           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jermaine Pryor,                                :
                                               :
                             Petitioner        :
                                               :
              v.                               :   No. 355 M.D. 2015
                                               :
PA Dept. of Corrections, Records               :   Submitted: January 15, 2016
Supervisor Sandra Gerula,                      :
                                               :
                             Respondents       :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                     FILED: April 27, 2016

       Before this Court in our original jurisdiction is the preliminary objection
(PO) in the nature of a demurrer filed by the PA Dept. of Corrections
(Department), Records Supervisor Sandra Gerula (Respondents) to the pro se
Petition for Review in the Nature of Mandamus (Petition) filed by Jermaine Pryor.1
Respondents assert in the PO that the Petition is legally insufficient because Pryor
has not identified any clear right to relief thereby precluding mandamus relief and,
therefore, the Petition should be dismissed with prejudice. Because Pryor has not

       1
         Pryor has not filed a brief in opposition to Respondents PO and, therefore, pursuant to
this Court’s order dated November 18, 2015, we “will proceed without [Pryor’s] brief.” (Order,
November 18, 2015.)
established a clear legal right to the relief requested, we sustain the PO and dismiss
the Petition with prejudice.
       Pryor avers the following in his Petition. He is “incarcerated at the State
Correctional Institution at Benner,” which is located in Centre County. (Petition ¶
2.) He “was formally arraigned and charged with one count each of Aggravated
Assault[2] and” violation of the Pennsylvania Uniform Firearms Act of 19953 on
October 18, 2008. (Petition ¶ 4.) Pryor pleaded guilty on June 13, 2011, and
received a negotiated sentence of five-to-ten years that he would serve
concurrently with a federal sentence. (Petition ¶ 5.) Thereafter, on April 19, 2012,
Pryor filed a Post Conviction Relief Act4 (PCRA) petition asserting “that he was
not given credit for time served on his State Sentence from October 14, 2008 to
June 14, 2011, as stipulated by the Trial Court.” (Petition ¶ 6.) Pryor’s appointed
PCRA counsel filed a no-merit letter with the PCRA Court, pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (Finley Letter),
allegedly based on his belief that the Commonwealth Court was the proper forum
to address Pryor’s requested relief. (Petition ¶ 7.) Thereafter, “on April 30, 2013,
[the] PCRA Court entered a Notice informing [Pryor] that pursuant to [Rule 907 of
the Pennsylvania Rules of Criminal Procedure,] Pa. R. Crim. P. 907, his case
would be denied/dismissed in 20 days.”5 (Petition ¶ 7.) Pryor does not attach this
order to his Petition.

       2
         Section 2702 of the Crimes Code, 18 Pa. C.S. § 2702.
       3
         18 Pa. C.S. §§ 6101-6126. The Petition refers to this as a “Vufa.” (Petition ¶ 4.)
       4
         42 Pa. C.S. §§ 9541-9546.
       5
         Rule 907 of the Pennsylvania Rules of Criminal Procedure allows a judge to review and
rule on a petition for post-conviction collateral relief without a hearing under certain
circumstances. Pa. R. Crim. P. 907. For example, if “there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-conviction collateral relief” and there
                                                                                  (Continued…)
                                                 2
       Under Section 9761(b) of the Sentencing Code, 42 Pa. C.S. § 9761(b), where
“[a] defendant is at the time of sentencing subject to imprisonment under the
authority of any other sovereign,” the trial “court may indicate that imprisonment
under such other authority shall satisfy or be credited against both the minimum
and maximum time imposed under the court’s sentence.” (Petition ¶ 9 (citing 42
Pa. C.S. § 9761(b)).) “A State Court is authorized to Order that state sentences run
concurrent to Federal Sentences, and [Pryor] is entitled to have credit for time
served on Federal Sentence applied to his State Sentence.” (Petition ¶ 10 (citing
Griffin v. Department of Corrections, 862 A.2d 152, 156-57 (Pa. Cmwlth. 2004)).)
Here, Pryor “was sentenced to time served concurrent with his Federal Sentence”
on June 13, 2011. (Petition ¶ 9; Pryor’s Sentencing Order (Sentencing Order), Ex.
A to Petition.) As an agency of “‘the executive branch, the Department lacks the
power to adjudicate the legality of a sentence or to add or delete sentencing
conditions.’”     (Petition ¶ 8 (quoting McCray v. Pennsylvania Department of
Corrections, 872 A.2d 1127, 1133 (Pa. 2005)).) Because the Department “lacks
the authority to change [Pryor’s] Sentencing Order, revocation of credit for time
served concurrent with his Federal Sentence [falls] short of the minimum
procedural protections required by the Fourteenth Amendment of the United States
Constitution.” (Petition ¶ 8 (citing Evans v. Beard, 639 F. Supp.2d 497 (E.D. Pa.


