             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Jacob,                                :
                           Petitioner      :
                                           :
                    v.                     :   No. 429 M.D. 2019
                                           :   Submitted: November 22, 2019
Commonwealth of Pennsylvania,              :
Department of Corrections,                 :
                        Respondent         :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                           FILED: May 8, 2020


        Presently before the Court in its original jurisdiction is the preliminary
objection in the nature of a demurrer (the Demurrer) of the Commonwealth of
Pennsylvania, Department of Corrections (DOC), to the Petition for Writ of
Mandamus (Petition) filed, pro se, by John Jacob (Petitioner), an inmate at the State
Correctional Institution at Fayette. For the reasons that follow, we sustain the
Demurrer and dismiss the Petition.


   I.      The Petition
        On July 29, 2019, Petitioner filed the Petition, therein making the following
factual allegations. Petitioner, while a juvenile, received a sentence of life without
parole (1999 Sentence). (Petition ¶¶ 4, 9.) Thereafter, in 2002, Petitioner received
an additional sentence of 1½ to 5 years’ incarceration, which the sentencing judge
ordered to be served consecutive to the 1999 Sentence (2002 Sentence). (Id. ¶¶ 7,
9.) In 2018, pursuant to Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding that
the Eighth Amendment to the United States Constitution, U.S. CONST. AMEND. VIII,
“forbids a sentencing scheme that mandates life in prison without possibility of
parole for juvenile offenders”), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016)
(setting forth that Miller applies retroactively), Petitioner’s 1999 Sentence was
vacated and he was resentenced to 30 years to life in prison (2018 Sentence), which
the resentencing judge ordered to be served consecutive to the 2002 Sentence.
(Petition ¶¶ 4, 8.)
       Attached to the Petition are a number of documents, including a resentencing
order (Resentencing Order) from the Court of Common Pleas of Philadelphia
County (resentencing court) dated September 19, 2018. The Resentencing Order
reflects that the resentencing court vacated Petitioner’s 1999 Sentence and
resentenced Petitioner to 30 years to life in prison, which the resentencing court
ordered to be served consecutive to the 2002 Sentence. (Id., Attachment A at 4.)
The resentencing court awarded Petitioner credit towards the 2018 Sentence for the
time he served under the original 1999 Sentence. (Id.)
       Petitioner further alleges that as a result of his resentencing, DOC issued “a
new DC16E – Sentence Status Summary” (Sentence Summary) on October 2, 2018.
(Id. ¶ 5.) The Sentence Summary is attached to the Petition. The Sentence Summary
reflects that on January 22, 2002, Petitioner received the 2002 Sentence and that on
September 19, 2018, he was resentenced on the 1999 Sentence and received the 2018
Sentence. (Id., Attachment A at 1.) The Sentence Summary further reflects that



                                          2
Petitioner has a controlling minimum date of December 22, 2032, and a controlling
maximum date of life. (Id.) As to his sentence structure, the Sentence Summary
lists Petitioner as having served the 2002 Sentence from January 22, 2002, to January
22, 2007, and lists that sentence as “[c]ompleted” and “[i]nactive.” (Id. at 2.) With
respect to the 2018 Sentence, the Sentence Summary lists that sentence as “[a]ctive”
and that Petitioner was awarded credit towards that sentence for the periods of
December 21, 1997, to January 21, 2002, and January 23, 2007, to September 19,
2018.
        Petitioner filed grievances with DOC regarding his sentence structure and
controlling minimum date, which are attached to the Petition. In the attached
documents filed with DOC, Petitioner alleged that his 2002 Sentence should run
consecutive to the 2018 Sentence and that by structuring his sentence in the way it
has, DOC effectively deprived him of his right to seek parole on the 2002 Sentence;
therefore, his controlling minimum date should be in 2027 and not 2032. (Id.,
Attachments B-C, E, G.) DOC denied Petitioner’s challenges to his sentence
structure and controlling minimum date. Thereafter Petitioner filed the instant
Petition in our original jurisdiction.
        In his Petition, Petitioner contends that after resentencing his sentence
structure, as set forth by DOC in the Sentence Summary,

        has now become an interrupted timeline that shows him serving . . . [the
        2018 S]entence from December 21, 1997[,] to January 21, 2002[,] then
        stopping to serve . . . [the 2002 Sentence] from January 22, 2002[,] to
        January 22, 2007[,] before resuming the [2018 Sentence] on January
        23, 2007[,] and serving that sentence until today.

