Lead Opinion
OPINION
This is a direct appeal by the Pennsylvania Department of Corrections (Department) from an Order of the Commonwealth Court, entered in its original jurisdiction, granting the Application for Summary Relief sounding in mandamus (Man
FACTS AND PROCEDURAL HISTORY
McCray was arrested and charged with twenty-seven crimes as the result of an incident that occurred in Philadelphia County on January 31, 1996. He entered into a plea agreement wherein he pled guilty
On September 17, 1999, McCray’s probation was revoked following a determination that he had violated that probation.
In September of 2000, McCray, acting pro se, filed a Petition for Review in the original jurisdiction of the Commonwealth Court alleging that the Department had calculated his new sentence incorrectly by not crediting him for the time he served from May 1, 1996 to January 7, 1998.
The Commonwealth Court reviewed applicable case law, particularly Commonwealth v. Bowser,
DISCUSSION
The Department launches a two-pronged attack on the decision of the Commonwealth Court and argues that an action in mandamus is an inappropriate mechanism to seek review of McCray’s sentence because, first, McCray had not exhausted his available remedies and, second, he did not have a clear right to the relief he sought.
The Department asserts that the Commonwealth Court erred in granting McCray’s petition because an adequate remedy existed outside of a writ of mandamus. The Department complains that McCray should have availed himself of
Appropriateness of Mandamus Action
Initially, we must address the appropriateness of the Mandamus Action within the context of a Petition for Review. The Commonwealth Court has routinely entertained Petitions for Review in the nature of mandamus seeking orders to compel the Department to apply credit for time served. See, e.g., Alston v. Pennsylvania Bd. of Probation & Parole,
Mandamus—Want of any other Remedy
A proceeding in mandamus is an extraordinary action at common law and is available only to compel the performance of a ministerial act or mandatory duty where there exists no other adequate and appropriate remedy; there is a clear legal right in the plaintiff, and a corresponding duty in the defendant. Jackson v. Vaughn,
We begin by examining the appropriate method by which to seek relief when there is a question as to the correct application of credit for time served. The Department contends that the Commonwealth Court erred in granting the Mandamus Action because McCray had adequate remedies available to him in the form of the internal prison grievance system and, more importantly, he should have sought relief from the sentencing court.
Chapter 93 of Title 37 of the Pennsylvania Code contains regulations pertinent to state correctional institutions. Section 93.9 establishes an inmate grievance system that provides a forum for prison inmates to complain to the Department about problems that arise “during the course of confinement.” 37 Pa.Code § 93.9. That section states:
(a) The Department will maintain an inmate grievance system which will permit any inmate to seek review of problems which the inmate experiences during the course of confinement. The system will provide for review and resolution of inmate grievances at the most decentralized level possible. It will also provide for review of the initial decision making and for possible appeal to the Central*448 Office of the Department. An inmate will not be disciplined for the good faith use of the grievance systems. However, an inmate who submits a grievance for review which is false or malicious may be subject to appropriate disciplinary procedures. Copies of the' directive governing grievance procedures will be made available to the inmates.
(b) Inmates may also pursue available remedies in State and Federal court.
Id. This system addresses such problems as the initial decisions regarding cell and work assignments along with the day-to-day living problems associated with incarceration. Problems arising during confinement could include opportunities to make and receive phone calls, availability of legal materials and assistance, visitations, recreation, counseling, and a myriad of other considerations that occur in a system that houses large numbers of persons in confined spaces. The 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 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 decision-makers 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(b).
