          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Loren Allen,                                     :
                               Petitioner        :
                                                 :
                v.                               :   No. 436 M.D. 2017
                                                 :   Submitted: February 15, 2019
Commonwealth of Pennsylvania,                    :
Pennsylvania Board of Probation                  :
and Parole,                                      :
                        Respondent               :

BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge


OPINION
BY JUDGE SIMPSON                                 FILED: April 5, 2019

                Before this Court in our original jurisdiction are cross-applications for
summary relief1 regarding a petition for review filed by Loren Allen (Allen) against
the Pennsylvania Board of Probation and Parole (Board). Allen, representing
himself, seeks relief in mandamus compelling the Board to release him from prison.
The Board counters that Allen is not entitled to mandamus relief, and that he is still
subject to two current sentences he is presently serving. Upon review, we grant the
Board’s application for summary relief, deny Allen’s application, and dismiss
Allen’s petition for review with prejudice.


                                        I. Background
                Allen is currently incarcerated at the State Correctional Institution at
Houtzdale. In July 1994, he was sentenced to 7 to 20 years (Original Sentence) for


      1
          Petitioner designated his application as a motion for judgment on the pleadings.
robbery and possessing an instrument of crime. Allen’s minimum sentence date on
the Original Sentence was January 30, 2001 and his maximum sentence date was
January 30, 2014.


               Allen was paroled on the Original Sentence in July 2011. In November
2013, he was arrested. He was subsequently charged with several new offenses at
two docket numbers in Montgomery County, CP-46-CR-8612-2013 (CR-8612) and
CP-46-CR-3057-2014 (CR-3057).


               In August 2014, Allen was convicted of one count of burglary at CR-
8612 and two counts of burglary at CR-3057. The trial court sentenced Allen to 3½
to 8 years of incarceration on each of the three counts. The sentencing orders at both
dockets were issued the same day and stated the sentences would run concurrently
with all other previously imposed sentences. The sentencing order at CR-3057
further directed the sentence on both counts on that docket to run concurrently.


               In February 2015, the Board recommitted Allen as a convicted parole
violator (CPV) to serve 30 months of backtime, when available, for committing
burglary while on parole from the Original Sentence. Bd.’s Answer with New
Matter, Exs. F, G. The Board’s recommitment decision did not include a docket
number or other indication identifying which convictions formed the basis of the
decision. However, the decision referred to two counts of burglary, thus suggesting
it referred to CR-3057.2 See id.

       2
         In his brief, Allen ignores CR-3057 in his statement of facts. Although he mentions it in
passing in his argument, he fails to acknowledge that it included two separate convictions on two
counts.


                                                2
               In July 2015, the Board issued a decision noting Allen’s “conviction on
Montgomery County 1978 of 2014” and taking no action relating to that conviction.
Id., Ex. H. It is unclear to what conviction that number referred, but presumably it
was CR-8612.3


               In August 2015, the Department of Corrections (Department) deleted
the detainer relating to CR-8612, with the notation “CC/W backtime sentence.”
Bd.’s Answer with New Matter, Ex. A at 3. Detainers remained regarding both
counts at CR-3057.


               In August 2017, Allen was reparoled on the Original Sentence and
paroled to a detainer on CR-8612. Allen then began serving his remaining sentence
pursuant to the detainers at CR-3057. Those detainers were accordingly deleted later
that month.


               Because the trial court in CR-8612 and CR-3057 stated those sentences
were to run concurrently with any previously imposed sentences, Allen argues
aggregating is contrary to the sentencing order. He insists there is no detainer
remaining, and he is entitled to physical release on parole, not simply parole to a
detainer.

       3
          In the documents filed by the parties in the record before this Court, the Board’s
references to the three new convictions do not designate the docket numbers. However, that does
not affect this Court’s analysis of the legal issue before us. The pertinent facts are that there were
three new convictions on three identical crimes, with three identical sentences by the trial court,
and that the Board imposed backtime based on two of the three new convictions, while taking no
action based on the third. Moreover, as set forth above, the applicable docket numbers can be
readily inferred.



                                                  3
               The Board contends Allen misunderstands the Board’s authority to
parole an inmate to a detainer. Accordingly, the Board argues Allen is not entitled
to relief in mandamus.4


                                          II. Discussion
               Mandamus is an extraordinary remedy designed to compel performance
of a ministerial act or a mandatory duty. Allen v. Dep’t of Corr., 103 A.3d 365, 369
(Pa. Cmwlth. 2014) (citing McCray v. Dep’t of Corr., 872 A.2d 1127 (Pa. 2005)).
A mandamus action cannot be used to determine rights, only to enforce rights
already established. Id. (citing Detar v. Beard, 898 A.2d 26 (Pa. Cmwlth. 2006)).
Where appropriate, it may be sought as a remedy to correct clear errors in a sentence
computation. See id. (citing Black v. Dep’t of Corr., 889 A.2d 672 (Pa. Cmwlth.
2005)). However, mandamus will not be granted in doubtful cases. Id. (citing
Detar).


               Here, Allen argues there is no outstanding detainer. Therefore, he
asserts he has a clear entitlement to release from confinement because all his
sentences ran concurrently.            We discern no merit in this argument.                    Allen
misconstrues the law concerning the Board’s recommitment of a parolee to serve
backtime.

       4
         In an original jurisdiction matter, an application for summary relief may be granted at any
time after the filing of a petition for review, if the applicant’s right to relief is clear. Pa. R.A.P.
1532(b). The application will be denied where material facts are in dispute or the applicant is not
clearly entitled to judgment as a matter of law. Brown v. Dep’t of Corr., 932 A.2d 316 (Pa. Cmwlth
2007).
        For purposes of an application for summary relief, the record is the same as that for a
summary judgment motion. Borough of Bedford v. Commonwealth, 972 A.2d 53 (Pa. Cmwlth.
2009) (en banc). The record includes the pleadings and other documents of record, such as
exhibits. Id.; see Pa. R.C.P. No. 1035.1.


