Foxe v. Pa. Dept. of Corr.

214 A.3d 308

Darius FOXE, Petitioner

v.PA. DEPT. OF CORRECTIONS, Respondent

No. 214 M.D. 2018

Commonwealth Court of Pennsylvania.

Submitted on Briefs February 15, 2019

Decided July 9, 2019

Darius Foxe, pro se.

Kelly J. Hoke, Assistant Counsel, Mechanicsburg, for respondent.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE COVEY

Before this Court are the Pennsylvania Department of Corrections' (DOC) preliminary objections in the nature of a demurrer (Preliminary Objections) to Darius Foxe's (Foxe) pro se Petition for Writ of Mandamus (Petition) filed in this Court's original jurisdiction.

Background

According to the Petition and the documents attached thereto,¹ Foxe is incarcerated at the State Correctional Institution (SCI) at Frackville. On or about April 2, 2008, Foxe was arrested for firearms violations (Philadelphia County Common Pleas Court (trial court) Docket No. CP-51-CR-4341-2009) (First Offense). See Petition ¶ 6. On April 4, 2008, Foxe was released on bail.² See Petition ¶ 6. While free on bail pending disposition of his First Offense, Foxe was arrested on November 25, 2009, for attempted murder and firearms violations (trial court Docket No. CP-51-CR-1216-2010) (Second Offense).³ See Petition ¶ 7. Foxe's bail for the Second Offense was set on November 26, 2009, which he did not post. See Petition ¶ 8. On June 29, 2010, Foxe was convicted on the First Offense and his bail therefor was revoked. See Petition ¶ 9. On August 12, 2010, the trial court sentenced Foxe on the First Offense to serve two 1½- to 3-year terms of incarceration to be served concurrently in an SCI (Original Sentence). See Petition ¶ 9.

On July 14, 2011, Foxe entered a negotiated guilty plea relative to the Second Offense and was sentenced on the attempted murder charge to 8 to 18 years in an SCI plus 2 years of probation, and on the firearms violation 3 to 6 years (New Sentence). See Petition ¶ 10. Foxe asserts in the Petition that "[t]he [trial court] unequivocally stated on the record that the sentence [the trial court ] imposed for the [S ]econd [O ]ffense was to run concurrently with the sentence for the [F ]irst [O ]ffense previously imposed by [the trial court] and additionally, [Foxe] was to receive credit for all time served ." See Petition ¶ 11 (emphasis in original). In support of this claim, Foxe attached to the Petition the following excerpt from his guilty plea colloquy:

THE COURT: [ ] Foxe, as I've intimated, I intend to accept the negotiations and I will sentence in accordance therewith.

So, [ ] Foxe, on [the Second Offense], the Court imposes a negotiated sentence as follows: Count 1 [ (attempted murder charge) ], ... a term of not less than eight years no[r] more than eighteen years in a[n SCI]. That's to be followed by two years of consecutive reporting probation. You must pay costs and you must pay fees.

Do you understand that?

[FOXE]: Yes.

THE COURT: On ... Count 3 [ (firearms charge) ], ... the Court imposes a term of not less than [3½], no more than [7] years of state incarceration, however, it is to run concurrent, that is to be served at the same time, as the sentence served on the charge of attempted murder.

Do you understand that?

[FOXE]: Yes, sir.

THE COURT: Finally, in accordance with the negotiations, the Court directs that the [New S]entence ...

is to run concurrent with [Foxe's Original S]entence ....

Do you understand your sentence, sir?

[FOXE]: Yes.

....

THE COURT: [ ] Foxe, I'm going to ask your attorney to articulate for you your appellate rights. Please listen.

MS. KULICK: Your Honor, I would just ask that you state for the record that he [is ] entitled to credit for time served .

THE COURT: Your motion is granted .

MS. KULICK: Thank you.

[ ] Foxe, you heard the terms of your [New S]entence as well as the fact that your guilty plea was accepted. Basically, you're serving [8] to [18] years plus [2] years reporting probation in total to run concurrent, which means at the same time, as the [Original S]entence you are now serving at SCI Chester.