(Id. ¶ 9.) In light of the foregoing sentence structure, Petitioner asserts that pursuant
to Section 9757 of the Sentencing Code, 42 Pa.C.S. § 9757 (providing that



                                           3
“[w]henever [a] court determines that a sentence should be served consecutively to
one being then imposed by the court . . . the court shall indicate the minimum
sentence to be served for the total of all offenses with respect to which sentence is
imposed”), “DOC has a mandatory duty to aggregate all consecutive sentences.” (Id.
¶ 10.) Petitioner further asserts, citing Commonwealth v. Kriston, 588 A.2d 898, 901
(Pa. 1991), and Jacobs v. Robinson, 410 A.2d 959, 960 (Pa. Cmwlth. 1980)
(concluding that “a prisoner cannot be compelled to serve a sentence in installments
and has a right to serve his sentence continuously”), he “has a right to serve his
sentence continuously rather than in installments.” (Petition ¶ 10.) “By structuring
[his] sentence in the way it has,” Petitioner argues, “DOC has essentially compelled
Petitioner to serve the entire 5 years [of the 2002 Sentence] and effectively deprived
Petitioner of the opportunity to be reviewed for parole on [the 2002 S]entence after
1 ½ years.” (Id. ¶ 11; see Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319, 321
n.2 (Pa. 1999) (holding that while “[a] prisoner has no right to be released from
prison on parole upon the expiration of the prisoner’s minimum term,” “[a] prisoner
has [] a right to apply for parole at the expiration of [the prisoner’s] minimum
term”).)
      Petitioner concludes that by structuring his sentence the way it has, DOC
“turned what should have been a 31 ½ years to [l]ife [sentence] into [a] 35 years to
[l]ife [sentence],” and therefore, his “sentence should be restructured in a manner
that honor[]s . . . [the] initial intent to run the [2002 Sentence] consecutively to the
[1999 S]entence or, in the alternative, that the [2002 S]entence be vacated and the
matter remanded . . . for resentencing.” (Petition ¶¶ 12-13.) Petitioner contends that
“he has no other adequate remedy at law [] unless a mandamus is issued instructing
the DOC to properly calculate his prison time.” (Id. ¶¶ 14, 16.) Accordingly,



                                           4
Petitioner seeks mandamus relief in the form of an order compelling DOC to
properly compute his sentence. (Id. at 15 (citing Saunders v. Dep’t of Corr., 749
A.2d 553, 556 (Pa. Cmwlth. 2000) (setting forth that “a writ of mandamus may be
used to compel [] D[OC] to compute a prisoner’s sentence properly”)), Wherefore
Clause.)


   II.      The Demurrer
         In response to the Petition, DOC filed the pending Demurrer and a brief in
support of its Demurrer. DOC demurs on the following basis: “Petitioner has failed
to establish a clear legal right to the relief he seeks because the records appended to
his Petition reflect that [] D[OC] has accurately calculated his sentences.”
(Demurrer ¶ 20.) DOC asserts that when Petitioner’s 1999 Sentence was vacated by
the Resentencing Order, the 2002 Sentence “became effective retroactive to January
22, 2002, the day it was imposed,” because the resentencing court ordered the 2018
Sentence to run consecutive to the 2002 Sentence. (Id. ¶¶ 24, 26.) The 2002
Sentence, DOC contends, then “immediately expired, having reached the maximum
sentence expiration date of January 22, 2007.” (Id. ¶ 25.) As such, DOC argues that
it did not err in computing Petitioner’s controlling minimum date and that the
Sentence Summary accurately reflects that “Petitioner’s minimum sentence
expiration date is . . . December 22, 2032, corresponding to the [2018 S]entence
imposed on September 19, 2018.” (Id. ¶ 29.) Accordingly, DOC concludes that its
Demurrer should be sustained, and the Petition should be dismissed as legally
insufficient.




