Buck v. Beard

834 A.2d 696, 2003 Pa. Commw. LEXIS 759

• Court: Commonwealth Court of Pennsylvania
• Decided: October 24, 2003
• Status: Published

Opinions

OPINION BY

Judge PELLEGRINI.

Before the Court is the preliminary objection of the Pennsylvania Department of Corrections and Secretary Jeffrey A. Beard (collectively, Department) to the complaint in mandamus¹ (petition) filed by Darryl Buck (Buck) requesting an injunction ordering the Department to cease and desist deducting funds from his inmate account for court costs, fines and restitution.

Buck is an inmate currently residing at the State Correctional Institution at Dallas (SCI-Dallas) serving a three to six-year sentence imposed by the Court of Common Pleas of Delaware County (sentencing court) on February 16, 2001. In addition to imprisonment, the sentencing court also ordered Buck to pay fines, costs and restitution in the amount of $10,000. On October 21, 2002, the Department began deducting from Buck’s inmate account 20 percent of the funds. Buck filed an inmate request/grievance with the Department challenging the deduction. The Department informed Buck that deductions were being made pursuant to Section 9728(b)(5) of the Sentencing Code, 42 Pa.C.S. § 9728(b)(5),² commonly referred to as Act 84,³ and applied towards the payment of his $10,000 fine.

On December 16, 2002, Buck filed a petition with this Court alleging that the Department had violated his rights protected by the ex post facto clause ⁴ and that the Department did not have the authority to determine the amount of funds deducted from his account without a hearing. Buck requested injunctive relief, a hearing to determine his financial ability to pay, and the remittance of any and all funds that had been deducted for court costs, fines and restitution. The Department has now filed a preliminary objection in the nature of a demurrer to the petition, alleging that the sentencing court’s commitment order, which specified the fines, costs and restitution, was sufficient to support the deductions and, therefore, that Buck failed to state a cause of action for which relief could be granted.⁵

In its preliminary objection, the Department contends that Buck is not entitled to an injunction because Section 9728(b)(5) specifically authorizes it to determine the percentage of funds deducted from his account and to deduct such amount without a hearing. First, this Court has reasoned that an inmate’s remedy from the deduction of funds from his inmate account is at law, i.e., challenging the sentencing court’s order imposing the costs, fines and restitution, and not by seeking an injunction against the Department. Harding v. Superintendent Stickman of SCI Greene, 823 A.2d 1110 (Pa. Cmwlth.2008) (inmate may not challenge substance of sentencing court’s order by seeking an injunction against the Department); George v. Beard, 824 A.2d 393 (Pa. Cmwlth.2003) (it is the judgment of the sentencing court which enables the Department to deduct funds; thus, an inmate may not challenge that judgment by seeking to enjoin the Department from carrying out its statutorily mandated duty to deduct funds). Second, it is well established that Section 9728(b)(5) authorizes the Department to make monetary deductions from an inmate’s account to pay court ordered costs, fines and restitution, and does not impose prior court authorization, i.e., a hearing, as a threshold condition. Boyd v. Department of Corrections, 831 A.2d 779 (Pa.Cmwlth.2003); Harding; George; Commonwealth v. Fleming, 804 A.2d 669 (Pa.Super.2002); Sweeney v. Lotz, 787 A.2d 449 (Pa.Cmwlth.2001), petition for allowance of appeal denied, 572 Pa. 717, 813 A.2d 848 (2002).⁶ In addition, Section 9728(b)(5) specifically authorized the Department to develop guidelines for the deduction of funds, presumably because it was in the best position to evaluate an inmate’s financial ability to pay.⁷

Buck contends, however, that those decisions were wrongly decided because under Section 9730(b) of the Sentencing Code, 42 Pa.C.S. § 9730(b), only the trial court can impose installment payments.⁸ That provision provides, in relevant part:

(b) Procedures regarding default.-

1) If a defendant defaults in the payment of a fine, court costs or restitution after imposition of sentence, the issuing authority or a senior judge or senior district justice appointed by the president judge for the purposes of this section may conduct a hearing to determine whether the defendant is financially able to pay.

