           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Norman Harvey aka                                  :
Eric Elrod,                                        :
                             Petitioner            :
                                                   :
                  v.                               :       No. 541 M.D. 2019
                                                   :       Submitted: March 6, 2020
Department of Corrections,                         :
John Wetzel, Superintendent,                       :
Kevin Ransom, Records Room                         :
Supervisor of the State Correctional               :
Institute at Dallas, Pennsylvania,                 :
and Christopher Thomas, Director of                :
CMR/PPS,                                           :
                           Respondents             :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                          FILED: May 12, 2020


              Before this Court are the Preliminary Objections (Objections) filed by
Respondents1 on October 24, 2019, in response to pro se Petitioner Norman Harvey
aka Eric Elrod’s Petition for Review (Petition). Petitioner argues that he is entitled
to mandamus relief and should receive credit for time served in the amount of 45
months.     Respondents counter that the credit sought was applied to different
sentences served by Petitioner. Respondents also contend that Petitioner is not



       1
          Respondents include: the Department of Corrections (DOC); John Wetzel, DOC
Superintendent; Kevin Ransom, Records Room Supervisor for the State Correctional Institution at
Dallas, Pennsylvania (SCI-Dallas); and Christopher Thomas, Director of CMR/PPS.
entitled to the specific credit sought where the order of the sentencing court did not
specify a number of days or dates to be granted against Petitioner’s sentence. We
sustain the Objections.


                                  I.     Background
             Petitioner is currently incarcerated at SCI-Dallas for a violation of
parole sentence. The Petition in the present case originates from Petitioner’s three
separate criminal charges and subsequent sentences. First, on 12/01/2010, Petitioner
was arrested on case #CP-51-CR-00057-2011 (case 057). Petitioner posted the
associated bail on 12/23/2010; however, bail was raised on 09/30/2011. As a result,
from 09/30/2011 to 05/16/2014, Petitioner was in prison for case 057 while awaiting
sentencing. On 05/16/2014, Petitioner was sentenced to one and one half to three
years in prison on Count 3 and to seven years of probation on Count 2 in case 057.
Resp’t’s’ Br. at 5.


             Next, while awaiting sentencing on case 057, Petitioner was arrested on
07/01/2011 for #CP-51-CR-00011460-2011 (case 11460) and charged with robbery,
conspiracy, and related offenses. On 09/07/2014, Petitioner completed his sentence
for case 057. After completing his sentence for case 057, Petitioner was out of prison
pending his sentencing for case 11460. Petitioner was sentenced on 03/30/2015 for
case 11460 to 11 ½ to 23 months in prison and to 8 years of probation on Count 19
and to 10 years of probation on Counts 18, 26, and 27. Resp’t’s’ Br. at 5-6.


             Finally, following his sentence for case 11460, Petitioner was arrested
for case #CP-51-CR-0005198-2015 (case 5198) on 06/22/2015. Petitioner was
sentenced on 04/19/2016 to 10 to 23 months in prison. As a result of his arrest for
case 5198, Petitioner was also sentenced to 6 to 23 months in prison for violation of

                                          2
parole associated with case 057 on 05/09/2016 and to 10 to 23 months in prison for
violation of parole associated with case 11460 on 07/22/2016. Resp’t’s’ Br. at 6.


             Petitioner challenges the application of pre-sentence credit and the
calculation of his minimum and maximum sentence dates by Respondents.
Petitioner claims that he is entitled to pre-sentence credit from 06/29/2011 to
03/30/2015; 06/23/2015 to 04/19/2016; and 04/20/2016 to 07/22/2016. Pet’r’s Br.
at 10; Resp’t’s’ Br. at 6-7. Petitioner requests that the pre-sentence credit for the
aforementioned time frames be applied toward case 11460. Prel. Obj. No. 4.
Petitioner asserts that the denial of credit for time served during these time frames
violates 42 Pa. C.S. §9760, relating to credit for time served. Pet’r’s Petition,
Material Fact No. 4.


