            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dayeshon Barnes,                            :
                               Petitioner   :
                                            :
                     v.                     :   No. 41 M.D. 2017
                                            :   Submitted: July 21, 2017
Commonwealth of Pennsylvania,               :
Department of Corrections,                  :
                        Respondent          :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                            FILED: August 28, 2017


       Before this Court for disposition in our original jurisdiction is the
preliminary objection (PO) in the nature of a demurrer of the Commonwealth of
Pennsylvania, Department of Corrections (DOC) to the petition for review in the
nature of a writ of mandamus (Petition) filed by Dayeshon Barnes (Barnes).
Barnes, an inmate at the State Correctional Institution at Waymart, petitions this
Court to order DOC to award him credit for time served while on pretrial detention
in a juvenile facility. For the reasons that follow, we will overrule DOC’s PO in
part and sustain it in part.
       On September 18, 2013, Barnes was committed to Woods Services, a
juvenile facility, on various charges under docket number CP-23-JV-0001128-
2013 (JV 1128-13). (Petition ¶ 2; Barnes’ Br., Ex. B.1) Barnes was in the custody
of Woods Services until May 13, 2014, when he went absent without official leave
(AWOL). (Petition ¶ 3.) On July 11, 2014, Barnes was arrested and charged with
violating Sections 6105 and 6106 of the Pennsylvania Uniform Firearms Act of
1995 (Firearms Act), 18 Pa. C.S. §§ 6105 (Persons not to possess, use,
manufacture, control, sell or transfer firearms), 6106 (Firearms not to be carried
without a license), under docket number CP-23-CR-0004793-14 (4793-14).
(Petition ¶ 4; Barnes’ Br. at 1.) On September 8, 2016, Barnes’ juvenile matter
was transferred to the Criminal Division of the Court of Common Pleas of
Delaware County (common pleas) for prosecution and given docket number CP-
23-CR-0005753-16 (5753-16).              (Petition ¶¶ 5-6; Barnes’ Br., Ex. B.)                 On
November 17, 2016, Barnes pleaded guilty to violating Sections 6105 and 6106 of
the Firearms Act under docket number 5753-16. (Petition ¶ 6; Barnes’ Br., Ex. C.)
Common pleas sentenced Barnes on the same day, imposing 4 to 10 years of
imprisonment on the first count, violation of Section 6105, with “credit for time
served.” (Petition ¶ 7; Barnes’ Br., Ex. C.) Common pleas imposed a seven-year


       1
          Barnes attached to his brief opposing DOC’s PO, a September 16, 2016 order of
juvenile court transferring JV 1128-13 to the Criminal Division of the Court of Common Pleas of
Delaware County (common pleas) (Exhibit B), and a November 17, 2016 common pleas’
Certificate of Imposition of Judgment of Sentence in docket number CP-23-CR-0005753-16
(Exhibit C). This Court may take judicial notice of official court records and public documents
at the preliminary objection stage. See, e.g., Pa. R.E. 201(b)(2); see Doxsey v. Commonwealth,
674 A.2d 1173, 1174 (Pa. Cmwlth. 1996) (taking judicial notice of copies of official criminal
court records, which respondent had attached to its preliminary objection); see also Williams v.
Dep’t of Corr. (Pa. Cmwlth., No. 448 M.D. 2013, filed Feb. 17, 2016), slip op. at 6 n.11 (noting
that while petitioner did not append trial court’s judgment of sentence to his petition for review,
this Court would take judicial notice of it from the docket entries of his direct appeal to Superior
Court); Styers v. Bedford Grange Mut. Ins. Co., 900 A.2d 895, 899 (Pa. Super. 2006) (stating
that a court may take judicial notice of a fact “which is incorporated into the complaint by
reference to a prior court action”) (citation omitted).


                                                 2
term of probation for the other count, violation of Section 6106, to be served
consecutively to the term of imprisonment imposed.                   (Id.)    The term of
imprisonment imposed under docket number 5753-16 was to run “concurrent” to
the term of imprisonment imposed under docket number 4793-14.2 (Id.)
       On February 1, 2017, Barnes filed the Petition, alleging that he is entitled to
a credit of 1,098 days spent in custody.3 Barnes asserted that he spent 238 days in
custody from September 18, 2013, when he was first committed to Woods
Services, until May 13, 2014, when he went AWOL. Barnes also asserted that he
spent 860 days in custody from the time he was arrested for the charges under
docket number 4793-14 until the time he was sentenced on November 17, 2016.
       DOC filed a PO in the nature of a demurrer, asserting that Barnes is seeking
a double credit by attempting to have the 238 days he spent in Woods Services
applied against his sentence under docket number 4793-14.4 DOC also asserts that
the time Barnes spent in Woods Services is unrelated to his sentence under docket
number 4793-14, and, therefore, it would be illegal to apply a credit for this time
against his sentence under docket number 4793-14. Further, DOC argues that,
according to its records, Barnes is receiving credit for the 860 days he spent in
custody while awaiting sentencing under docket number 4793-14, which was
appropriate. (PO ¶¶ 24-25.) Accordingly, DOC asserts that its PO should be
granted and Barnes’ Petition should be dismissed with prejudice.


       2
         Barnes does not specify the charge to which he pleaded guilty or the length of the
sentence imposed under docket number 4793-14. Based on the allegations in Barnes’ Petition, it
appears he was sentenced under docket number 4793-14 on November 17, 2016, the same day he
was sentenced under docket number 5753-16.
       3
         Barnes referred to his Petition as “Motion for Credit for Time Served.”
       4
         DOC also raised a preliminary objection based on lack of proper service, which this
Court denied by order dated March 22, 2017.