The Department also contends that McCray should have sought relief in the sentencing court rather than the Commonwealth Court because the Department may not 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 a 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
Mandamus—Clear Right to Relief
We must next determine whether McCray had a clear right to relief. The Department relies on the Opinion of the Superior Court in Commonwealth v. Williams,
The Department also relies on Commonwealth v. Bowser,
McCray’s position echoes that of Judge Olszewski in his dissenting opinion in Bowser in which he expressed his belief that Section 9760(1) of the Sentencing Code mandates that an inmate is entitled to credit on any sentence “for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed----” Considering the existence of the Williams and Bowser decisions, and the fact that Section 9760 appears in Subchapter E of the Sentencing Code governing “Imposition of Sentence” and not in Subchapter F governing “Further Judicial Action,” which includes Section 9771 (Modification or revocation of order of probation), it cannot be said that McCray had a clear right to relief.
Mandamus—Duty of Department
It is beyond cavil that the Department has a duty to credit McCray, as well as all inmates, for all statutorily mandated periods of incarceration. Martin v. Pennsylvania Bd. of Probation & Parole,
McCray fails to meet any of the three criteria required for the issuance of a writ of mandamus. An adequate remedy, which he chose to forgo, was available in the trial court and through the direct appeal process. He failed to establish a clear right to relief. In addition, the Department did not have the duty to allow credit for time served when the trial court did not so provide in its sentencing order.
Accordingly, we reverse the Order of the Commonwealth Court.
Notes
. The details of the incident were not supplied, but the bills of information to which McCray pled guilty were:
1. Bill No. 1: Aggravated Assault, Felony 1, pursuant to 18 Pa.C.S. § 2702.
3. Bill No. 3: Firearms Not To Be Carried Without a License, Felony 3, pursuant to 18 Pa.C.S. § 6106.
9. Bill No. 9: Criminal Conspiracy, Felony 2, pursuant to 18 Pa.C.S. § 903.
10. Bill No. 10: Aggravated Assault, Felony 1, pursuant to 18 Pa.C.S. § 2702.
19. Bill No. 19: Aggravated Assault, Felony 1, pursuant to 18 Pa.C.S. § 2702.
. Bills numbered 1, 10, and 19.
. Bill number 3.
. Bill number 9.
. McCray was arrested on May 1, 1996, and remained incarcerated until the trial court sentenced him on January 7, 1998. Therefore, he had been in custody for one year, eight months, and six days when the court granted him immediate parole. It is this one year, eight months, and six days of time served that McCray seeks to have credited to his probation revocation sentence.
. There is nothing in the record indicating the reason for which McCray's probation was revoked other than that there was a finding of guilt at the parole revocation hearing. (Reproduced Record (R.R.), page 184.)
. Bills numbered 1, 10, and 19.
. Bill number 9.
. Although this is not set forth clearly in the Reproduced Record, it appears the Department filed Preliminary Objections to this Petition, alleging that McCray failed to exhaust his administrative remedies because he did not utilize the inmate, grievance system. It also appears that the Commonwealth Court entered an Order overruling the Preliminary Objections of the Department on October 12, 2000. (R.R. at 49.)
. Richard Bowser (Bowser) had his probation revoked because of a new criminal conviction and a new sentence of one to three years was imposed for the original receiving stolen property conviction. Bowser filed a Motion for Time Credit with the trial court, which was denied. He then filed a direct appeal with the Superior Court.
. Following a determination that John Williams (Williams) had violated his probation, he was sentenced to three and one-half to seven years for his original theft by unlawful taking offense, 18 Pa.C.S. § 1103(3). The new sentence did not include the time that Williams had originally served. Williams appealed his sentence directly to the Superior Court.
. Although the Superior Court and the Commonwealth Court “each is bound to give due consideration to the decisions and reasoning of the other, neither is bound to follow as controlling precedent the decisions of the other.” Commonwealth v. McDermott,
. Section 761(a)(1) of the Judicial Code, 42 Pa.C.S. § 761(a)(1), bestows original jurisdiction on the Commonwealth Court over "all civil actions or proceedings: (l)[a]gainst the Commonwealth government, including any officer thereof ... except: (i) actions or proceedings in the nature of applications for a writ of habeas corpus or postconviction relief not ancillary to proceedings within the appellate jurisdiction of the court...." Pursuant to this statutory grant of authority, it may issue "every lawful writ and process necessary or suitable for the exercise of its jurisdiction.” 42 Pa.C.S. § 562.