             Respondents contend that Petitioner is not entitled to credit for time
served because the time in question was already applied to Petitioner’s various
sentences. Prel. Obj. Nos. 28-32. Additionally, Respondents assert that while
Petitioner requests credit for time served from 06/29/2011 to 06/30/2011,
Petitioner’s arrest date was 07/01/2011 for case 11460. Prel. Obj., Ex. B at 2.
Although Petitioner asserts that he is entitled to receive 45 months of credit for time
served, Respondents awarded Petitioner with 58 months of credit for time served in
excess of the amount requested in the present Petition. Pet’r’s Br. at 9; Resp’t’s’ Br.
at 6-7. Therefore, as the burden for demonstrating the need for a writ of mandamus
is high and Petitioner’s arguments — per Respondents — are inapplicable,
Respondents move for demurrer.




                                          3
                                          II.     Discussion
                                          A. Writ of Mandamus
               Petitioner requests a writ of mandamus granting credit for time served.
Credit for time served shall be granted under the guidance of 42 Pa. C.S. §9760.
Petitioner specifically cites 42 Pa. C.S. §9760 (1) and (3) in support of his Petition.2,3


               The present case involves a challenge to sentencing computation and
subsequent application of time served to Petitioner’s present sentence. “[This] Court
may issue a writ of mandamus 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. Dep’t of Corr., 749 A.2d 553, 556 (Pa. Cmwlth. 2000). Therefore, a
writ of mandamus may be used to compel the DOC to compute a prisoner’s sentence
properly. Id.


                           1. Legal Right to Enforce Performance
               First, this Court will consider whether Petitioner has a legal right to
enforce the performance of an amended computation of his credit for time served by


       2
         42 Pa. C.S. §9760(1) states: “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.” 42 Pa.C.S. §9760(1).

       3
         42 Pa. C.S. §9760(3) states: “If the defendant is serving multiple sentences, and if one of
the sentences is set aside as the result of direct or collateral attack, credit against the maximum and
any minimum term of the remaining sentences shall be given for all time served in relation to the
sentence set aside since the commission of the offenses on which the sentences were based.” 42
Pa.C.S. §9760(3).


                                                  4
the DOC. Petitioner claims that he is owed credit for time served in the amount of
45 months, inclusive of the time periods from 06/29/2011 to 03/30/2015; 06/23/2015
to 04/19/2016; and 04/20/2016 to 07/22/2016. Pet’r’s Br. at 9-10; Resp’t’s’ Br. at
6-7. Respondents counter this assertion by stating that all credit for time served has
previously been applied to one of Petitioner’s three sentences. In total, Respondents
previously granted Petitioner 58 months of credit for time served. Resp’t’s’ Br. at
6-7.


             Specifically, Respondents object to Petitioner’s right to relief via a writ
of mandamus because the sentencing court only ordered credit for time served.
Under objection of Respondents, this sentencing does not entitle Petitioner to the
specific credit sought. The order of the sentencing court did not specify a number
of days or dates for which Petitioner should be credited. Resp’t’s’ Br. at 9.


             Petitioner contends that because the sentencing court did not specify
the number of days or dates for credit, Petitioner is entitled to the requested credit.
Petitioner cites the statement of the sentencing judge, The Honorable Charles J.
Cunningham, at the 07/22/2016 sentencing hearing for case 11460 as evidence of
this conclusion. Judge Cunningham stated, “He’ll get credit for time served.”
Pet’r’s Petition, Material Fact No. 20.


              A writ of mandamus cannot be used to challenge the DOC’s failure to
give credit where the sentencing order is either ambiguous or does not provide the
credit at issue. Canfield v. Pa. Dep't of Corr. (Pa. Cmwlth., No. 585 M.D. 2016,




                                           5
filed August 11, 2017).4 Mandamus is an appropriate remedy to correct an error in
the DOC’s computation of maximum and minimum sentencing dates where the
sentencing order clearly gives the inmate credit for the time period in question and
the DOC’s computation does not comply with that credit. Id. If ambiguity is not
present and a DOC computation is in compliance with a sentencing order, then the
requirements for a writ of mandamus cannot be satisfied. Id. The inmate has no
clear right to relief and has an adequate and more appropriate alternative remedy in
seeking modification or clarification of sentencing in the sentencing court. Id.


