R.A. Vasilinda v. DOC ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Allen Vasilinda, :
:
Petitioner :
:
v. : No. 440 M.D. 2019
: Submitted: December 27, 2019
Department of Corrections, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 6, 2021
Before this Court, in our original jurisdiction, is the Pennsylvania
Department of Corrections’ (Department) preliminary objection (PO) in the nature
of a demurrer to Robert Allen Vasilinda’s (Vasilinda) pro se petition for review
(Petition) challenging the Department’s application of presentence credit and the
calculation of his minimum and maximum sentence dates. Also before us is the
Department’s application for summary relief (Application). The Department
challenges the legal sufficiency of the Petition and maintains that it is entitled to
summary relief because Vasilinda lacks a clear right to the relief requested and the
Department does not have a corresponding duty to grant the relief requested. For
1
The decision in this case was reached prior to January 4, 2021, when Judge Brobson
became President Judge.
the reasons that follow, we grant the Department’s Application and dismiss
Vasilinda’s Petition.
I. Facts Averred
Vasilinda is an inmate currently incarcerated at the State Correctional
Institution (SCI) at Laurel Highlands. In August 2019, Vasilinda filed the present
Petition in the nature of mandamus along with supporting exhibits challenging the
application of presentence credit and the calculation of his minimum and maximum
sentence dates.2 Vasilinda seeks an order from this Court compelling the
Department to apply credit for time served in accordance with the October 2, 2017
order (2017 Order) of the Court of Common Pleas of Cambria County (sentencing
court). Specifically, Vasilinda seeks presentence credit for the time served at SCI-
Somerset from September 3, 2014, to June 29, 2015. Petition, ¶14 & Exhibit No. 1.
According to Vasilinda’s averments3 and supporting documents, by
order dated March 19, 2010 (2010 Sentencing Order), he was sentenced at Cambria
County Court of Common Pleas Criminal Docket Nos. (Docket Nos.) 1957-2008,
2
In December 2018, Vasilinda filed a similar petition for review, which this Court
dismissed without prejudice upon sustaining the Department’s demurrer. See Vasilinda v.
Department of Corrections (Pa. Cmwlth., No. 783 M.D. 2018, filed May 20, 2019). We explained
that Vasilinda failed to attach a copy of his sentencing order, did not aver that the court of common
pleas ordered credit for time served, and failed to otherwise plead facts sufficient to support a claim
against the Department for additional credit for time served. Id. We also noted that, although
Vasilinda may have been incarcerated on the dates he identified, he failed to relate his periods of
incarceration to the arrest and conviction in question. Id.
3
Vasilinda also made notable admissions in his answers to the Department’s pleadings,
which are included for accuracy and completeness.
2
2402-2008 and 2408-2008 (original sentence).4 Petition for Review, ¶2 & Exhibit
No. 3. On July 17, 2014, while on probation for these crimes, Vasilinda was arrested
and incarcerated on a probation violation detainer. See Petition for Review, ¶¶3, 4
& Exhibit No. 6; see also Respondent’s Preliminary Objection, ¶10; Petitioner’s
Answer to Respondent’s Preliminary Objection, ¶10. On August 4, 2014, new
criminal charges were lodged against Vasilinda at Docket No. 1788-2014. See
Petition for Review, ¶¶3, 4; Respondent’s Preliminary Objection, ¶11; Petitioner’s
Answer to Respondent’s Preliminary Objection, ¶11; see also Docket No. 1788-
2014.
On August 12, 2014, following a probation revocation hearing, the
sentencing court determined that Vasilinda violated the terms governing his
probation at Docket Nos. 1957-2008 and 2408-2008. Petitioner’s Brief, Exhibit C.
As a result, the sentencing court revoked Vasilinda’s probation and remanded him
to jail to “continue [until] new [charges] are disposed of.” Id.
On September 3, 2014, Vasilinda was transferred to SCI-Somerset,
pending disposition of the new criminal charges. Petition for Review, ¶¶5, 14.
Vasilinda pled guilty and, on May 26, 2015, he was sentenced to 1 year less 1 day
to 2 years less 1 day with credit for time served. Petition for Review, Exhibit No. 2.
On June 29, 2015, Vasilinda was transferred from SCI-Somerset to Cambria County
Jail to serve his new criminal sentence. Petition for Review, Exhibit No. 1.
