        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania             :
                                         :
             v.                          :   No. 449 M.D. 2016
                                         :   Submitted: September 15, 2017
Onofrio Positano,                        :
                          Petitioner     :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: December 21, 2017

             Before this Court is the application for summary relief filed by the
Department of Corrections (DOC) seeking dismissal of inmate Onofrio Positano’s
(Positano) amended petition for review (amended petition). Through his amended
petition, Positano seeks an order directing DOC to reduce his state prison sentence
based on a statement in an opinion from the sentencing judge. Upon review, we
grant DOC’s application for summary relief and dismiss Positano’s amended
petition.


                                  I. Background
             In his amended petition, Positano, who is incarcerated at the State
Correctional Institution at Mahanoy (SCI-Mahanoy), avers the following facts. In
April 2016, Positano filed a petition for early parole with the sentencing court, the
Court of Common Pleas of Chester County (trial court), “citing that, [he] was
sentenced to 13½ to 27 years and had completed more than 50% of [his] minimum
sentence.” Am. Pet. for Review at 1. The trial court denied Positano’s petition.
Positano appealed to the Superior Court.


             Thereafter, the trial court issued a “Statement of The Court” (Opinion)
in support of its order denying Positano’s petition for early parole in which it
indicated Positano received a total sentence of 11½ to 23 years as opposed to the
13½ to 27 year sentence shown by DOC, “a 4 year error in sentence computations.”
Id. Positano avers he received a copy of the Opinion signed by the sentencing judge,
the Honorable Phyllis Streitel, which the Chester County Clerk of Courts signed and
certified as true and correct. Positano alleges that on page 3 of the Opinion, the trial
court, “spelled out by each docket number, the sentences received by [Positano] and
[stated], ‘Therefore, on the above docket numbers, [Positano] received a sentence of
11½ to 23 years.” Am. Pet. at ¶2. Positano avers this statement is contrary to DOC’s
records, which indicate his sentence is 13½ to 27 years.


             Positano avers that in July 2016, he filed a request with SCI-Mahanoy’s
records department in which he indicated he received the Opinion and cited the four-
year discrepancy. In response, the records supervisor stated: “When the county
sends something to us certified, we will correct it, our paperwork shows the same as
you [sic] status sheet.” Am. Pet. at ¶3.


             Positano avers he contacted the Clerk of Courts and requested that it
send an original certified copy of the Opinion to SCI-Mahanoy’s records department.
He alleges the Clerk of Courts did so within a week, and the records department
acknowledged receipt. Positano further alleges, after several weeks without results,



                                           2
he sent a follow-up request to the records department. In response, the records
department stated, “there are discrepencies [sic] with the docket numbers and until
we get clarification, there will be no change. … [T]he Clerk has made an error in
typing it. Further, demanding and [sic] Order of Court of a DB 300 form.” Am. Pet.
at ¶5 (citation omitted).


             Positano also avers that, upon questioning the Clerk of Courts to verify
the Opinion is true and correct, the Clerk replied and did not allude to the existence
of errors in this document. Positano alleges Judge Streitel would not have signed a
document she did not review and verify as true and correct nor would the Clerk of
Courts sign and certify this document as true and correct if it contained errors.


             Positano avers, “historically, the SCI Mahanoy [records department]
has abused its power and attempted to act as judge and attorneys. Several, [sic] civil
complaints have been filed and grievances filed as well.” Am. Pet. at ¶8. Positano
alleges he was “referred to the [Department] of Population Management and
Sentence Computations, by the Clerk of Courts, this was done on February 5, 2017,
to date no reply.     Finally, [Positano] was notified by Ms. Jane Hinman, the
[Superintedent’s Assistant] of SCI Mahanoy, that [SCI-Mahanoy] would not answer
a request form [sic] an inmate but, [sic] needed a Court Order directly from the
Court.” Am. Pet. at ¶9. Finally, Positano avers: “No on [sic] but [DOC] has errored
[sic] in his sentence computations and they, must be ordered by this Court to rectify
and adjust his sentenc [sic] by the 4 year difference.” Am. Pet. at ¶10.
             Based on these averments, Positano requests that this Court order DOC
to adjust and correct his sentence to show the four-year difference and to indicate



                                          3
his sentence is 11½ to 23 years rather than the 13½ to 27 year sentence it now has
recorded. Am. Pet. At ¶2.


