IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bryan Terrell , :

Petitioner :

: v. : : Facility Manager at SCI

- Mahanoy : State Prison, and Office of Judicial : Record(s) Clerk at Criminal Justice : Center Courthouse

– Philadelphia, : and Christopher Thomas, Director of, : CMR at CFCF, Philadelphia Prison : System(s), and Attorney General of : Pennsylvania , : No. 95 M .D. 20 20

Respondents : Submitted: A ugust 7 , 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: November 19, 2020

Bryan Terrell (Terrell ), an inmate currently incarcerated at the State
Correctional Institutio n (SCI) at Mahanoy (SCI

- Mahanoy) , initiated this matter by filing a pro se petition for review (Petition) in the nature of mandamus in the Court’s original jurisdiction . Terre ll seeks an order compelling the Facility Manager at SCI

Mahanoy and the Office of Judicial Records 1 to credit 36 1⁄2 months towards his state

1 While the Petition names the “Office of Judicial Record(s) Clerk at Criminal Justice C enter Courthouse

– Philadelphia ” as a respondent, we note that the correct name of the entity that was served and is currently represented in this matter is the Office of Judicial Records of the First Judicial District. We will henceforth refer to this r espondent as the Office of Judicial Records.2

sentence of 10 to 20 years for the period of time he was incarcerated prior to his state sentencing . The Facility Manager and the Office of Judicial Records 2 are separately represented and, thus, have filed separate preliminary objections to the Petition , which are now fully briefed and ripe for review

. For the reasons set forth below , we sustain the Facility Manage r’s p reliminary o bjections, dismiss the Petition , and dismiss the Office of Judicial Records’ preliminary objections as moot

.

The facts as pleaded in the Petition are as follows. On September 7, 2014, Terrell was arrested in Philadelphia County and cha rged with robbery and possession of a firearm. Petition (Pet.) ¶ 2. He was subsequently admitted to the hospital “til [sic] approximately, September 23, 2014,” when he was released to the Philadelphia prison system. Id. Terrell avers that in February 2015, he was transported to the United States District Court for the Southern District of I owa (federal court) and sentenced to 100 months’ incarceration for unspecified federal charges . Pet. ¶ 4.

On October 12, 2017, T errell entered a negotiated guilty plea 3 in the Court of Common Pleas of Philadelphia County (state court) to the robbery charge , and was sentenced to 10 to 20 years at an SCI. Pet., Exhibit (Ex.) A. The negotiated guilty plea form, which Terrell attach ed to the Petition, specifically notes :

The following conditions are imposed:

2 We note that the certificate of ser vice portion of the Petition fails to specify the manner in which service wa s effected, see Pet. at 15, and, as of the date of this Opinion, counsel has not entered an appearance for either Christopher Thomas or the Attorney General of Pennsylvania (Attorn ey General). In addition, the Petition fails to state any facts pertaining to the Attorney General and merely mentions him as a party to the action. See Pet. at 10.

3 Throughout the Petition and his brief to this Court, Terrell refers to this document interchangeably as the negotiated guilty plea and the state court’s sentencing order.3 Credit for time served: Credit to be calculated by the Phila[delphia] Prison System

. . . . Other: This sentence is to run concurrent with Federal sentence

This sentence shall commence on 10/12 /2017.

Pet., Ex. A. At that time , Terrell also entered a negotiated guilty plea to the possession of a firearm charge, for which he received a sentence of 5 to 10 years to run concurrent with the robbery sentence. Id.

Terrell ass erts that, despite the language in the negotiated guilty plea, he was not given credit toward his state sentence for the time he was incarcerated from September 7, 2014, to October 12, 2017. Pet. ¶ 7. Therefore, Terrell sent correspondence to various individuals and entities inquiring as to his credit status. Pet. ¶¶ 7

- 13. Terrell received a response from the Office of Judicial Records dated January 12, 2018, stating he should get in touch with the federal courts. Pet., Ex. B.
Terrell then sent correspondence to the judge in his federal court case, who indicated that because Terrell was sentenced in federal court first, there was no discussion of a concurrent sentence. Pet. ¶ 7 and Ex. C.

