IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Amar Wilkins, :
Petitioner :
:
v. : No. 672 M.D. 2019
: Submitted: August 28, 2020
Michael R. Clark, Superintendent at :
Albion-Jessica Davis, Prison Records :
Room Employee – and the Commonwealth :
of Pennsylvania Department of Corrections, :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: December 29, 2020
Before the Court are the preliminary objections in the nature of a
demurrer filed by Michael R. Clark, Superintendent of the State Correctional
Institution (SCI) at Albion; Jessica Davis, an employee in the records room of SCI-
Albion; and the Department of Corrections (collectively, Department) to Thomas
Amar Wilkins’ pro se petition for review seeking a writ of mandamus.1 Wilkins
asks this Court to compel the Department to award him credit for time served
pursuant to an order of the Court of Common Pleas of Blair County. Because
1
The common law writ of mandamus has been replaced with the generic petition for review. PA.
R.A.P. 1502. Where, as here, an action seeking to invoke this Court’s original jurisdiction to
review a governmental determination is initiated by a complaint in mandamus, the complaint will
be treated as a petition for review. Commonwealth Through Unified Judicial System v. Vartan,
674 A.2d 1156, 1160 n.6 (Pa. Cmwlth. 1996), rev’d on other grounds, 733 A.2d 1258 (Pa. 1999).
Wilkins’ petition fails to state a claim for relief in mandamus, we sustain the
Department’s preliminary objections and dismiss the petition.
Wilkins is an inmate currently incarcerated at SCI-Albion. Wilkins was
arrested on July 25, 2015, in Cambria County for possession with intent to deliver a
controlled substance and other drug-related charges. He pled guilty on November
24, 2015. On February 2, 2016, Wilkins was sentenced to a prison term of 2 to 4
years and given 193 days of credit for time served from July 25, 2015, to the date of
sentencing.
On April 1, 2016, Wilkins pled guilty in Blair County to possession of
a controlled substance, possession with intent to deliver a controlled substance and
criminal use of a communication facility. On April 6, 2016, he was sentenced to 5
to 15 years’ incarceration, which the Blair County court ordered to run concurrently
with the Cambria County sentence. The Blair County court also awarded Wilkins
152 days of credit for time served from November 1, 2015, to April 1, 2016.
Wilkins filed a petition under the Post Conviction Relief Act, 42 Pa.
C.S. §§9541-9546, alleging that the Department improperly refused to acknowledge
the time credited to his sentence by the Blair County court. On September 21, 2018,
in response to the petition, the Blair County court issued an order explaining:
It was always the intent of all parties including the
Commonwealth and this Judge that [Wilkins’] Blair County
sentence would run concurrent with the Cambria County
sentence and that he was to receive credit going back to July 25,
2015. The Court re-emphasizes that here and now. It is this
Court’s intention that his sentence which continues at [SCI-
Albion] shall be calculated consistent with the above. Simply
put, [Wilkins] is entitled to the bargain that he arrived at with the
District Attorney’s Office on April 1, 2016[,] in which this Court
provided him. He has been continuously incarcerated since the
July 25, [2015,] date on charges which included Blair County.
2
Petition for Review, Exhibit B.
In his petition to this Court, Wilkins contends that the Department has
improperly refused to give him credit for the time he was incarcerated in Blair
County from April 6, 2016, to April 6, 2018, as required by the Blair County court’s
September 21, 2018, order. Because the Blair County court ordered its sentence to
run concurrently with that imposed by Cambria County, Wilkins asserts that the
Blair County court’s order entitles him to credit for 152 days of time served going
back to July 25, 2015. Wilkins seeks an order from this Court compelling the
Department to award him such credit in compliance with the Blair County court’s
September 21, 2018, order.
In response to Wilkins’ petition, the Department filed preliminary
objections in the nature of a demurrer.2 The Department asserts that Wilkins is not
entitled to a writ of mandamus because he has no clear legal right to the relief he
seeks, which the Department contends is an attempt to obtain double credit for time
served, or the application of the same pre-sentence credit toward two different
sentences. The Department also argues that Wilkins has other available remedies;
he can file a motion to modify his sentence or to withdraw his guilty plea nunc pro
tunc if he believes he did not receive the benefit of his negotiated plea bargain.
A writ of mandamus is available only to compel the performance of a
ministerial act where there exists: (1) a clear legal right in the petitioner; (2) a
corresponding duty in the respondent; and (3) the lack of any other adequate and
2
Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure provides:
(a) Preliminary objections may be filed by any party to any pleading and are
limited to the following grounds:
***
(4) legal insufficiency of a pleading (demurrer).
PA. R.C.P. NO. 1028(a)(4).
3
appropriate remedy. Jackson v. Vaughn, 777 A.2d 436, 438 (Pa. 2001). A
mandamus action is not available to establish legal rights but, rather, to enforce those
rights which are already established. Clark v. Beard, 918 A.2d 155, 159 (Pa.
Cmwlth. 2007). In considering a demurrer, we “must consider as true all well-
pleaded material facts set forth in the petition and all reasonable inferences that may
be drawn from those facts.” Richardson v. Beard, 942 A.2d 911, 913 (Pa. Cmwlth.
2008). “Preliminary objections will be sustained only where it is clear and free from
doubt that the facts pleaded are legally insufficient to establish a right to relief.” Id.
