a sentence, as it claims, then it is incongruous to contend that its internal grievance system is an available remedy. Further, the General Assembly has not conferred the authority to consider matters of law on the decisionmakers of the internal grievance system. Finally, the regulation promulgated by the Department of Corrections enabling the internal grievance system specifically permits inmates to pursue any remedies available to them in state or federal forums. 37 Pa. Code § 93.9. McCray, 582 Pa. at 448, 872 A.2d at 1131. However, with respect to whether the trial court presented an adequate remedy outside of mandamus relief, the court stated the following: The Department also contends that McCray should have sought relief in the sentencing court rather than the Commonwealth Court because the Department cannot alter a sentence. On September 17, 1999, the court imposed a term of two to four years incarceration plus five years probation without referring to credit for time served. We agree with the Department that McCray should have expressed his concerns about this matter by raising an objection, which would have allowed the trial court to clarify its decision. This would also have preserved the issue for appellate review. Instead, McCray failed to avail himself of the remedy available to him. Id. at 448-449, 872 A.2d at 1131-1132. Thus, the Supreme Court concluded that [a]n adequate remedy, which McCray chose to forgo, was available in the trial court and through the direct appeal process ¦. Id. at 451, 872 A.2d at 1133.5 Accordingly, the Supreme 5 In addition, the Supreme Court also concluded that McCray did not have a clear right to relief, and that the Department did not have a duty to allow credit for time served when the sentencing court did not so provide in its sentencing order. See Id. at 449-450, 872 A.2d at 1132-1133. 7. Court concluded that McCray was not entitled to relief in mandamus and reversed this Court s order granting such relief. Id. Likewise, in the instant case, Nellom utterly fails to demonstrate that he raised an objection in the trial court regarding its direction that the rape sentence was [t]o run consecutive to any sentence now being served.... As noted above, Nellom alleges that the robbery sentence expired on March 29, 1991, nearly three months prior to date on which the trial court imposed the instant sentence for his rape conviction on June 25, 1991. In addition, the periods of time for which he now seeks credit, from February 8, 1988 to October 12, 1988 and from August 29, 1989 to October 15, 1990, had already been served before the trial court imposed the instant rape sentence in June of 1991. Thus, Nellom should have raised any and all objections to the consecutive nature of the rape sentence at the sentencing hearing before the trial court so that the court could have clarified it decision in this regard, and so he could have pursued this issue further on direct appeal to the Superior Court. By failing to do so, it is clear that Nellom is not entitled to mandamus relief at this time and in this Court. See McCray, 582 Pa. at 451, 872 A.2d at 1133 ( McCray fails to meet any of the three criteria for the issuance of a writ of mandamus. [First, a]n adequate remedy, which he chose to forgo, was available in the trial court and through the direct appeal process ¦. ). Accordingly, the Department s preliminary objections are sustained, and the Petition is dismissed with prejudice. As a result of our disposition of the preliminary objections in the Department s favor, Nellom s Application for Summary Relief is denied as moot. _________________________________ JAMES R. KELLEY, Senior Judge 8. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Frank Nellom, Petitioner v. Pennsylvania Department of Corrections, Superintendent David DiGugliemo and Records Supervisor Thomas Rowlands of the State Correctional Institution at Graterford, Respondents : : : : : : : : : : : : No. 525 M.D. 2007 ORDER AND NOW, this 26th day of June, 2008, it is hereby ordered as follows: 1. The preliminary objections of the Pennsylvania Department of Corrections, Superintendent David DiGugliemo, and Records Supervisor Thomas Rowlands of the State Correctional Institution at Graterford are SUSTAINED; 2. The Application for Summary Relief filed by Frank Nellom is 3. The Motion for Advancement of Summary Relief filed by DENIED; Frank Nellom is DENIED AS MOOT; and 4. The Petition for Writ of Mandamus filed in this Court s original jurisdiction at No. 525 M.D. 2007 is DISMISSED WITH PREJUDICE. _________________________________ JAMES R. KELLEY, Senior Judge
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