Freemore v. Dep't of Corr.

231 A.3d 33

Shawn FREEMORE, Petitioner

v.DEPARTMENT OF CORRECTIONS, Respondent

No. 536 M.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 13, 2020

Decided May 1, 2020

Shawn Freemore, Pro Se.

Debra Sue Rand, Assistant Counsel, Mechanicsburg, for Respondent.

OPINION PER CURIAM

Before this Court are the Department of Corrections’ (Department) preliminary objections (Preliminary Objections) to Shawn Freemore's (Freemore) pro se petition for review in the nature of a complaint for declaratory judgment and injunctive relief (Petition) filed in this Court's original jurisdiction. After review, we sustain the Preliminary Objections and dismiss the Petition.

Background¹

On December 12, 2011, Freemore was convicted of first-degree murder (Count I), for which the Monroe County Common Pleas Court (sentencing court) sentenced him to life in prison without the possibility of parole. See Petition Ex. A (Sentencing Order) at 1; see also Petition Exs. B, C. He was also convicted of criminal conspiracy to commit criminal homicide (Count II), for which he was sentenced to 96 to 216 months (i.e., 8 to 18 years) in prison, "to run consecutive[ly] with that imposed on Count I," and "pay the costs of the[ ] proceedings." Sentencing Order at 2; see also Petition Exs. B, C. Lastly, Freemore was convicted of tampering with and/or fabricating physical evidence (Count IV), for which he was sentenced to serve 6 to 24 months in prison, "for a total aggregate [ ] sentence of life imprisonment followed by a period of incarceration of not less than eight and [one-]half (8½) years with the maximum not to exceed twenty (20) years." Sentencing Order at 2; see also Petition Exs. B, C. Freemore is currently incarcerated at the State Correctional Institution (SCI) at Houtzdale.

On May 31, 2019, the Department sent Freemore notice that he owed $667.50 in costs pursuant to Section 9728(b)(5) of the Sentencing Code (Act 84), 42 Pa.C.S. § 9728(b)(5),² and $60.00 for Crime Victim Compensation/Victim Services Fund (CVC) fees (Notice).³ See Petition Ex. D. The Notice informed Freemore that "[t]he [Department would] begin making deductions from [his] inmate account to satisfy [his] financial obligations in accordance with [Act 84] and DC-ADM 005, ‘Collection of Inmate Debts.’ " Notice at 1.

On June 8, 2019, Freemore challenged the Notice by filing a grievance, wherein he argued that because the Sentencing Order directed his Count II sentence to be served consecutive to his Count I sentence, and he is still serving his Count I sentence, the Department may not now collect Count II costs. See Petition Ex. E (Grievance). Freemore requested the Department to "[c]ease commencement of deductions until Count II is being served." Petition Ex. E at 1.

On June 12, 2019, the Grievance Officer denied the Grievance because "Freemore supplied nothing to support his claim that costs are not due because he is not currently serving [C]ount II ...." Petition Ex. F (Initial Review Response) at 1. On June 27, 2019, Freemore appealed to the Facility Manager, see Petition Ex. G (Facility Manager Appeal), therein quoting DC-ADM 005 Section 3.A.2.a (relating to deferred restitution, costs and Act 84 penalty payments) and the Sentencing Order. See Facility Manager Appeal, Attachment 1 at 1.

On July 1, 2019, the Facility Manager upheld the Grievance Officer's Initial Review Response on the following basis:

The Grievance Officer appropriately addressed the issues contained in the [G]rievance. [The] appeal is completely based on [Freemore's] opinion that the [Department] lacks jurisdiction to deduct funds.... The [Grievance] Officer has clearly explained the policy and how it [is] applied. [Freemore has] failed to show any proof that support[s] [his] [Grievance] and [he] lack[e]d anything in the appeal to argue the [Grievance] Officer's findings. There is no violation of policy and procedure in handling [Freemore's] debt collection.

Petition Ex. H (Facility Manager's Appeal Response) at 1. On July 12, 2019, Freemore appealed from the Facility Manager's Appeal Response. See Petition Ex. I.