               Petitioner claims that because the sentencing court did not specify an
amount of time to be credited for time served, he is entitled to the credit that he
requests. However, this runs contrary to previous holdings of this Court and its
prevailing rationale regarding computation of time served. In the present case, the
sentencing order did not clearly describe a time period for which credit was to be
granted to Petitioner. Therefore, in not providing Petitioner with the specific credit
that he seeks, Respondents were not committing a computation error. As a result,
Petitioner does not meet the burden required to grant a writ of mandamus.


               Also crucial to this discussion is the fact that Petitioner has been
credited with time served which was counted towards the remaining time on his three
sentences. Petitioner received pre-sentence credit from 07/01/2011 to 09/29/2011
toward his sentence associated with case 11460. Resp’t’s’ Br. at 6. Petitioner also
received pre-sentence credit from 09/30/2011 to 09/07/2014 which was counted
toward Petitioner’s sentence for case 057. Id. Pre-sentence credit from 09/08/2014



       4
         This case is cited for its persuasive value in accordance with Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).


                                                  6
to 03/30/2015 was applied to Petitioner’s sentence for case 11460. Id. Petitioner
then received credit from 06/23/2015 to 04/19/2016 that was counted toward his
sentence for case 5198. Id. at 7. Finally, Petitioner received credit from 04/22/2016
to 07/22/2016 toward his sentence for violation of parole for case 057. Id.


               In total, the above periods of time amount to 1,763 days, or 58 months,
of pre-sentence credit. Resp’t’s’ Br. at 6-7. Petitioner requests pre-sentence credit
for the outlined time periods in a total amount of 45 months. Pet’r’s Br. at 9. In
reviewing the record of credit applied to time served, Respondents have provided
Petitioner with 58 months of pre-sentence credit, an amount in excess of what
Petitioner requests. Resp’t’s’ Br. at 6-7. While Petitioner requests pre-sentence
credit for allegedly uncredited time, the record shows that Petitioner already received
credit for time served for the requested time frames.5


               Therefore, while Respondents did not err in appropriately enforcing the
ambiguous sentencing order from the sentencing court, Respondents also previously
provided Petitioner with the credit sought in this matter. If Petitioner was already
granted the pre-sentence credit that is the subject of this discussion, then Petitioner
does not have a right to relief to warrant a writ for mandamus. Because a writ of
mandamus is issued to enforce existing rights, not to establish new rights, it would
be inappropriate to grant Petitioner a writ of mandamus. See Africa v. Horn, 701
A.2d 273 (Pa. Cmwlth. 1997). To issue a writ of mandamus under these
circumstances would incorrectly establish new rights. Id.


       5
          As previously discussed, Petitioner requests credit for time served from 06/29/2011 to
06/30/2011. Petitioner misstated the timeline of events. The record confirms that Petitioner’s
arrest date was 07/01/2011 for case 11460. Therefore, Petitioner is not entitled to credit for these
two days prior to his arrest. Prel. Obj., Ex. B at 2.


                                                 7
                                  2. Duty to Perform
              A petitioner for a writ of mandamus to compel performance of an act
must also establish that the respondent has a corresponding duty to perform the act.
Saunders v. Pa. Dep’t of Corr., 749 A.2d at 556. Petitioner correctly identifies that
Respondents have a duty to follow the sentencing court’s order. Pet’r’s Br. at 9.
Citing Oakman v. Department of Corrections, 903 A.2d 106 (Pa. Cmwlth. 2006),
Petitioner contends that his case presents a parallel issue. In Oakman, the DOC


              boldly argue[d] that [petitioner] d[id] not have a clear right to
              mandamus because that right was negated when … the Director
              of Classification, Movement & Registration of the Philadelphia
              Prison System, decided that the sentencing judge incorrectly
              gave [petitioner] credit for time serve[d] because he provides
              sentencing information and has "the same force and effect as if
              coming from a judge."

Id. at 108.