(3) If the issuing authority, senior judge or senior district justice determines that the defendant is without the financial means to pay the fine or costs immediately or in a single remittance, the issuing authority, senior judge or senior district justice may provide for payment in installments. In determining the appropriate installments, the issuing authority, senior judge or senior district justice shall consider the defendant’s financial resources, the defendant’s ability to make restitution and reparations and the nature of the burden the payment will impose on the defendant.

42 Pa.C.S. § 9730(b). Wbat that argument ignores is that the authorization contained in Section 9728(b)(5) of the Sentencing Code permits the Department to deduct funds only from an inmate account and not from any other assets that the prisoner may have. By granting this supplementary power to the Department to collect court-ordered financial obligations from inmate accounts, the General Assembly recognized that the deducted amounts involved were relatively minor, and that it was impractical and burdensome for trial courts to conduct a “financial ability-to-pay hearing” anytime the funds in the inmate account fluctuated.

Even if the Department has the power to make the deduction, Buck alleges that the 20 percent deduction has created a financial hardship on him; however, he fails to allege what he cannot afford as a result of the Department’s deductions. Taking into consideration that an inmate receives room, clothing and board, a general allegation that he cannot afford to have 20 percent of his funds deducted is not a sufficient allegation to establish any harm. See Sweeney; Harvey v. Department of Corrections, 828 A.2d 1106 (Pa.Cmwlth.2008) (recognizing that non-incarcerated debtors have to provide for life’s necessities, i.e., food, clothing and shelter, whereas inmates have those necessities provided for them by the Commonwealth).⁹

In the alternative, Buck contends that the Department’s use of Act 84 to deduct funds is a violation of the ex post facto clause of the United States Constitution. However, because Act 84 was enacted on June 18, 1998, see Commonwealth v. Baker, 782 A.2d 584 (Pa.Super.2001), and the trial court did not sentence Buck until February 16, 2001, the Department did not violate the ex post facto clause by deducting funds from his inmate account. See also Sweatt v. Department of Corrections, 769 A.2d 574 (Pa.Cmwlth.2001) (holding that Act 84 is not penal in nature and, therefore, does not violate the ex post facto clause).

Accordingly, because Buck has failed to state a claim upon which relief could be granted, the Department’s preliminary objection is sustained and Buck’s petition is dismissed.

ORDER

AND NOW, this 2Jtth day of October, 2008, the Department of Corrections’ Preliminary Objection is sustained and Darryl Buck’s Petition for Review is dismissed.

1 . On December 20, 2002, this Court allowed Buck to proceed in forma pauperis and ordered that Buck’s complaint in mandamus be treated as a petition for review addressed to our original jurisdiction pursuant to 42 Pa. C.S. § 761 and Pa. R.A.P. 1502.

2 . That section provides:

(b) Procedure.-

(5) The county correctional facility to which the offender has been sentenced or the Department of Corrections shall be authorized to make monetary deductions from the inmate personal accounts for the purpose of collecting restitution or any other court-ordered obligation. Any amount deducted shall be transmitted by the Department of Corrections or the county correctional facility to the probation department of the county or other agent designated by the county commissioners of the county with the approval of the president judge of the county in which the offender was convicted. The Department of Corrections shall develop guidelines relating to its responsibilities under this paragraph.

3 . Section 4 of Act 84 was enacted on June 18, 1998, and became effective on October 18, 1998. It amended Section 9728 of the Sentencing Code, 42 Pa.C.S. § 9728, by adding subsection (b)(5).

4 . Article I, § 10 of the U.S. Constitution forbids the passage of any law which imposes any punishment for an act not punishable at the time it was committed or which imposes additional punishment to that then prescribed. See Weaver v. Department of Corrections, 720 A.2d 178 (Pa.Cmwlth.1998).

5 . 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. Marrero by Tabales v. Commonwealth of Pennsylvania, 709 A.2d 956 (Pa.Cmwlth.1998), affirmed, 559 Pa. 14, 739 A.2d 110 (1999). 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. Id.

