              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,          :
ex rel. George Havens,                 :
                  Petitioner           :
                                       :
               v.                      : No. 84 M.D. 2013
                                       : Submitted: August 5, 2016
Pennsylvania Department of             :
Corrections,                           :
                 Respondent            :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                         FILED: August 26, 2016


               Before this Court in our original jurisdiction is a motion for summary
relief filed by the Pennsylvania Department of Corrections (Department) to George
Havens’ (Havens) pro se petition for review claiming that the Department failed to
properly calculate the sentences he is now serving. For the reasons that follow, we
grant the Department’s application for summary relief and dismiss Havens’ petition
for review.


                                           I.
               Havens is an an inmate at the State Correctional Institution at Benner
Township. On April 23, 1998, pursuant to a plea agreement, Havens was sentenced
in the Court of Common Pleas of York County to an 8- to 20-year term of
imprisonment. On May 16, 2005, Havens was released to a Community Corrections
Center. On May 30, 2005, Havens was declared an escapee and was ultimately
apprehended on October 10, 2005.          Havens was charged by various police
departments with a number of new offenses following his apprehension, including
numerous burglaries, theft, several escapes, rape on an unconscious person, and other
charges.


            On April 3, 2006, pursuant to a plea agreement, Havens was sentenced
in the Court of Common Pleas of Dauphin County to a one- to two-year consecutive
term of imprisonment that disposed of a number of offenses. On August 14, 2006,
also pursuant to a plea agreement, Havens was sentenced in the Court of Common
Pleas of York County to a consecutive 17½- to 35-year term of imprisonment for the
remaining felonies.


            In February 2013, Havens filed a petition for review in the nature of a
request for a writ of mandamus to this Court alleging that in September 2010, the
Department miscalculated his aggregated minimum sentence to be 38 years, 10
months and his maximum sentence to be 81 years, 10 months, less the time he was
declared a fugitive. The petition did not set forth with any specificity the errors the
Department made. The Department filed preliminary objections seeking dismissal of
the petition because it was filed beyond the six-month statute of limitation provided
for in Section 5522(b)(1) of the Judicial Code, 42 Pa. C.S. §5522(b)(1), to bring an
action against any officer. The Department also asserted that the petition should be




                                          2
dismissed under the doctrine of laches because Havens waited over two years from
the time the Department allegedly miscalculated his sentences to file his petition.


              We overruled the Department’s preliminary objections,1 finding that the
Department may only imprison an inmate to the time set forth by his sentencing
courts, and the Department’s holding the inmate even a day beyond the release date is
a violation of its ministerial duty and makes each day a separate violation against
which to calculate the running of the six-month statute.                  With regard to the
Department’s laches argument, we reasoned that the argument failed because,
although Havens waited to file his petition for review, the Department would still be
able to calculate the service of his sentences. In November 2013, the Department
filed an answer to Havens’ petition for review. Because the matter lay dormant, in
November 2015, we issued a rule to show cause against Havens as to why the action
should not be dismissed. After Havens filed an answer, we discharged the rule and
directed Havens to advance his case.


                                               II.
              Havens then filed a motion for judgment on the pleadings2 in which he
was more specific as to how the Department miscalculated his sentence, explaining:



       1
        Commonwealth ex rel. Havens v. Pennsylvania Department of Corrections (Pa. Cmwlth.
No. 84 M.D. 2013, filed September 5, 2013).

       2
          “A motion for judgment on the pleadings should be granted only where the pleadings
demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a
matter of law.” Newberry Township v. Stambaugh, 848 A.2d 173, 175 n.1 (Pa. Cmwlth. 2004).




                                                3
              2.6 When respondent [Department] aggregated these
              sentences they [sic] ran each sentence consecutive and not
              concurrent as per the [c]ourt sentencing order. And herein
              lies the rub – on COMPUTATION #125, it demonstrates
              the sentence structure of escape, which is correct with the
              aggregation of COMPUTATION #77 with the 1998 – 8-20
              year sentence. I.e., this shows the added time for the escape
              petition was on the run for…;

              2.7 However, on COMPUTATION #126[3] (CP-5292, ct.
              1/2006 and CP-4798 ct. 1/2006), are to be concurrent with
              one another…. Case number CP-0181 ct. 1/2006[4] and CP-

       3
         According to the Sentence Status Summary, the Sentence Structure for Computation 126 is
as follows:

                         Item                         Computation 126
              Indictments Included           CP5292 CT1/2006
                                             7382;106;156;483;485;749;
                                             CP4798 CT1/2006
                                             CP0054 CT1/2006

                                             CP5292 CT1/2006
                                             CP0108 CT1/2006
                                             CP4798 CT1/2006
                                             CP0054 CT1/2006
              Eff Date                       08/14/2006
              Expiration of Minimum          06/14/2036
              Expiration of Maximum          06/14/2066
              Sentence Computation Date      09/07/2010
              Basis for Computation          Overlapping Concurrent Aggregation
              Total Sentence                 29Y10M - 59Y10M
              Status                         Active

(Respondent’s Brief, Exhibit A-1 at 25.)

