IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darnell Newsome, : Petitioner :

: v. : : Pennsylvania Dept. of Correction and : Diane Yale, Record Supervisor : SCI

- Dallas, : No. 258 M.D. 2016 Respondents : Submitted: December 9, 2016

BEF ORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: January 5 , 201 7

Before this Court in our origina l jurisdiction is the preliminary objection in the nature of a demurrer of the Pennsylvania Department of
Corrections (Department) and Diane Yale, Record Supervisor (together, Respondents) to the pro se petition for review (Petition) filed by Darnell Newso me (Newsome) seeking a writ of mandamus compelling the Department to recalculate his prison sentence

. For the reasons that follow, the preliminary objection is
overruled

.

Newsome is an inma te currently incarcerated at the State Correctional
Institution at Dallas (SCI

- Dallas)

. Newsome was found guilty of multiple criminal2

offenses in the Philadelphia County Court of Common Pleas (trial court) , including simple assault, endangering the welfare of children, two counts of recklessly endangering another pers on and various firearms /weapons charges

. On October 6, 2011, the trial court sentenced Newsome , in pertinent part, as follows: 3 years 6
months to 7 years on Count 2, firearms not to be carried without a license; 5 to 10 years on Count 4, possession of a firearm prohibited; and 1 to 2 years on Count 7, simple assault.

Following his transfer to SCI

- Dallas on October 13, 2011 , the Department computed Newsome’s sentence and issued a form DC 16E

– Sentence Status Summary indicating that his minimum release date i s February 27, 2020,
and his maximum release date i s August 27, 2029. (Exhibit B to Newsome’s Brief.) This computation reflects the Department’s interpretation that Newsome’s

s entence on Counts 2, 4 and 7 a re to run consecutively to each other, res ulting in

a n aggregate sentence of 9 years 6 months to 19 years’ incarceration.

In April 2016, Newsome filed this mandamus Petition 1 alleging that the Department erroneously calculated his minimum and maximum dates on its DC

1 Mandamus is an extraordinary action and is available “to compel the performance of a mandatory dut y or a ministerial act only where : (1) the petitioner has a clear legal right to enforce the performance of the act, (2) the defendant has a corresponding duty to perform the act and (3) the petitioner has no other adequate or appropriate remedy.” Saunde rs v. Department of Corrections , 749 A.2d 553, 556 (Pa. Cmwlth. 2000). This Court has held that because a sentence imposed by a trial court involves no discretion on the part of the Department, mandamus may be used to compel the Department to compute a pr isoner’s sentence properly. I d. ; see also Powell v. Pennsylvania Department of Corrections , 14 A.3d 912, 915 (Pa. Cmwlth. 2011).3

16E form. According to Newso me ’s Petition , his original incarceration dat e was October 12, 2010 , but the Departm ent failed to award him credit for the year of
time he serve d from his original incarceration until his sentencing on October 6,
2011 . Newsome also avers that during sente ncing, the trial court judge specified
that all sentences were to run concurrent for a total aggregate sentenc e of 7 to 14 years rather than the 9 years 6 months to 19 year s th at the Department calculated.
Newsome seeks an order from this Court directing the Department “to conduct an accurate reflection of [his] time credit to show that the controlling minimum date is
on or about 10

- 12

- 2017, and the [] controlling maximum date to be on or about 10

- 12

- 2024.” (Newsome’s Brief at 5.)

In support of his alle gations, Newsome attached to his Petition excerpts from the transcript of his October 6, 2011 sentencing hearing ; the Department’s DC 1 6E form dated November 23, 2011 , calculating Newsome’s minimum and maximum release dates; and one page from Newsome’s sum mary docket sheet in the trial court. While the Petition repeatedly avers that the sentencing order specifies Newsome was sentenced to a period of incarceration of 7 to 14 years and that this sentencing order is binding on the Department, Powell v. Depart ment of Corrections , 14 A.3d 912 (Pa. Cmwlth. 2011), Newsome did not attach a copy of the sentencing order to his Petition.