Terrell avers that after sending another letter t o the Office of Judicial
Rec ords, he was informed that the O ffice of Judicial Records is not responsible for calculating credit time and that he should direct his inquiry to Christopher Thomas (Thomas) , D irector at the Curran

- Fromhold Correctional Facility in Philadelphia. Pet. ¶ 9 and Ex. D. Terrell subsequently submitted correspondence to Thomas, who
issued a “ credit time review for state inmates ” form dated October 4, 2018 (Credit Time Review) , denying Terrell’s claim. Pet. ¶ 11 and Ex. E. The Credit Time4

Review checked the line indicating , “You are not entitled to any more time,” and further explain ed :

Mr. Terrell

— I have reviewed your claim and found you are not entitled to any credit for t he above docket. The date range of 09/23/2014 to 10/11/2017 was applied to your [f]ederal [s] entence which was sentenced first.

Pet., Ex. E. T errell also attaches to the Petition letters addressed to the state court sentencing judge and the attorney w ho purportedly represented him in state court, in
which T errell claims the terms of his negotiated guilty plea a re not being honored as he was not given credit towards his state sentence . Pet. ¶¶ 12

- 14 and Exs. G & H

.

Terrell claims that the Facility M anager and the Office of Judicial Records have failed and refused to honor the state court’ s sentencing order directing
that his state sentence of 10 to 20 years run concurrent to his federal sent ence of 100
months . Pet. ¶ 17. Therefore, he requests an o rder from this Court commanding the Facility Manager and the Office of Judicial Records to recalculate his credit for time served and apply it accordingly

— essentially, to recalculate his state sentence. Pet.
at 13.
A s indicated above , the Facility Mana ger and the Office of Judicial Records filed separate preliminary objections, both in the nature of a demurrer. The Facility Manager argues that Terrell’s mandamus action should be dismissed
because he la cks a clear right to relief for t his pre sentence cr edit where he began
servin g his federal sentence first; the sentencing order did not provide for specific
credit , but left the calculation to the Philadelphia County prison system; and Terre ll has an alternative remedy available in the form of a motion to modify his sentence or to withdraw his guilty plea nunc pro tunc

. The Office of Judicial Records objects on grounds that the Petition does not contain any factual averments stating a valid5

claim against it, and that this Court lacks jurisdiction over the Office of Judicial Records as Terrell’s mandamus action is not ancillary to a current appeal before the
Court. In ruling on preliminary objections in the nature of a demurrer, the Court must accept as true all well

- pleaded material facts and all inferen ces reasonably deducible therefrom. Sanders v. Wetzel , 223 A.3d 735, 738 (Pa. Cmwlth. 2019) (citing Meier v. Maleski , 648 A.2d 595, 600 (Pa. Cmwlth . 1994)). However, the Court is not bound by legal conclusions, argumentative allegations, unwarranted inferences from facts, or expressions of opinion. Sanders , 223 A.3d at 738; see also Dodgson v. Pa. Dep’t of Corr. , 92 2 A.2d 1023, 1028 (Pa. Cmwlth. 20 07). We may consider documents or exhibits attached to the petition, but do not need to accept as true averments in the petition that conflict with those exhibits. Lawrence v. Pa. Dep’t of Corr. , 941 A.2d 70, 71 (Pa. Cmwlth. 2007). In addition, we “may sustain preliminary objections only when the law makes clear that the petitioner cannot succeed on the claim, and we must resolve any doubt in favor of the petitioner.”
Sanders , 223 A.3d at 738.