                                                  4
               When a parolee is convicted of a new criminal offense committed while
on parole and punishable by prison time, the Board has authority, in its discretion,
to recommit the parolee as a CPV. 61 Pa C.S. §6138(a). Upon recommitment of a
parolee, the Board may order him to serve some or all of the remainder of his original
sentence as backtime. Id.


               The Board is not required to impose backtime based on a new
conviction. Thus, if a parolee has multiple new convictions, the Board may decide
to recommit him based on some of those convictions while taking no action on
others. However, the Board’s decision in that regard can affect whether multiple
sentences are served concurrently or consecutively.


               For example, in Crew v. Department of Corrections (Pa. Cmwlth., No.
7 M.D. 2011, filed January 19, 2012), 2012 Pa. Commw. Unpub. LEXIS 47
(unreported)5 [Leadbetter, P.J.; Brobson, J.; McCullough, J.], the trial court
sentenced a convicted parolee to new prison terms on counts 1, 4, 5, and 9 of the
criminal indictment.         The sentencing order stated all sentences would run
concurrently. Thereafter, the Board issued a decision recommitting the parolee as a
CPV to serve 15 months of backtime on his original sentence, based on his new
convictions on counts 1, 4, and 5. However, as to count 9, the Board merely noted
the conviction and took no further action.


               The parolee argued all his sentences had to run concurrently in
accordance with the trial court’s sentencing order.                   This Court disagreed.


      5
          We cite this unreported decision as persuasive pursuant to 210 Pa. Code §69.414(a).


                                                5
Notwithstanding a sentencing order imposing concurrent sentences, where new
sentences form the basis for a recommitment order of backtime on the original
sentence, those new sentences must, by law, run consecutive to the original sentence.
Id., slip op. at 5 (citing 61 Pa. C.S. §6138(a)(5)); see also Gray v. Dep’t of Justice,
380 A.2d 1330 (Pa. Cmwlth. 1977) (en banc) (applying prior law)6 (sentencing judge
on new conviction had no authority to impose other than consecutive sentence with
respect to backtime on original sentence). The result in Crew was that the sentence
on count 9, as to which the Board took no action, ran concurrently with the original
sentence as ordered by the trial judge. However, the sentences on counts 1, 4, and
5, which formed the basis for the recommitment order imposing backtime, ran
consecutive to the original sentence, as a matter of law.


              We find the analysis in Crew persuasive. Here, Allen received new
sentences on one count of burglary in CR-8612 and two counts of burglary in CR-
3057. The Board based its recommitment order and imposition of backtime on the
convictions in CR-3057, but merely noted the conviction in CR-8612 and expressly
took no further action. Accordingly, although the sentence on CR-8612 could run
concurrently with the backtime on the Original Sentence, the convictions on CR-
3057 had to run consecutive to the Original Sentence.


              Allen is therefore incorrect in contending no detainer remained once he
was paroled on CR-8612. A “detainer sentence” is “[a] sentence to which a convict
is subject following release from a sentence which the convict is currently serving.”

       6
         Section 21.1(a) of the Act of August 6, 1041, P.L. 861, as amended, added by Section 5
of the Act of August 24, 1951, P.L. 1401, formerly, 61 P.S. §331.21a(a), repealed by Section 11
of the Act of August 11, 2009, P.L. 147.


                                              6
37 Pa. Code §61.1. Here, the Department’s records correctly reflect deletion of the
detainer on CR-8612 when Allen began serving that sentence concurrently with his
backtime. However, the Department correctly listed the detainers on both counts of
CR-3057 as continuing.


             When the Board reparoled Allen on the Original Sentence, it also
paroled him on CR-8612. However, on CR-8612, the Board paroled Allen to the
detainer sentences under CR-3057.


             This Court refers to parole to a detainer sentence as a “constructive
parole,” in which an inmate “is administratively paroled on the initial sentence and
immediately begins serving the minimum term of the consecutive, or detainer,
sentence. While still in prison, the prisoner is serving the detainer sentence and is
considered ‘at liberty on parole’ from the initial sentence.” Weyand v. Pa. Bd. of
Prob. & Parole, 503 A.2d 80, 85 (Pa. Cmwlth. 1986) (internal citations omitted).


             Thus, once Allen was reparoled on the Original Sentence and paroled
on CR-8612, he immediately began serving the minimum term of his consecutive,
i.e., detainer, sentences at CR-3057. The Department’s records reflect deletion of
the detainers at CR-3057 only after Allen started serving those sentences in
September 2017, because once Allen began serving the sentences, they became
current sentences, not detainers.


             Contrary to Allen’s argument, the record clearly demonstrates there
were two detainers to which the Board properly paroled him. Accordingly, the



                                         7
Board is entitled to summary relief, and Allen is not entitled to relief on his
mandamus petition.


                                  III. Conclusion
             Based on the foregoing analysis, we grant the Board’s application for
summary relief, deny Allen’s petition for summary relief, and dismiss the petition in
mandamus.




                                       ROBERT SIMPSON, Judge




                                         8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Loren Allen,                             :
                          Petitioner     :
                                         :
               v.                        :   No. 436 M.D. 2017
                                         :
Commonwealth of Pennsylvania,            :
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :


                                       ORDER

               AND NOW, this 5th day of April, 2019, the application for summary
relief of the Pennsylvania Board of Probation and Parole is GRANTED. The
application for summary relief of Loren Allen is DENIED. The petition for review
is DISMISSED with prejudice.




                                        ROBERT SIMPSON, Judge
