IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Yusef Whitehead, :

Petitioner :

:

v. :

: Pennsylvania Department : of Corrections

, : No. 747 M .D. 20 18

Respondent : Submitted: Dec em ber 9

, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED : May 23, 2023

Before the Court is “ Respondent ’s Preliminary Objection to Petition for

Review” (Preliminary Objection) filed by the Commonwealth of Pennsylvania,

Department of Corrections (Department) on January 3, 2019 , in response to pro se

petitioner Yusef Whitehead’s ( Whitehead ) “ Petitio n for Review (In the Nature of a

Complaint in Mandamus) ” (Petition)

. Whitehead challenges the calculat ed

maximum dates and credits for time served of his prison sentences. For the reasons

that follow, we sustain the Preliminary Objection.

Whitehead is an individual incarcerated at the State Correctional

Institution at Mahanoy

. See Preliminary Objection at 1. On May 19 and 20, 1998,

Whitehead pleaded guilty and was sentenced to an aggregate sentence of 17 1⁄2 to 352

years of incarceration for aggravate d assault 1 a nd rape 2 (collectively, the Previous

Sentences). On October 15, 1998, while still a minor, Whitehead was sentenced for

murder, conspiracy to commit murder, and four related crimes (Docket No.

CP0501681)

. 3 Whitehead received a mandatory life sentence without the possibility

of parole on the murder conviction (Murder Sentence) , as well as 5

- to 10

- year

sentences on the conspiracy to commit murder and each of the four related crimes

(Murder

- related Sentences ) . The sentencing court ordered the Murder Sentence and

the Murder

- related Sentences to be served concurrently to one another but

consecutively to the Previous Sentences, with the exception of Count 12 of the

Murder

- related Sentences, a conspiracy convict ion (Conspiracy Conviction) , which

was to be served concurrently with the Previous Sentences

. Following a successful

Post Conviction Relief Act 4 petition that resulted in the Murder Sentence being

vacated

, 5 on August 28, 2018, Whitehead was resentenced on the murder conviction

to a term of incarceration of 50 years to life (New Murder Sentence), again to be

served concurrently with the Murder

- related Sentences, and consecutive ly to the

Previous Sentences

, again with th e exception of the Conspiracy Conviction, which

was to be served concurrently with the Previous Sentences.

1 Docket No. CP0708691

.

2 Docket No. CP 0211571.

3 Kidnapping, rape, robbery, and robbery of a motor vehicle

. See Docket No. CP0501681.

4 42 Pa.C.S

. §§ 9541

- 9546.

5 Whitehead based his Post Conviction Relief Act (PCRA) petition on Miller v. Alabama

, 567 U.S. 460 (2012) , in which the United States Supreme Court determined that mandatory life without parole sentences for juvenile homicide convictions violated the Eighth Amendment of the

United States Constitution

, U.S. Const. amend. VI I I, and Montgomery v. Louisiana , 577 U.S. 190 (2016) , which determined that Miller applies retroactively

. See Petition at 2. The Commonwealth did not oppose Whitehead’s PCRA petition. See id.3 On November 21, 2018, Whitehead filed the Petition , in which he

claims that the Department failed to properly calculate and attribute credit for tim e

served on his sentences to which he is entitled. See Petition at 3

- 4. Specifically,

Whitehead claims that he is entitled to , but did not receive, credit on the New Murder

Sentence for time served from his March 27, 1997 arrest in that matter through th e

date of his resentencing. See Petition at 3. His prayer for relief asks this Court to

“[e]nter judgment against the [Department] commanding it to abide by the

sentencing court’s order on the [Previous S] entences and award proper credit[.]”

Petition at 5.

The Department filed the Preliminary Objection on January 3, 2019.

The Preliminary Objection demurs to the claims of the Petition, arguing that the

Department properly applied applicable credits to Whitehead’s sentences, and

further arguing that Whitehead has failed to establish a duty of the Department that

would substantiate Whitehead’s requested mandamus re lief

. See generally

Preliminary Objection.

Initially, we note that:

[i]n 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 tru e 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

resolve d 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 be4 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).

The pe tition here is in the nature of mandamus , which seeks to compel

the performance of a ministerial act or mandatory duty. See Savage v. Storm , 257

A.3d 187, 191 (Pa. Cmwlth. 2021). As this Court has explained:

To prevail in mandamus, a petitioner must dem onstrate (1) a clear legal right to relief, (2) a corresponding duty in the respondent, and (3) there are no other adequate and appropriate remedies at law. A mandatory duty is one which a public officer is required to perform upon a given

state of facts and in a prescribed manner in obedience to the mandate of legal authority. Mandamus is an extraordinary remedy and may not be used

to establish legal rights.

