IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Davis, :

:

Petitioner :

:

v. : No. 632 M.D. 2016

: Submitted: October 13, 2017

The Pennsylvania Department of :

Corrections, :

 :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: November 30, 2017

Before this Court are cross-motions for summary relief filed by 

Thomas Davis (Inmate), currently incarcerated at the State Correctional Institution

at Mercer, and the Pennsylvania Department of Corrections (Department). Inmate 

initially filed a petition for review in our original jurisdiction and subsequently 

filed an Amended Petition for Review. In this action, Inmate seeks the 

recalculation of his sentence imposed on January 14, 1992. For the reasons set 

forth below, we deny Inmate’s motion for summary relief and grant the 

Department’s cross-application.1 

 

1 Rule 1532(b) of the Rules of Appellate Procedure provides that “[a]t any time after the filing of 

a petition for review in an appellate or original jurisdiction matter the court may on application 

(Footnote continued on next page...)
2

On December 25, 1988, Inmate was arrested on charges of criminal 

mischief and aggravated assault; he was released on bail in January 1989. While 

on bail, Inmate was arrested on February 25, 1989 on charges of two counts of 

robbery, for which he was not convicted, and arrested again on March 7, 1989 on 

six counts of robbery. He was convicted of criminal mischief and aggravated 

assault charges and, subsequently, on four of the six counts of robbery.

On June 9, 1989, Allegheny County Court of Common Pleas Judge 

Joseph James sentenced Inmate to one-to-four years for his conviction on the 

charges of criminal mischief and aggravated assault; Inmate was given credit for 

the period from the date of his arrest, December 25, 1988, through the date of 

sentencing, with a maximum date of December 25, 1992. He was paroled from the

one-to-four year sentence on May 2, 1990, but remained in custody on the pending 

robbery charges.

 On January 14, 1992, Inmate was sentenced by Allegheny County 

Court of Common Pleas Judge W. Terrence O’Brien on four robbery counts to two 

7-14 year sentences to be served consecutively and to two 7-14 year sentences to 

be served concurrently; Inmate was given credit for the period from May 2, 1990, 

the date on which he was paroled from the sentence imposed by Judge James on 

the criminal mischief and aggravated assault conviction, through the sentencing 

date.

 

(continued...)

enter judgment if the right of the applicant thereto is clear.” Pa. R.A.P. 1532(b). Summary relief 

may be granted if there are no genuine disputes of material fact and, viewing the evidence in the 

light most favorable to the nonmoving party, the movant’s right to judgment in its favor is clear 

as a matter of law. Hospital & Healthsystem Association of Pennsylvania v. Commonwealth, 77 

A.3d 587, 602 (Pa. 2013); PPL Electric Utilities Corp. v. City of Lancaster, 125 A.3d 837, 853 

(Pa. Cmwlth. 2015) (en banc).
3

 Inmate seeks a re-calculation of his 1992 sentence, asserting that the 

effective date for that sentence should be the date on which he was first arrested on 

robbery charges, February 25, 1989. Inmate asserts that his maximum date should 

therefore be February 25, 2017 and not May 2, 2018, as indicated in the 

Department’s Sentence Status Report reflecting its calculation of his total prison 

sentence. He argues that because he was incarcerated on pending robbery charges 

at the time he was sentenced on the unrelated criminal mischief and assault 

charges, under former Pa. R.Crim.P.1406(a),

2

the 1989 sentence and the 1992 

sentence must be deemed to run concurrently. Inmate’s argument is without merit. 

 

2 During the relevant time period, then-Rule 1406 provided,

(a) Whenever more than one sentence is imposed at the same time 

on a defendant, or whenever a sentence is imposed on a defendant 

who is incarcerated for another offense, such sentences shall be 

deemed to run concurrently unless the judge states otherwise.

(b) A sentence to imprisonment shall be deemed to commence and 

shall be computed from the date of commitment for the offense or 

offenses for which such sentence is imposed, which dates shall be 

specified by the judge. Credit, to be calculated by the clerk of 

court, shall be given as provided by law for any days spent in 

custody by the defendant for such offense or offenses prior to the 

imposition of sentence.