4
This Court may take judicial notice of information contained in the publicly-available
criminal dockets in these matters. See Moss v. SCI - Mahanoy Superintendent Pennsylvania Board
of Probation and Parole, 194 A.3d 1130, 1138 n.11 (Pa. Cmwlth. 2018), appeal denied, 215 A.3d
562 (Pa. 2019); see also Commonwealth v. Bond, 532 A.2d 339, 342-43 (Pa. 1987). Vasilinda
avers that he was sentenced to 8 years of probation, but, according to the dockets, Vasilinda was
originally sentenced to 11½ to 23 months of confinement with a consecutive 13-year probationary
term. See Docket Nos. 1957-2008, 2402-2008 and 2408-2008.
3
Based on the new criminal conviction, the sentencing court reexamined
the original sentence imposed at Docket Nos. 1957-2008, 2402-2008 and 2408-
2008. By order dated July 28, 2015 (2015 Resentencing Order), the sentencing court
vacated its 2010 Sentencing Order and resentenced Vasilinda to an aggregate
sentence of 6 years, 7 months, and 1 day to 18 years for Docket Nos. 1957-2008 and
2408-2008.5 Petition for Review, ¶9 & Exhibit Nos. 3 and 6. The sentencing court
ordered “credit for time served.” Petition for Review, Exhibit No. 3 at 1.
Following Vasilinda’s parole from Docket No. 1788-2014, and his
return to state custody to serve time on his original sentence imposed on Docket Nos.
1957-2008 and 2408-2008 per the 2015 Resentencing Order, Vasilinda filed a
petition with the sentencing court requesting presentence credit. In the 2017 Order,
the sentencing court noted that the 2015 Resentencing Order awarded Vasilinda
“credit for any time served,” but noted that the calculation of that credit rests solely
with the Department. Petition for Review, ¶12 & Exhibit No. 4 at 1. The sentencing
court instructed that any challenge to the calculation of credit for time served did not
belong in the sentencing court and that Vasilinda may file an administrative appeal
or an action in mandamus. Hence, Vasilinda’s Petition in this Court followed.
Vasilinda seeks mandamus relief to compel the Department to apply presentence
credit for the time served at SCI-Somerset from September 3, 2014, to June 29, 2015,
to his original sentence at Docket Nos. 1957-2008 and 2408-2008 and to recalculate
his minimum and maximum sentence dates accordingly.
In response, the Department filed a PO in the nature of a demurrer.
Therein, the Department asserts that Vasilinda does not have a clear right to relief
5
With regard to Docket No. 2402-2008, the sentencing court ordered Vasilinda to pay the
costs of prosecution and serve 60 months of probation to run concurrent with his incarceration.
See Docket No. 2402-2008.
4
and it has no duty to credit the time requested or to recalculate Vasilinda’s minimum
and maximum sentence dates. As far as presentence credit, the Department states
that Exhibit 6 to the Petition for Review shows that Vasilinda was given “pre-
sentence credit for time served [in] 2008, 2010, 2011 and from July 17, 2014, to
August 14, 2014.” Respondent’s Preliminary Objection, ¶14; see Petition for
Review, Exhibit No. 6. With regard to the latter detention period, the Department
explains that Vasilinda was detained on a probation violation detainer on his original
sentence, which was issued by the sentencing court on July 17, 2014, and lifted on
August 14, 2014. Respondent’s Preliminary Objection, ¶¶10, 15; see Docket Nos.
1957-2008, 2408-2008. Thereafter, “Vasilinda remained incarcerated on something
other than [the original sentence].” Respondent’s Preliminary Objection, ¶16. The
Department maintains that, although the sentencing court ordered credit for time
served, it did not specify an amount of time by days or dates. Notably, the sentencing
court noted that Vasilinda is not entitled to credit for time served prior to sentencing
that is applied to unrelated concurrent sentences, as this would constitute double
credit.
In response, Vasilinda admitted to the Department’s assertion of facts,
but contested the Department’s interpretation of the sentencing court’s 2017 Order
and its intention to award credit for any time served. Petitioner’s Answer to
Respondent’s Preliminary Objection, ¶8. While admitting that the presentence
credit listed by the Department was accurate, Vasilinda noted that it failed to include
the time served at SCI-Somerset between September 3, 2014, to June 29, 2015, and
that none of this time is related to the new sentence at Docket No. 1788-2014.
Petitioner’s Answer to Respondent’s Preliminary Objection, ¶14.