               In response to the amended petition, DOC filed an answer and new
matter as well as an application for summary relief.1 Positano filed a reply to DOC’s
new matter as well as a response to DOC’s application for summary relief. Both
parties filed briefs regarding DOC’s application for summary relief. This matter is
now before us for disposition.2
                                         II. Discussion

       1
          Initially, DOC filed preliminary objections to Positano’s petition for review, asserting
Positano did not serve DOC with the petition for review, and it was unclear whether he served the
Office of Attorney General. As a result, DOC asserted this Court lacked personal jurisdiction to
adjudicate this matter. This Court sustained DOC’s preliminary objection and dismissed
Positano’s petition for review. Positano filed an application for reconsideration, alleging he served
DOC and the Office of Attorney General with the petition for review. He also filed an application
to amend his petition for review. This Court granted Positano’s application for reconsideration,
vacated its prior order, and reinstated Positano’s suit. Additionally, this Court granted Positano’s
application to amend his petition for review. Positano subsequently filed an amended petition for
review.

       2
           An application for summary relief may be granted: “At any time after the filing of a
petition for review in an … original jurisdiction matter … if the right of the applicant thereto is
clear.” Pa. R.A.P. 1532(b). The application will be denied where there are material facts in dispute
or it is not clear that the applicant is entitled to judgment as a matter of law. Brown v. Dep’t of
Corr., 932 A.2d 316 (Pa. Cmwlth. 2007).
         The record, for purposes of the motion for summary relief, is the same as a record for
purposes of a motion for summary judgment. Borough of Bedford v. Dep’t of Envtl. Prot., 972
A.2d 53 (Pa. Cmwlth. 2009) (en banc). Pennsylvania Rule of Civil Procedure Rule 1035.1 states
that the record in a motion for summary judgment includes any

       (1) pleadings,

       (2) depositions, answers to interrogatories, admissions and affidavits, and

       (3) reports signed by an expert witness …
Pa. R.C.P. No. 1035.1. Therefore, in “ruling on a motion for summary judgment, a court must
consider not only the pleadings but other documents of record, such as exhibits.” Bedford, 972
A.2d at 60 n.6.

                                                 4
                                   A. Contentions
             Through its application for summary relief, DOC asserts, based on the
facts pled in its new matter as supported by the attached exhibits and public docket,
it is clear Positano is not entitled to the relief sought. More particularly, DOC notes
Positano relies on the Opinion. DOC points out that Judge Streitel authored the
Opinion, and on page 3, she outlined Positano’s sentences. Based on Judge Streitel’s
review of Positano’s sentences, she stated Positano received a sentence of 11½ to 23
years in prison.


             However, DOC asserts, based on the sentencing orders it received, it
calculated Positano’s aggregate sentence as 13½ to 27 years in prison. DOC argues
there are two errors in the Opinion upon which Positano relies. First, the Opinion
states that in Count 5 to Docket No. 1411-2007, Positano received a sentence of 30
to 60 months. Contrary to this statement, DOC contends the sentencing sheet,
attached as an exhibit to DOC’s answer and new matter, shows Positano received a
sentence of 36 to 72 months on Count 5 at Docket No. 1411-2007.


             In addition, DOC maintains that the Opinion omitted any reference to
Count 2 to Docket No. 1489-2007. However, DOC asserts the sentencing sheet,
attached as an exhibit to its new matter, shows Positano received a consecutive
sentence of 18 months to 36 months on Count 2 to Docket No. 1489-2007. Therefore,
DOC argues, Judge Streitel’s statement in her Opinion of the sentences Positano
received inaccurately stated the sentence at Count 5 to No. 1411-2007 and omitted
Count 2 to Docket No. 1489-2007. DOC contends this resulted in a two to four year
difference (on Positano’s aggregate minimum and maximum sentences,
respectively) between DOC’s calculation and the summary of sentences set forth in