(c) When, at the time sentence is imposed, the defendant is 

imprisoned under a sentence imposed for any other offense or 

offenses, the instant sentence which the judge is imposing shall be 

deemed commence from the date of imposition thereof unless the 

judge states that it shall commence from the date of expiration of 

such other sentence or sentences.

Former Pa. R.Crim.P.1406. Rule 1406 was amended November 7, 1996, effective January 1, 

1997. See Final Report issued by the Criminal Procedure Rules Committee explaining the 

November 7, 1996 amendments published with the Supreme Court’s Order at 26 Pa.B. 5694 

(November 23, 1996), which provides a summary of the amendments to Rule 1406. The 

(Footnote continued on next page...)
4

The Department asserts that it properly declined to award Inmate the 

credit he seeks, as it lacks power to make independent decisions on whether to do 

so, and merely assigns credit as directed by the sentencing court and the clerk of 

courts. Indeed, our Supreme Court has opined that the Department, as part of the 

executive branch, is charged with faithfully implementing sentences imposed by 

the courts, and lacks the power to adjudicate the legality of a sentence or to add or 

delete sentencing conditions. McCray v. Pennsylvania Department of Corrections, 

872 A.2d 1127, 1133 (Pa. 2005). Judge O’Brien addressed Inmate’s claim in his 

denial of a petition for writ of habeas corpus filed by Inmate in February 2017. In 

that opinion, Judge O’Brien took judicial notice of Inmate’s 1989 sentence, and the 

period for which Judge James awarded him credit, which encompassed the 

February 25, 1989 arrest date on the first of the robbery charges; Judge O’Brien 

further noted that Inmate’s parole date on that sentence was May 2, 1990. Judge 

 

(continued...)

summary indicates that paragraph (a) was amended to eliminate language that creates a 

presumption that certain sentences run concurrently unless that judge states otherwise, and to add 

a requirement that when the sentencing judge is imposing more than one sentence at the same 

time, or imposing a sentence on a defendant incarcerated for another offense, the judge must 

state whether the sentences will run concurrently or consecutively.

The summary of amendments further explains that paragraph (b) was deleted because the 

computation of sentences and credit for time served is a substantive matter and should be 

governed by statute and case law, and paragraph (c) was deleted because it too creates a 

presumption on sentencing that should be left to statute and case law. The Final Report further 

explains a clarifying change to paragraph (a), stating “Paragraph (a) addressed, in part, the 

circumstance in which ‘a sentence is imposed on a defendant who is incarcerated for another 

offense...’ Because a defendant can be incarcerated on charges without being sentenced, the 

paragraph has been clarified by substitution the word sentenced for the broader term 

incarcerated.” (Pa.B. Doc. No. 96-2002.) Rule 1406 was amended and renumbered as Pa. 

R.Crim.P.705 effective April 1, 2001.
5

O’Brien dismissed Inmate’s petition, stating that he had awarded Inmate credit on 

the sentence for the robbery convictions from May 2, 1990. (Motion for Summary 

Relief, Exhibit F.)

Inmate’s reliance on former Pa. R.Crim.P.1406(a) is misplaced, as it 

related to the presumed concurrence of sentences imposed, and not to pre-sentence 

confinement credit. Judge O’Brien’s 1992 sentences were not consecutive, they 

were in fact concurrent with the 1989 sentence as they began to run before 

Inmate’s maximum date of the sentence on his 1989 conviction. Accordingly, 

Inmate’s Motion for Summary Relief is denied, and the Department’s CrossMotion for Summary Relief is granted. Inmate’s Amended Petition for Review is 

dismissed. 

 

_______________________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Davis, :

:

Petitioner :

:

v. : No. 632 M.D. 2016

:

The Pennsylvania Department of : 

Corrections, :

 :

Respondent :

O R D E R

AND NOW, this 30th day of November, 2017, Thomas Davis’ Motion 

for Summary Relief is DENIED, and the Pennsylvania Department of Corrections’ 

Cross-Motion for Summary Relief is GRANTED. Thomas Davis’ Amended 

Petition for Review is DISMISSED.

_______________________________________

JAMES GARDNER COLINS, Senior Judge