would be “no purpose . . . served by any further proceedings, the judge shall give notice to the
parties of the intention to dismiss the petition and shall state in the notice the reasons for the
dismissal.” Pa. R. Crim. P. 907(1). In that case, “[t]he defendant may respond to the proposed
dismissal within 20 days of the date of the notice” and then “[t]he judge thereafter shall order the
petition dismissed, grant leave to file an amended petition, or direct that the proceedings
continue.” Id. “When the petition is dismissed without a hearing, the judge promptly shall issue
an order to that effect and shall advise the defendant” of his right to appeal. Pa. R. Crim. P.
907(4).

                                                 3
2009), rev’d, 645 F.3d 650 (3d Cir. 2011)).) The Department could not delete the
trial court’s “proviso of specific time served contained in the trial court’s sentence”
or “revoke time credit on an inmate’s court commitment papers without a court
order.” (Petition ¶¶ 10, 11.) Therefore, Pryor asserts that he “is entitled to relief []
from this Honorable Court by way of Mandamus.” (Petition ¶ 10.)
      Pryor argues that absent relief, “his release from incarceration and/or
eligibility for parole will be delayed by 32 months” and that “[d]ue to the unjust
action of [Respondents], [he] stands to miss his parole eligibility date in October of
2013 under an invalid assessment of the Department . . . of his DC-300B Court
Commitment Papers.” (Petition ¶ 12.) This violates Pryor’s due process rights and
“prohibit[s] him from being released from confinement and becoming a productive
member of society.” (Petition ¶ 12.) Pryor asserts that he has no other remedy at
law because, when he filed a PCRA petition “to compel the Trial Court to enter an
Order directing [Respondents] to comply with the DC-300B and credit him with
time from October 14, 2008 to June 14, 2011,” that Court “determined that there
[was] no standing to pursue such an Order” and that he “must seek relief from
[this] Court . . . .” (Petition ¶ 13.) Pryor seeks an Order from this Court granting
the Petition and

      direct[ing] . . . [Respondents to] apply policies, procedure and law to
      [Pryor], and utilize the proper guidelines as stipulated therein for a
      reassessment of [Pryor’s] sentence structure in order to determine,
      based on the evidence, that [Pryor] is entitled to time served on his
      Federal Sentence concurrent with his State Sentence from October 14,
      2008 to June 13, 2011.

(Petition, Wherefore Clause.)
      Respondents demur to the Petition pursuant to Rule 1028(a)(4) of the
Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1028(a)(4), and assert that

                                           4
Pryor is not entitled to mandamus relief because Pryor “has not established a clear
legal right to the relief requested.” (PO ¶¶ 7, 15.) Citing Pryor’s Sentencing
Order, attached to the Petition as Exhibit A, Respondents aver that the order “does
not indicate any time credit.”      (PO ¶ 17.)     According to Respondents, the
Department does not have the authority to “make independent decisions on
whether to award credit; it merely assigns credit as directed by the sentencing court
and the Clerk of Courts” and, therefore, it “cannot award credit when the
sentencing court did not direct that.” (PO ¶¶ 18-19.) Where, as here, the inmate
argues that “he [is] not receiv[ing] the benefit of his plea [agreement,]” the inmate
should “file an application for re-sentencing with the criminal court, not to seek
mandamus against the Department.” (PO ¶ 20 (citing Fajohn v. Department of
Corrections, 692 A.2d 1067 (Pa. 1997)).) Therefore, Respondents assert that the
Petition is legally insufficient, its PO should be sustained, and the Petition
dismissed. (PO ¶ 7, Wherefore Clause.)
      In his answer, Pryor contends that the Sentencing Order already gives him
“credit for time served concurrent with his Federal Sentence from October 14,
2008 to June 14, 2011.” (Pryor’s Response to Respondents PO (Response to PO) ¶
11.) He maintains that, if there is any doubt in the Sentencing Order, it is the
Department’s duty “to verify the exact time credit owed to” Pryor. (Response to
PO ¶ 12.)     Further, Pryor contends that, in using the DC-300B Form, the
sentencing court “MUST list the statutory time credit” and the Department cannot
remove the credit. (Response to PO ¶ 15 (emphasis in original).) According to
Pryor, in stating that his state sentence runs concurrently with his federal sentence,
it is obvious “that both sentences are concurrent with credit from the date of
[Pryor’s] arrest on October 14, 2008.” (Response to PO ¶ 17.) Pryor went to the


