        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd Allen,                              :
                          Petitioner     :
                                         :
              v.                         :   No. 187 M.D. 2014
                                         :   Submitted: June 27, 2014
Commonwealth of Pennsylvania,            :
Department of Corrections,               :
                        Respondent       :

BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: August 27, 2014

              Before this Court in our original jurisdiction is the preliminary
objection in the nature of a demurrer of the Department of Corrections (DOC) to a
petition for review in the nature of mandamus (petition) filed by inmate Todd
Allen, representing himself. DOC challenges the legal sufficiency of the petition,
asserting Allen lacks a clear right to the credit he seeks, DOC does not have a
corresponding duty, and other adequate remedies exist. Also before us is Allen’s
application for summary relief (application). For the reasons that follow, we
overrule DOC’s preliminary objection, and we grant Allen’s application.


                                 I. Facts Averred
              Allen filed the petition and application requesting this Court order
DOC to award him credit for time served. In his filings, Allen avers the following
facts. Allen is an inmate incarcerated at the State Correctional Institutional at
Greene. Allen pled guilty and was convicted of possession with intent to deliver
4.5 grams of crack cocaine, under Section 13(a)(30) of The Controlled Substance,
Drug, Device and Cosmetic Act (the Drug Act),1 which he claims is a second
degree felony that carries a statutory maximum term of 10 years in prison. On
December 11, 2003, the Court of Common Pleas of Philadelphia County
(sentencing court) sentenced Allen to 11½ to 23 months of house arrest, plus 8
years of probation for this crime (original sentence).2


                     A. First Violation of Parole (VOP) Re-Sentence
                On June 9, 2004, after Allen committed a technical violation of house
arrest, the sentencing court revoked Allen’s probation.                 In this first VOP re-
sentencing, the court imposed a new sentence of two to four years’ incarceration,
plus a consecutive four years’ probation. Allen served time from June 29, 2004 to
January 12, 2007. On January 12, 2007, Allen was paroled.


                On April 4, 2007, the Pennsylvania Board of Probation and Parole
(Board) recommitted Allen on a technical parole violation. DOC held Allen in
custody from April 17, 2007 to June 9, 2008, at which point he began serving the
consecutive four years’ probation. Credit for the service of time on Allen’s first
VOP re-sentencing is at issue here.




       1
           Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a)(30).

       2
        When incarceration and probation are imposed on the same count of conviction, this is
known as a split sentence. McCray v. Dep’t of Corr., 872 A.2d 1127 (Pa. 2005).


                                                 2
                              B. Second VOP Re-Sentence
              Allen again violated his probation, and the sentencing court re-
sentenced him. The court imposed four more years of probation on February 10,
2009.


                               C. Third VOP Re-Sentence
              Then, on December 15, 2009, following another violation of
probation, the sentencing court revoked Allen’s probation and re-sentenced him to
59 to 119 months of incarceration, which equals 4 years, 11 months to 9 years, 11
months. Importantly, the sentencing court ordered “credit for any time previously
served on this matter as determined by prisons.” Pet’r’s Pet. for Review, Ex. B,
(Tr. Ct. Order, 12/15/09, at 1).


              Allen avers he served time from June 29, 2004 to January 12, 2007,
and from April 4, 2007, to June 9, 2008, for a total of approximately three years
and eight months (time served) on his first VOP re-sentence.3 He contends this
time served should be credited to his third VOP re-sentence in accord with the
sentencing court’s order. He claims that when his time served is added to his third
VOP re-sentence, it equals 8 years, 7 months to 13 years, 7 months, which exceeds
the 10-year statutory maximum allowed for his original second degree felony
conviction. Without credit applied, his third VOP re-sentence is illegal.




        3
          Our calculation of this time period is approximately three years, nine months.
However, the figure of three years and eight months is supported by DOC’s staff response to
Allen’s inmate request regarding the length of his incarceration. Pet’r’s Pet. for Review, Ex. C.


                                               3
               Allen requested DOC credit him with time served of three years and
eight months in accordance with the third VOP re-sentencing order. DOC denied
the request, responding that time spent in custody after sentencing is applied
towards satisfaction of the sentence being served and that awarding the same
period as a credit would constitute the application of a duplicate credit.


