                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darius Foxe,                                  :
                             Petitioner       :
                                              :
                     v.                       :
                                              :
PA. Dept. of Corrections,                     :    No. 214 M.D. 2018
                             Respondent       :    Submitted: February 15, 2019


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY
JUDGE COVEY                                        FILED: July 9, 2019

              Before this Court are the Pennsylvania Department of Corrections’
(DOC) preliminary objections in the nature of a demurrer (Preliminary Objections) to
Darius Foxe’s (Foxe) pro se Petition for Writ of Mandamus (Petition) filed in this
Court’s original jurisdiction.


                                          Background
              According to the Petition and the documents attached thereto,1 Foxe is
incarcerated at the State Correctional Institution (SCI) at Frackville. On or about
April 2, 2008, Foxe was arrested for firearms violations (Philadelphia County
Common Pleas Court (trial court) Docket No. CP-51-CR-4341-2009) (First Offense).
See Petition ¶ 6. On April 4, 2008, Foxe was released on bail.2 See Petition ¶ 6.


       1
         “[C]ourts reviewing preliminary objections may not only consider the facts pled in the
complaint, but also any documents or exhibits attached to it.” Allen v. Dep’t of Corr., 103 A.3d
365, 369 (Pa. Cmwlth. 2014).
       2
         “From the moment he posted bail on the [firearms violations] and was released, [Foxe] was
no longer in custody on that charge.” Commonwealth v. Miller, 655 A.2d 1000, 1003 (Pa. Super.
1995).
While free on bail pending disposition of his First Offense, Foxe was arrested on
November 25, 2009, for attempted murder and firearms violations (trial court Docket
No. CP-51-CR-1216-2010) (Second Offense).3 See Petition ¶ 7. Foxe’s bail for the
Second Offense was set on November 26, 2009, which he did not post. See Petition ¶
8. On June 29, 2010, Foxe was convicted on the First Offense and his bail therefor
was revoked. See Petition ¶ 9. On August 12, 2010, the trial court sentenced Foxe on
the First Offense to serve two 1½- to 3-year terms of incarceration to be served
concurrently in an SCI (Original Sentence). See Petition ¶ 9.
              On July 14, 2011, Foxe entered a negotiated guilty plea relative to the
Second Offense and was sentenced on the attempted murder charge to 8 to 18 years
in an SCI plus 2 years of probation, and on the firearms violation 3 to 6 years (New
Sentence). See Petition ¶ 10. Foxe asserts in the Petition that “[t]he [trial court]
unequivocally stated on the record that the sentence [the trial court] imposed for
the [S]econd [O]ffense was to run concurrently with the sentence for the [F]irst
[O]ffense previously imposed by [the trial court] and additionally, [Foxe] was to
receive credit for all time served.” See Petition ¶ 11 (emphasis in original). In
support of this claim, Foxe attached to the Petition the following excerpt from his
guilty plea colloquy:

              THE COURT: [] Foxe, as I’ve intimated, I intend to accept
              the negotiations and I will sentence in accordance
              therewith.
              So, [] Foxe, on [the Second Offense], the Court imposes a
              negotiated sentence as follows: Count 1 [(attempted murder
              charge)], . . . a term of not less than eight years no[r] more
              than eighteen years in a[n SCI]. That’s to be followed by