                                          5
the Opinion. As a result, DOC maintains, the 11½ year minimum sentence noted in
the Opinion is actually 13½ years, and the 23 year maximum sentence noted in the
Opinion is actually 27 years. In reviewing the docket sheets for Docket Nos. 1411
and 1489 of 2007, DOC argues, the sentencing court did not alter Count 5 to Docket
No. 1411, nor did it dismiss Count 2 to Docket No. 1489. DOC asserts the Opinion
could not alter Positano’s duly imposed sentences and sentencing orders. Therefore,
DOC contends, its right to relief is clear.


             Positano responds that DOC’s application for summary relief must be
denied where DOC has not submitted any certified documents to support its claims.
Positano argues that although DOC asserts that the Opinion contains errors and
omissions, it presents no evidence that was certified from the trial court’s records.
Rather, Positano contends, the only document DOC purports is evidence validating
its claims is a letter signed by the sentencing judge that simply mirrors a letter DOC’s
counsel wrote to the sentencing judge requesting clarification of the statements in
the Opinion. On the other hand, Positano maintains, the Opinion itself was certified
from the record and sealed and signed by the Clerk of Courts; therefore, it is valid.
As a result, Positano requests that this Court deny DOC’s application for summary
relief and grant his amended petition for review, requiring DOC to adjust his
sentence.

                                     B. Analysis
             A writ of mandamus is an extraordinary remedy used to compel official
performance of a ministerial act when a petitioner establishes a clear legal right, that
the respondent has a corresponding duty, and that the petitioner has no other
adequate remedy at law. Tindell v. Dep’t of Corr., 87 A.3d 1029 (Pa. Cmwlth.


                                              6
2014). The purpose of mandamus is not to establish legal rights, but to enforce those
rights already established beyond peradventure. Aviles v. Dep’t of Corr., 875 A.2d
1209 (Pa. Cmwlth. 2005).


             DOC is an administrative agency charged with faithfully carrying out
sentences imposed by the courts, and is without authority “to adjudicate the legality
of a sentence or to add or delete sentencing conditions.” McCray v. Dep’t of Corr.,
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 DOC’s part, mandamus may lie to
compel DOC to properly compute a prisoner’s sentence. Barndt v. Dep’t of Corr.,
902 A.2d 589 (Pa. Cmwlth. 2006).


             “A sentence … is to be construed so as to give effect to the intention of
the sentencing judge.” Commonwealth ex rel. Powell v. Dep’t of Corr., 14 A.3d
912, 915 (Pa. Cmwlth. 2011) (quoting Commonwealth v. Green, 335 A.2d 392, 393
(Pa. Super. 1975)). “[T]o determine this intention the court will limit itself to the
language of the judgment despite ... statements of the sentencing judge which are
not incorporated in it.” Id. at 915-16.
             Further,

             [t]he only sentence known to the law is the sentence or
             judgment entered upon the records of the court. If the
             entry is inaccurate, there is a remedy by motion to correct
             it to the end that it may speak the truth. But the judgment
             imports verity when collaterally assailed. Until corrected
             in a direct proceeding, it says what it was meant to say,
             and this by an irrebuttable presumption. In any collateral
             inquiry, a court will close its ears to a suggestion that the
             sentence entered in the minutes is something other than the
             authentic expression of the sentence of the judge.


                                          7
Id. at 916 (quoting Commonwealth ex rel. Woods v. Howard, 378 A.2d 370, 372-73
(Pa. Super. 1977)). As a result, this Court will limit its inquiry to the language
embodied in the sentencing orders to determine an inmate’s sentence. Id.


              Here, attached to DOC’s answer and new matter, are the trial court’s
certified sentencing sheets and the public docket entries that correspond to the
sentences at issue. Based on our review of these documents, it is clear that the trial
court’s later Opinion denying Positano’s motion for early parole, upon which
Positano bases his claim, contained an error and an omission in its recitation of the
various prison sentences Positano received, which led to an inaccurately stated,
reduced aggregate sentence.