               Significantly, Allen attached several documents to his petition:
DOC’s letter denying Allen’s request for credit; the sentencing court’s December
15, 2009 re-sentencing order; DOC’s staff response to Allen’s inmate request
advising him he served three years, eight months on his first VOP re-sentence,
page one of a three-page probation revocation court commitment form; and, a
central repository record showing DOC maintained custody of Allen from April
17, 2007 to June 9, 2008. See Pet’r’s Pet. for Review, Exs. A-E. Allen also
attached part of the transcript from his Post-Conviction Relief Act4 (PCRA)
hearing to his answer to DOC’s preliminary objection as well as his brief. See
Pet’r’s Answer, Ex. B; Pet’r’s Br., Ex. B.


               Claiming DOC disregarded the sentencing court’s order, Allen seeks
an order from this Court directing DOC to credit his third VOP re-sentence with
the time served of three years and eight months. Allen argues that if DOC does not
credit time served, his third VOP sentence exceeds the 10-year statutory maximum
for the underlying second degree felony charge, which is illegal.




      4
          42 Pa. C.S. §§9541-9546.


                                          4
             In response, DOC filed a preliminary objection in the nature of a
demurrer to the petition, and an answer to the application. DOC asserts Allen does
not have a clear right to relief because it is not clear whether the underlying
criminal conviction carries a maximum of 10 or 15 years as cocaine is a schedule II
narcotic. Allen is not entitled to credit for time served if the aggregated sentences
do not exceed the statutory maximum. Additionally, DOC contends it does not
have a duty to credit time served.       Finally, DOC objects because alternative
remedies are available to Allen.


                                   II. Discussion
             In ruling on an application for summary relief, the court must view the
evidence of record in the light most favorable to the non-moving party and enter
judgment only if there are no genuine issues as to any material facts and the right
to judgment is clear as a matter of law. McSpadden v. Dep’t of Corr., 886 A.2d
321 (Pa. Cmwlth. 2005).


             In considering a demurrer, we accept as true all well-pled material
allegations in the petition, as well as all inferences reasonably deducible therefrom.
Aviles v. Dep’t of Corr., 875 A.2d 1209 (Pa. Cmwlth. 2005).                However,
conclusions of law and unjustified inferences are not so admitted. Griffin v. Dep’t
of Corr., 862 A.2d 152 (Pa. Cmwlth. 2004).


             In addition, courts reviewing preliminary objections may not only
consider the facts pled in the complaint, but also any documents or exhibits
attached to it. Lawrence v. Dep’t of Corr., 941 A.2d 70 (Pa. Cmwlth. 2007). It is
not necessary to accept as true any averments in the complaint that conflict with

                                          5
exhibits attached to it. Id. 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.               Kretchmar v.
Commonwealth, 831 A.2d 793 (Pa. Cmwlth. 2003).


              A proceeding in mandamus is an extraordinary remedy at common
law, designed to compel the performance of a ministerial act or mandatory duty.
McCray v. Dep’t of Corr., 872 A.2d 1127 (Pa. 2005); Detar v. Beard, 898 A.2d 26
(Pa. Cmwlth. 2006). “The purpose of mandamus is not to establish legal rights,
but to enforce those rights already established beyond peradventure.” Detar, 898
A.2d at 29.      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 defendant possesses a corresponding duty to
perform the act; and, (3) the petitioner possesses no other adequate or appropriate
remedy. Id. Mandamus can only be used to compel performance of a ministerial
duty and will not be granted in doubtful cases. Id.


              Notwithstanding, 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. Black v. Dep’t
of Corr., 889 A.2d 672 (Pa. Cmwlth. 2005). However, mandamus is not available
to challenge DOC’s failure to give credit where the sentencing order is either
ambiguous or does not specify the credit at issue. See McCray; Black; Aviles. In
addition, mandamus is not an appropriate remedy to cure an illegal sentencing
order. Aviles.

                                         6
               With these principles in mind, we examine DOC’s demurrer and
Allen’s petition and application.


                               A. Clear Right to Relief
               Allen contends he has a clear right to relief based on the express terms
of the sentencing order. The sentencing court directed DOC to credit Allen with
time previously served against his third VOP re-sentence. DOC refused to apply
this credit.    Without credit, Allen claims his combined sentence exceeds the
statutory maximum, which is illegal. McCray (total confinement cannot exceed
the legal maximum established for the crime); accord Commonwealth v. Williams,
662 A.2d 658 (Pa. Super. 1995) (credit for time previously served in prison
required where the failure to accord time credit would result in illegal aggregate
sentence exceeding statutory maximum).