                                          5
      Petitioner filed an Answer to the Demurrer denying the ultimate conclusions
reached by DOC. Petitioner also filed a brief, therein making substantially the same
arguments set forth in his Petition.


   III.   Discussion
      Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), preliminary
objections may be filed, in relevant part, on the grounds of “legal insufficiency of a
pleading (demurrer).” Pa.R.C.P. No. 1028(a)(4). When examining preliminary
objections, we must confine our review to the pleadings themselves and any
documents or exhibits attached thereto. Allen v. Dep’t of Corr., 103 A.3d 365, 369
(Pa. Cmwlth. 2014). We must accept as true all well-pled facts that are material and
all inferences reasonably deducible from the facts. Pa. Indep. Oil & Gas Ass’n v.
Dep’t of Envtl. Prot., 135 A.3d 1118, 1123 (Pa. Cmwlth. 2015) (quoting Guarrasi
v. Scott, 25 A.3d 394, 400 n.5 (Pa. Cmwlth. 2011)). However, we are “not required
to accept as true conclusions of law, unwarranted factual inferences, argumentative
allegations, or expressions of opinion.” Funk v. Dep’t of Envtl. Prot., 71 A.3d 1097,
1101 n.4 (Pa. Cmwlth. 2013). Preliminary objections in the form of a “demurrer
must be sustained where 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.” Allen, 103 A.3d at 369.
      A writ of mandamus, such as the present Petition,

      is an extraordinary remedy at common law, designed to compel the
      performance of a ministerial act or mandatory duty. The purpose of
      mandamus is not to establish legal rights, but to enforce those rights
      already established beyond peradventure. This Court may only issue a
      writ of mandamus where: (1) the petitioner possesses a clear legal right
      to enforce the performance of a ministerial act or mandatory duty;
      (2) the [respondent] possesses a corresponding duty to perform the act;

                                          6
      and, (3) the petitioner possesses no other adequate or appropriate
      remedy. Mandamus can only be used to compel performance of a
      ministerial duty and will not be granted in doubtful cases.

Id. at 369-70 (internal quotation marks and citations omitted). It is well settled that
“mandamus is an appropriate remedy to correct an error in DOC’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 DOC’s computation does
not comply with that credit.” Id. at 370. With these principles in mind, we turn to
the Petition and the Demurrer.
      In his Petition, Petitioner essentially argues that his sentence should be
restructured so that the 2002 Sentence runs consecutive to the 2018 Sentence, and
not vice versa. However, DOC had no choice but to structure Petitioner’s sentence
as it did because, when Petitioner was resentenced, the resentencing court ordered
the 2018 Sentence to run consecutive to the 2002 Sentence. (Petition, Attachment
A at 4.) “The law is clear that DOC is ‘an executive branch agency that is charged
with faithfully implementing sentences imposed by the courts.’” Allen, 103 A.3d at
372 (quoting McCray v. Pa. Dep’t of Corr., 872 A.2d 1127, 1133 (Pa. 2005)). As
such, DOC is charged with implementing the Resentencing Order as written.
      Similar to this case, the petitioner in Powell v. Pennsylvania Department of
Corrections, 14 A.3d 912 (Pa. Cmwlth. 2011), filed a petition for review and a
subsequent application for summary relief, seeking a writ of mandamus to compel
DOC to restructure his sentence. The petitioner in Powell argued that his sentence
should be structured so that one of his sentences ran concurrently to two others. In
reviewing the petition, we noted that DOC must implement sentences as imposed by
the courts and that, when interpreting a sentencing order, it “is to be construed so as
to give effect to the intention of the sentencing judge.” Id. at 915 (citation omitted).


                                           7
“[T]o determine this intention th[is] [C]ourt will limit itself to the language of the
judgment despite . . . statements of the sentencing judge which are not incorporated
in it.” Id. at 915-16 (citation omitted). We further observed that

      [t]he only sentence known to the law is the sentence or judgment
      entered upon the records of the court. If the entry is inaccurate, there is
      a remedy by motion to correct it to the end that it may speak the truth.
      But the judgment imports verity when collaterally assailed. Until
      corrected in a direct proceeding, it says what it was meant to say, and
      this by an irrebuttable presumption. In any collateral inquiry, a court
      will close its ears to a suggestion that the sentence entered in the
      minutes is something other than the authentic expression of the
      sentence of the judge.

Id. at 916 (citation omitted). Upon review, we granted the application for summary
relief, reasoning that the sentencing judge’s order directed the sentence he imposed
to be served concurrently with the petitioner’s other two sentences. Id. at 919.
      In the present matter, DOC was required to structure Petitioner’s sentence so
that the 2018 Sentence runs consecutive to the 2002 Sentence. As in Powell, this is
because DOC is charged with implementing sentences imposed by the courts and
because the resentencing court, in the plain language of the Resentencing Order,
ordered the 2018 Sentence to be served consecutive to the 2002 Sentence. See Allen,
103 A.3d at 372 (citation omitted); Powell, 14 A.3d at 915-16 (citation omitted).
This Court does not have the authority to compel DOC to restructure Petitioner’s
sentence, as Petitioner requests, because Section 9721(a) of the Sentencing Code, 42
Pa.C.S. § 9721(a), “affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at the same time or
to sentences already imposed.” Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.




                                          8
Super. 2014).1 Challenges to “the discretionary aspects of sentencing must be raised
in a post-sentence motion,” pursuant to Pennsylvania Rule of Criminal Procedure
720, Pa.R.Crim.P. 720, “or by raising the claim during the sentencing proceedings.”
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003). This action is
collateral to that of the 2018 Sentence. As such, the sentence structure set forth in
the Resentencing Order is controlling until altered in a direct action, such as at a
sentencing hearing or in a post-sentence motion. See Powell, 14 A.3d at 916.
Therefore, Petitioner’s arguments challenging the manner in which DOC structured
his sentence, which is consistent with the plain language of the Resentencing Order,
should have been raised before the resentencing court at the resentencing hearing or
in a post-sentence motion after the issuance of the Resentencing Order, not in an
action seeking mandamus. See Allen, 103 A.3d at 370.
       As to Petitioner’s arguments regarding his sentence structure violating his
right to serve the 2018 Sentence uninterrupted, these arguments are not supported
by precedent.      Petitioner contends that his service of the 2018 Sentence was
interrupted and, citing Kriston and Jacobs, he argues that he “has a right to serve
[the 2018 Sentence] continuously rather than installments.”                   (Petition ¶ 10.)
Specifically, Petitioner contends that he served the 2018 Sentence from December
21, 1997, to January 21, 2002, then stopped to serve the 2002 Sentence from January
22, 2002, to January 22, 2007, before resuming the 2018 Sentence. (Id. ¶ 9.)
However, the Sentence Summary reflects that Petitioner’s service of the 2018
Sentence has not been interrupted since it was imposed by the resentencing court.
In 1999, Petitioner received the original 1999 Sentence. Thereafter, he received the

       1
        While not controlling on this Court, we may cite to decisions of the Pennsylvania Superior
Court for their persuasive value. A.S. v. Pa. State Police, 87 A.3d 914, 919 n.9 (Pa. Cmwlth.
2014).