                                          5
court with his PCRA petition and it confirmed that it “awarded him credit for time
served” which “is why the PCRA Court recommended [Pryor] seek relief with the
Commonwealth Court to compel the [Department] to give him credit for time
served in accordance with its Court Order” in its April 30, 2013 order. (Response
to PO ¶ 20.)
      “Preliminary objections in the nature of a demurrer are deemed to admit all
well-pleaded material facts and any inferences reasonably deduced therefrom, but
not the complaint’s legal conclusions and averments.” Danysh v. Department of
Corrections, 845 A.2d 260, 262 (Pa. Cmwlth. 2004). “In ruling upon a preliminary
objection in the nature of a demurrer, our role is to determine whether the facts
pled are legally sufficient to permit the action to continue.” Department of Public
Welfare v. Joyce, 563 A.2d 590, 591 (Pa. Cmwlth. 1989). To sustain a preliminary
objection in the nature of a demurrer, “it must appear with certainty upon the facts
pled that the law will not permit recovery.” Id. If there is any doubt “as to
whether the preliminary objection should be sustained, that doubt should be
resolved by a refusal to sustain it.” Id.
      “A proceeding in mandamus is an extraordinary remedy at common law,
designed to compel the performance of a ministerial act or mandatory duty.”
Lawrence v. Pennsylvania Department of Corrections, 941 A.2d 70, 72 (Pa.
Cmwlth. 2007). “The purpose of mandamus is not to establish legal rights, but to
enforce those rights already established beyond peradventure.” Detar v. Beard,
898 A.2d 26, 29 (Pa. Cmwlth. 2006).             “[M]andamus will lie only where the
petitioning party demonstrates its clear right to relief, a correspondingly clear duty
on the part of the party against whom mandamus is sought, and the want of any



                                            6
other adequate remedy.” Doxsey v. Commonwealth, 674 A.2d 1173, 1174 (Pa.
Cmwlth. 1996). “Mandamus . . . will not be granted in doubtful cases.” Id.
      As asserted by Pryor and acknowledged by Respondents, “[t]he Department
is an executive branch agency that is charged with faithfully implementing
sentences imposed by the courts” and, “[a]s part of the executive branch, [it] lacks
the power to adjudicate the legality of a sentence or to add or delete sentencing
conditions.” McCray, 872 A.2d at 1133. Pryor asserts that his Sentencing Order
and the DC-300B Form issued in his criminal case clearly provide that he is to
receive credit for time served for the period between October 14, 2008 and June
14, 2011, which is time he served on his federal sentence. (Petition ¶¶ 4-6;
Sentencing Order, Ex. A to Petition.) Pryor further avers that the trial court
allegedly directed him, in an order dated April 30, 2013, to seek mandamus relief
from this Court during his PCRA proceeding. (Petition ¶ 13.)
      We have reviewed Pryor’s Sentencing Order, dated June 13, 2011, and agree
with Respondents that it does not contain any reference to credit for time served
for the period between October 14, 2008 and June 14, 2011. What that order states
is

      Count 1 – 18 [Pa. C.S.] §2702 . . . – Aggravated Assault - (F1)
             To be confined for a Minimum Term of 5 years and a
             Maximum Term of 10 years at State Correctional Institution.
             The following conditions are imposed:
                   Other – Sentence/Conditions: Sentence: 5 to 10 years in
                   SCI as to Aggravated Assault F1 and 5 to 10 years as to
                   VUFA 6105 F2 to run concurrently with the sentence
                   imposed on the [possession with intent to deliver
                   (PWID)] in this case and concurrently with the federal
                   case the defendant is presently serving.
      Count 3 – 18 [Pa. C.S.] §6105 . . . – Possession Of Firearm Prohibited
      – (F2)


                                         7
                To be confined for a Minimum Term of 5 years and a
                Maximum Term of 10 years at State Correctional Institution.
                The following conditions are imposed:
                      Other – Sentence/Conditions: Sentence: 5 to 10 years in
                      SCI as to Aggravated Assault F1 and 5 to 10 years as to
                      VUFA 6105 F2 to run concurrently with the sentence
                      imposed on the PWID in this case and concurrently with
                      the federal case the defendant is presently serving.
                This sentence is to be served concurrent with:
                      CP-51-CR-0012265-2008 Ct # 1 Confinement.