       4
         The Department notes that although Havens’ references “CP-0181” in his motion for
judgment on the pleadings, the Department has no record of the sentence, nor has Havens supplied
any evidence of the sentence. Given Havens’ argument, we surmise that the “CP-0181” is a
typographical error and that this is, instead, a reference to “CP-0108.”




                                               4
               0054 ct. 1/2006 are to run concurrent with one another, but
               consecutive to concurrent sentences @ CP-5297 [sic] and
               CP-4798…;

               2.8 On COMPUTATION #126, all Four [sic] (4) case
               numbers CP-0054, CP-0181, CP-4798 and CP-5292 are
               calculated as consecutive, notwithstanding over lapping
               [sic] concurrent aggregation. And all of these case numbers
               were added up as consecutive sentences – for a total of 29y
               10mo to 59y 10mo, as stated above. But, court documents
               CP-0181 and CP-0054 are to be [sic] run concurrent. And
               CP-4798 and CP-5292 are to run concurrent and
               consecutive to CP-0181 and CP-0054, for a total of 26½
               yrs. to 57 yrs., starting from the aggregation sentence of
               1998 that should bring a minimum date to 8.21.2024.


(Havens’ Motion for Judgment on the Pleadings at ¶¶2.6-2.8) (footnotes added).


               In response, the Department filed a response and cross-application for
summary relief5 in which it asserts that this Court should dismiss Havens’ petition
because he has not established a clear legal right to relief because in his challenge, he
fails to incontrovertibly establish that the Department’s calculation of his sentence is
incorrect. The Department notes that in calculating an inmate’s sentence, it must rely
on the sentencing orders and court commitment forms that it receives from the
sentencing court, and that based on all available documentation, it properly calculated
Havens’ sentence.


       5
          Pa. R.A.P. 1532(b). An application for summary relief may be granted “[a]t any time after
the filing of a petition for review in an appellate or original jurisdiction matter ... if the right of the
applicant thereto is clear.” Id. The application will be denied where there are material facts in
dispute or it is not clear that the applicant is entitled to judgment as a matter of law. Brown v.
Department of Corrections, 932 A.2d 316, 318 (Pa. Cmwlth. 2007).




                                                    5
             Because he failed to file a brief in support of his motion for judgment on
the pleadings as directed by this Court, by order dated June 16, 2016, we dismissed
Havens’ motion for judgment on the pleadings.


                                           III.
             In support of its motion for summary relief, the Department, in its brief
to this Court,6 again argues that it can only rely on sentencing orders and court
commitment forms from the sentencing court in calculating an inmate’s sentence and
cannot add or delete sentencing conditions. As such, it contends its calculation of
Havens’ sentence is accurate based on the sentencing orders it was provided. The
Department maintains that Calculation 126 is founded on two groupings of
aggregations as per the 300(b) Court Commitments from the Court of Common Pleas
of York County. Specifically, the Department explains that the court case docketed
at “CP-[0]108 is consecutive to CP-4798; CP-5292 is consecutive to CP-[0]108;
[and] CP-0054 is consecutive to CP-5232 [sic].” (Respondent’s Brief at 13.)


             We agree with the Department that, upon review of the 300(b) Court
Commitments by the Court of Common Pleas of York County, the CP-0054 and CP-
0108 sentences are to be served concurrently, and the sentences at CP-4798 and CP-
5292 are also to be served concurrently. Under the terms of the order, these two
concurrent groupings are to be served consecutive to each other. That is, CP-0054
and CP-0108 are consecutive to CP-4798 and CP-5292.                  The Department’s



      6
         Havens was precluded from filing a brief in opposition to the Department’s motion
because he failed to file said brief by the date ordered by this Court.



                                            6
calculation of Havens’ sentence follows the Court of Common Pleas’ sentencing
orders and is accurate.


             Accordingly, the Department’s application for summary relief is granted
and Havens’ petition for review is dismissed.



                                      ___________________________________
                                      DAN PELLEGRINI, Senior Judge




                                          7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,        :
ex rel. George Havens,               :
                  Petitioner         :
                                     :
            v.                       : No. 84 M.D. 2013
                                     :
Pennsylvania Department of           :
Corrections,                         :
                 Respondent          :




                                   ORDER


            AND NOW, this 26th         day of August, 2016, the Pennsylvania
Department of Corrections’ application for summary relief dated February 26,
2016, is hereby granted. George Havens’ petition for review is dismissed.



                                     ___________________________________
                                     DAN PELLEGRINI, Senior Judge