       3
         DOC misstates in its brief in support of its Preliminary Objections that “Foxe was arrested
and incarcerated on or around November 25, 2009 for charges at [D]ocket [No.] CP-51-CR-004341-
2009 [(First Offense)][.]” DOC Br. at 4. Foxe’s November 25, 2009 arrest was for his Second
Offense.
                                                 2
two years of consecutive reporting probation. You must
pay costs and you must pay fees.
Do you understand that?
[FOXE]: Yes.
THE COURT: On . . . Count 3 [(firearms charge)], . . . the
Court imposes a term of not less than [3½], no more than
[7] years of state incarceration, however, it is to run
concurrent, that is to be served at the same time, as the
sentence served on the charge of attempted murder.
Do you understand that?
[FOXE]: Yes, sir.
THE COURT: Finally, in accordance with the negotiations,
the Court directs that the [New S]entence . . .
is to run concurrent with [Foxe’s Original S]entence . . . .
Do you understand your sentence, sir?
[FOXE]: Yes.
....
THE COURT: [] Foxe, I’m going to ask your attorney to
articulate for you your appellate rights. Please listen.
MS. KULICK: Your Honor, I would just ask that you
state for the record that he [is] entitled to credit for time
served.
THE COURT: Your motion is granted.
MS. KULICK: Thank you.
[] Foxe, you heard the terms of your [New S]entence as
well as the fact that your guilty plea was accepted.
Basically, you’re serving [8] to [18] years plus [2] years
reporting probation in total to run concurrent, which means
at the same time, as the [Original S]entence you are now
serving at SCI Chester.
....

                              3
               Do you understand your sentence and your rights?
               [FOXE]: Yes.
Petition Appendix (Notes of Guilty Plea, July 14, 2011) at 35-37 (emphasis added).
               Foxe represents in the Petition that: “Upon receipt of the DOC DC16E -
Sentence Status Summary report, [Foxe] learned that [] DOC calculate[d] his
controlling minimum date for the [S]econd [O]ffense as July 14, 2019, and the
controlling maximum date as July 14, 2029; this is an error and must be remedied.”
Petition ¶ 4.     Foxe declares that his minimum sentence release date should be
November 26, 2017, and his maximum sentence release date should be November 26,
2027. See Petition at 5. Accordingly, Foxe seeks an order from this Court directing
DOC “to recalculate his controlling minimum and maximum dates of confinement”4
to include credit for the 595 days he was incarcerated between November 26, 2009
and July 14, 2011. Petition at 1; see also Foxe Br. at 2.
               DOC filed the Preliminary Objections to the Petition averring that Foxe
has failed to state a valid mandamus claim.           Foxe opposes DOC’s Preliminary
Objections.5


                                        Discussion
               In ruling on preliminary objections, we must accept as true
               all well-pleaded material allegations in the petition for
               review, as well as all inferences reasonably deduced
               therefrom. The Court need not accept as true conclusions
               of law, unwarranted inferences from facts, argumentative
               allegations, or expressions of opinion. In order to sustain
               preliminary objections, it must appear with certainty that


       4
         Foxe has been continuously incarcerated since November 25, 2009. See Petition ¶ 12.
       5
          Foxe supplemented his brief in opposition to DOC’s Preliminary Objections to include
Exhibit A (Original Sentence sentencing order at Docket No. CP-51-CR-4341-2009) and Exhibit B
(New Sentence sentencing order at Docket No. CP-51-CR-1216-2010). See First Supplement to
Petitioner’s Brief in Opposition to DOC’s Preliminary Objections ¶ 6, Exs. A and B.
                                              4
            the law will not permit recovery, and any doubt should be
            resolved by a refusal to sustain them.
            A preliminary objection in the nature of a demurrer admits
            every well-pleaded fact in the complaint and all inferences
            reasonably deducible therefrom.         It tests the legal
            sufficiency of the challenged pleadings and will be
            sustained only in cases where the pleader has clearly failed
            to state a claim for which relief can be granted. When
            ruling on a demurrer, a court must confine its analysis to the
            complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
            Here, Foxe, as set forth in his Petition, seeks a mandamus order. This
Court has held: “A writ of mandamus is an extraordinary remedy, [] used to compel
performance of a ministerial act or a mandatory duty. Mandamus may only be
granted where the moving party establishes a clear legal right, the defendant’s
corresponding duty and the lack of any other appropriate and adequate remedy.”
DeGeorge v. Young, 892 A.2d 48, 51 (Pa. Cmwlth. 2006) (citation omitted).


Clear Right to Relief
            DOC asserts that Foxe failed to demonstrate a clear right to credit for the
time he served between November 26, 2009 and July 14, 2011 because the time was
credited toward another sentence. See DOC Prelim. Obj. ¶¶ 15-20; see also DOC Br.
at 7-9. Specifically, DOC maintains that since the trial court did not direct that
Foxe’s July 14, 2011 sentence was to commence earlier than that date, Foxe “is not
entitled to credit towards his [N]ew [S]entence for the time he previously served on
the unrelated [Original S]entence[.]” DOC Br. at 8.
            Pennsylvania courts award credit for time served pursuant to Section
9760 of the Sentencing Code, which states, in relevant part:

            After reviewing the information submitted under [S]ection
            9737 [of the Sentencing Code, 42 Pa.C.S. § 9737] (relating

                                          5
              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.[6]

42 Pa.C.S. § 9760 (emphasis added).                  The Pennsylvania Superior Court “has
explained that the principle behind statutory credit is that the defendant should be
given credit for time spent in custody before being sentenced for a given offense.”
Commonwealth v. Merigris, 681 A.2d 194, 194 (Pa. Super. 1996).

              Section 9760(1) [of the Sentencing Code] contains two
              general elements for credit for time served: (1) the time
              must be ‘spent in custody’ and (2) the time must be ‘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.’ See 42 Pa.C.S. § 9760(1). If both
              conditions are met, then the defendant is entitled to credit.

       6
              Pursuant to [Section 9760(4) of the Sentencing Code], credit is to be
              awarded 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. In
              such circumstances, the defendant must be given credit for time
              served from the date of his arrest on the subject charges until the date
              of his sentencing for those charges, even though he was already
              incarcerated on unrelated charges on the date of his arrest.
Miller, 655 A.2d at 1003.
                                                 6
Commonwealth v. Vidal, 198 A.3d 1097, 1100 (Pa. Super. 2018). When a sentencing
court awards credit for time served, it is awarding credit for time served for that
offense only. See 42 Pa.C.S. § 9760(1).
              Foxe’s July 14, 2011 sentencing order directed that Foxe was
concurrently serving time on both his Original Sentence and his New Sentence as of
July 14, 2011. However, pursuant to Section 9760(1) of the Sentencing Code, as of
August 12, 2010, Foxe was entitled to Original Sentence credit for all time he spent
in pre-sentence custody for his First Offense and, as of July 14, 2011, he was entitled
to New Sentence credit for all time he spent in pre-sentence custody for his unrelated
Second Offense.7 Based on this Court’s review of the facts pled in the Petition, the
relevant timeline is as follows:

               April 2, 2008 – First Offense arrest (bail posted April 4,
                2008)
                 [free on bail from April 4, 2008 through November 24,
                 2009]
               November 25, 2009 – Second Offense arrest (no bail
                posted)
               June 29, 2010 – First Offense conviction (bail revoked)8
               August 12, 2010 – Original Sentence imposed
               July 14, 2011 – Second Offense plea/New Sentence
                imposed




       7
          Foxe represents in the Petition that his Second Offense was “separate” from his First
Offense. Petition ¶ 3.
        8
          Bail continues until the case’s full and final disposition unless it is revoked. See
Pennsylvania Rule of Criminal Procedure 534, Pa.Crim.P. 534. “Revocation of bail [] denies an
individual defendant the opportunity to remain outside of custody pending the outcome of his
judicial process.” Commonwealth v. Horce, 726 A.2d 1067, 1069 (Pa. Super. 1999) (quoting
Commonwealth v. Chopak, 615 A.2d 696, 703 n.7 (Pa. 1992)).

                                              7
             Because Foxe had posted bail for the First Offense on April 4, 2008, he
was no longer in custody for his First Offense, and he remained free pending
disposition thereof. See Commonwealth v. Miller, 655 A.2d 1000 (Pa. Super. 1995).
Thus, when Foxe was sentenced for his First Offense on August 12, 2010 and the
sentencing court awarded him “CREDIT        FOR TIME SERVED”       on that offense, First
Supplement to Petitioner’s Brief in Opposition to the DOC’s Preliminary Objections
(Foxe Supp. Br.) Ex. A, he was entitled to credit for the 2 days he was incarcerated
between April 2 and April 4, 2008. See Miller.
             Foxe was free on bail at the time he was arrested for his Second Offense
on November 25, 2009. Because Foxe was not in custody on his First Offense when
he was arrested for his Second Offense, the time he spent incarcerated between
November 25, 2009 and when his First Offense bail was revoked on June 29, 2010
(i.e., 216 days), was time served solely on his Second Offense.9 Therefore, when his
New Sentence commenced on July 14, 2011 and the sentencing court awarded him
“CREDIT FOR TIME SERVED” on that offense, he was entitled to credit toward his New
Sentence for the 216 days he was incarcerated between November 25, 2009 and June
29, 2010. Foxe Supp. Br. Ex. B.
             It is unclear based solely on the Petition and its accompanying
documents whether the time Foxe spent in custody between his First Offense bail
revocation on June 29, 2010, and his sentencing thereon on August 12, 2010, was
time served solely for his Second Offense. This Court has no basis upon which to
make a ruling as to whether Foxe’s custody status changed in any manner after his
June 29, 2010 bail revocation, or whether he continued to be incarcerated solely for
his Second Offense until he was sentenced on August 12, 2010 for his First Offense.
Notably, DOC’s Sentence Status Summary reflects under “Sentence Structure” that

      9
        Because Foxe was not incarcerated on his First Offense when he was arrested for his
Second Offense, Section 9760(4) of the Sentencing Code is not applicable here.
                                            8
Foxe’s “Commitment Credit” was computed from “11/26/2009 to 8/12/2010.”10
DOC Prelim. Obj. Ex. A at 1-2. If Foxe was in custody for the 44 days between June
29 and August 12, 2010 solely because of his Second Offense, then he would be
entitled to credit for that time also.
               This Court acknowledges that “our Courts have consistently held that . . .
double credit for time served is neither contemplated, nor authorized, by Section 9760
[of the Sentencing Code.]”11 Barndt v. Dep’t of Corr., 902 A.2d 589, 595 (Pa.
Cmwlth. 2006). “The operative rule . . . is that a defendant should receive credit only
once for time served before sentencing.” Merigris, 681 A.2d at 195. Thus, “the
sentencing court was precluded from ordering credit for the period of [Foxe’s]
imprisonment [on his New Sentence] while he was actively serving time on his
[Original Sentence].” Taglienti v. Dep’t of Corr., 806 A.2d 988, 993 (Pa. Cmwlth.
2002).
               Foxe is not, as DOC claims, requesting double sentence credit. Foxe is
legally entitled to credit toward his New Sentence for the 216 days he was
incarcerated between November 25, 2009 and June 29, 2010 solely because of his
Second Offense. However, it is not clear based on the Petition whether Foxe is
precluded from receiving credit for the 44 days he was in custody from June 29, 2010
to August 12, 2010. Because Foxe can demonstrate that he is entitled to credit for at

       10
           However, DOC’s brief and the Sentence Status Summary are based on the incorrect
assumption that the time served after November 26, 2009 was for his First Offense, which is not
accurate.
        11
           Pennsylvania courts interpret Section 9760 of the Sentencing Code to prevent judges from
backdating the beginning of a sentence to when the defendant was incarcerated on an unrelated
charge. See Doxsey v. Commonwealth, 674 A.2d 1173, 1175 (Pa. Cmwlth. 1996) (“It is clear that
under this rule a sentencing judge cannot direct that a sentence commence on a date prior to the date
of sentencing when the defendant is serving time on an unrelated charge.”); see also Wassell v. Pa.
Bd. of Prob. & Parole, 658 A.2d 466, 469 (Pa. Cmwlth. 1995) (“There is simply no statutory
provision which would permit a sentencing judge to either commence a second sentence
retroactively, i.e., to have it commence at the same time as a prior sentence, or to provide credit for
time served on a prior unrelated charge.”).
                                                  9
least some of the time he served between November 26, 2009 and July 14, 2011, he
has established a clear right to relief.


Corresponding Duty
              DOC asserts that Foxe failed to demonstrate a corresponding duty on
DOC’s part to credit him for time he served between November 26, 2009 and July 14,
2011. See DOC Prelim. Obj. ¶¶ 21-24; see also DOC Br. at 9-11.

              The law is clear that DOC is ‘an executive branch agency
              that is charged with faithfully implementing sentences
              imposed by the courts.’ McCray [v. Dep’t of Corr.], 872
              A.2d [1127,] 1133 [(Pa. 2006)]. Where a sentencing court
              clearly gives credit against the [parole violation] sentence
              for time served, it is DOC’s duty to carry out that
              sentencing order. DOC is bound to follow a trial court’s
              order granting an inmate credit for time served.

Allen v. Dep’t of Corr., 103 A.3d 365, 372 (Pa. Cmwlth. 2014) (citations omitted).
Moreover, DOC acknowledges that it was duty-bound to comply with the trial court’s
July 14, 2011 sentencing order.
              DOC declares that Foxe’s “sentences at both dockets are listed as
running concurrently and [are] calculated accordingly.” DOC Br. at 9. However,
DOC did not credit Foxe’s New Sentence with the 216 days he was incarcerated from
November 25, 2009 to June 29, 2010 solely because of his Second Offense, nor the
44 days he may be due credit for the time he was in custody between June 29, 2010
and August 12, 2010. Accordingly, DOC did not calculate Foxe’s New Sentence
pursuant to the July 14, 2011 sentencing order as it was mandated to do.


Alternate Remedy
              Finally, DOC claims that the proper place for Foxe to challenge that he
did not receive the benefit of his negotiated plea was before the sentencing court, and

                                           10
not by mandamus.          See DOC Br. at 11.            However, “[w]hile 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.” Allen, 103 A.3d at 372. More
specifically, “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.”12 Id. at 370. Accordingly, Foxe
properly raised his sentence credit challenge in this mandamus action.


                                          Conclusion
               Accepting Foxe’s allegations in the Petition as true, as we must, this
Court holds that Foxe has established that he has a clear legal right to credit toward
his New Sentence, that DOC failed in its duty to calculate Foxe’s New Sentence
pursuant to the July 14, 2011 sentencing order, and that mandamus is the appropriate
remedy under the circumstances.              See DeGeorge.          Because Foxe has pled a
mandamus claim for which relief may be granted, DOC’s preliminary objections are
overruled. See Torres.

                                             ___________________________
                                             ANNE E. COVEY, Judge




       12
          “[M]andamus is not an appropriate remedy to cure an illegal sentencing order[,]” Allen,
103 A.3d at 370, or to obtain credit “where the sentencing order is either ambiguous or does not
specify the credit at issue.” Id. “A challenge to the legality of a sentence is properly raised before
the sentencing court or on direct appeal to the Superior Court.” Id. at 372. None of these situations
are present here.
                                                 11
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darius Foxe,                               :
                            Petitioner     :
                                           :
                   v.                      :
                                           :
PA. Dept. of Corrections,                  :   No. 214 M.D. 2018
                            Respondent     :


                                         ORDER

             AND NOW, this 9th day of July, 2019, the Pennsylvania Department of
Corrections’ (DOC) preliminary objections to Darius Foxe’s pro se Petition for Writ
of Mandamus (Petition) are OVERRULED. DOC is directed to file an answer to the
Petition within 30 days of the date of this Order.


                                         ___________________________
                                         ANNE E. COVEY, Judge