The Department filed a preliminary objection in the nature of a
demurrer 2 alleging that the documents attached to Newsome’s Petiti on show that

2 In reviewing preliminary objections in the nature of a demurrer, “[a]ll well

- pled facts in the [petition], and reasonable i nferences arising from those facts, are accepted as true. However, (Footnote continued on next page...)4

his sentence has been calculated correctly. T he Department points to Newsome’s
criminal docket and the trial court’s 300B court commitment forms 3 that state that Counts 2, 4 and 7 are to run consecutively , resulting in an aggregate sentence o f 9 years 6 months to 19 years which the Department used in calculating his minimum
and maximum dates. Moreover, the Department asserts that Newsome was not entitled to any credit against that sentence because the transcript from hi s sentencing hearing is silent on the issue of credit, and Newsome’s docket sheet and the 300B court commitment forms do not provide for cred it for time served.
Because the documen ts that Newsome attached to his petition for review show that his sentence was properly calculated , the Department asserts that Newsome is not
entitled to mandamus relief.

It is well established that the Department “is charged with faithfully implementing sentences imposed by the courts. As part of the executive branch, the Department lacks the powe r to adjudicate the legality of a sentence or to add or delete sentencing conditions.” McCray v. Pennsylvania Department of

(continued...)
unwarranted inferences, conclusions of law, argumentative allegations or expressions of opinion need not be accepted.” Richardson v. Wetzel , 74 A.3d 353, 356 (Pa. Cmwlth. 2013) (quoting W ilson v. Marrow , 917 A.2d 357, 361 n.3 (Pa. Cmwlth. 2007)).

3 Ordinarily, a demurrer is limited to the facts readily ascertainable in the petition and cannot aver additional facts. See Barndt v. Department of Corrections , 902 A.2d 589, 591 n.2 (Pa. Cmwlt h. 2006). However, the Court may take judicial notice of official court records and public documents in a connected case. See , e.g. , Pa.R.E. 201(b)(2); Germantown Cab Company v. Philadelphia Parking Authority , 27 A.3d 280, 283 n.8 (Pa. Cmwlth. 2011); Dox sey v. Commonwealth , 674 A.2d 1173, 1174 (Pa. Cmwlth. 2004). Therefore, we may consider the documents attached to the Department’s preliminary objection in this matter.5

Corrections , 872 A.2d 1127, 1133 (Pa. 2005). “Furthermore, ‘[t]he only sentence known to the law is the sentence or judgment enter ed upon the records of the
court.’” Powell v. Department of Corrections , 14 A.3d 912, 916 (Pa. Cmwlth. 2011) (q uoting Commonwealth ex rel. Woo ds v. Howard , 378 A.2d 370, 37 2 (Pa. Super. 1977)). W hen calculating an inmate’s sentence, the Department must r ely on the sentencing orders and court commitment forms that it receives from the trial

court.

While he failed to attach the trial court’s sentencing order to his
Petition , Newsome instead refers to an excerpt from the transcript o f his sentencing
hearin g where the trial court judge explained that some charges were to be consecutive and others concurrent, and that “the total sentence is, seven to 14 years. . . .” (Exhibit A to Petition at 3 .) B oth Newsome’s criminal docket and the
trial court’s 300B cou rt commitment forms clearly state that Count 2 is to run consecutive to Count 7, and Count 7 is to run consecutive to Count 4. “T he courts of Pennsylvania have consistently maintained that oral statements made by the judge in passing sentence, but not inc orporated in the written judgment signed by him, are no part of the judgment of sentence.” Joseph v. Glunt , 96 A.3d 365, 371 (Pa. Super. 2014) (citing Commonwealth v. Hodge , 369 A.2d 815, 820 (Pa. Super. 1977); Commonwealth v. Foster , 324 A.2d 538, 539 (P a. Super. 1974)). Absent a contrary sentencing order, t he Department i s bound to follow these documents
from the trial c ourt and they support the Department’s position that the trial court imposed a total aggregate sentence of 9 years 6 months to 19 years ’ incarceration.6 Regarding Newsome’s claim that he is entitled to credit for time
served , the excerpts from the s entencing hearing provided to this Court ar e silent
on the issue of credit. T he 300B commitment forms and docket sheet s do not provide for c redit. To the contrary, the 300B commitment forms contain a block titled “CREDIT FOR TIME SERVED,” and this block for each of Newsom e’s offenses states “0 Days.” (Exhibit A to Preliminary Objection.) Like the inconsistency between the trial transcript a nd the criminal docket sheet and the 300
B court commitment form s , t here is an inconsistency here regarding credit

