IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Com. Ex. Rel Caine Pelzer, : Petitioner :

:

v. : No. 384 M.D. 2022

: Submitted: May 12, 2023 Luzerne County Court of Common : Pleas, Secretary George Little, : Pennsylvania Department of : Corrections, Pennsylvania Department: of Corrections Records Department, : Pennsylvania Board of Probation : and Parole, James Haddock, Luzerne : County Clerk of Courts, : Respondents:

BEFORE: HONORABLE PATRICIA A. McCULLOUGH , Judge

HONORABLE ELLEN CEISLER , Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE LEAVITT FILED: November 16, 2023

C aine Pelzer, pro se , h as f iled a p etition for review in this Court’s

original j urisdiction that challenges his criminal sentence imposed by the Luzerne

County Court of Common Pleas (sentencing court) ; an assessment for

“transportation fees” imposed by the clerk of courts; 1 his housing in an Intensive

Management Unit (IMU) by the Department of Corrections; and the denial of his

parole by the Pennsylvania Board of Probation and Parole (Parole Board)

. 2 P elzer

seeks a declaratory judgment that rights protected by statute and the constitution

1 The opinion’s reference to “ sentencing court” includes the Luzerne County Clerk of Courts,

James Haddock (Haddock) , who is name d separately in Pelzer ’s petition for review.

2 The agency ’s name was changed to the Pennsylvania Parole Board

.2

have been violated. P reliminary objections have been filed by R espondents, wh ich

seek the dismissal of the petition for review

. A motion for summary relief has been

filed by Pelzer. For the reasons t hat follow, we sustain Respondents’ preliminary

objections

, dismiss the petition for review , and dismiss as moot Pelzer’s motion for

summary relief

. Background

P elzer is an inmate at the State Correctional Institution

– Phoenix

,

where he is serving a sentence of 17 to 34 years for robbery and related offenses.

P elzer appealed his judgment of sentence. Petition ¶ 7

. In Commonwealth v. Pelzer

(Pa. Super., No. 1279 MDA 2019, filed May 26, 2021) , t he Pennsylvania Superior

Court affirmed Pelzer’s convictions but vacated the judgment of sentence

. Holding

that his mandatory minimum sentence was unconstitutional , t he Superior Court

remanded the matter to the sentencing court for resentencing. Id

. , slip op. at 17

- 18.

On remand, Pelzer ’s original sentence of 22 to 44 years was reduced to an aggregate

sentence of 17 to 3 1 years i mprisonment

. Petition ¶7. Pelzer’s petition alleges that

on March 11, 2022, while his appeal from the judgment of sentence was pending in

the Pennsylvania Superior Court, 3 the sentencing cour t entered an amended

sentencing order

, directing Pelzer to serve 17 to 34 years of imprisonment . Petition

¶ ¶14, 27.

I n November of 2021

, Pelzer filed a motion for reimbursement, seeking

the return of $854.63 that had been removed from his inmate account for filing fees

and restitution. Id

. ¶8. T he sentencing court granted his motion, finding that Pelzer

was never served with notice or provided information on how the fees were

calculated. Id . ¶9. However, the sentencing court did not order reimbursement, and

3 Commonwealth v. Pelzer (Pa. Super., No. 1670 MDA 2021).3

none was made. Id . ¶¶10

- 11. The petition alleges that, subsequently, the Luzerne

County Clerk of Courts, James Haddock (Haddock), entered another judgment and

lien against him in the amount of $1,700. Id . ¶12.

The petition alleges that the Department of Corrections improperly

accepted the amended sentence of 17 to 34 years. Petition ¶27. It then confined

Pelzer in the IMU, a “Supermaximum Security Unit

, ” a unit “created

. . . out of thin

air,” without giving Pelzer n otice, an opportunity for rebuttal or the right to appeal.

Id

. ¶¶ 15

- 16. Further, t he Department will not recommend him for parole because he

has been confined in the IMU. Id

. ¶ 21.

T he petition next alleges that the Parole Board ignored the “positive

recommendation [ s ] . . . from the District Attorney’s Office and the [s]entencing

judge . . . [and] denied [him] [p]arole simply because he has not received a

recommendation for [ p ] arole from the [ Department of Corrections. ] ” Petition ¶21.

In addition

, the Department of Corrections never recommends IMU prisoners for

parole. Id

.

R espondents filed preliminary objections to Pelzer’s p etition for

r eview. The sentencing court argues that the petition lodges an improper collateral

attack on Pelzer’s sentence; violates sovereign immunity ; and fails to state a

cognizable claim. The Parole Board argues that an action in mandamus does not lie

to challenge the denial of parole because the decision involves the exercise of

discretion. T he Department of Corrections asserts that the deduction of court costs

from his inmate account is time barred by the applicable statute of limitations and

that the petition for review does not state a clear right to a writ of mandamus to

change either his sentence or his ho using in prison

.4 Thereafter , Pelzer filed a motion for summary relief , asserting that no

factual issues exist and that he is entitled to judgment as a matter of law against the

sentencing court , including Haddock

, because it did not file a responsive pleading.

