         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darnell Newsome,                        :
                         Petitioner     :
                                        :
               v.                       :
                                        :
Pennsylvania Dept. of Correction and    :
Diane Yale, Record Supervisor           :
SCI-Dallas,                             : No. 258 M.D. 2016
                         Respondents    : Submitted: December 9, 2016


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                            FILED: January 5, 2017


             Before this Court in our original jurisdiction is the preliminary
objection in the nature of a demurrer of the Pennsylvania Department of
Corrections (Department) and Diane Yale, Record Supervisor (together,
Respondents) to the pro se petition for review (Petition) filed by Darnell Newsome
(Newsome) seeking a writ of mandamus compelling the Department to recalculate
his prison sentence. For the reasons that follow, the preliminary objection is
overruled.


             Newsome is an inmate currently incarcerated at the State Correctional
Institution at Dallas (SCI-Dallas). Newsome was found guilty of multiple criminal
offenses in the Philadelphia County Court of Common Pleas (trial court), including
simple assault, endangering the welfare of children, two counts of recklessly
endangering another person and various firearms/weapons charges. On October 6,
2011, the trial court sentenced Newsome, in pertinent part, as follows: 3 years 6
months to 7 years on Count 2, firearms not to be carried without a license; 5 to 10
years on Count 4, possession of a firearm prohibited; and 1 to 2 years on Count 7,
simple assault.


              Following his transfer to SCI-Dallas on October 13, 2011, the
Department computed Newsome’s sentence and issued a form DC 16E – Sentence
Status Summary indicating that his minimum release date is February 27, 2020,
and his maximum release date is August 27, 2029. (Exhibit B to Newsome’s
Brief.) This computation reflects the Department’s interpretation that Newsome’s
sentence on Counts 2, 4 and 7 are to run consecutively to each other, resulting in
an aggregate sentence of 9 years 6 months to 19 years’ incarceration.


              In April 2016, Newsome filed this mandamus Petition1 alleging that
the Department erroneously calculated his minimum and maximum dates on its DC


       1
          Mandamus is an extraordinary action and is available “to compel the performance of a
mandatory duty or a ministerial act only where: (1) the petitioner has a clear legal right to
enforce the performance of the act, (2) the defendant has a corresponding duty to perform the act
and (3) the petitioner has no other adequate or appropriate remedy.” Saunders v. Department of
Corrections, 749 A.2d 553, 556 (Pa. Cmwlth. 2000). This Court has held that because a
sentence imposed by a trial court involves no discretion on the part of the Department,
mandamus may be used to compel the Department to compute a prisoner’s sentence properly.
Id.; see also Powell v. Pennsylvania Department of Corrections, 14 A.3d 912, 915 (Pa. Cmwlth.
2011).




                                               2
16E form. According to Newsome’s Petition, his original incarceration date was
October 12, 2010, but the Department failed to award him credit for the year of
time he served from his original incarceration until his sentencing on October 6,
2011. Newsome also avers that during sentencing, the trial court judge specified
that all sentences were to run concurrent for a total aggregate sentence of 7 to 14
years rather than the 9 years 6 months to 19 years that the Department calculated.
Newsome seeks an order from this Court directing the Department “to conduct an
accurate reflection of [his] time credit to show that the controlling minimum date is
on or about 10-12-2017, and the [] controlling maximum date to be on or about 10-
12-2024.” (Newsome’s Brief at 5.)


               In support of his allegations, Newsome attached to his Petition
excerpts from the transcript of his October 6, 2011 sentencing hearing; the
Department’s DC 16E form dated November 23, 2011, calculating Newsome’s
minimum and maximum release dates; and one page from Newsome’s summary
docket sheet in the trial court.           While the Petition repeatedly avers that the
sentencing order specifies Newsome was sentenced to a period of incarceration of
7 to 14 years and that this sentencing order is binding on the Department, Powell v.
Department of Corrections, 14 A.3d 912 (Pa. Cmwlth. 2011), Newsome did not
attach a copy of the sentencing order to his Petition.


