           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Walter Williams,                               :
                                               : No. 448 M.D. 2013
                             Petitioner        : Submitted: January 22, 2016
                                               :
                      v.                       :
                                               :
Department of Corrections,                     :
                                               :
                             Respondent        :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                             FILED: February 17, 2016

              Before the Court are the preliminary objections of the Department of
Corrections (Department) to the pro se petition for review of Walter Williams
seeking mandamus relief.1 We overrule the preliminary objections and direct the
Department to file an answer to the petition for review.
              Williams is an inmate at the State Correctional Institution at
Huntingdon (SCI-Huntingdon). The facts as alleged in the petition for review are

       1
         “A proceeding in mandamus is an extraordinary action at common law and is available
only to compel the performance of a ministerial act or mandatory duty where there exists no
other adequate and appropriate remedy; there is a clear legal right in the plaintiff, and a
corresponding duty in the defendant.” McCray v. Department of Corrections, 872 A.2d 1127,
1131 (Pa. 2005) (citation omitted). “The Department is an executive branch agency that is
charged with faithfully implementing sentences imposed by the courts.” Id. at 1133. While
mandamus is an extraordinary writ, it can be used to compel the Department to honor a particular
sentencing order or to compute a prisoner’s sentence properly. Saunders v. Department of
Corrections, 749 A.2d 553, 555 (Pa. Cmwlth. 2000).
as follows.      In June 2005, Williams pled guilty in the Philadelphia County
Common Pleas Court (trial court) to one count each of possession with the intent to
deliver a controlled substance (PWID) and unrelated charges of receiving stolen
property (RSP) and leaving an accident involving injury or death. The trial court
imposed a concurrent split sentence2 on each of the charges of 6 to 23 months
county incarceration with a consecutive 2-year probationary period and
immediately granted Williams parole.3
               In January 2007, Williams was arrested on a new PWID charge. In
April 2008, the trial court adjudged Williams guilty of the new PWID charge and
sentenced him to 9 to 23 months county incarceration and granted him immediate
parole. In May 2008, the trial court revoked Williams’ probation based on the new
PWID conviction and imposed another split sentence of a 2- to 4-year term of state
imprisonment with a consecutive 5-year probationary term on his original PWID



       2
        As this Court has explained, “[w]hen incarceration and probation are imposed on the
same count of conviction, this is known as a split sentence.” Allen v. Department of Corrections,
103 A.3d 365, 368 n.2 (Pa. Cmwlth. 2014) (citation omitted).

       3
           Section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act (Act),
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a)(30), states, in relevant part,
that “[t]he following acts and the causing thereof within the Commonwealth are hereby
prohibited: . . . the manufacture, delivery, or possession with intent to manufacture or deliver, a
controlled substance by a person not registered under this act, or a practitioner not registered or
licensed by the appropriate State board.” The maximum sentence for Williams’ PWID
conviction is 10 years imprisonment. See Section 13(f)(1.1) of the Act, 35 P.S. §780-113(f)(1.1)
(“Any person who violates clause . . . (30) of subsection (a) with respect to . . . coca leaves and
any salt, compound derivative or preparation of coca leaves; any salt, compound derivative or
preparation of the preceding which is chemically equivalent or identical with any of these
substances . . . is guilty of a felony and upon conviction thereof shall be sentenced to
imprisonment not exceeding ten years, or to pay a fine not exceeding one hundred thousand
dollars. . . .”).


                                                2
conviction and a 2- to 4-year term on his RSP conviction to run concurrently with
one another and with the sentence on his new PWID conviction.4
                 In February 2011, Williams completed serving the 4-year term of
imprisonment imposed on his original PWID conviction and began to serve the
consecutive 5-year probationary term. That same month, Williams was arrested
and charged with third degree murder and involuntary manslaughter; the third
degree murder charge was subsequently quashed.
                 In February 2012, the trial court revoked Williams’ probation based
on the new charges5 and sentenced him to a 5- to 10-year term of imprisonment on
his original PWID conviction with credit for the time that he had already served.6
In October 2012, Williams filed an untimely motion to correct an illegal sentence


       4
          Section 9771(b) of the Sentencing Code states, in pertinent part, that “[u]pon [the]
revocation [of probation] the sentencing alternatives available to the court shall be the same as
were available at the time of initial sentencing, due consideration being given to the time spent
serving the order of probation.” 42 Pa. C.S. §9771(b).

       5
          See Commonwealth v. Kates, 305 A.2d 701, 706-08 (Pa. 1973) (holding that there is no
constitutional or statutory restriction preventing the trial court from conducting a probation
violation hearing prior to the trial for a subsequent criminal offense).

       6
           At the revocation hearing, the trial court stated, in relevant part:

                 The jail is going to – the Department of Corrections is going to
                 calculate whatever time you have credit for. You obviously have
                 at least four years because you maxed out. Those four years
                 include the months that you spent in the County when you were
                 first arrested on the PWID case. So I don’t know how they are
                 going to calculate any time that you have been in since you were
                 arrested until February of 2011. I don’t know how they are going
                 to calculate that time.