Analysis

In ruling on preliminary objections, this Court must accept as true all

well

- pleaded material facts set forth in the petition and all reasonable inferences that

may be drawn from those facts. Torres v. Beard , 997 A.2d 1242, 1245 (Pa. Cmwlth.

2010). We “need not accept as true conclusions of law, unwarranted inferences from

facts, argumentative allegations, or expressions of opinion.” Id . 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.” Id

. “[C]ourts reviewing preliminary objections may not only consider the facts pled in

the [petition for review], but also any documents or exhibits attac hed to it .” Allen v.

Department of Corrections , 103 A.3d 365, 369 (Pa. Cmwlth. 2014). T he statute of

limitations is an affirmative defense, but it can be raised in preliminary objections

where the pleading establishes the immunity

, and no objection has been lodged to

raising sovereign immunity in preliminary objections

. Davis v. Commonwealth , 660

A.2d 157, 159 n.2 (Pa. Cmwlth. 1995).

Pelzer’s petition for review seeks a writ of mandamus, which is an

extraordinary remedy used to compel the performance of a ministerial act or

mandatory duty. To prevail in mandamus, a petitioner must establish (1) a clear

legal right to relief, (2) a corresponding duty in the respondent, and (3) a lack of any

oth er adequate and appropriate remedy. Tindell v. Department of Corrections , 87

A.3d 1029, 1034 (Pa. Cmwlth. 2014). The purpose of mandamus is not to establish

rights or to compel performance of discretionary acts but, instead, to enforce rights5

that have been clearly established. Id . “ M andamus is not appropriate to challenge

whether an agency considered improper factors, whether its findings were supported

by the record in rendering a decision, or whether its stated basis was pretext as such

question takes place in the scope of an appeal .” Garcia v. P A Board of Probation

and Parole (Pa. Cmwlth., No. 10 M.D. 2012, filed July 25, 2012) (unreported), 4 slip

op. at 3.

With these precepts in mind, we turn to each R espondent’s preliminary

objection s

.

S entencing Court’s Preliminary Objection

T he sentencing court argues that the petition for review presents a

collateral attack on Pelzer’s sentence, which cannot be presented in a civil action

.

T he sentencing court asks this Court to dismiss Pelzer’s petition with prejudice.

Pelzer responds that the sentencing court lacked jurisdiction to modify his sentence

while Pelzer’s appeal was pending in the Pennsylvania Superior Court.

Pelzer cannot use the present civil action to collaterally attack his

modified sentence , ordered by the sentencing court on March 11 , 2022

. See Keller

v. Kinsley , 609 A.2d 567 (Pa. Super. 1992) ( civil action cannot be used to collaterally

attack a conviction). Rather, Pelzer must pursue any challenge to the legality of his

modified sentence by filing a petition under the Post Conviction Relief Act, 42 Pa.

C.S. §§9541

- 9546. See Guarrasi v. Scott , 25 A.3d 394, 402 (Pa. Cmw l th. 2011) (a

Post Conviction Relief Act petition is the exclusive means to challenge the legality

of a conviction or sentence).

4 An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).6 Pelzer conten d s that in addition to amending his sentence, the

sentencing court improperly ordered him to pay related fees and costs. However,

th is also is a matter that is properly addressed to the sentencing court

. S ee Herrschaft

v. Department of Corrections , 949 A.2d 976, 980 (Pa. Cmwlth. 2008) (citing

Commonwealth v. Williams , 909 A.2d 419 , 420

- 21 (Pa. Cmwlth. 2006) ( challenge

to an assessment of costs by the clerk of courts must be brought to the sentencing

court ) )

. Accordingly, we sustain the sentencing court’s preliminary objection

.

Department of Corrections’ Preliminary Objections

T he Department of Corrections asserts that Pelzer ’s challenge to the

calculation and implementation of Pelzer’s sentence does n o t meet the threshold

requirement for a writ of mandamus. This Court may compel the Department to

implement a sentence properly

, but Pelzer is attacking the sentence , not its

implementation. Further, t he Department must follow the sentencing court’s order.

See Oakman v. Department of Corrections , 903 A.2d 106 , 109 (Pa. Cmwlth. 2006)

( a s an administrative agency , Department is bound to follow a trial court ’ s orders )

. Mandamus is not available where there is another remedy, and Pelzer ’s remedy is to

appeal his criminal sentence

. We hold that the petition has not stated a claim for

mandamus.