This Court “need not accept as true conclusions of law, unwarranted inferences from
facts, argumentative allegations, or expressions of opinion.” Id.
Here, the Department argues that Wilkins does not state a claim in
mandamus because he has no clear, legal right to receive double credit. We agree.
Section 9760 of the Sentencing Code3 governs credit for time served. It requires a
court to give credit to a defendant
for all time spent in custody as a result of the criminal charge for
which a prison sentence is imposed or as a result of the conduct
on which such a charge is based. Credit shall include credit for
time spent in custody prior to trial, during trial, pending sentence,
and pending the resolution of an appeal.
42 Pa. C.S. §9760. The underlying policy is that a defendant should receive credit
for time spent in custody prior to sentencing for a particular offense. Commonwealth
v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008). Once a defendant is sentenced by
any Pennsylvania court, he is no longer in custody as a result of criminal charges for
any other offense. Commonwealth v. Lloyd, 509 A.2d 868, 872 (Pa. Super. 1986).
Consequently, because a defendant is deemed to be incarcerated “as a result of” the
3
42 Pa. C.S. §§9701-9799.75.
4
first conviction, he is not entitled to receive additional time credit for subsequent
sentences imposed by other courts. Commonwealth v. Hollawell, 604 A.2d 723, 726
(Pa. Super. 1992).
“Our courts have consistently held that the [Department] cannot be
compelled to award double credit and that mandamus is not available where a
prisoner is seeking to have the [Department] apply credit to another sentence for an
unrelated offense that the prisoner was serving at the time he was sentenced.”
Taglienti v. Department of Corrections, 806 A.2d 988, 993 (Pa. Cmwlth. 2002).
Here, the Cambria County court awarded Wilkins 193 days of credit for
time served.4 In doing so, the court credited his sentence for time served from July
25, 2015, to the date of his sentencing on February 2, 2016. The Blair County
sentencing court also awarded Wilkins credit toward his concurrent sentence. There,
he received 152 days of credit for time served from November 1, 2015, to April 1,
2016. The Department’s sentence summary reports show that it recalculated
Wilkins’ maximum sentence date based on both of these orders.5
Moreover, nothing in the Blair County court’s order mandates that
Wilkins be given credit for time served from April 6, 2016, through April 6, 2018.
4
Although the Department attaches the sentence summary report to its preliminary objections, we
also take judicial notice of the docket at Commonwealth v. Thomas Amar Wilkins (C.C.P. Cambria
County, No. CP-11-CR-1623-2015) and Commonwealth v. Thomas Amar Wilkins (C.C.P. Blair
County, No. CP-07-CR-2062-2015). This Court may take judicial notice of official court records
and public documents. PA. R.E. 201(b)(2); Doxey v. Department of Corrections, 674 A.2d 1173,
1174 (Pa. Cmwlth. 1996).
5
Normally, a demurrer must be limited to facts appearing on the face of the challenged pleading.
Richardson v. Wetzel, 74 A.3d 353, 358 n.4 (Pa. Cmwlth. 2013). However, “a limited exception
to the rule against speaking demurrers exists for documents filed in support of a demurrer where a
plaintiff has averred the existence of certain written documents and premised his cause of action
upon those documents.” Id. (quoting Barndt v. Department of Corrections, 902 A.2d 589, 591 n.2
(Pa. Cmwlth. 2006)).
5
Accordingly, Wilkins has no clear right to the relief he seeks because he was not
entitled to 720 days of credit for time served. Based on the above, we also find that
the Department had no corresponding duty to act.
Alternatively, the Department argues that Wilkins is not entitled to a
writ of mandamus because he had other legal remedies available to him; Wilkins
could have filed a motion to modify his sentence or to withdraw his guilty plea nunc
pro tunc if he believes he did not receive the benefit of his negotiated plea bargain.
This Court has held that “where a sentencing court does not give an inmate full credit
for time served, the inmate’s remedy is in the trial court and through the direct appeal
process[.]” Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d
348, 356 (Pa. Cmwlth. 2007); Hollawell, 604 A.2d at 725. However, there is no
indication that the Blair County sentencing court did not award Wilkins full credit
for time served. The Department applied the Blair County court’s order as written.
If Wilkins believes that the terms of his plea agreement were not fulfilled, his
complaint should be lodged against the Commonwealth, not the Department. Staton
v. Board of Probation and Parole, 171 A.3d 363, 366-67 (Pa. Cmwlth. 2017)
(finding that an inmate’s complaint about his plea bargain had to be brought against
the Commonwealth).
For all of the above reasons, we conclude that Wilkins has failed to state
a legally sufficient claim in mandamus. Consequently, we sustain the Department’s
preliminary objections and dismiss Wilkins’ petition for review.
_____________________________________
MARY HANNAH LEAVITT, President Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Amar Wilkins, :
Petitioner :
:
v. : No. 672 M.D. 2019
:
Michael R. Clark, Superintendent at :
Albion-Jessica Davis, Prison Records :
Room Employee – and the Commonwealth :
of Pennsylvania Department of Corrections, :
Respondents :
ORDER
AND NOW, this 29th day of December, 2020, Respondents’
preliminary objections to Petitioner Thomas Amar Wilkins’ petition for review in
the above-captioned matter are SUSTAINED, and the petition for review is
DISMISSED.
_____________________________________
MARY HANNAH LEAVITT, President Judge