.

Ne wsome’s criminal docket sheets state that on January 7, 2011, he was found in contempt of court and was sentenced to a period of incarce ration of 2 months 14 days to 5 months 29 days. (Exhibit D to Respondents’ Brief.) Newsome was paroled from his contempt sentence effective May 1, 2011. ( Id. ) Respondents state that Newsome was given credit for the period of time he was
incarcerated ou tside of his contempt conviction because his DC 16E form reflects that he was awarded credit for time served from October 13, 2010 , to January 6, 2011, and from May 2, 2011 , to October 6, 2011. Respondents also state that
“Newsome’s min/max dates were com puted taking into consideration credit for time served prior to sentence.” (Respondents’ Brief at 10.)

Given those inconsistencies, i t is not clear from the pleadings and the public documents that the Department properly computed Newsome’s sentence.
Th e trial transcript supports Newsome ’s claim that he received a 7 to 14 year

sentence , but the criminal docket and the 300B court commitment form states the sentences are to run consecutively , resulting in a 9 year 6 month s to 19 year7

sentence. That form a lso states that Newsome is to receive “0” days credit while
the DC 16E form states that he did get credit for some of the presentence
confinement time. From the se documents, we are unable to determine whether the Department’s calculation includ es the time that it admits should be credited.

While we may take judicial notice of official court records and public
documents in a connected case in granting a demurrer, it is also well established
that a demurrer “should be sustained only in cases that are clear and free from doubt and only where it appears with certainty that the law permits no recovery

u nder the allegations pleaded.” Gordon v. Pennsylvania Department of
Corrections , 16 A.3d 1173, 1176 n.2 (Pa. Cmwlth. 2010). Newsome repeated ly alleges that th e sentencing order supports his allegation that he was given a 7 to 14 year sentence. All doubts must be resolved against sustaining the demurrer. Bundy v. Beard , 924 A.2d 723, 725 n.2 (Pa. Cmwlth. ), aff’d , 941 A.2d 646 (Pa. 2007), cert. denied , 553 U.S. 1098 (2008). Accordingly, because of th e inconsistencies in the documents, we will overrule the Department’s preliminary objection. 4

___________________________________ DAN PELLEGRINI, Senior Judge

4 The Department also contends that Newsome has an alternative remedy available throu gh the Post Conviction Relief Act, 42 Pa. C.S. § 954 1

- 9546 to clarify any discrepancy in the sentencing orders and the 300B commitment forms and public docket. What Newsome is contending , though , is that the sentencing order itself states that his sentenc es were to run concurrently for a total aggregate sentence of 7 to 14 years rather than the 9 years 6 months to 19 years that the Department calculated. Until the sentencing order is provided, we cannot grant the Department’s demurrer.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

D arnell Newsome, : Petitioner :

: v. : : Pennsylvania Dept. of Correction and : Diane Yale, Record Supervisor : SCI

- Dallas, : Respondents : No. 258 M.D. 2016

O R D E R

AND NOW, this 5 th day of January , 201 7 , the preliminary object ion filed by Respondents Department o f Corrections and Diane Yale is overruled

.

___________________________________ DAN PELLEGRINI, Senior Judge