The Petition here is in the nature of mandamus, which com pels the performance of a ministerial act or mandatory duty. Tindell v. Dep’t of Corr. , 87
A.3d 1029 , 1034 (Pa. Cmwlth. 2014). To prevail in mandamus, a petitioner must demonstrate (1) a clear legal right to relief, (2) a corresponding duty in the

respon dent, and (3) there are no other adequate and appropriate remedies at law. Id. ; see also Sanders , 223 A.3d at 739. “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.’” Sanders , 223 A.3d at 739 (quoting Filippi v. Kwitowski , 880 A.2d 711, 713 (Pa. Cmwlth. 2005)). Mandamus is an6

extraordinary remedy and may not be used to establish legal rights. Tindell , 87 A.3d
at 1034.
With thi s standard in mind, we turn first to the Facility Manager’ s preliminary objection s , which assert that Terrell cannot e stablish the requirements for mandamus relief. As the Facility Manag er acknowledges, mandamus may be used, in certain circumstances, to c ompel the proper computation of a petition er’s

sentence. See McCray v. Pa. Dep’t of Corr. , 872 A.2d 1127, 1130

- 31 (Pa. 2005); Saunders v. Dep’t of Corr. , 749 A.2d 553, 556 (Pa. Cmwlth . 2000). But mandamus cannot be used to challenge the failure to award credit when the sentencing order is either ambiguous or does not provide the specific credit at issue. See McCray , 872
A.2d at 1133 ( sentencing order silent as to credit) ; Hoyt v. Pa. Dep’t of Corr. , 79 A.3d 741, 742 (Pa. Cmwlth. 2013) (same); see also Canfield v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 585 M.D. 2016, filed Aug. 11, 2017) 4 (sustaining preliminary objections to mandamus action where sentencing order merely stated the peti tioner was to receive “credit for time served”); Mullen v. Dep’t of Corr. (Pa. Cmwlth., No. 328 M.D. 2013, filed Jan. 30, 2014) (same)

.

Key to the analysis h ere, the sentencing order does not clearly require credit for the period of September 7, 2014, t o October 12, 2017, as Terrell claims.
Rather , as was the case in Canfield and Mullen , the sentencing order merely states “[c]redit for time served” without identify ing any specific period of incarceration

. Pet., Ex. A. T he sentencing order goes on to s tate “[c]redit to be calculated by t he Phila[delphia] Prison System. ” I d. In addition, as confirm ed in the Office of Judicial Records’ brief and its correspondence to Terrell, which Terrell himself attached to

4 Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa. Code § 69.414(a), unreported panel decisions of this Court, issued after January 1 5, 2008, may be cited for their persuasive value.7

the Petition, “the Office of Judicial Records is not responsible for calculating credit time.” Pet., Ex. D. See Lawrence , 941 A.2d at 71 (cou rts need not accept as true averments in the petition that conflict with the exhibits attached thereto). Finally ,

w here a sentencing court does not give a petitioner full credit for time served, the petitioner’s remedy is in the sentencing court and throu gh the direct appeal process , not a mandamus action in this Court

. Hoyt , 79 A. 3d at 743 (citing McCray , 872 A.2d 1133) ; see also Mullen , slip op. at 5 (holding that where sentencing order did not unambiguously require credit petitioner was seeking, his re medy was to seek
modification or clar ification of the sentence from the trial court)

.

Given the averments in the Petition and the facts established in the documents attached thereto, it is evident that Terrell cannot meet two out of the three

necessary re quirements for mandamus relief

— a clear right to the relief he requests
and demonstratin g that there are no other adequate and appropriate remedies at law

. Accordingly, we sustain the preliminary objections of the Facility Manager and
dismiss the P etition

. The Office of Judicial Records’ preliminary objections are
dismissed as moot.

__________________________________ CHRISTINE FIZZANO CANNON, JudgeI N THE COMMONWEALTH COURT OF PENNSY LVANIA

Bryan Terrell, :

Petitioner :

: v. : : Facility Manager at SCI

- Mahanoy : State Prison, and Office of Judicial : Record(s) Clerk at Criminal Justice : Center Courthouse

– Philadelphia, : and Christopher Thomas, Director of, : CMR at CFCF, Philadelphia Prison : System(s), and Attorney General of : Pennsylvania, : No. 95 M.D. 2020

Respondents :

O R D E R

AND NOW, this 19th day of November , 20 20 , the preliminary objections filed by the Facility Manager at SCI

- Mahanoy State Prison are SUSTAINED, and the petition for writ of mandamus filed by Bryan Terrell is DISMISSED. The preliminary objections filed by the Office of Judicial R ecords are
DISMISSED as MOOT.

__________________________________ CHRISTINE FIZZANO CANNON, Judge