5
Thereafter, the Department filed its Application, in which it asserts that
it is entitled to summary relief based upon records of the Pennsylvania Parole Board
(Board), which it attached.6 According to the Board’s records, Vasilinda had a prior
sentence from West Virginia, for which supervision was transferred to Pennsylvania
under an interstate compact. On July 16, 2014, the Board issued a warrant to commit
and detain Vasilinda based on a probation/parole violation of his West Virginia
sentence. On August 27, 2014, Vasilinda posted bail on the new criminal charges
(Docket No. 1788-2014). Consequently, when Vasilinda was transferred to state
prison, he was detained solely on the Board detainer for the West Virginia case from
September 3, 2014, until June 29, 2015. The Department avers that this period of
incarceration should be credited to Vasilinda’s West Virginia sentence, not the
original sentence. The Department argues that it is under no duty to provide
presentence credit where such time has been properly applied to another sentence.
Further, the Department argues that mandamus will not lie against the Department
to perform an illegal act by awarding presentence credit for a period of incarceration
that was applied to another sentence. On this basis, the Department maintains that
it is entitled to summary relief as a matter of law. Respondent’s Application for
Summary Relief, ¶¶9-19.
In response, Vasilinda admits that he has a sentence from West
Virginia, but he disputes that West Virginia placed a detainer on him and challenges
the Board’s authority to detain him without authorization from West Virginia.
Vasilinda otherwise admits that the Board’s exhibits accurately reflect the actions
6
The documents include: a Warrant to Commit and Detain Vasilinda for violating the
probation/parole from West Virginia; Notice of Charges and Hearing; Criminal Arrest and
Disposition Report; Supervision History; Progress Report; Compact Action Request; and Case
Closure Report from the Interstate Commission for Adult Offender Supervision. Respondent’s
Application for Summary Relief, Exhibit A.
6
taken by the Board, but asserts that they do not show authorization from West
Virginia. Petitioner’s Response to Application for Summary Relief, ¶¶1-16.
II. Discussion
“In considering a demurrer, we accept as true all well-pled material
allegations in the petition, as well as all inferences reasonably deducible therefrom.”
Allen v. Department of Corrections, 103 A.3d 365, 369 (Pa. Cmwlth. 2014).
However, “the [C]ourt need not accept as true conclusions of law, unwarranted
inferences from facts, argumentative allegations, or expressions of opinion.”
Pennsylvania State Lodge, Fraternal Order of Police v. Department of Conservation
and Natural Resources, 909 A.2d 413, 416 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203(Pa. 2007).
“In addition, courts reviewing preliminary objections may not only
consider the facts pled in the complaint, but also any documents or exhibits attached
to it.” Allen, 103 A.3d at 369. “It is not necessary to accept as true any averments
in the complaint that conflict with exhibits attached to it.” Id. The test is whether,
based on the pleadings, “it is clear and free from doubt the law will not permit
recovery under the alleged facts; any doubt must be resolved by a refusal to sustain
the demurrer.” Id.; accord Drack v. Tanner, 172 A.3d 114, 119 (Pa. Cmwlth. 2017)
(citing Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992)).
“In ruling on an application for summary relief, this Court must view
the evidence of record in the light most favorable to the non-moving party and enter
judgment only if there are no genuine issues as to any material facts and the right to
judgment is clear as a matter of law.” Allen, 103 A.3d at 369.
7
Further, we note that “[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.” McCray v. Pennsylvania Department of Corrections, 872
A.2d 1127, 1131 (Pa. 2005). “The purpose of mandamus is not to establish legal
rights, but to enforce those rights already established beyond peradventure.” Detar
v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth. 2006).
“Notwithstanding, mandamus is an appropriate remedy to correct an
error in [the Department’s] computation of maximum and minimum dates of
confinement where the sentencing order clearly gives the inmate credit for the time
period in question and [the Department’s] computation does not comply with that
credit.” Allen, 103 A.3d at 370. “However, mandamus is not available to challenge
[the Department’s] failure to give credit where the sentencing order is either
ambiguous or does not specify the credit at issue.” Id. Finally, “mandamus is not
an appropriate remedy to cure an illegal sentencing order.” Id.
It is well settled that, “where an offender is incarcerated on both a Board
detainer and new criminal charges, all time spent in confinement must be credited to
either the new sentence or the original sentence.” Martin v. Pennsylvania Board of
Probation and Parole, 840 A.2d 299, 309 (Pa. 2003); accord Gaito v. Pennsylvania
Board of Probation and Parole, 412 A.2d 568, 571 n.6 (Pa. 1980); see Smith v.