              However, in contrast, the present case does not involve Respondents
who presume to disregard or amend the sentencing order of the sentencing court.
Respondents acknowledge that under Oakman, they have a duty to follow the
sentencing court’s order. Resp’t’s’ Br. at 11. This duty includes implementing the
order without alteration. McCray v. Pa. Dep’t of Corr., 872 A.2d 1127 (Pa. 2005).


              If Respondents were to award pre-sentence credit for time served in the
amount that Petitioner requests, Respondents would effectively alter the sentencing
order of the sentencing court. Judge Cunningham of the sentencing court explained
at trial, “He’ll get credit for time served.” Pet’r’s Petition, Material Fact No. 20.




                                           8
While this sentencing order is not a precise directive and does not assign an exact
amount or time frames to be credited to Petitioner for time served, Respondents have
the responsibility of effectuating the order as written.


             Both Petitioner and Respondents agree that Respondents have a duty to
enforce the sentencing order of the sentencing court. Petitioner would have this
Court compel Respondents to enforce the sentencing order to require a pre-sentence
credit for time served in the amount of 45 months without regard for the previous
application of credit to Petitioner’s sentences. Petitioner is not entitled to double
credit. Taglienti v. Dep’t of Corr., 806 A.2d 988 (Pa. Cmwlth. 2002). Petitioner has
served multiple sentences and the pre-sentence credit in question was previously
applied to those sentences. Resp’t’s’ Br. at 10. As a result, to award the requested
pre-sentence credit would cause Respondents to incorrectly provide Petitioner with
double credit for time served. Respondents do not have a duty to construe the
sentencing order of the sentencing court in this inappropriate manner.


                   3. No Other Adequate or Appropriate Remedy
             A petitioner requesting the granting of a writ of mandamus must,
finally, demonstrate that no other adequate or appropriate remedy exists. Saunders,
749 A.2d at 556. Neither Petitioner nor Respondents addressed this prong in their
analysis, and this Court has previously held that in cases involving the computation
of pre-sentence credit, seeking modification or clarification of sentencing in the
sentencing court is a petitioner’s most appropriate course of relief. Canfield. While
Petitioner did not seek more appropriate options for remedy — such as modification




                                           9
or clarification — in a timely manner, this inaction does not compel this Court to
provide Petitioner with relief in the form of a writ of mandamus.6


               Petitioner did not meet his burden of establishing that he has a legal
right to enforce performance of the act of granting pre-sentence credit in the
requested amount and that Respondents had a duty to perform this act. Therefore,
this Court need not engage in further analysis of whether an alternative adequate or
appropriate remedy to a writ of mandamus exists. As Petitioner did not demonstrate
the compelling necessity for the granting of a writ of mandamus by this Court, we
sustain the Objections submitted by Respondents and dismiss the Petition.




                                                      ______________________________
                                                      J. ANDREW CROMPTON, Judge




       6
         42 Pa. C.S. § 5505 states: “Except as otherwise provided or prescribed by law, a court
upon notice to the parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from such order has been
taken or allowed.” 42 Pa.C.S. § 5505. In the present case, Petitioner had 30 days from 07/22/2016,
his sentencing date, to request modification of Judge Cunningham’s sentence. Because Petitioner
did not pursue this option in a timely manner, Petitioner is now precluded from making this request.
Therefore, while this Court cites to recommendations for clarification or modification in its present
decision, these alternatives are provided exclusively for illustrative purposes to further
demonstrate that granting a writ of mandamus would be inappropriate under the circumstances of
the present case.


                                                10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Norman Harvey aka                            :
Eric Elrod,                                  :
                         Petitioner          :
                                             :
                v.                           :     No. 541 M.D. 2019
                                             :
Department of Corrections,                   :
John Wetzel, Superintendent,                 :
Kevin Ransom, Records Room                   :
Supervisor of the State Correctional         :
Institute at Dallas, Pennsylvania,           :
and Christopher Thomas, Director of          :
CMR/PPS,                                     :
                           Respondents       :


                                      ORDER

            AND NOW, this        12th    day of   May   2020, we SUSTAIN the
Preliminary Objections of Respondents and DISMISS Petitioner’s Petition for
Review.




                                             ______________________________
                                             J. ANDREW CROMPTON, Judge