In regard to his claim that he is improperly housed in the IMU, the

Department of Corrections argues that the petition does not state a cognizable claim

in mandamus. We have held that it is “ entirely a matter of the Department ’ s

discretion where to house an inmate. Under the Department ’s regulation, an ‘ inmate

does not have a right to be housed in a particular facility or in a particular area within

a facility

. ’ ” Clark v. Beard , 918 A.2d 155, 1 60 (Pa. Cmwlth. 2007) (quoting 37 Pa.7

Code §93.11 )

. The issue of an inmate’s liberty interest arises only when the prison

imposes an “ ‘ atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life. ’ ” Department Brief at 11 ( quoting Sandin v.

Conner , 515 U.S. 472, 484 (1995)). H ere, Pelzer ’s petition has not alleged that his

housing in the IMU has imposed an atypical and significant hardship. 5 Department

Brief at 12. We conclude that the petition for review is deficient in this respect.

As to Pelzer’s claim that $854.63 was illegally deducted from his

inmate account, the Department argues that such a claim is time barred. T his amount

was deducted from Pelzer’s inmate account in April 2009

. 6

5 Pelzer alleges that the Department of Corrections never recommends IMU prisoners for parol e.

B ecause “[t]he decision to release a prisoner rests on a myriad of considerations[, a]nd, the prisoner
is afforded procedural protection at his parole hearing in order to explain the circumstances behind his [IMU placement,] [t]he chance that [being housed in the IMU/not receiving the Department of

Correction’s recommendation ] will alter the balance is simply too attenuated to invoke the procedural guarantees of the Due Process Clause.” Feliciano v. Department of Corrections , 250
A.3d 1269, 1279 (Pa. Cmwlth. 2021) (citation omitted).

6 Attached to the Department of Corrections’ brief is a copy of Pelzer’s account history from the Integrated Offender Case Management System, which reflects that the $854.63 at issue was deducted from Pelzer’s inmate account on April 1, 2009. Department Bri ef, Exhibit A. The Department states: “ Accordingly, because Pelzer references and relies upon his payment history to argue the [Department] has illegally deducted funds from his inmate account, Respondents have

attached the pertinent excerpt from his inmate account. ” Department Brief at 7

- 8 n.3. While we acknowledge that we “cannot consider matters collateral to the pleading opposed [,]” which would render the Department’s preliminary objection an improper speaking demurrer, we may consider

“ such matters as arise out of the statement of claim or complaint itself [.]” Detweiler v. School

Dist rict of Borough of Hatfield , 104 A.2d 110, 113 (Pa. 1954). Pelzer references the specific deduction of $854.63, from his inmate account, as part of his claim against the Department. Thus,

the Department “ could properly annex [the account ledger] to [its] demurrers for [it was] in every

sense of the term [a] factual matter [] arising out of the complaint [ itself].” Id

.8 Act 84 7 authorizes t he Department of Corrections to deduct mon ies

from an inmate’s personal account to collect court

- ordered restitution or costs

imposed as part of a sentence. However, Section 5524(6) of the Judicial Code

provides that “‘ [a]n action against any officer of any government unit for the

nonpayment of money or the nondelivery of property collected upon on execution

or otherwise in his possession ’ must be commenced within two years. ” 42 Pa. C.S.

§ 5524(6)

. Because the court costs of $854.63 w ere paid in full by April 2009, and

Pelzer filed the instant petition for review in June 2022, his claim is time barred.

For these reasons , we sustain the Department’s preliminary objections.

Parole Board’s Preliminary Objection

T he P arole Board argues that mandamus does not lie to challenge the

denial of parole because that matter is committed to the Parole Board’s discretion.

Pelzer responds that he is not challenging the Parole Board’s authority to deny

parole. Rather, he argues that when he came up for parole

, t he Parole Board

considered “fabricated documents it received ” from the Department of Corrections

.

Pelzer Brief at 34.

T he Prisons and Parole Code (Parole Code) requi r es the Parole Board

to consider several factors when determining whether to grant parole to an inmate.

These factors i nclude:

(1) The nature and circumstances of the offense committed.

(2) Any recommendations made by the trial judge and prosecuting attorney.

7 Act of June 18, 1998, P.L. 640, No. 84. Act 84 amended Section 9728 of the Sentencing Code, 42 Pa. C.S. §9728, to add subsection (b)(5), which authorizes the Department of Corrections to make deductions from inmate accounts to pay court

- ordered obligations imposed by the sentencing

court.9 (3) The general character and background of the inmate.

(4) Participation by an inmate sentenced after February 19, 1999, and who is serving a sentence for a crime of violence as

defined in 42 Pa. C.S. §9714(g) (relating to sentences for second and subsequent offenses) in a victim impact education program offered by the Department of Corrections.