On August 8, 2019, the Department notified Freemore that his appeal was referred to the Department's Office of Chief Counsel. See Petition Ex. J. On August 21, 2019, the Department issued its Final Appeal Decision, denying the appeal because "the Office of Chief Counsel ... determined that the Initial Review Response was correct ...." Petition Ex. K (Final Appeal Decision) at 1. On September 18, 2019, Freemore filed the Petition with this Court.⁴

Facts

On November 25, 2019, the Department filed its Preliminary Objections, arguing: (1) this Court lacks jurisdiction because Freemore failed to serve the Petition on the Department; and (2) Freemore failed to state a cause of action upon which relief may be granted (demurrer) because the term consecutive in the Sentencing Order refers only to the order in which Freemore's sentences were to be served, and not his financial obligation, which is due immediately. See Prelim. Objs. at 1-4. The Department averred:

20. [Freemore's] position would lead to an untenable interpretation of the [sentencing] court's orders because if the life sentence is carried out, [Freemore] will be deceased and unable to pay costs imposed at Count [II].

21. Moreover, as a general rule, the victims of second or subsequent crimes, for which consecutive sentences are imposed, should not be forced to wait for restitution where an inmate has the money in his or her inmate account to pay it.

22. Such [a]n interpretation runs counter to public policy and undervalues the rights of crime victims to restitution.

Prelim. Objs. at 4. The Department asks this Court to hold that delaying the collection of Act 84 monies for consecutive sentences is not legally required. See Department Br. at 5.

On December 17, 2019, Freemore filed a response to the Preliminary Objections, declaring that: (1) he properly served the Petition on the Department by placing it in the prison mailbox on September 13, 2019 (and attached proof that the mailing costs were thereafter deducted from his account and the Petition was sent to the Department by certified mail on September 16, 2019); and (2) he states a viable claim in the Petition, since the Sentencing Order controls, and it clearly stated that the Count II costs were to be paid when he served his Count II sentence.⁵ See Freemore Response to Prelim. Objs. at 1-2.

By December 19, 2019 order, this Court overruled the Department's objection that this Court lacked jurisdiction, and directed that the remaining demurrer be submitted on briefs. See December 19, 2019 Order. On January 17, 2020, the Department filed its Brief in Support of the Preliminary Objections. On February 19, 2020, Freemore filed his Brief in Opposition to the Preliminary Objections. Accordingly, this matter is ready for disposition.

Discussion

The law is well settled:

In ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. The Court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery , and any doubt should be resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact in the [petition for review in the nature of a] complaint and all inferences reasonably deducible therefrom. It tests the legal sufficiency of the challenged pleadings and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief can be granted. When ruling on a demurrer, a court must confine its analysis to the [petition for review in the nature of a ] complaint .

Torres v. Beard , 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (emphasis added; citations omitted). "[C]ourts reviewing preliminary objections may not only consider the facts pled in the complaint, but also any documents or exhibits attached to it." Allen v. Dep't of Corr. , 103 A.3d 365, 369 (Pa. Cmwlth. 2014). This Court recognizes:

‘The allegations of a pro se complainant are held to a less stringent standard than that applied to pleadings filed by attorneys. If a fair reading of the complaint shows that the complainant has pleaded facts that may entitle him to relief, the preliminary objections will be overruled.’ Danysh v. Dep't [ ] of Corr. , 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004) (citation and emphasis omitted), aff'd , 584 Pa. 122, 881 A.2d 1263 (2005).

Dep't of Corr. v. Tate , 133 A.3d 350, 354 n.8 (Pa. Cmwlth. 2016).

First, the Department argues, based on public policy, that where an inmate is serving consecutive sentences, his obligation to pay Act 84 costs and restitution is due regardless of when the later sentence commences, particularly where Freemore's Count I sentence concludes at his death, and he will thereafter be unable to meet his financial obligations.

The law is well established, and Freemore does not refute, that Act 84 authorizes the Department to deduct monies from his account to pay his court-ordered fines, costs and restitution after he was afforded notice and an opportunity to grieve the deductions. See 42 Pa.C.S. § 9728(b)(5) ; see also Bundy v. Wetzel , 646 Pa. 248, 184 A.3d 551 (2018). Section 9728 of Act 84 also specifies, in relevant part:

(b) Procedure.--

....

(3) The county clerk of courts shall, upon sentencing, ... transmit ... to the [Department] ... copies of all orders for restitution and amendments or alterations thereto, reparation, fees, costs, fines and penalties. This paragraph also applies in the case of costs imposed under [S]ection 9721(c.1) [of the Sentencing Code, 42 Pa.C.S. § 9721(c.1)⁶ ] (relating to sentencing generally).

....

(5) Deductions shall be as follows:

(i) The [Department] shall make monetary

...