6 . Judge Friedman, in her dissent, asserts that the majority does not address the issue of whether the Department has violated Buck’s due process rights by making deductions from his inmate account without a hearing. However, because all of the above-cited cases find that Section 9728(b)(5) authorizes the Department to make monetary deductions from an inmate's account for court-ordered obligations without first providing a "financial ability to pay hearing,” we did not feel the need to expound on that issue. We note that "garnishment” by the government without a hearing at all to collect an obligation is not uncommon. Section 19 of the Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6919, authorizes a tax collector to garnish 10% of the wages of a taxpayer who owes delinquent per capita, occupation, occupational privilege and earned income taxes. See also 72 P.S. § 5511.20.

7 . It was in response to that directive that the Department developed Policy DC-ADM 005, which provides, in relevant part, “the business office will deduct from an inmate’s account monthly payments of 20% of the preceding month’s income provided the account balance exceeds $10.00.” Boyd, 831 A.2d at 783.

8 . Buck contends that we should adopt the reasoning in our decision in Boofer v. Lotz, 797 A.2d 1047 (Pa.Cmwlth.2002), petition for allowance of appeal granted, in part, 572 Pa. 567, 817 A.2d 1079 (2003). In Boofer, however, the inmate filed a writ of habeas corpus challenging deductions from his inmate account initiated by the Butler County Clerk of Courts as opposed to the situation in the case before us, where Buck requested an injunction against the Department from deducting funds pursuant to the February 16, 2001 commitment order. Because the deductions in Boofer were not based on the transmission of a court order assessing fines, costs or restitution, we held that the Clerk of Courts had no legal basis under Section 9728(b) of Act 84 to deduct funds. Moreover, in Harding, this Court expressly stated that Boofer was not applicable to cases where an inmate attempts to enjoin the Department from deducting funds from his inmate account on the ground that he is first entitled to a hearing to determine his financial ability to make payments. In that case, we held that because the Department is statutorily mandated under Section 9728(b)(5) to garnish an inmate’s account, the inmate's remedy is at law, i.e., appealing the trial court’s order imposing the costs, fines and/or restitution and not an injunction against the Department. In this case, Buck does not dispute that the sentencing court imposed fines, costs and restitution upon him, but instead, only argues that the Department may not deduct funds for such purposes without a court order authorizing the deduction.

9 . Both Judge Friedman, in her dissenting opinion, and Judge Smith-Ribner, in her concurring and dissenting opinion, address and find it improper to make the 20% deduction from gifts deposited in an inmate’s account. Judge Smith-Ribner correctly notes that the majority does not discuss this issue and that this issue was not addressed by Buck in his counseled brief. Nonetheless, Judge-Smith Ribner goes on to address this issue because she believes that it is properly before us (as apparently so does Judge Friedman) because Buck averred in his complaint that the 20% deduction was made from monetary gifts that he received. (Paragraph 3). (Judge Smith-Ribner’s opinion mentions that Department’s counsel stated at oral argument that a deduction would be made but that was only in response to a question from the bench). However, in the "Stated Claim” portion of his complaint, Buck only challenges, just as his brief does, the authority of the Department to withdraw funds from the inmate's account. Specifically, paragraphs 12 and 13 of the complaint, the only paragraphs in the "Stated Claim” section of the complaint, provide that:

12. To the extent that Respondents "does not have any independent authority to determine the amount of the installment” nor has the Respondents sought the mandatory trial court action to determine Petitioner’s ability to pay court cost. The Respondents has denied the Petitioner due process of law, and continues to do so in violation of the 14th Amendment of both State and Federal Constitutions. Boofer v. Lotz, 797 A.2d 1047.

13. The Application of 42 Pa.C.S.A. § 9728 (Act 84) to cases and events occurring before its enactment violate the ex post facto clause of both state and federal constitutions.

Also, in the remedy portion of his complaint, Buck makes it clear that he is only challenging the general authority to make the deduction and makes no separate request for relief. Because it was not raised, we cannot now reach that issue.

■ In addition, Judge Friedman, in her dissent, goes on to argue that the majority opinion fails to address whether the Department has "violated the separation of powers doctrine by usurping the sentencing court’s power to determine a defendant’s ability to pay fines, costs and restitution." However, this issue also was not raised in Buck’s complaint or argued in his brief, and it, too, was brought in response to a question by a court member. Because it was never raised by Buck, the person before us, we will not address it. But see Payne v. Commonwealth Department of Corrections, 813 A.2d 918 (Pa.Cmwlth.2002).