....

Do you understand your sentence and your rights?

[FOXE]: Yes.

Petition Appendix (Notes of Guilty Plea, July 14, 2011) at 35-37 (emphasis added).

Foxe represents in the Petition that: "Upon receipt of the DOC DC16E - Sentence Status Summary report, [Foxe] learned that [ ] DOC calculate[d] his controlling minimum date for the [S]econd [O]ffense as July 14, 2019, and the controlling maximum date as July 14, 2029; this is an error and must be remedied." Petition ¶ 4. Foxe declares that his minimum sentence release date should be November 26, 2017, and his maximum sentence release date should be November 26, 2027. See Petition at 5. Accordingly, Foxe seeks an order from this Court directing DOC "to recalculate his controlling minimum and maximum dates of confinement"⁴ to include credit for the 595 days he was incarcerated between November 26, 2009 and July 14, 2011. Petition at 1; see also Foxe Br. at 2.

DOC filed the Preliminary Objections to the Petition averring that Foxe has failed to state a valid mandamus claim. Foxe opposes DOC's Preliminary Objections.⁵

Discussion

In ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. The Court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact in the complaint and all inferences reasonably deducible therefrom. It tests the legal sufficiency of the challenged pleadings and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief can be granted. When ruling on a demurrer, a court must confine its analysis to the complaint.

Torres v. Beard , 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).

Here, Foxe, as set forth in his Petition, seeks a mandamus order. This Court has held: "A writ of mandamus is an extraordinary remedy, [ ] used to compel performance of a ministerial act or a mandatory duty. Mandamus may only be granted where the moving party establishes a clear legal right, the defendant's corresponding duty and the lack of any other appropriate and adequate remedy." DeGeorge v. Young , 892 A.2d 48, 51 (Pa. Cmwlth. 2006) (citation omitted).

Clear Right to Relief

DOC asserts that Foxe failed to demonstrate a clear right to credit for the time he served between November 26, 2009 and July 14, 2011 because the time was credited toward another sentence. See DOC Prelim. Obj. ¶¶ 15-20; see also DOC Br. at 7-9. Specifically, DOC maintains that since the trial court did not direct that Foxe's July 14, 2011 sentence was to commence earlier than that date, Foxe "is not entitled to credit towards his [N]ew [S]entence for the time he previously served on the unrelated [Original S]entence[.]" DOC Br. at 8.

Pennsylvania courts award credit for time served pursuant to Section 9760 of the Sentencing Code, which 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.

....

(4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.^[6]

42 Pa.C.S. § 9760 (emphasis added). The Pennsylvania Superior Court "has explained that the principle behind statutory credit is that the defendant should be given credit for time spent in custody before being sentenced for a given offense." Commonwealth v. Merigris , 452 Pa.Super. 78, 681 A.2d 194, 194 (1996).

Section 9760(1) [of the Sentencing Code] contains two general elements for credit for time served: (1) the time must be ‘spent in custody’ and (2) the time must be ‘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.’ See 42 Pa.C.S. § 9760(1). If both conditions are met, then the defendant is entitled to credit.

Commonwealth v. Vidal , 198 A.3d 1097, 1100 (Pa. Super. 2018). When a sentencing court awards credit for time served, it is awarding credit for time served for that offense only. See 42 Pa.C.S. § 9760(1).

Foxe's July 14, 2011 sentencing order directed that Foxe was concurrently serving time on both his Original Sentence and his New Sentence as of July 14, 2011. However, pursuant to Section 9760(1) of the Sentencing Code, as of August 12, 2010, Foxe was entitled to Original Sentence credit for all time he spent in pre-sentence custody for his First Offense and, as of July 14, 2011, he was entitled to New Sentence credit for all time he spent in pre-sentence custody for his unrelated Second Offense.⁷ Based on this Court's review of the facts pled in the Petition, the relevant timeline is as follows:

• April 2, 2008 – First Offense arrest (bail posted April 4, 2008)

[free on bail from April 4, 2008 through November 24, 2009]

• November 25, 2009 – Second Offense arrest (no

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