              More particularly, as to Docket Number 1411-2007, in its Opinion the
trial court indicated Positano received a sentence of 30 months to 60 months in
prison on Count 5. See Tr. Ct., Statement of the Court, 6/30/16, Slip Op., at 3.
However, both the certified sentencing sheet and the public docket sheet for Docket
Number 1411-2007 state that Positano received a sentence of 36 months to 72
months in prison on Count 5 of Docket Number 1411-2007.3                  See Respondent’s
Answer to Pet’r’s Am. Pet. for Review with New Matter, Exs. B, C.


              In addition, in recounting the various prison sentences Positano
received, the Opinion omitted any reference to Count 2 of Docket No. 1489-2007.

       3
        Further, the docket sheet for Docket No. 1411-2007 reflects that Positano appealed, and
the Superior Court affirmed the judgment of sentence. The Pennsylvania Supreme Court denied
Positano’s petition for allowance of appeal.



                                              8
See Slip Op., at 3. However, both the certified sentencing sheet and the public
docket sheet for Docket Number 1489-2007 clearly state that Positano received a
sentence of 18 months to 36 months in prison on Count 2 of Docket Number 1489-
2007.4 See Respondent’s Answer to Pet’r’s Am. Pet. for Review with New Matter,
Exs. D, E.5


               Thus, although the Opinion states that Positano received an aggregate
sentence of 11½ to 23 years in prison, when the correct sentence for Count 5 of
Docket No. 1411-2007 is utilized (36 to 72 months rather than 30 to 60 months) and
the sentence for Count 2 of Docket No. 1489-2007 is included (18 to 36 months), it
is clear DOC properly recorded Positano’s aggregate sentence as 13½ to 27 years in
prison. As a result, Positano cannot establish the first element to his mandamus
claim, a clear legal right to the relief he seeks, a reduction in his prison sentence.
Powell.


               In addition, Positano cannot satisfy the second element of his
mandamus claim, that DOC has a corresponding duty to reduce his prison sentence.
As stated above, DOC is charged with faithfully implementing the sentences
imposed by the courts; it lacks the power to adjudicate the legality of a sentence or
to add or delete sentencing conditions. McCray. Here, DOC lacks authority to

       4
        Moreover, the docket sheet for Docket No. 1489-2007 reflects that Positano appealed,
and the Superior Court affirmed the judgment of sentence. The Pennsylvania Supreme Court
denied Positano’s petition for allowance of appeal.
       5
          Attached as Exhibit A to DOC’s Brief is a letter from the sentencing judge, the Honorable
Phyllis R. Streitel of the Chester County Court of Common Pleas, which acknowledges that, after
a thorough review of court records, her “Statement of the Court” (Opinion) contains this error and
omission. Although Positano takes issue with this letter, as set forth above, the statements in the
letter are directly supported by the relevant certified sentencing sheets and the public docket sheets.

                                                  9
reduce Positano’s duly imposed prison sentences based on an erroneous statement
in the trial court’s subsequent opinion denying Positano’s motion for early parole.


             Finally, if Positano believed a sentencing error occurred, he had
adequate legal remedies, a post-sentence motion filed with the sentencing court,
through the direct appeal process or through the Post Conviction Relief Act, 42 Pa.
C.S. §§9541-9546. See, e.g., Aviles; Woods. Therefore, Positano cannot establish
the third element for his mandamus claim, that he lacked another adequate legal
remedy.


                                  III. Conclusion
             For these reasons, DOC’s application for summary relief is granted, and
Positano’s amended petition is dismissed.



                                       ROBERT SIMPSON, Judge




                                         10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania           :
                                       :
            v.                         :   No. 449 M.D. 2016
                                       :
Onofrio Positano,                      :
                        Petitioner     :


                                     ORDER

            AND NOW, this 21st day of December, 2017, Respondent’s
Application for Summary Relief is GRANTED, and Petitioner Onofrio Positano’s
Amended Petition for Review of Sentence Computation Pursuant to Order of Court
of May 11, 2017 is DISMISSED.




                                      ROBERT SIMPSON, Judge