               DOC objects, claiming Allen’s right to relief is not clear.       DOC
contends Allen’s challenge goes to the legality of the sentencing court’s order, not
its computation. DOC did not credit time served towards Allen’s third VOP re-
sentence because it applied this time towards satisfaction of the first VOP re-
sentence. See Pet’r’s Pet. for Review, Ex. A (DOC Ltr., 12/9/13, at 1). DOC
asserts it is not required to credit time served where the aggregated sentences do
not exceed the maximum term. In other words, it is DOC’s position that there can
be no credit for time served unless the aggregated sentences exceed the statutory
maximum.




                                           7
               According to DOC, the underlying crime of possession with intent to
deliver carries a maximum term of 15 years, not 10.5 Consequently, the third VOP
re-sentence, without credit, does not exceed the statutory maximum and is legal.
Thus, DOC claims, Allen is not entitled to credit for time served.




       5
          According to DOC, possession with intent to deliver is an ungraded felony. Pursuant to
Section 13(f)(1) of the Drug Act, a person who violates subsection (a)(30) with respect to “[a]
controlled substance ... classified in [s]chedule I or II which is a narcotic drug, is guilty of a
felony and upon conviction thereof shall be sentenced to imprisonment not exceeding fifteen
years ....” 35 P.S. §780-113(f)(1) (emphasis added) (footnote omitted). Section 4(2)(i)(4) of the
Drug Act, 35 P.S. §780-104(2)(i)(4), provides “[c]oca leaves and any salt, compound, derivative,
or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is
chemically equivalent or identical with any of these substances ...” are classified as schedule II
narcotics.      Upon conviction, the penalty is a prison term not exceeding 15 years. See
Commonwealth v. $673 Cash, 2011 WL 10844931 (Pa. Cmwlth., No. 1045 C.D. 2010, filed
February 1, 2011) (unreported); Diaz v. Pa. Bd. of Prob. & Parole, 2008 WL 9406354 (Pa.
Cmwlth., No. 346 C.D. 2010, filed October 12, 2010) (unreported).
        However, Section 13(f)(1.1) of the Drug Act provides a person who violates subsection
(a)(30) with respect to “coca leaves and any salt, compound, derivative or preparation of coca
leaves ... is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not
exceeding ten years ....” 35 P.S. §780-113(f)(1.1) (emphasis added); see Commonwealth v.
Whitmore, 912 A.2d 827 (Pa. 2006) (classifying possession with the intent to deliver or delivery
of cocaine as felony punishable by a maximum term of 10 years’ imprisonment);
Commonwealth v. Wallace, 870 A.2d 838 (Pa. 2005) (same); Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073 (Pa. Cmwlth. 2013) (same); Commonwealth v. Crump, 995 A.2d 1280 (Pa.
Super. 2010) (same). Further, according to the Basic Sentencing Matrix available at 204 Pa.
Code §303.16(a), possession with intent to deliver between two and five grams of cocaine is
considered a second degree felony. Allen was convicted of possession with intent to deliver 4.5
grams of crack cocaine. Section 1103(2) of the Crimes Code provides “[i]n the case of a felony
of the second degree, for a term which shall be fixed by the court at not more than ten years.”
18 Pa. C.S. §1103(2) (emphasis added).
        Resolution of this legal issue requires additional information, such as the transcript from
the 2009 third VOP re-sentencing and documents relating to the 2003 conviction and original
sentence, which we do not have. Moreover, resolution of the issue implicates the legality of the
2009 re-sentencing, which is the type of issue that the sentencing court or the Superior Court on
appeal usually resolves, not this Court in a mandamus proceeding. See McCray; Williams.


                                                8
            DOC’s characterization that Allen challenges the legality of his
sentence is inaccurate. Allen’s real allegation of error is that DOC did not follow
the sentencing court's order, which specifically awarded credit for time served.
Allen seeks mandamus to compel DOC to implement the sentencing order by
awarding credit for time served. He is not challenging the propriety of his sentence
in his mandamus action.


