          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adam Butler,                             :
                            Petitioner :
                                         :
              v.                         : No. 271 M.D. 2017
                                         : Submitted: January 26, 2018
Commonwealth of Pennsylvania,            :
Department of Corrections,               :
Kathleen Brittain, Superintendent,       :
Kelly O'Kane, CCPM, Denise Stover, :
Records Supervisor, of State             :
Correctional Institute at Frackville, PA :
and Christopher Thomas, Director,        :
Phila, Prison System CMR Office,         :
                            Respondents :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                FILED: February 14, 2018


             Before this Court are cross-applications for summary relief seeking
judgment in a petition for review (petition) filed in our original jurisdiction by
Adam Butler (Butler), pro se, seeking a writ of mandamus to compel the
Department of Corrections (Department)1 to recalculate his prison sentence. For


      1
          Butler’s petition names as Respondents the Department of Corrections; Kathleen
Brittain, Superintendent; Kelly O’Kane, CCPM; Denise Stover, Records Supervisor at SCI-
(Footnote continued on next page…)
the reasons that follow, we deny Butler’s application and grant the Department’s
application.


               On April 14, 2013, Butler was arrested on the charge of terroristic
threats and he posted bail that same day. On October 10, 2014, the Philadelphia
Municipal Court found Butler guilty and subsequently sentenced him to 16 to 32
months incarceration. He was committed to the Department’s custody on February
17, 2015, to begin serving his sentence. Butler appealed and after a de novo
hearing conducted by the Court of Common Pleas of Philadelphia County
(common pleas), he was again found guilty and sentenced to 18 to 36 months
incarceration.2 It is undisputed that the sentencing order states “Credit for time
served: Credit to be calculated by the [Department].” (Department’s Application
for Summary Relief, Exhibit A.) The resentencing order also states “[s]entence of
incarceration to run consecutive to any sentence this defendant is now serving.”
(Id.)


               On October 10, 2014, while out on bail on his terroristic threats
charge, Butler was arrested and charged with intimidation of a victim/witness,
terroristic threats and harassment (intimidation charges). Bail was set but Butler

(continued…)

Frackville; and Christopher Thomas, Director, Philadelphia Prison System CMR Office. For
ease of reference, Respondents will hereinafter be referred to as “Department.”

        2
          The criminal docket sheet for Docket Number CP-51-CR-1558-2015 can be found at
https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-51-CR-0001558-
2015, last visited January 25, 2018.




                                           2
remained in jail because he was unable to make bail. On April 13, 2016, following
a bench trial before common pleas, Butler was found not guilty and all charges
were dismissed.3


             To further complicate matters, on May 5, 2015, Butler was found
guilty and sentenced by the Philadelphia Municipal Court to 12 to 24 months
incarceration for charges of disorderly conduct and offensive weapons (disorderly
conduct charges). Butler avers that this sentence was to run concurrently with his
previous sentence for terroristic threats. Butler appealed and the common pleas
heard his case de novo. On or about November 28, 2016, common pleas granted
Butler’s motion to suppress and dismissed all of the charges.4


             Butler has remained continuously in prison since October 10, 2014,
the date of his arrest on the intimidation charges. He is currently incarcerated at
the State Correctional Institution (SCI) at Frackville.


             When initially computing his sentence, the Department aggregated
Butler’s sentences for the terroristic threats (18 to 36 months) and disorderly
conduct charges (12 to 24 months).             Consequently, the Department’s Form


      3
          The criminal docket sheet for Docket Number CP-51-CR-13699-2014 can be found at
https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-51-CR-0013699-
2014, last visited January 25, 2018.

      4
          The criminal docket sheet for Docket Number CP-51-CR-4677-2015 can be found at
https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-51-CR-0004677-
2015, last visited January 24, 2018.




                                           3
DC16E-Sentence Status Summary dated January 14, 2016, lists an aggregate
sentence of 30 to 60 months with a maximum release date of May 5, 2020.


            After Butler’s disorderly conduct charges were dismissed by common
pleas, the Department issued a new Form DC16E-Sentence Status Summary dated
July 26, 2017. This form indicates that Butler is only serving a sentence of 18 to
36 months and specifies his recalculated maximum release date as February 9,
2018, giving him credit for time served on his terroristic threats charge from
February 9, 2015 onward.


            On June 21, 2017, Butler then filed his petition for mandamus seeking
an order directing the Department to credit him with all time spent in prison since
October 10, 2014, that has not already been credited towards another sentence.
According to Butler, this should result in his immediate release as his maximum
release date should be October 10, 2017. He also requests that the Department
seek clarification from the Philadelphia Prison System CMR Office regarding his
sentence.


            On July 27, 2017, the Department filed a suggestion of mootness
arguing that it already recalculated Butler’s sentence and gave him credit for time
served. The Department claimed that it cannot provide Butler with any further
relief and, therefore, his claims are moot.    Butler opposed the Department’s
suggestion of mootness and by order dated August 24, 2017, this Court denied the
Department’s application for relief. The Department then filed an answer to the
petition.



                                        4
              Subsequently, Butler filed a motion for summary relief now before us,
again asserting that the Department erred in failing to give him credit toward his
terroristic threats sentence for all time served dating back to October 10, 2014.
The Department filed a cross-application for summary relief arguing that Butler
was given credit for all time served that can properly be allocated to his terroristic
threats sentence and his maximum release date was properly recalculated as
February 9, 2018.5


              Mandamus is an extraordinary remedy designed “only to compel the
performance of a ministerial act or mandatory duty where there exists no other
adequate and appropriate remedy. . . .” McCray v. Pennsylvania Department of
Corrections, 872 A.2d 1127, 1131 (Pa. 2005). “The purpose of mandamus is not
to establish legal rights, but to enforce those rights already established beyond
peradventure.” Allen v. Department of Corrections, 103 A.3d 365, 369 (quoting
Detar v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth. 2006)). Regarding sentencing:

              [M]andamus is an appropriate remedy to correct an error
              in [the Department]’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 [the Department]’s computation does not
              comply with that credit.


Allen, 103 A.3d at 370 (citations omitted).

       5
        An application for summary relief may only be granted “if there are no genuine issues
as to any material facts and the right to judgment is clear as a matter of law.” Allen v.
Department of Corrections, 103 A.3d 365, 369 (Pa. Cmwlth. 2014) (citation omitted).




                                             5
               Butler initially made bail on his terroristic threats charge. His time
spent in custody from October 10, 2014, until February 9, 2015, was solely on the
separate intimidation charges for which he did not make bail and for which he was
found not guilty. Butler has not pointed us to any statute that authorizes the
sentencing judge to provide a person with credit to a sentence for time spent in
custody on another unrelated charge even though that person was later found not
guilty on that charge.


               However, Section 9760 of the Sentencing Code6 provides four
scenarios on how time is to be allocated:

               (1) Credit against the . . . term shall be given to the
               defendant for all time spent in custody as a result of the
               criminal charge for which a sentence is imposed or as a
               result of the conduct on which such a charge was based .
               ..

               (2) Credit . . . shall be given to the defendant for all time
               spent in custody under a prior sentence if he is later
               reprosecuted and resentenced for the same offense or for
               another offense based on the same act or acts . . .

               (3) If the defendant is serving multiple sentences, and if
               one of the sentences is set aside as the result of direct or
               collateral attack, credit . . . shall be given for all time
               served in relation to the sentence set aside . . .

               (4) If the defendant is arrested on one charge and later
               prosecuted on another charge growing out of an act or
               acts that occurred prior to his arrest, credit . . . shall be
               given for all time spent in custody under the former

      6
          Sentencing Code, 42 Pa.C.S. §§ 9701 – 9799.41.




                                              6
              charge that has not been credited against another
              sentence.


42 Pa.C.S. § 9760.


              The fourth scenario is the only one that could possibly apply. That
provision provides that all time spent in custody for an arrest on one charge can be
credited to a later charge based on an act that occurred prior to the arrest on the
first charge. In this case, the time Butler spent in custody from October 10, 2014,
until February 9, 2015, was the result of the intimidation charges based on acts that
occurred not prior to but after his arrest on the terroristic threats. Moreover,
because he made bail on the terroristic threats, none of the time spent in custody
between those dates was due to that charge.


              Accordingly, because Butler has not established that he has a clear
right to relief to be credited to the time spent on an unrelated charge to his sentence
for terroristic threats, his application for summary relief is denied and,
correspondingly, the Department’s application is granted.7


                                            _______________________________
                                            DAN PELLEGRINI, Senior Judge


       7
         Throughout his pleadings, Butler eludes to the fact that his sentence was illegal and he
was somehow illegally serving his common pleas sentence in the Department’s custody.
However, a challenge to the legality of a sentence cannot be raised in mandamus but is properly
raised before the sentencing court or on direct appeal to the Superior Court. See Allen, 103 A.3d
at 372-73 (citing cases). Moreover, to the extent that he claims that “Credit for time served” in
the common pleas sentencing order refers to time served on the terroristic threats charge and not
the intimidation charge, this claim is without merit.



                                               7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adam Butler,                             :
                            Petitioner :
                                         :
              v.                         : No. 271 M.D. 2017
                                         :
Commonwealth of Pennsylvania,            :
Department of Corrections,               :
Kathleen Brittain, Superintendent,       :
Kelly O'Kane, CCPM, Denise Stover, :
Records Supervisor, of State             :
Correctional Institute at Frackville, PA :
and Christopher Thomas, Director,        :
Phila, Prison System CMR Office,         :
                            Respondents :




                                   ORDER


            AND NOW, this 14th day of February, 2018, Petitioner’s application
for summary relief is denied and Respondents’ application for summary relief is
granted.


                                      _______________________________
                                      DAN PELLEGRINI, Senior Judge