               The Department filed a preliminary objection in the nature of a
demurrer2 alleging that the documents attached to Newsome’s Petition show that

       2
          In reviewing preliminary objections in the nature of a demurrer, “[a]ll well-pled facts in
the [petition], and reasonable inferences arising from those facts, are accepted as true. However,
(Footnote continued on next page…)

                                                 3
his sentence has been calculated correctly. The Department points to Newsome’s
criminal docket and the trial court’s 300B court commitment forms 3 that state that
Counts 2, 4 and 7 are to run consecutively, resulting in an aggregate sentence of 9
years 6 months to 19 years which the Department used in calculating his minimum
and maximum dates. Moreover, the Department asserts that Newsome was not
entitled to any credit against that sentence because the transcript from his
sentencing hearing is silent on the issue of credit, and Newsome’s docket sheet and
the 300B court commitment forms do not provide for credit for time served.
Because the documents that Newsome attached to his petition for review show that
his sentence was properly calculated, the Department asserts that Newsome is not
entitled to mandamus relief.


              It is well established that the Department “is charged with faithfully
implementing sentences imposed by the courts. As part of the executive branch,
the Department lacks the power to adjudicate the legality of a sentence or to add or
delete sentencing conditions.”             McCray v. Pennsylvania Department of

(continued…)

unwarranted inferences, conclusions of law, argumentative allegations or expressions of opinion
need not be accepted.” Richardson v. Wetzel, 74 A.3d 353, 356 (Pa. Cmwlth. 2013) (quoting
Wilson v. Marrow, 917 A.2d 357, 361 n.3 (Pa. Cmwlth. 2007)).

       3
         Ordinarily, a demurrer is limited to the facts readily ascertainable in the petition and
cannot aver additional facts. See Barndt v. Department of Corrections, 902 A.2d 589, 591 n.2
(Pa. Cmwlth. 2006). However, the Court may take judicial notice of official court records and
public documents in a connected case. See, e.g., Pa.R.E. 201(b)(2); Germantown Cab Company
v. Philadelphia Parking Authority, 27 A.3d 280, 283 n.8 (Pa. Cmwlth. 2011); Doxsey v.
Commonwealth, 674 A.2d 1173, 1174 (Pa. Cmwlth. 2004). Therefore, we may consider the
documents attached to the Department’s preliminary objection in this matter.




                                               4
Corrections, 872 A.2d 1127, 1133 (Pa. 2005). “Furthermore, ‘[t]he only sentence
known to the law is the sentence or judgment entered upon the records of the
court.’” Powell v. Department of Corrections, 14 A.3d 912, 916 (Pa. Cmwlth.
2011) (quoting Commonwealth ex rel. Woods v. Howard, 378 A.2d 370, 372 (Pa.
Super. 1977)). When calculating an inmate’s sentence, the Department must rely
on the sentencing orders and court commitment forms that it receives from the trial
court.


            While he failed to attach the trial court’s sentencing order to his
Petition, Newsome instead refers to an excerpt from the transcript of his sentencing
hearing where the trial court judge explained that some charges were to be
consecutive and others concurrent, and that “the total sentence is, seven to 14
years. . . .” (Exhibit A to Petition at 3.) Both Newsome’s criminal docket and the
trial court’s 300B court commitment forms clearly state that Count 2 is to run
consecutive to Count 7, and Count 7 is to run consecutive to Count 4. “The courts
of Pennsylvania have consistently maintained that oral statements made by the
judge in passing sentence, but not incorporated in the written judgment signed by
him, are no part of the judgment of sentence.” Joseph v. Glunt, 96 A.3d 365, 371
(Pa. Super. 2014) (citing Commonwealth v. Hodge, 369 A.2d 815, 820 (Pa. Super.
1977); Commonwealth v. Foster, 324 A.2d 538, 539 (Pa. Super. 1974)). Absent a
contrary sentencing order, the Department is bound to follow these documents
from the trial court and they support the Department’s position that the trial court
imposed a total aggregate sentence of 9 years 6 months to 19 years’ incarceration.




