Publication Ordered November 5, 2014.
Court of ORIGINAL JURISDICTION.
Todd Allen, Pro se.
Vincent R. Mazeski, Assistant Counsel, Mechanicsburg, for respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE SIMPSON.
ROBERT SIMPSON, Judge
Before this Court in our original jurisdiction is the preliminary objection in the nature of a demurrer of the Department of Corrections (DOC) to a petition for review in the nature of mandamus (petition) filed by inmate Todd Allen, representing himself. DOC challenges the legal sufficiency of the petition, asserting Allen lacks a clear right to the credit he seeks, DOC does not have a corresponding duty, and other adequate remedies exist. Also before us is Allen's application for summary relief (application). For the reasons that follow, we overrule DOC's preliminary objection, and we grant Allen's application.
I. Facts Averred
Allen filed the petition and application requesting this Court order DOC to award him credit for time served. In his filings, Allen avers the following facts. Allen is an inmate incarcerated at the State Correctional Institutional at Greene. Allen pled guilty and was convicted of possession with intent to deliver 4.5 grams of crack cocaine, under Section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act (the Drug Act), which he claims is a second degree felony that
carries a statutory maximum term of 10 years in prison. On December 11, 2003, the Court of Common Pleas of Philadelphia County (sentencing court) sentenced Allen to 11 1/2 to 23 months of house arrest, plus 8 years of probation for this crime (original sentence).
A. First Violation of Parole (VOP) Re-Sentence
On June 9, 2004, after Allen committed a technical violation of house arrest, the sentencing court revoked Allen's probation. In this first VOP re-sentencing, the court imposed a new sentence of two to four years' incarceration, plus a consecutive four years' probation. Allen served time from June 29, 2004 to January 12, 2007. On January 12, 2007, Allen was paroled.
On April 4, 2007, the Pennsylvania Board of Probation and Parole (Board) recommitted Allen on a technical parole violation. DOC held Allen in custody from April 17, 2007 to June 9, 2008, at which point he began serving the consecutive four years' probation. Credit for the service of time on Allen's first VOP re-sentencing is at issue here.
B. Second VOP Re-Sentence
Allen again violated his probation, and the sentencing court re-sentenced him. The court imposed four more years of ...