Pennsylvania Board of Probation and Parole, 171 A.3d 759, 769 (Pa. 2017)
(holding Martin and Gaito remain the rule in this Commonwealth for how credit is
applied). As our Supreme Court held in Gaito:
[I]f a defendant is being held in custody solely because of
a detainer lodged by the Board and has otherwise met the
8
requirements for bail on the new criminal charges, the time
which he spent in custody shall be credited against his
original sentence. If a defendant, however, remains
incarcerated prior to trial because he has failed to satisfy
bail requirements on the new criminal charges, then the
time spent in custody shall be credited to his new sentence.
412 A.2d at 571.
Applying the foregoing legal principles here, Vasilinda’s mandamus
action is based on his claim that, having posted bail on his new criminal charges
(Docket No. 1788-2014), he is entitled to have the time served at SCI-Somerset
between September 3, 2014, and June 29, 2015, applied toward his original sentence
(Docket Nos. 1957-2008 and 2408-2008). However, Vasilinda’s claim is refuted by
the pleadings and supporting documentation.
Vasilinda was arrested on July 17, 2014, for a probation violation in
connection with his original sentence (Docket Nos. 1957-2008, 2402-2008 and
2408-2008). On August 12, 2014, the sentencing court revoked Vasilinda’s
probation and remanded him to jail to “continue [until] new [charges] are disposed
of.” Petitioner’s Brief, Exhibit C. Vasilinda admits that, on August 14, 2014, the
probation detainers were lifted. Respondent’s Preliminary Objection, ¶15;
Petitioner’s Answer to Respondent’s Preliminary Objection, ¶15.
While the sentencing court ordered “credit for any time served” on
Vasilinda’s original sentence, it noted that the calculation of that credit rests solely
with the Department and that Vasilinda was not entitled to “double dip.” Petition
for Review, Exhibit No. 4 at 1-2. The sentencing court also did not specify the credit
at issue. See id. The Department applied credit for time spent incarcerated between
July 17, 2014, and August 14, 2014, but not the time at issue, toward Vasilinda’s
original sentence. See Petition for Review, Exhibit 6 at 2.
9
According to the Department’s Application, supporting exhibits, and
Vasilinda’s admissions regarding the same, on July 16, 2014, the Board lodged a
detainer based on a violation of his probation/parole related to his West Virginia
case. While the sentencing court’s probation detainer on the original sentence was
lifted on August 14, 2014, the Board’s detainer was not. Consequently, when
Vasilinda posted bail on the new criminal charges (Docket No. 1788-2014), he
remained incarcerated solely under the Board’s detainer issued in connection with
his West Virginia sentence, not his original sentence. Therefore, the time spent
incarcerated from September 3, 2014, until his transfer to Cambria County on June
29, 2015, is attributable toward the West Virginia sentence, not to his original
sentence.7 See Bright v. Pennsylvania Board of Probation and Parole, 831 A.2d
775, 778 (Pa. Cmwlth. 2003) (inmate was not entitled to have credit for presentence
time applied to each of ten concurrent sentences for unrelated robberies; credit could
be applied only once to one sentence); Taglienti v. Department of Corrections, 806
A.2d 988, 992 (Pa. Cmwlth. 2002) (credit on a sentence can only be given when it
has not already been credited against another sentence).
Although Vasilinda contests the Board’s authorization to detain him for
a probation/parole violation of his West Virginia sentence and challenges the
Board’s compliance with an interstate compact, “[t]he purpose of mandamus is not
to establish legal rights, but to enforce those rights already established . . . .” Detar,
898 A.2d at 29. Based on the material facts not in dispute, we conclude that
Vasilinda has not demonstrated a clear right to relief, or a corresponding duty of the
Department, to have this time credited toward his original sentence. Thus, the
Department’s right to judgment in this mandamus action is clear as a matter of law.
7
Vasilinda does not allege that he did not receive credit toward his West Virginia sentence.
10
III. Conclusion
Accordingly, we grant the Department’s Application and dismiss
Vasilinda’s Petition. Having determined that the Department is entitled to summary
relief, we dismiss the Department’s PO in the nature of a demurrer as moot.
MICHAEL H. WOJCIK, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Allen Vasilinda, :
:
Petitioner :
:
v. : No. 440 M.D. 2019
:
Department of Corrections, :
:
Respondent :
ORDER
AND NOW, this 6th day of January, 2021, we grant the Respondent’s
Application for Summary Relief and dismiss Petitioner’s Petition for Review.
Respondent’s Preliminary Objection in the nature of a demurrer is dismissed as
moot.
__________________________________
MICHAEL H. WOJCIK, Judge