                                                9
2002 Sentence, which the sentencing judge ordered to run consecutive to the 1999
Sentence. In 2018, the 1999 Sentence was vacated and the 2018 Sentence was
imposed, which the resentencing court ordered to run consecutive to the 2002
Sentence. Due to its retroactive application, the 2002 Sentence expired once the
1999 Sentence was vacated in 2018, as the maximum sentence for the 2002 Sentence
had already expired; therefore, the 2018 Sentence necessarily became effective
immediately upon the date Petitioner was resentenced. Meaning, Petitioner’s 2018
Sentence began to run on September 19, 2018. See Commonwealth v. Serrano, 150
A.3d 470, 473 (Pa. Super. 2016) (“[w]hen a sentence is vacated and the case is
remanded to the sentencing court for resentencing, the” new sentence starts afresh)
(quoting Commonwealth v. Jones, 640 A.2d 914, 919-920 (Pa. Super. 1994)).
Therefore, contrary to Petitioner’s assertion, the Sentence Summary reflects his 2018
Sentence has not been interrupted since it was imposed.
      To the extent that Petitioner is arguing his rights were violated by the fact that
there is a gap in the credit afforded to him for his service of the 1999 Sentence by
his service of the 2002 Sentence, Petitioner’s arguments are again not persuasive.
Pursuant to the Resentencing Order, Petitioner received credit for the time he spent
in confinement on the 1999 Sentence. Specifically, Petitioner received credit for the
periods of December 21, 1997, to January 21, 2002, and January 23, 2007, to
September 19, 2018. Thus, while it is clear that the credit Petitioner received was
interrupted by his service of the 2002 Sentence, this does not invoke an inmate’s
right to serve a sentence without interruption because no sentence is being
interrupted. The cases Petitioner cites in the Petition, Kriston and Jacobs, do not
stand for the proposition that a petitioner’s rights are violated by a gap in credit
awarded towards another sentence. Both Kriston and Jacobs involve the issue of



                                          10
whether inmates that were erroneously released from confinement should receive
credit towards their sentence for the period they were erroneously released. In both
cases, the courts concluded that the inmates should receive credit for the period of
their erroneous release, reasoning, in part, that inmates have a right to serve their
sentences continuously and without interruption. Kriston, 588 A.2d at 901; Jacobs,
410 A.2d at 959-60. The facts of Kriston and Jacobs are far different than the facts
of this case, and neither Kriston nor Jacobs support the notion that an inmate’s rights
are violated by a gap in credit received for application towards another sentence
versus a gap in service of a sentence.
      Petitioner also argues that by structuring his sentence so that the 2018
Sentence is consecutive to the 2002 Sentence, DOC has deprived him of his right to
seek parole on the 2002 Sentence because that sentence has already expired.
Petitioner contends that by structuring his sentence this way and depriving him of
an opportunity to seek parole on the 2002 Sentence, DOC transformed his aggregate
sentence from “what should have been a 31 ½ to Life into 35 years to Life.” (Petition
¶ 12.) Petitioner’s arguments regarding being deprived of his right to seek parole on
the 2002 Sentence go to the issue of his sentence structure. Thus, as set forth above,
these arguments should have been directed to the resentencing court at the
resentencing hearing or in a post-sentence motion filed after its issuance of the
Resentencing Order.
      Accepting as true the material allegations set forth in the Petition and the
documents attached thereto, as we must, we conclude that “it is clear and free from
doubt” that the Petition “will not permit recovery under the alleged facts.” Allen,
103 A.3d at 369. The arguments Petitioner raises in the Petition should have been
directed to the resentencing court at resentencing or in a post-sentence motion



                                          11
following its issuance of the Resentencing Order and not in this action in mandamus
because DOC’s Sentence Summary merely reflects the directives set forth in the
Resentencing Order.


   IV.      Conclusion
      For the foregoing reasons, we sustain DOC’s Demurrer and dismiss the
Petition.


                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Jacob,                             :
                        Petitioner      :
                                        :
                  v.                    :   No. 429 M.D. 2019
                                        :
Commonwealth of Pennsylvania,           :
Department of Corrections,              :
                        Respondent      :


                                     ORDER


      NOW, May 8, 2020, the Commonwealth of Pennsylvania, Department of
Corrections’ Preliminary Objection to John Jacob’s Petition for Writ of Mandamus
(Petition) is SUSTAINED. Accordingly, the Petition is hereby DISMISSED.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