            Mandamus is an appropriate remedy, even when the VOP sentence
does not exceed the maximum, if the sentencing order clearly gives credit.
Oakman v. Dep’t of Corr., 893 A.2d 834 (Pa. Cmwlth. 2006) (Oakman I); Black.
This Court granted mandamus relief where the sentencing court awarded the
inmate specific credit for time served, but DOC did not apply the credit, even
though the VOP sentence did not exceed the maximum. See, e.g., Oakman v.
Dep’t of Corr., 903 A.2d 106 (Pa. Cmwlth. 2006) (Oakman II); McSpadden; cf.
Hoyt v. Pa. Dept. of Corr., 79 A.3d 741 (Pa. Cmwlth. 2013) (mandamus petition
dismissed where sentencing order did not order credit for time served).


            Regardless of whether the statutory maximum term is 10 or 15 years
or whether the aggregated sentences without credit exceed the statutory maximum,
the critical query in a mandamus action is what did the sentencing court actually
intend. See Black. “A sentence ... is to be construed so as to give effect to the
intention of the sentencing judge.” Commonwealth, ex rel. Powell v. Dep’t of
Corr., 14 A.3d 912, 915 (Pa. Cmwlth. 2011) (quoting Com. v. Green, 335 A.2d
392, 393 (Pa. Super. 1975)). The text of the sentencing order is determinative of
the court's sentencing intentions and the sentence imposed. Commonwealth v.
Borrin, 80 A.3d 1219 (Pa. 2013).

                                         9
              Here, the sentencing court sentenced Allen to 59 to 119 months’
incarceration. Notably, the sentencing court awarded credit as a condition of
sentencing. Specifically, the court ordered “credit for any time previously served
on this matter as determined by prisons.” Pet’r’s Pet. for Review, Ex. B (emphasis
added). Thus, the sentencing order expressly and unambiguously awarded credit,
triggering DOC’s duty.6


              According to DOC’s staff response to inmate request, Allen served
approximately three years and eight months on his first VOP re-sentence. Pet’r’s
Pet. for Review, Ex. C (DOC Staff Resp. to Inmate Req., 5/29/13). DOC does not
dispute the amount of time served or that this time relates to the original offense.


              The sentencing court clearly intended that Allen serve 59 to 119
months less any time previously served on sentences relating to the original
conviction. DOC did not credit Allen’s sentence with time served in contravention

       6
          Allen attached part of the transcript from his PCRA hearing to his answer to the
preliminary objection. See Pet’r’s Answer, Ex. B. According to the transcript, the sentencing
court stated:

              You have raised the issue all along the line that my sentence was
              illegal. My sentence was never illegal. The maximum sentence
              for Possessing With Intent to Deliver Cocaine is five to ten years.
              I never gave you anything more than that. I gave you a sentence
              that was close to that, but I said you should get credit for any time
              that you deserved from my sentence. That makes your sentence
              legal. I have no control over what the Prison is saying as to how
              much time you have served.

Id. Notwithstanding, we restricted our review to the sentencing order. See Commonwealth v.
Borrin, 80 A.3d 1219 (Pa. 2013); Commonwealth, ex rel. Powell v. Pa. Dept. of Corr., 14 A.3d
912 (Pa. Cmwlth. 2011). The clear language of the sentencing order supports our decision.


                                              10
of the sentencing court’s order. Therefore, Allen is entitled to the credit he seeks.
See Oakman II; Oakman I; McSpadden.


                              B. Corresponding Duty
             Next, DOC objects on the grounds it does not have a corresponding
duty to credit time served. DOC contends it maintains custody of Allen pursuant
to the 59 to 119 months sentence, which is not patently illegal. DOC asserts it is
faithfully implementing the sentencing court’s order.


             While mandamus is an extraordinary writ, it can be used to compel
DOC to honor particular sentencing orders or to compute a prisoner's sentence
properly. Saunders v. Dep’t of Corr., 749 A.2d 553 (Pa. Cmwlth. 2000). The law
is clear that DOC is “an executive branch agency that is charged with faithfully
implementing sentences imposed by the courts.”          McCray, 872 A.2d at 1133.
Where a sentencing court clearly gives credit against the VOP sentence for time
served, it is DOC’s duty to carry out that sentencing order. Oakman I; Black;
McSpadden. DOC is bound to follow a trial court's order granting an inmate credit
for time served. Oakman II.