Petition for Review, Exhibit A.


                                                    3
that the trial court summarily denied.7 In November 2013, the Superior Court
quashed Williams’ untimely counseled appeal of the trial court’s judgment of
sentence challenging its legality. See Commonwealth v. Williams, (Pa. Super., No.
3195 EDA 2012, filed November 21, 2013), slip op. at 4-5.8
                 In September 2013, Williams then filed the instant petition for review
asking this Court to direct the Department to award credit for the time that he
already served on his original PWID conviction that was granted by the trial court



       7
          The trial court wrote on Williams’ proposed order, “Denied without hearing. Time
credit issues are resolved by the PA State Parole Board.” Petition for Review, Exhibit B.

       8
           Nevertheless, the Superior Court also explained, in pertinent part:

                 As provided, this Court lacks jurisdiction. However, even if this
                 appeal was properly before the Court, we note that [Williams’]
                 claim [that the sentence is illegal] lacks merit. The maximum
                 sentence that the trial court could have originally imposed on
                 [Williams] for PWID was ten years’ imprisonment. See 35 P.S.
                 §§780(a)(30), 780(f)(1.1) (maximum sentence for PWID is ten
                 years’ imprisonment). Upon resentencing, the trial court sentenced
                 [Williams] to this ten-year maximum, awarding [Williams] with
                 credit for time that he had already served on the underlying
                 offense. See . . . Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.
                 Super. 2000), appeal denied, 771 A.2d 1279 (Pa. 2001), cited by
                 Commonwealth v. Wallace, 870 A.2d 838, 844 (Pa. 2005) (“upon
                 sentencing following a revocation of probation, the trial court is
                 limited only by the maximum sentence that it could have imposed
                 originally”); Commonwealth v. Williams, 662 A.2d 658, 659 (Pa.
                 Super. 1995), appeal denied, 674 A.2d 1071 (Pa. 1996) (following
                 probation violation, the court should give a defendant credit for the
                 cumulative time served in custody on the original offense if the
                 court resentences the defendant to the maximum allowable
                 sentence on the initial offense).

Williams, slip op. at 5 n.3 (emphasis added).


                                                  4
to the sentence imposed on the latest revocation of his probation.9 In August 2014,
the Department filed preliminary objections in the nature of a demurrer alleging
that Williams fails to state a valid claim for mandamus relief because he has not
provided any official court documents, such as the trial court’s sentencing order or
a commitment form, to demonstrate that the Department has failed to grant him the
credit that the trial court directed should be applied to his sentence.10
                 However, “[i]n ruling upon preliminary objections in the nature of a
demurrer, the Court must accept as true all well-pled facts and all reasonable
inferences deducible therefrom, and it must determine whether the facts pled are
legally sufficient to permit the action to continue.” Gordon v. Department of
Corrections, 16 A.3d 1173, 1176 n. 2 (Pa. Cmwlth. 2010). This Court is not

       9
           Section 9760 of the Sentencing Code states, in relevant part:

                 (1) Credit against the maximum term and any minimum term shall
                 be given to the defendant for all time spent in custody as a result of
                 the criminal charge for which a prison sentence is imposed or as a
                 result of the conduct on which such a charge is based. Credit shall
                 include credit for time spent in custody prior to trial, during trial,
                 pending sentence, and pending the resolution of an appeal.

                 (2) Credit against the maximum term and any minimum term 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. This
                 shall include credit in accordance with paragraph (1) of this section
                 for all time spent in custody as a result of both the original charge
                 and any subsequent charge for the same offense or for another
                 offense based on the same act or acts.

42 Pa. C.S. §9760(1), (2).

       10
          We dismissed Williams’ application for summary relief due to his failure to file a brief
in support of the application or in opposition to the Department’s preliminary objections.


                                                   5
limited to only considering the facts pled in the petition for review, but may also
consider any documents or exhibits attached to it. Allen, 103 A.3d at 369. “In that
a demurrer results in the dismissal of a suit, it should be sustained only in cases
that are clear and free from doubt and only where it appears with certainty that the
law permits no recovery under the allegations pleaded.” Gordon, 16 A.3d at 1176
n.2. All doubts must be resolved against sustaining the demurrer. Allen, 103 A.3d
at 369.
               In this case, Williams has alleged that the trial court granted him
credit against his original PWID sentence for all of the time that he has already
served, but the Department has failed to provide such credit. The trial court’s
order revoking Williams’ probation and imposing the judgment of sentence states,
in relevant part:

               Count 1 – 35 §780-113 §§A30 – MFG/DEL/ OR POSS
               W/I MFG OR DEL CONTRL SUBS –()
               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 – Probation revoked: New sentence. Credit
                      time served. . . .
Commonwealth’s Letter Brief in Appeal No. 3195 EDA 2012, Exhibit B (emphasis
added).11 Because Williams is merely asking to have the trial court’s sentence