Concurrence Opinion
Concurring.
I join the Majority Opinion, which correctly holds that mandamus relief against the Department of Corrections is inappropriate in this matter. I write separately to further address the options available to a sentencing judge in a violation of probation/parole (“VOP”) hearing, as well as the proper manner by which to challenge an alleged failure to award sentencing credit for time served in the VOP context.
First, I note that the unappealed sentence of the VOP judge here was perfectly proper under the only existing appellate precedent concerning the VOP time credit issue before us, an opinion by Judge (now Justice) Eakin in Commonwealth v. Bowser,
The. basis for appellee’s sentencing credit claim did not spring into existence only after he reported to prison; it
Because appellee’s waived sentencing claim was subject to collateral review either under the PCRA or not at all, I obviously agree with the Majority that the mandamus relief awarded by the Commonwealth Court in this case was erroneous. A claim of entitlement to sentencing time credit could implicate the ministerial duties of the Department and could be a proper subject of mandamus review, but only if the judgment of sentence lawfully ordered that time credit be awarded and the Department then refused to comply with that lawful directive. See Jackson v. Vaughn,
Furthermore, even if the merits of appellee’s claim for sentencing credit were reviewable on mandamus, I believe it is clear that the claim lacks merit. The Sentencing Code consists of eight subchapters, encompassing “General Provisions,” “Sentencing Authority,” “Sentencing Alternatives,” “Informational Basis of Sentence,” “Imposition of Sentence,” “Further Judicial Action,” “Appellate Review of Sentence,” and “Registration of Sexual Offenders.” Not surprisingly, Section 9760 of the Sentencing Code, which deals with credit for time served, is found in Subchapter E, which governs “Imposition of Sentence.” That Subchapter also addresses related matters such as the computation and order of service of sentences, id. § 9761, places of confinement, id. § 9762, and the types of sentence which may be imposed—e.g., guilt without further penalty, probation, partial confinement, total confinement, intermediate punishment. Id. §§ 9753-56, 9763.
In contrast, the sentencing court’s power of “modification or revocation of order of probation” is addressed only in Sub-chapter F, which governs “Further Judicial Action” after sentence has been imposed. 42 Pa.C.S. § 9771. Though quite detailed otherwise, Section 9771 makes no reference whatsoever to time credit. With respect to revocation of probation, it states that the court “may revoke an order of probation upon proof of the violation of specified conditions of the probation.” Id. § 9771(b). Once probation is revoked, the Section provides that “the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing,” with consideration being given to the time spent on probation. Id. The provision goes on to require that a hearing be held before probation is revoked, id. § 9771(d), and also to impose the following, single limitation upon the VOP judge’s sentencing determination:
(c) Limitation on sentence of total confinement.—The court shall not impose a sentence of total confinement upon revocation unless it finds that:
*455 (1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.
Id. § 9771(c).
Thus, the judge in a VOP sentencing proceeding faces very different questions than he does when formulating an initial sentence. The VOP judge is faced with rather unique concerns—concerns not present at initial sentencing—of whether his probationary order and conditions have been violated; if so, whether that violation warrants revocation or some lesser response; if revocation is warranted, whether a sentence of total confinement is warranted; and, if total confinement is warranted, how long the term of confinement should be. The notion that a VOP judge should go to the trouble of formulating a revocation sentencing term which is commensurate with the violation, but then be required to discount the term formulated for that distinct purpose to account for already-credited time served prior to the initial sentence, is absurd as well as impractical. See 1 Pa.C.S. § 1922(1); Commonwealth v. Gillespie,
Perhaps the temptation to overstate the effect of Section 9760 derives from the practical fact, which was recognized by the Superior Court in Williams, that a previous period of incarceration may limit the sentencing options of a VOP judge in the sense that it prevents him from imposing a maximum statutory sentence because an aggregate sentence beyond the statutory maximum would be illegal. Thus, in the case sub judice, where appellee had already served twenty months and six days on these offenses, the greatest minimum VOP term of
In this regard, I believe that the Superior Court’s approach in Bowser reflects an accurate understanding of the nature of VOP sentencing options, which stands in contrast to the Commonwealth Court’s approach in the case sub judice:
Appellant received ... a maximum of 23 months incarceration and a consecutive 36-month term of probation. He received credit on the former for time spent in jail, and was paroled. While serving the probationary portion of the sentence, his probation was revoked.... He now wants time previously credited to his incarceration component to be credited to the sentence he received upon revocation of his probation component.