             Here, the sentencing court specifically directed DOC to credit Allen’s
sentence with “any time previously served on this matter.” Pet’r’s Pet. for Review,
Ex. B. The sentencing order triggered DOC’s duty to credit Allen’s sentence
accordingly. See McCray; Oakman II; Black; McSpadden. By refusing to credit
time served, DOC did not comply with the sentencing court’s order. As it is
DOC’s duty to faithfully implement the sentencing court’s order, we overrule
DOC’s preliminary objection.

                                         11
                               C. Alternate Remedy
             Finally, DOC argues mandamus is not appropriate as other adequate
or appropriate remedies are available to Allen. DOC maintains Allen’s challenge
goes to the legality of the sentencing court’s order, not its computation.


             A challenge to the legality of a sentence is properly raised before the
sentencing court or on direct appeal to the Superior Court.         McCray; Aviles;
Williams. More particularly, an inmate may raise such a challenge by way of an
objection at the sentencing hearing, on post-sentence motions, on direct appeal to
the Superior Court, or by way of a petition under the PCRA. Aviles. The PCRA
specifically “provides for an action by which ... persons serving illegal sentences
may obtain collateral relief.” Section 9542 of the PCRA, 42 Pa. C.S. §9542.


             However, “the PCRA contemplates only challenges to the propriety of
a conviction or a sentence.” Commonwealth v. Masker, 34 A.3d 841, 843 (Pa.
Super. 2011) (en banc). A challenge to DOC’s computation or construction of a
sentence is not a cognizable claim under the PCRA. Commonwealth v. Owens,
936 A.2d 1090 (Pa. Super. 2007); Commonwealth v. Perry, 563 A.2d 511 (Pa.
Super. 1989).    Rather, if the alleged error is the result of DOC’s erroneous
computation, then the appropriate mechanism for redress is an original action in
this Court challenging DOC’s computation. Oakman I; Perry.


             Contrary to DOC’s assertions, Allen is not challenging the legality of
his third VOP re-sentence. Rather, Allen is challenging DOC’s computation of
time based on the sentencing court’s order. The sentencing court directed credit
for “any time previously served on this matter” as determined by DOC. Pet’r’s

                                          12
Pet. for Review, Ex. B. It is DOC’s refusal to credit time served on this matter, not
the sentence at issue.


               Moreover, according to Allen’s answer, he filed a PCRA action,
which the sentencing court denied.7 Pet’r’s Answer, ¶¶16-19; id., Ex. B (PCRA
Hr’g, Notes of Testimony, 8/22/13).            The sentencing court advised, “if you
disagree with what the Prison has calculated, then that is something that should be
filed in Commonwealth Court.” Pet’r’s Answer, Ex. B (emphasis added). Thus,
we reject DOC’s contention that other adequate or appropriate remedies are
available to Allen to compel the proper calculation of time served. We overrule
DOC’s preliminary objection.


                                      III. Conclusion
               Having accepted as true all well-pled material allegations in the
petition, as well as all inferences reasonably deducible therefrom, Allen
established:    a clear right to relief to receive credit for time served, DOC’s
corresponding duty to apply credit to his third VOP re-sentence, and the lack of
other adequate or appropriate remedies. Thus, we overrule DOC’s demurrer.


               Because there are no genuine issues as to any material facts and the
right to judgment is clear as a matter of law, we grant Allen’s application. Allen
took a lenient house arrest sentence and by his post-sentencing conduct
transformed it into a five to ten year state prison sentence. Nevertheless, since the


       7
        Allen filed an appeal of the denial of his PCRA claim with the Superior Court, which is
pending. See Commonwealth v. Allen (Pa. Super., No. 2528 EDA 2013).


                                              13
sentencing court’s intention is explicit, we direct DOC to credit Allen’s third VOP
re-sentence with time served of three years and eight months.




                                      ROBERT SIMPSON, Judge




                                        14
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd Allen,                              :
                         Petitioner      :
                                         :
              v.                         :   No. 187 M.D. 2014
                                         :
Commonwealth of Pennsylvania,            :
Department of Corrections,               :
                        Respondent       :


                                      ORDER

              AND NOW, this 27th day of August, 2014, Respondent’s preliminary
objection in the nature of a demurrer is OVERRULED. Petitioner’s application
for summary relief is GRANTED.           Respondent is hereby ordered to credit
Petitioner’s sentence with time served of three years and eight months.




                                       ROBERT SIMPSON, Judge
