IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph [Anthony] Montgomery, : Petitioner :

:

v. : No. 525 M.D. 2015

: Submitted: November 18, 2016 Pennsylvania Department of : Corrections, et al., : Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON FILED: March 17, 2017

Before this Court in our original jurisdiction are the preliminary

objections of the Pennsylvania Department of Corrections (Department) to a

petition for review in the nature of mandamus (Petition) filed by inmate Joseph

Anthony Montgomery ( Montgomery ), p ro se

. Montgomery asks this Court to

direct the Department to recalculate his prison sentence. 1 For the reasons

expressed below, we overrule DOC’s preliminary objections

.

Montgomery is an inmate currently confined at the State Correctiona l

Institution at Houtzdale (SCI

- Houtzdale). On March 11, 2014, the Court of

Common Pleas of Delaw are County (sentencing court) sentenced Montgomery

1 “Where a trial court’s sentencing order is legal on its face, . . . a prisoner may petition this Court in our original jurisdiction seeking a writ of mandamus to compel [the Department ] to properly compute a prisoner’s prison sentence.” Barndt v. Dep’t of Corr. , 902 A .2d 589, 598 (Pa. Cmwlth. 2006); Doxsey v. Cmwlth

. , 674 A.2d 1173, 1175 (Pa. Cmwlth . 1996)

.2

to 11 months

, 15 days to 23 months, on indictment CP6885

- 13 (First Sentence ).

On April 29, 2011, the sentencing court se ntenced Montgomery on two additional

indictments: 1 to 2 years on indictment CP4510

- 13 (Second Sentence ), and 3 to 23

months on indictment CP3968

- 13 (Third Sentence ). Finally, on May 8, 2014, the

sentencing court sentenced Montgomery to 30 to 72 months on CP6055

- 13 (Fourth

Sentence ).

Pertinent to our instant review of this matter, the sentencing form for

the Third Sentence contained language that the parties now contest. The form

provided that the Third Sentence should be served concurrent to the First Sentence,

and consecutive to the Second Sentence. Based on the four sentencing forms, the

Department calculated Montgomery’s total sentence to be 4 years, 8 months,

and 15 days to 11 years, 10 months. Montgomery challenged the Department’s

calculation, first with the Department and then with the sentencing judge. When

the sentencing judge informed Montgomery that the correct avenue to challenge

the Department’s calculation was through a petition for review , Montgomery filed

his Petition wit h this Court . Montgomery contests the aggregation of all his

sentences because the trial court ord ered the Third Sentence to be served

concurrent to the First Sentence. Montgomery argues that his sentence, correctly

calculated with the concurrent sentenc es, should be 4 years, 5 months, and 15 days

to 9 years, 11 months.

In this case, the Department demurs to Montgomery’s Petition based

upon its assertion that Montgomery has not pleaded facts showing that he has a

clear right to relief. Namely, the Depar tment makes the following assertion for

why Montgomery is not entitled to mandamus:

Petitioner offers nothing more than his own unsupported allegations that his sentence has been improperly3 calculated, while also failing to provide a clear, unsupported, lo gical calculation of his own.
(Prel. Obj. at 3, ¶13.) The Department avers that it relied on the sentencing orders

in its calculation, which it must faithfully implement as an executive branch

agency. ( Id. at ¶¶14

- 15.)

In ruling on preliminary objectio ns, we accept as true all well

- pleaded

material allegations in the petition for review and any reasonable inferences that

we may draw from the averments. Meier v. Maleski , 648 A.2d 595, 600 (Pa.

Cmwlth. 1994). The Court, however, is not bound by legal co nclusions,

unwarranted inferences from facts, argumentative allegations, or expressions of

opinion encompassed in the petition for review. Id. We may sustain preliminary

objections only when the law makes clear that the petitioner cannot succeed on his

c laim, and we must resolve any doubt in favor of the petitioner. Id. When

considering preliminary objections in the nature of a demurrer, we may sustain a

demurrer only when a petitioner has failed to state a claim for which relief may be

granted. Clark v. Beard , 918 A.2d 155, 158 (Pa. Cmwlth. 2007). Moreover, we

have held that “a demurrer cannot aver the existence of facts not apparent from the

face of the challenged pleading.” Martin v. Dep’t of Transp. , 556 A.2d 969, 971

(Pa. Cmwlth. 1989).

At this stage in the proceedings, we conclude that the Department has

not demonstrated that Montgomery cannot succeed on his claim. He is permitted,

pursuant to Doxsey v. Commonwealth , 674 A.2d 1173 (Pa. Cmwlth. 1996)

, to seek

mandamus to compel the Department to correctly calculate his sentence. D oxs ey ,
674 A.2d at 1175

. Montgomery has , therefore, stated a claim for which relief ma y
be granted. We further note that the Department has provided no clarity as to how

the Third Sentence was correctly applied

, concu rrent to the First Sentence and4

cons ecutive to the Second Sentence. While we make no final determination as to

the merits of the Petition, at this point in the proceedings we must overrule the

Department’s preliminary objections.

P. KEVIN BROBSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph [Anthony] Montgomery, : Petitioner :

:

v. : No. 525 M.D. 2015

: Pennsylvania Department of : Corrections, et al., : Respondent(s) :

O R D E R

AND NOW, this 17th day of March , 201 7

, the preliminary objections

filed by the Pennsylvania Department of Corrections (Department) are overruled.

The Department is directed to file an answer on or before April 17, 2017.

P. KEVIN BROBSON, Judge