(5) The written or personal statement of the testimony of the

victim or the victim ’ s family submitted under section 6140 (relating to victim statements, testimony and participation in hearing).

(6) The notes of testimony of the sentencing hearing, if any, together with such additional information regarding the nature

and circumstances of the offense committed for which sentence was imposed as may be available.

(7) The conduct of the person while in prison and his physical, mental and behavioral condition and history, his history of family violence and his complete criminal record.

61 Pa. C.S. §6135(a) (emphasis added). The Parole Board has discretion to decide

the weight to be assigned each factor

. Hibbard v. Pennsylvania Board of Probation

and Parole

, 816 A.2d 344, 347 (Pa. Cmwlth. 2003) (Parole Board has the discretion

to give one factor greater weight or even the entire weight in denying an inmate

parole).

Pelzer claims that he was denied parole “based upon fabricated

documents

, ” including an institutional vote sheet (DC

- 46). Pelzer Brief at 34.

Specifically, Pelzer argues he was denied parole because he i s a “threat to the

community ; ” has not demonstrated “motivation for success ; ” has a negative history10

of institutional behavior, including misconducts ; and received the Department’s

negative recommendation. 8 Pelzer Brief at 36

- 37.

In Burkett v. Frank

, 841 A.2d 646 (Pa. Cmwlth. 2004) , this Court

considered a similar argument. There, the inmate filed a petition for review asserting

that a trial court judge and district attorney retaliated against him for his successful

habeas corpus petition by recommending that the Parole Board not grant him parole.

Burkett asserted that the Parole Board ’ s stated reasons for denying parole were

pretextual and that it had no legitimate reason to deny him parole. The Court rejected

the claim. First, the Parole Board was required by statute to consider the conduct of

the person while in prison, which includes recommendations made by the sentencing

court and district attorney. Second, e ven if Burkett could have demonstrate d that

the recommendations of the trial court judge and district attorney were based on

improper motives, the Board ’ s denial of parole would have be en proper based on the

other reasons cited. “ Mandamus cannot be used to say that an agency considered

improper factors, that its findings were wrong, or that the reasons set forth in its

decision are a pretense.” Id. at 650 ( quoting Weaver v. Pennsylvania Board of

Probation and Parole

, 688 A.2d 766, 777 (Pa. Cmwlth. 1997) ). Here, as in Burkett

,

even if Pelzer could prove the Department ’ s misconduct report was false

, the denial

of parole was based “ on other reasons ” cited by the Parole Board. In any case , the

Parole Board’s consideration of Pelzer’s conduct in prison, including the

Department’s recommendation, is fully consonant with Section 6135(a) of the Parole

Code.

8 Pelzer directs the Court to two decisions of the Parole Board denying him parole, which he

attached to his brief as Exhibit 10a as part of his “Reproduced Record

. ” Pelzer Brief at 34. However, in reviewing preliminary objections, this Court cannot consider exhibits attached to

Pelzer’s brief. See Thomas v. Corbett , 90 A.3d 789, 800 (Pa. Cmwlth. 2014).11 Accordingly, we sustain the Parole Board’s preliminary objection.

Motion for Summary Relief

Pelzer filed a motion for summary relief assert ing that no factual issues

exist and that he is entitled to judgment as a matter of law on his claims against the

sentencing court and Haddock because they did not file a responsive pleading to the

petition for review. This is unfounded

, as preliminary objections were filed one day

before Pelzer filed his m otion for s ummary r elief.

We do not reach the merits of whether Pelzer is entitled to summary

relief because we sustain the preliminary objections of each Respondent

.

Conclusion

For the foregoing reasons, we sustain the preliminary objections raised

by R espondents, dismiss as moot Pelzer’s m otion for s ummary r elief, and dismiss

the petition for review.

_________________________________________________________ MARY HANNAH LEAVITT, President Judge EmeritaIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Com. Ex. Rel Caine Pelzer, : Petitioner :

:

v. : No. 384 M.D. 2022

: Luzerne County Court of Common : Pleas, Secretary George Little, : Pennsylvania Department of : Corrections, Pennsylvania Department:
of Corrections Records Department, : Pennsylvania Board of Probation : and Parole, James Haddock, Luzerne : County Clerk of Courts, : Respondents:

O R D E R

AND NOW, this 16 th day of November, 2023, the preliminary

objections to Caine Pelzer’s petition for review in the above

- captioned matter are

SUSTAINED, Caine Pelzer’s motion for summary relief is DISMISSED as moot

, and the petition for review is DISMISSED.

_________________________________________________________ MARY HANNAH LEAVITT, President Judge Emerita