                                         5
            Regarding Newsome’s claim that he is entitled to credit for time
served, the excerpts from the sentencing hearing provided to this Court are silent
on the issue of credit. The 300B commitment forms and docket sheets do not
provide for credit. To the contrary, the 300B commitment forms contain a block
titled “CREDIT FOR TIME SERVED,” and this block for each of Newsome’s
offenses states “0 Days.”     (Exhibit A to Preliminary Objection.)       Like the
inconsistency between the trial transcript and the criminal docket sheet and the 300
B court commitment forms, there is an inconsistency here regarding credit.


            Newsome’s criminal docket sheets state that on January 7, 2011, he
was found in contempt of court and was sentenced to a period of incarceration of 2
months 14 days to 5 months 29 days.          (Exhibit D to Respondents’ Brief.)
Newsome was paroled from his contempt sentence effective May 1, 2011. (Id.)
Respondents state that Newsome was given credit for the period of time he was
incarcerated outside of his contempt conviction because his DC 16E form reflects
that he was awarded credit for time served from October 13, 2010, to January 6,
2011, and from May 2, 2011, to October 6, 2011. Respondents also state that
“Newsome’s min/max dates were computed taking into consideration credit for
time served prior to sentence.” (Respondents’ Brief at 10.)


            Given those inconsistencies, it is not clear from the pleadings and the
public documents that the Department properly computed Newsome’s sentence.
The trial transcript supports Newsome’s claim that he received a 7 to 14 year
sentence, but the criminal docket and the 300B court commitment form states the
sentences are to run consecutively, resulting in a 9 year 6 months to 19 year



                                         6
sentence. That form also states that Newsome is to receive “0” days credit while
the DC 16E form states that he did get credit for some of the presentence
confinement time. From these documents, we are unable to determine whether the
Department’s calculation includes the time that it admits should be credited.


               While we may take judicial notice of official court records and public
documents in a connected case in granting a demurrer, it is also well established
that a demurrer “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 v. Pennsylvania Department of
Corrections, 16 A.3d 1173, 1176 n.2 (Pa. Cmwlth. 2010). Newsome repeatedly
alleges that the sentencing order supports his allegation that he was given a 7 to 14
year sentence.      All doubts must be resolved against sustaining the demurrer.
Bundy v. Beard, 924 A.2d 723, 725 n.2 (Pa. Cmwlth.), aff’d, 941 A.2d 646 (Pa.
2007), cert. denied, 553 U.S. 1098 (2008).                   Accordingly, because of the
inconsistencies in the documents, we will overrule the Department’s preliminary
objection.4



                                             ___________________________________
                                             DAN PELLEGRINI, Senior Judge

       4
          The Department also contends that Newsome has an alternative remedy available
through the Post Conviction Relief Act, 42 Pa. C.S. § 9541-9546 to clarify any discrepancy in
the sentencing orders and the 300B commitment forms and public docket. What Newsome is
contending, though, is that the sentencing order itself states that his sentences were to run
concurrently for a total aggregate sentence of 7 to 14 years rather than the 9 years 6 months to 19
years that the Department calculated. Until the sentencing order is provided, we cannot grant the
Department’s demurrer.



                                                7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darnell Newsome,                         :
                        Petitioner       :
                                         :
              v.                         :
                                         :
Pennsylvania Dept. of Correction and     :
Diane Yale, Record Supervisor            :
SCI-Dallas,                              :
                         Respondents     : No. 258 M.D. 2016




                                     ORDER


            AND NOW, this 5th day of January, 2017, the preliminary objection
filed by Respondents Department of Corrections and Diane Yale is overruled.



                                       ___________________________________
                                       DAN PELLEGRINI, Senior Judge