Id. (internal quotation marks and citations omitted). “[A] writ of mandamus may be

used to comp el the Department [] to compute a prisoner ’ s sentence properly. ”

Saunders v. Dep’t of Corr

. , 749 A.2d 553, 556 (Pa. C mwlth . 2000) . However, “ this

Court [] lacks the authority to compel an illegal act.” Detar v. Beard

, 898 A.2d 26,

29 (Pa. Cmwlth . 2006) (quoting Doxsey v. Commonwealth , 674 A.2d 1173, 1175

(Pa. C mwlth. 1996) ). Additionally, the Crimes Code 6 does not entitle individuals to

double credit for time served. See 42 Pa.C.S. § 9760

.

Under these standards and the facts of this case , Whitehead ’s

mandamus request must fail because he has not demonstrate d a clear right to relief.

6 18 Pa.C.S. §§ 101

- 9546.5

The Department’s “DC

- 16E Sentence Status Summary” (Sentence Summary)

pertaining to Whitehead’s convictions and sentences 7 reveals tha t Whitehead was

already serving an aggregate sentence of 1 71⁄2 to 35 years’ incarceration on the

Previous Sentences on October 15, 1998, the date up on which he originally received

the Murder Sentence of life without the possibility of parole , which was ordered to

be served consecutively to the Previous Sentences

. See Sentence Summary at 1

- 3.

As a result of the consecutive nature of the sentences, the Department applied the

time Whitehead served prior to sentencing for the Murder Sentence to ward the

Pre vious Sentences. 8 See id. Thereafter, on August 28, 2018, Whitehead received

the New Murder Sentence of 50 years to life , again to be served concurrently with

the Murder

- related Sentences and consecutive to the Previous Sentences. 9 See id.

Based on this sentencing structure, Whitehead was not entitled to receive credit on

the New Murder Sentence until the expiration of the Previous Sentences, which have

not yet expired

. 10 See id. at 3. Only once the expiration of the Previous Sentence

occu rs will Whitehead begin serving the 50 years to life Murder Sentence. See id.

Therefore, Whitehead is not entitled to credit on the New Murder Sentence from

March 27, 1997, as he suggests. The Department is therefore already abiding by the

7 Whitehead attached partial copies of the Sentence Summary as Exhibi ts A and B to the

Petition. See Petition Exhibits A & B. The Commonwealth attached a complete copy of the current Sentence Summary to the Preliminary Objection. See Preliminary Objection Exhibit A.

8 Whitehead also received credit for this time on the Conspiracy Conviction, which the sentencing court had ordered to be served concurrently with the Previous Sentences. See Sentence Summary at 1

- 3.

9 At the resentencing, t he C onspiracy C onviction was ordered to be served concurrent ly

with the Previous Sentences

. See Sentence Summary at 2

- 3. Therefore, this sentence was properly

identified as an “overlapping concurrent” sentence with the Previous Sentences for aggregation

purposes. See id.

10 T he Previous Sentence s are not set to expire until April 24, 2032. See Sentence Summary

at 3.6

sentencing court’s ordered sentences and has correctly applied credits for time

served to the sentences. Accordingly, Whitehead cannot demonstrate a clear legal

right to the mandamus relief he requests

.

For these reasons, we sustain the Preliminary Objection and dismiss the

Petition with prejudice.

__________________________________ CHRISTINE FIZZANO CANNON, JudgeIN THE COMMONWEALTH CO URT OF PENNSYLVANIA

Yusef Whitehead, :

Petitioner :

:

v. :

: Pennsylvania Department : of Corrections, : No. 747 M .D. 2018

Respondent :

O R D E R

AND NOW, this 23rd day of May , 20 2 3

, “ Respondent’s Preliminary

Objection to Petition for Review” filed by the Commonwealth of Pennsylvania,

Department of Corrections on January 3, 2019

, is SUSTAINED

, and pro se

P etitioner Yusef Whitehead ’s “ Petition for Review (In the Nature of a Complaint in

Mandamus ) ” is DISMISSED with prejudice.

__________________________________ CHRISTINE FIZZANO CANNON, Judge