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Kennedy v. Pennsylvania Dep't of Corrections10/4/2005
Before the Court at this time is an Application for Suggestion of Mootness filed by the Department of Corrections (Department) to the September 24, 2004 petition for review filed by Skylar Elwin Kennedy (Kennedy) seeking an order of this Court compelling the Department to credit his sentence with time spent incarcerated both in prison and at two residential treatment facilities. Based upon the record before us, we deny the Department's application.
On September 24, 2004, Kennedy, an inmate at the State Correctional Institution at Mercer, filed a petition for review in this Court's original jurisdiction alleging that the Department failed to properly credit his sentence with time served in prison and at two residential facilities. Kennedy alleged that on September 6, 2000, the Court of Common Pleas of Erie County (trial court) initially sentenced him to serve a split sentence of 4 to 231/2 months in prison followed by 3 years probation for driving under the influence of alcohol (DUI) at trial court docket number 81 of 2000. On November 11, 2000, the trial court sentenced Kennedy to a second split sentence of 7 to 231/2 months followed by 3 years probation for a another DUI offense at docket number 1380 of 2000. The two sentences were ordered to run concurrently.
Thereafter, Kennedy was arrested for a subsequent DUI offense and placed on a probation detainer. Because Kennedy violated the conditions of his probation, the trial court resentenced Kennedy on March 8, 2004 to serve two concurrent sentences of 1 to 21/2 years with a credit of 329 days for time spent in the Erie County Prison, effective April 15, 2003 (VOP sentence). (Petition for Review, ) Kennedy received the Department's Form DC-16E Sentence Status Summary and attached thereto was an April 10, 2002 letter addressed to the trial court from the Department. That letter informed the trial court that the Department had previously credited Kennedy's original DUI sentences at docket numbers 81 and 1380 of 2000 with a credit of 329 days, the same credit that the trial court applied to Kennedy's March 8, 2004 VOP sentence. (Petition for Review, Exhibit C(1)). The trial court reviewed the Department's letter and indicated in a June 23, 2004 letter that it agreed with the Department's position.
On June 28, 2004, Kennedy requested that the Department recalculate his sentence in accord with the trial court's March 8, 2004 order, i.e. that the Department credit his VOP sentence with 329 days, and further credit his sentence with time spent in two substance abuse programs. The Department denied Kennedy's request. Kennedy sought assistance from the Erie County Clerk of Courts and the inmate grievance system to no avail.
Kennedy's petition for review to this Court followed on September 24, 2004, to which the Department filed preliminary objections. The Department maintained that we should treat Kennedy's petition for review as a writ of mandamus because he sought to compel the Department to perform a ministerial or mandatory duty. See Kennedy v. Pennsylvania Dep't of Corrections, (Pa. Cmwlth., No. 681 M.D. 2004, filed April 4, 2005) (Kennedy I). We agreed that the matter was in the nature of a writ in mandamus but nevertheless denied the Department's preliminary objections.
In denying the Department's preliminary objections, we noted that the trial court's March 8, 2004 VOP sentencing order clearly provided that Kennedy was to receive a credit of 329 days. The April 10, 2002 letter to the trial court and its June 23, 2004 response thereto were insufficient to amend the trial court's March 8, 2004 VOP sentencing order inasmuch as it is the court's order that controls the calculation of any credit for
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