          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Orlando Edney,                            :
                                          :
                          Petitioner      :
                                          :
                   v.                     : No. 389 M.D. 2017
                                          :
Pennsylvania Department of                : Submitted: April 13, 2018
Corrections, State Correctional           :
Institution Pine Grove,                   :
                                          :
                          Respondents     :



BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                            FILED: June 13, 2018



             Before the Court are the preliminary objections (POs) of the
Pennsylvania Department of Corrections (Department) and the State Correctional
Institution (SCI)-Pine Grove (collectively, Respondents) to the pro se Petition for
Discretionary Review (Petition) filed in this Court’s original jurisdiction by Orlando
Edney, an inmate at SCI-Pine Grove. We sustain the POs and dismiss the Petition.
             On September 7, 2016, Edney was sentenced by the Philadelphia
County Common Pleas Court (trial court) to two concurrent 5- to 10-year terms of
imprisonment on his burglary convictions, and two consecutive 5-year probationary
terms on his conspiracy convictions based on his negotiated guilty pleas. The trial
court specifically granted “Credit for time served: Credit for time served, including
time served on House Arrest/Electronic Monitoring.” Petition Exhibit 1A, Exhibit
1B. On September 5, 2017, Edney filed the instant Petition1 alleging that the
Department has failed to comply with the trial court’s sentencing order by refusing
to grant him credit for the 404 days that he served on house arrest, from July 30,
2015, to the date of sentencing, September 7, 2016, as directed by the trial court.
               “Mandamus is an extraordinary writ 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.” Sheffield v. Department of Corrections, 894 A.2d 836, 840 (Pa.
Cmwlth. 2006), aff’d, 934 A.2d 1161 (Pa. 2007).                       The Department is an
administrative agency charged with faithfully carrying out sentences imposed by the
courts, and it is without authority “to adjudicate the legality of a sentence or to add
or delete sentencing conditions.” McCray v. Department of Corrections, 872 A.2d
1127, 1133 (Pa. 2005). “Because the sentence imposed by a trial court is a question
of law that involves no discretion on the part of the Department, mandamus will lie
to compel the Department to properly compute a prisoner’s sentence.” Barndt v.
Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006). A writ of
mandamus, however, cannot be used to compel an illegal act. Doxsey v. Bureau of
Corrections, 674 A.2d 1173, 1175 (Pa. Cmwlth. 1996).




       1
         Although styled as a Petition for Discretionary Review, the instant Petition challenges the
Department’s calculation of Edney’s sentence and asks this Court to compel the Department to
grant credit on this sentence. As a result, the Petition is properly treated as one in mandamus over
which this Court has original jurisdiction. Alston v. Pennsylvania Board of Probation and Parole,
799 A.2d 875, 876 (Pa. Cmwlth. 2002).


                                                 2
               In this case, the Department demurs to Edney’s Petition based upon its
assertion that Edney has not pleaded facts showing that he has a clear right to
mandamus relief.2 The Department contends that the trial court’s sentencing order
is illegal in that it violates Section 9760(1) of the Sentencing Code, 42 Pa. C.S.
§9760(1), by granting “[c]redit for time served, including time served on House
Arrest/Electronic Monitoring.” Petition Exhibit 1A, Exhibit 1B.3
               Section 9760 of the Sentencing Code states, in relevant part:

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


       2
         “In ruling on preliminary objections, the courts must accept as true all well-pled facts that
are material and all inferences reasonably deducible from the facts.” Pennsylvania Independent
Oil & Gas Association v. Department of Environmental Protection, 135 A.3d 1118, 1123 (Pa.
Cmwlth. 2015), aff’d, 161 A.3d 949 (Pa. 2017) (quoting Guarrasi v. Scott, 25 A.3d 394, 400 n.5
(Pa. Cmwlth. 2011)). “However, we ‘are not required to accept as true any unwarranted factual
inferences, conclusions of law or expressions of opinion.’” Id. (quoting Guarrasi, 25 A.3d at 400
n.5). “To sustain preliminary objections, ‘it must appear with certainty that the law will permit no
recovery’ and ‘[a]ny doubt must be resolved in favor of the non-moving party.’” Id. (quoting
Guarrasi, 25 A.3d at 400 n.5).