Having received credit for the time in jail on the first component of the sentence, appellant did not spend the last half of the 23-month incarcerative portion of the sentence in jail. Probation began after that credit. Credit has been given once; had no credit been given, he would not have been paroled [as early as he was] ... and his probation would not have begun for some months thereafter. We see no reason to award duplicate credit in the second component of the sentence.
Finally, even if I were able to agree with the Commonwealth Court’s contrary reading of the Sentencing Code, I would still disagree with its grant of relief for the further
The question of whether a VOP judge properly “credited” the probationer for time already served on the original sentence is primarily a question implicating the VOP sentencing judge’s intention in crafting an appropriate sentence. The VOP judge here alone knows what his intention was in sentencing appellee to two to four years’ state imprisonment without awarding duplicative “time credit” against the VOP sentence. Appellee’s failure to seek timely review via direct appeal or through the PCRA has silenced the VOP judge. The judge being presumptively rational, it is safe to assume that he determined that the VOP alone warranted an additional two to four years’ imprisonment in a state correctional facility, in addition to the county time that he was well aware that appellee had previously served. For all the Commonwealth Court knows, the trial court consciously “credited” appellee for his previous sentence by not imposing consecutive
. 42 Pa.C.S. § 9541 etseq.
. Since appellee did not raise his time credit claim via a direct appeal from the VOP proceeding, the sentencing claim would be waived under the PCRA. However, appellee could have resurrected the claim in the usual way that waived claims are resurrected under the PCRA: i.e., by forwarding a derivative claim that his VOP counsel was ineffective for failing to challenge the failure to award time credit, or by arguing another exception to the PCRA waiver provision.
Concurrence Opinion
Concurring.
Pursuant to Section 9760(1) of the Judicial Code, I believe that express time credit was due for the time that Appellee spent in jail relative to at least one of the offenses that were the subject of his resentencing on violation of conditions of probation. See 42 Pa.C.S. § 9760(1) (requiring time credit “for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed”); see also 42 Pa.C.S. § 9711(b) (prescribing that a sentencing court’s alternatives available upon revocation of probation are the same as available at the time of the initial sentencing).
. As amicus curiae details, the probationary sentence giving rise to the resentencing was a component of a split sentence (i.e., sentencing on a single offense that combines elements of both incarceration and probation), or, more precisely, five overlapping, identical, concurrent, split sentences corresponding to the five charges as to which Appellee pled and was convicted. Thus, Section 9760(1) was facially implicated at the time that Appellee was resentenced in light of his violation of conditions of probation (since the identical charges giving rise to his custody also gave rise to the probationary term).
. Some of the complexity of our sentencing law arises from the failure to uniformly apply commonly understood procedures such as that which is prescribed by Section 9760(1). A trial court generally has the option of imposing an appropriate sentence up to the statutory maximum on resentencing in light of violations of conditions of probation; the courts merely should apply the straightforward, statutorily-prescribed rule requiring the affordance of credit for time that the defendant has spent in custody as a result of the charge for which the new sentence is imposed. See 42 Pa.C.S. § 9760(1). The alternative approach presently in practice results in unevenness and diminished
. See generally Commonwealth v. Roney,