                                              3
      In ruling on preliminary objections in the nature of a demurrer, we must
admit all well-pleaded material facts and any inferences reasonably deduced
therefrom. Danysh v. Dep’t of Corr., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004).
Preliminary objections may be sustained only when the case is clear and free from
doubt and “only where it appears with certainty that the law permits no recovery
under the allegations pleaded.” Sweatt v. Dep’t of Corr., 769 A.2d 574, 577 (Pa.
Cmwlth. 2001).     “Where a doubt exists as to whether a demurrer should be
sustained, this doubt should be resolved in favor of overruling it.” Vattimo v.
Lower Bucks Hosp., Inc., 465 A.2d 1231, 1232-33 (Pa. 1983) (citation omitted).
      Barnes answered DOC’s PO, admitting that he is currently receiving credit
for the 860 days he spent in custody prior to his being sentenced under docket
number 4793-14 and that this is appropriate. (Answer ¶¶ 24-25.) We, therefore,
sustain DOC’s PO to the extent the Petition seeks a credit of 860 days. However,
Barnes argues that he is not seeking double credit for the 238 days he spent in
custody at Woods Services because these 238 days apply to his sentence under a
different docket number, docket number 5753-16. (Barnes’ Br. at 3.)
      “[M]andamus is an extraordinary writ of common law, designed to compel
performance of a ministerial act or mandatory duty where there exists a clear legal
right in the plaintiff, a corresponding duty in the defendant, and want of any other
adequate and appropriate remedy.” Bronson v. Bd. of Prob. and Parole, 421 A.2d
1021, 1023 (Pa. 1980). “A writ of mandamus will lie to compel [DOC] to properly
compute a prison sentence.” Bright v. Pa. Bd. of Prob. and Parole, 831 A.2d 775,
777-78 (Pa. Cmwlth. 2003).
      Section 9760 of the Sentencing Code governs credit for time served. 42 Pa.
C.S. § 9760. The relevant portion of Section 9760 provides as follows:



                                         4
      After reviewing the information submitted under section 9737
      (relating to report of outstanding charges and sentences) the court
      shall give credit as follows:

      (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.

                                         ***

      (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 against the maximum term and any minimum
          term of any sentence resulting from such prosecution shall be
          given for all time spent in custody under the former charge that
          has not been credited against another sentence.

42 Pa. C.S. § 9760(1), (4). Section 9760(1) authorizes credit for time spent in
custody prior to sentencing for the specific charge or conduct for which a sentence
is imposed. Section 9760(4) permits a credit “if, on the date of the defendant’s
arrest on charges for which he is being sentenced, he was already incarcerated for
unrelated charges for which he was not given credit on any other sentence.”
Commonwealth v. Miller, 655 A.2d 1000, 1003 (Pa. Super. 1995).
      DOC’s position is that Barnes is seeking a credit of 238 days for time he
spent at Woods Services, a juvenile facility, against the sentence imposed under
docket number 4793-14.        If Barnes were seeking this relief, it would be
inappropriate because he would be receiving a credit for a “‘completely unrelated
crime.’” Bright, 831 A.2d at 779 (quoting Commonwealth v. Merigris, 681 A.2d
194, 195 (Pa. Super. 1996)); see Miller, 655 A.2d at 1002 (stating that “‘credit for



                                         5
any days spent in custody prior to the imposition of sentence’” shall be given “‘but
only if such commitment is on the offense for which sentence is imposed,’” and
that “‘[c]redit is not given . . . for a commitment by reason of a separate and
distinct offense’”) (quoting Commonwealth ex rel. Bleecher v. Rundle, 217 A.2d
772, 774 (Pa. Super. 1966)). However, it does not appear that Barnes is seeking a
credit of 238 days against his sentence under docket number 4793-14. Rather, as
per his Petition, and clarified in his brief and attached to common pleas’ Certificate
of Imposition of Judgment of Sentence, he seeks a credit of 238 days for the time
spent in Woods Services against the sentence imposed under docket number 5753-
16. Docket number 5753-16 was originally the juvenile matter, identified as JV
1128-13, but became docket number 5753-16 once the juvenile court transferred
the matter to common pleas for prosecution. Thus, at this early stage, it is not clear
and free from doubt that Barnes is asking for an unlawful credit or double credit as
asserted in DOC’s PO. Accordingly, to the extent Barnes seeks a credit of 860
days, DOC’s PO in the nature of demurrer is sustained, but DOC’s PO to Barnes’
request for a credit of 238 days to be applied against the sentence at docket number
5753-16 is overruled.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                          6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dayeshon Barnes,                          :
                         Petitioner       :
                                          :
                   v.                     :   No. 41 M.D. 2017
                                          :
Commonwealth of Pennsylvania,             :
Department of Corrections,                :
                        Respondent        :


                                      ORDER


      NOW, August 28, 2017, the Preliminary Objection (PO) of the
Commonwealth of Pennsylvania, Department of Corrections (DOC) to the Petition
for Review (Petition) is hereby sustained, in part, and overruled, in part. DOC’s
PO is OVERRULED to the extent Barnes seeks a credit of 238 days to be applied
against his sentence at docket number 5753-16. The PO is SUSTAINED to the
extent Barnes seeks a credit of 860 days. DOC shall file an answer to the Petition
within 30 days of this Court’s Order.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