       3
          The Department also objected based on defective service. See Pa. R.A.P. 1514(c)
(requiring service of a petition for review to be served in person or by certified mail upon the
governmental agency as well as the Attorney General’s Office). This Court directed Edney to
comply with Rule 1514(c). On December 15, 2017, Edney filed a certificate of service certifying
service to the Department and the Attorney General by certified mail. Accordingly, by January 2,
2018 order, we overruled the Department’s preliminary objection in this regard.
                                                  3
42 Pa. C.S. §9760(1).
             In Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005), our Supreme Court
examined the meaning of the phrase “in custody” as it appears in Section 9760. In
that case, Kyle argued that he should receive credit for time spent “in custody”
pursuant to Section 9760 for the 268 days he was released on bail prior to trial and
subjected to electronic monitoring at his home. The Supreme Court noted that
neither Section 9760, nor any other provision of the Sentencing Code, defines the
phrase “time spent in custody” and that “there are many forms of sentence, and many
forms of pre-sentencing release, which involve restrictions far short of incarceration
in a prison.” Id. at 17. In examining the time that Kyle spent at home subject to
electronic monitoring, the Supreme Court made clear that in order to qualify as “time
spent in custody” under Section 9760, the level of restriction must coincide with that
which necessarily attends placement in an institutional setting and explained:

             While at home, an offender enjoys unrestricted freedom of
             activity, movement, and association. He can eat, sleep,
             make phone calls, watch television, and entertain guests at
             his leisure. Furthermore, [he] does not suffer the same
             surveillance and lack of privacy that he would if he were
             actually incarcerated.”
Id. at 22 (citation omitted). As a result, the Court concluded that “as a matter of law
credit cannot be awarded toward a prison sentence for time spent released on bail,
subject to electronic monitoring, in the circumstances presented here.” Id. at 23.
             Likewise, applying the rationale of Kyle in the instant case, Edney is
not entitled to credit for the time that he spent on house arrest prior to sentencing on
his guilty pleas. As a result, we cannot grant Edney the requested mandamus relief.
As we have explained:



                                           4
                    Mandamus will lie where there exists a right on
             behalf of the party seeking relief in mandamus. Thus, a
             writ of mandamus can be used to compel the [Department]
             to compute properly a prisoner’s prison sentence. No one,
             however, has a right and this Court, indeed, lacks the
             authority to compel an illegal act. . . . This is not to say
             that petitioner has no remedy. In a situation where,
             because a sentence is illegal, a prisoner does not receive
             the benefit of his plea bargain, the proper avenue would
             appear to be to seek relief in the sentencing court. While
             the court cannot declare the vehicle for obtaining such
             relief, what is clear is that the remedy is not one in
             mandamus against the [Department] to compel it to honor
             an illegal order.
Doxsey, 674 A.2d at 1175. See also Duncan v. Pennsylvania Department of
Corrections, 137 A.3d 575, 576 (Pa. 2016) (“Given the above statutes and the
existing decisional law, [the Department] cannot be compelled by a writ of
mandamus to enforce the sentencing order.          See Fajohn [v. Department of
Corrections, 692 A.2d 1067, 1068 (Pa. 1997)].          Therefore, mandamus is not
available to compel the relief Appellant seeks. However, . . . it appears Appellant
may be permitted to seek modification of his sentence nunc pro tunc before the
sentencing court, asserting he has not received the benefit of the guilty plea bargain
negotiated with the Commonwealth and approved by the court. See id. at 1068
n.1.”).
             Accordingly, Respondents’ PO in the nature of a demurrer is sustained
and Edney’s Petition is dismissed.




                                       MICHAEL H. WOJCIK, Judge




                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Orlando Edney,                           :
                                         :
                         Petitioner      :
                                         :
                   v.                    : No. 389 M.D. 2017
                                         :
Pennsylvania Department of               :
Corrections, State Correctional          :
Institution Pine Grove,                  :
                                         :
                         Respondents     :


                                      ORDER


            AND NOW, this 13th day of June, 2018, Respondents’ preliminary
objection in the nature of a demurrer is SUSTAINED, and Petitioner’s Petition for
Discretionary Review is DISMISSED.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