       11
           Although Williams did not append the trial court’s judgment of sentence to his petition
for review, it is appropriate for this Court to take judicial notice of the judgment of sentence from
the docket entries of Williams’ direct appeal to the Superior Court challenging its legality. See,
e.g., Pa. R.E. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”); Lozado v. Workers’ Compensation Appeal Board
(Dependable Concrete Work), 123 A.3d 365, 374 n.10 (Pa. Cmwlth. 2015) (“The trial court
orders were not included in the certified record. However, ‘it is well settled that this Court may
(Footnote continued on next page…)
                                                 6
enforced and because the sentence imposed by a trial court is a question of law that
involves no discretion on the Department’s part, mandamus will lie to compel the
Department to properly compute his sentence.                      Barndt v. Department of
Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006).12 See also Allen, 103 A.3d at

(continued…)

take judicial notice of pleadings and judgments in other proceedings where appropriate.’
Lycoming County v. Pennsylvania Labor Relations Board, 943 A.2d 333, 335 n.8 (Pa. Cmwlth.
2007).”).

       12
          Because Williams was sentenced to the statutory maximum when the trial court
revoked his probation, he challenged the legality of the sentence in the absence of such credit
before both the trial court and in his untimely direct appeal of the judgment of sentence to the
Superior Court. As the Superior Court has explained:

               When determining the lawful maximum allowable on a split
               sentence, the time originally imposed cannot exceed the statutory
               maximum. Thus, where the maximum is ten years, a defendant
               cannot receive a term of incarceration of three to six years
               followed by five years probation. However, in a situation where
               probation is revoked on a split sentence, as in the case sub judice, a
               defendant is not entitled to credit for time spent on probation. Nor
               is a defendant automatically granted credit for time served while
               incarcerated on the original sentence unless the court imposes a
               new sentence that would result in the defendant serving time in
               prison in excess of the statutory maximum.

Commonwealth v. Crump, 995 A.2d 1280, 1283-84 (Pa. Super.), appeal denied, 13 A.3d 475 (Pa.
2010) (citations omitted and emphasis added). See also Williams, 662 A.2d at 659 (holding that
because the sentence imposed on probation revocation was the statutory maximum for the
offense, the sentence would be illegal if the defendant was not credited with the 23 months
already served). Compare McCray, 872 A.2d at 1132 (“The trial court’s probation revocation
sentence of four concurrent terms of two to four years of incarceration . . . plus a consecutive
term of five years of probation . . . is significantly less than the maximum probation revocation
sentence of thirty-five to seventy years of incarceration. Therefore, as in [Commonwealth v.
Bowser, 783 A.2d 348 (Pa. Super. 2001), appeal denied, 798 A.2d 1286 (Pa. 2002)], the
concerns regarding the imposition of an illegal sentence that were present in Williams, are not at
issue in this case.”); Aviles v. Department of Corrections, 875 A.2d 1209, 1213 (Pa. Cmwlth.
(Footnote continued on next page…)
                                                 7
372 (“The sentencing court clearly intended that Allen serve 59 to 119 months less
any time previously served on sentences relating to the original conviction. [The
Department] did not credit Allen’s sentence with time served in contravention of
the sentencing court’s order. Therefore, Allen is entitled to the credit he seeks.”)
(citations omitted); Williams, slip op. at 5 n.3 (“Upon resentencing, the trial court
sentenced [Williams] to this ten-year maximum, awarding [Williams] with credit
for time that he had already served on the underlying offense.”).
               Accordingly, because Williams has alleged that the Department has
not given credit to his sentence as the trial court directed and the Department has
not shown that those facts, accepted as true, do not set forth a cognizable action in
mandamus, the Department’s preliminary objections are overruled and the
Department is directed to file an answer to Williams’ petition for review.




                                             MICHAEL H. WOJCIK, Judge




(continued…)

2005) (“The combined total confinement components of all his sentences for this crime are less
than 10 years, well within the statutory maximum. As in McCray and Bowser, concerns about
the imposition of an illegal sentence are simply not present here. As in McCray, Aviles lacks a
clear right to the credit he seeks.”). In this proceeding, Williams is merely asking this Court to
direct the Department to provide the credit that the trial court granted in the judgment of
sentence.


                                                8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Walter Williams,                           :
                                           : No. 448 M.D. 2013
                           Petitioner      :
                                           :
                      v.                   :
                                           :
Department of Corrections,                 :
                                           :
                           Respondent      :



                                        ORDER


             AND NOW, this 17th day of February, 2016, the Department of
Corrections’ preliminary objections are overruled and the Department is directed to
file an answer to Walter Williams’ petition for review within thirty (30) days of the
date of this order.



                                         __________________________________
                                         MICHAEL H. WOJCIK, Judge