(Sentencing Order, Ex. A to Petition.) Thus, the Sentencing Order is silent on the
issue of credit and does not provide Pryor with a clear right to the relief he seeks in
the Petition.
      We now turn to the DC-300B Form that Pryor insists requires the sentencing
court to “list the statutory time credit,” which “[t]he [Department] cannot remove.”
(Response to PO ¶ 15; Petition ¶ 13.) Pryor did not attach this form to the Petition
and, ordinarily, a demurrer is limited only to the facts readily ascertainable on the
face of the challenged pleading and cannot aver additional facts.           Barndt v.
Department of Corrections, 902 A.2d 589, 591 n.2 (Pa. Cmwlth. 2006). However,
there is “a limited exception to the rule against speaking demurrers [that] exists for
documents filed in support of a demurrer where a plaintiff has averred the
existence of certain written documents and premised his cause of action upon those
documents.” Id. As observed by Respondents, Pryor “premises his case on his
contention that the DC-300B [Form] lists an award of credit” and, thus, has
attached the relevant DC-300B Form to its brief. (Respondents’ Br. at 7-8.)
      We agree with Respondents that this is one of the limited circumstances
where a “speaking demurrer” is permitted and will review the form Pryor insists
clearly provides him credit for time served. The DC-300B Form lists Pryor’s
name, the charges to which he pleaded guilty, and that he was sentenced on June

                                          8
13, 2011, as described in the Sentencing Order. (DC-300B Form at 1-2.) It also
indicates, as the Sentencing Order did, that Pryor’s sentences were to be served
“concurrently with the sentence imposed on the PWID in this case and
concurrently with the federal case the defendant is presently serving.” (DC-300B
Form at 2.) However, the DC-300B Form also contains two boxes asking if there
is “CREDIT FOR TIME SERVED.” (DC-300B Form at 1, 3 (emphasis added).)
In response to these statements, the following was entered in both boxes, “0 days”.
(DC-300B Form at 1, 3 (emphasis added).) Accordingly, the DC-300B Form does
not clearly provide Pryor with credit for time served as he asserts in the Petition.
      Finally, we note that our Supreme Court has held that where an inmate
believes that he has “not receive[d] the benefit of his plea bargain, the proper
avenue would appear to be to seek relief in the sentencing court” and not a
mandamus action in the Commonwealth Court’s original jurisdiction. Fajohn, 692
A.2d at 1068. Although Pryor asserts that he has done this and that, on April 30,
2013, the PCRA Court allegedly directed him to seek mandamus relief from this
Court during his PCRA proceeding, (Petition ¶ 13; Response to PO ¶ 17), he did
not attach that order to his Petition or otherwise provide it to this Court. This
Court may take judicial notice of “official criminal court records [that] contain []
relevant” information to the pleadings in considering preliminary objections in this
Court’s original jurisdiction. See Doxsey, 674 A.2d at 1174 (holding in an original
jurisdiction matter that we would take judicial notice “of the official criminal court
records, which contain the relevant dates for purposes of determining petitioner’s
sentencing date and ascertaining whether he was incorrectly deprived of pre-




                                          9
sentence credit”). Here, a review of the complete criminal docket in this matter6
reveals that on April 30, 2013, the PCRA Court did not issue an order dismissing
his PCRA petition, but rescheduled the hearing on that claim. (Criminal Docket
Number CP-51-CR-0012265-2008 at 12.) On May 1, 2013, the PCRA Court
issued a “Dismissal Notice Under Rule 907” indicating that a “Finley letter [was]
filed. 907 Notice issued. Court rules, no merit. Listed for formal dismissal,” and
the official notice of dismissal was filed on May 6, 2013. (Criminal Docket
Number CP-51-CR-0012265-2008 at 12.) The PCRA Court dismissed Pryor’s
PCRA petition on June 21, 2013. (Criminal Docket Number CP-51-CR-0012265-
2008 at 12.) To the extent Pryor argues that this was because the court determined
that mandamus relief was available in this Court, we have concluded otherwise.
The relief Pryor seeks is not available pursuant to a mandamus action in this
Court’s original jurisdiction.
       Because neither the Sentencing Order nor the DC-300B Form clearly
provide Pryor with credit for time served, Pryor has not satisfied his heavy burden
of establishing that he has a clear right to relief in mandamus. Accordingly, we
sustain Respondents’ PO and dismiss the Petition with prejudice.




                                                ________________________________
                                                RENÉE COHN JUBELIRER, Judge




       6
         Pryor attaches a part of the criminal docket, but not the whole docket, to his Petition as
Exhibit B.

                                                10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jermaine Pryor,                        :
                                       :
                        Petitioner     :
                                       :
            v.                         :   No. 355 M.D. 2015
                                       :
PA Dept. of Corrections, Records       :
Supervisor Sandra Gerula,              :
                                       :
                        Respondents    :



                                     ORDER


      NOW, April 27, 2016, the Preliminary Objection filed by the PA Dept. of
Corrections, Records Supervisor Sandra Gerula to the Petition for Review in the
Nature of Mandamus (Petition) filed by Jermaine Pryor is SUSTAINED, and the
Petition is DISMISSED WITH PREJUDICE.




                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge
