             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark Ivory,
                        Petitioner              :
                                                :
                v.                              :
                                                :
Pennsylvania Department                         :
of Corrections,                                 :    No. 630 M.D. 2014
                 Respondent                     :    Submitted: July 28, 2017


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


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                                    FILED: December 15, 2017


                On December 4, 2014, Mark Ivory (Petitioner) filed an application for
a writ of habeas corpus, alleging he was not awarded credit due towards a sentence
imposed following entry of a guilty plea for possession of a controlled substance.
This Court, by per curiam order dated February 22, 2017, directed that the matter be
treated as a petition for review filed to this Court’s original jurisdiction.1 The
Department of Corrections (Department) filed preliminary objections for lack of
service and failure to conform to the requirements of Pa.R.A.P. 1514(c),2 failure to

       1
           42 Pa.C.S. § 761; Pa.R.A.P. 1502.

       2
          Pa.R.A.P. 1514(c) requires that a copy of a petition for review be served in person or by
certified mail on the government unit that made the determination sought to be reviewed. In
matters involving the Commonwealth, the Office of Attorney General (OAG) must also be served.
conform to the requirements of Pa.R.C.P. No. 1028(a)(2),3 and for legal
insufficiency of a pleading (demurrer). On April 4, 2017, this Court issued a per
curiam order directing Petitioner to serve a copy of the petition on the Department
and OAG as required by Pa.R.A.P. 1514(c). An affidavit of service was filed by
Petitioner on April 20, 2017. Thereafter, this Court overruled the Department’s
preliminary objections relating to lack of service and failure to conform to rules,
with the remaining preliminary objection to be decided on briefs.4
              Petitioner is an inmate presently incarcerated at the State Correctional
Institution in Houtzdale, Pennsylvania (SCI-Houtzdale). Petitioner was arrested on
February 11, 2011 and held pending charges for cases docketed with the Court of
Common Pleas of Cambria County (trial court) at CP-11-CR-0000443-2011 (Case
1) and CP-11-CR-0000442-2011 (Case 2). Petitioner posted bail on September 16,
2011, and was released. Petitioner was arrested December 1, 2011 on new charges
in a case docketed with the trial court at CP-11-CR-0000125-2012 (Case 3).
Thereafter, Petitioner’s bail for Cases 1 and 2 was revoked.
              On August 17, 2012, Petitioner was sentenced for Case 3 to serve four
to fifteen years, with credit applied towards his sentence to reflect the time from
December 1, 2011 through August 17, 2012, during which he was held pending trial.
On February 7, 2013, the trial court sentenced Petitioner to serve six to twelve
months for Case 1. Case 2 was nolle-prossed.




       3
          Pa.R.C.P. No. 1028(a)(2) permits the filing of preliminary objections where a pleading
fails to conform to law or rule of court or includes scandalous or impertinent matter.

       4
          A court may sustain preliminary objections only when, based on the facts pleaded, it is
clear and free from doubt that the petitioner will be unable to prove facts legally sufficient to
establish a right to relief. Feldman v. Hoffman, 107 A.3d 821 (Pa. Cmwlth. 2014).
                                               2
             On April 16, 2014, Petitioner filed a writ of Habeas Corpus ad
subjudiciendum with the trial court, alleging ambiguities in the sentence for Case 1,
specifically as to whether credit should be applied to the sentence. The trial court
issued an order on October 3, 2014, modifying Petitioner’s sentence for Case 1 to
include 215 days of credit, reflecting the period from February 14, 2011 to
September 16, 2011 when he was held pending disposition of charges. The order
further indicated if the time as calculated had been previously applied to another
sentence, it could not be applied a second time.
             Petitioner alleges that credit was never applied to his sentence in
accordance with the trial court’s October 3, 2014 order. Petitioner contends the
Department refused to apply the credit because his sentence had already been
completed. Petitioner argues that, if the credit was not properly applied to his now-
expired sentence in Case 1, it should instead be applied as credit towards his sentence
in Case 3.
             In support of its demurrer, the Department argues Petitioner has no
legal argument with a basis in fact or law, as the credit of 215 days was applied to
Petitioner’s sentence in Case 1 even before the trial court issued its clarification order
directing that a credit be given. The Department therefore requests this Court sustain
its preliminary objection and dismiss the Petitioner’s petition.
             When considering a preliminary objection in the nature of a demurer,
the court deems as admitted all well-pleaded material facts and any inferences
reasonably deduced therefrom, but not the complaint’s legal conclusions and
averments. Danysh v. Department of Corrections, 845 A.2d 260, 262. (Pa. Cmwlth.
2004). A demurrer resulting in the dismissal of a suit should only be sustained in
cases that are free and clear from doubt and only where it appears with certainty that


                                            3
the law would permit no recovery under the allegations pleaded.                          Sweatt v.
Department of Corrections, 769 A.2d 574, 577 (Pa. Cmwlth. 2001).
               The Department argues its preliminary objection in the nature of a
demurrer should be sustained as Petitioner has failed to present any clear legal right
to relief on the face of his complaint. We therefore turn to an analysis of Petitioner’s
pleadings.
               Petitioner alleges in his petition that he is entitled to 215 days of credit
towards his sentence in Case 1, reflecting the time he was held pending charges. It
is well established that an inmate is entitled to credit towards a maximum sentence
date for time he was held in custody pending those charges. Section 9760(1) of the
Judicial Code provides that “[c]redit against the maximum term and any minimum
term shall be given to the defendant for all time spent in custody.” 42 Pa.C.S.
§ 9760(1). Petitioner is clearly entitled to credit for the 215 days spent incarcerated
prior to sentencing for Case 1. This right to a credit is properly reflected in the trial
court’s clarification order of October 3, 2014, which indicates credit for the period
from February 14, 2011 to September 16, 2011 should be included in the calculation
of Petitioner’s sentence. (Petitioner’s Petition, Exhibit A.)
               However, as the Department points out, Petitioner has pleaded no facts
to support a claim that the 215 days of credit to which he is entitled was not, in fact,
applied to his sentence. Attached as Exhibit B to the Department’s Brief is a Court
Commitment form (commitment form) for Case 1.5 (Department’s Brief, Exhibit

       5
         Beyond attaching the trial court’s October 3, 2014 order to his petition, Petitioner did not
append supporting documentation. This Court may consider the exhibits attached to the
Department’s preliminary objections as an exception to the rule against speaking demurrers
because those matters are not collateral to Petitioner’s pleading. Rather, Petitioner has premised
his cause of action upon those documents and whether the Department properly credited him with
time served. See Barndt v. Pennsylvania Department of Corrections, 902 A.2d 589, 591 n.2 (Pa.
Cmwlth. 2006).
                                                 4
B.) The commitment form contains a field wherein credit for time served may be
indicated. Id. at 1. The field for Petitioner’s commitment form clearly indicates
Petitioner is entitled to 215 days of credit. Id. The second page of the commitment
form indicates Petitioner received credit for time served in the Cambria County
Prison for the period from February 14, 2011 through September 16, 2011. Id. at 2.
The Department also attached a Department DC16E Sentence Status Summary form
(DC16E form) to its brief as Exhibit A. This DC16E form, dated June 12, 2014,
indicates that Petitioner’s sentence for Case 1 was “maxed w/credit on 7/7/2013.”
(Department’s Brief, Exhibit A at 1.)
             Petitioner attached both the commitment and DC16E forms to his brief
and has not averred any inaccuracies therein. Petitioner has further failed to allege
any facts which support the claim he was not properly credited 215 days for time
served. Instead, Petitioner only presents a general allegation that his time was not
credited. Although Petitioner’s counseled advocacy makes its best case, based on
the dearth of facts pleaded to support Petitioner’s claim (and the apparent
unavailability of such facts), we are compelled to sustain the Department’s
preliminary objection and dismiss Petitioner’s petition.




                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge




                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark Ivory,
                    Petitioner          :
                                        :
              v.                        :
                                        :
Pennsylvania Department                 :
of Corrections,                         :   No. 630 M.D. 2014
                 Respondent             :



                                    ORDER


              AND NOW, this 15th day of December, 2017, the preliminary objection
of the Department of Corrections is sustained and the petition for review filed by
Mark Ivory is hereby dismissed.




                                      ___________________________
                                      JOSEPH M. COSGROVE, Judge
