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Foxe v. PA. Dept. of Corrections

Commonwealth Court of Pennsylvania

July 9, 2019

Darius Foxe, Petitioner
v.
PA. Dept. of Corrections, Respondent

          Submitted: February 15, 2019

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

          OPINION

          ANNE E. COVEY, JUDGE

         Before this Court are the Pennsylvania Department of Corrections' (DOC) preliminary objections in the nature of a demurrer (Preliminary Objections) to Darius Foxe's (Foxe) pro se Petition for Writ of Mandamus (Petition) filed in this Court's original jurisdiction.

         Background

         According to the Petition and the documents attached thereto, [1] Foxe is incarcerated at the State Correctional Institution (SCI) at Frackville. On or about April 2, 2008, Foxe was arrested for firearms violations (Philadelphia County Common Pleas Court (trial court) Docket No. CP-51-CR-4341-2009) (First Offense). See Petition ¶ 6. On April 4, 2008, Foxe was released on bail.[2] See Petition ¶ 6.

         While free on bail pending disposition of his First Offense, Foxe was arrested on November 25, 2009, for attempted murder and firearms violations (trial court Docket No. CP-51-CR-1216-2010) (Second Offense).[3] See Petition ¶ 7. Foxe's bail for the Second Offense was set on November 26, 2009, which he did not post. See Petition ¶ 8. On June 29, 2010, Foxe was convicted on the First Offense and his bail therefor was revoked. See Petition ¶ 9. On August 12, 2010, the trial court sentenced Foxe on the First Offense to serve two 1½- to 3-year terms of incarceration to be served concurrently in an SCI (Original Sentence). See Petition ¶ 9.

         On July 14, 2011, Foxe entered a negotiated guilty plea relative to the Second Offense and was sentenced on the attempted murder charge to 8 to 18 years in an SCI plus 2 years of probation, and on the firearms violation 3 to 6 years (New Sentence). See Petition ¶ 10. Foxe asserts in the Petition that "[t]he [trial court] unequivocally stated on the record that the sentence [the trial court] imposed for the [S]econd [O]ffense was to run concurrently with the sentence for the [F]irst [O]ffense previously imposed by [the trial court] and additionally, [Foxe] was to receive credit for all time served." See Petition ¶ 11 (emphasis in original). In support of this claim, Foxe attached to the Petition the following excerpt from his guilty plea colloquy:

THE COURT: [] Foxe, as I've intimated, I intend to accept the negotiations and I will sentence in accordance therewith.
So, [] Foxe, on [the Second Offense], the Court imposes a negotiated sentence as follows: Count 1 [(attempted murder charge)], . . . a term of not less than eight years no[r] more than eighteen years in a[n SCI]. That's to be followed by two years of consecutive reporting probation. You must pay costs and you must pay fees.
Do you understand that?
[FOXE]: Yes.
THE COURT: On . . . Count 3 [(firearms charge)], . . . the Court imposes a term of not less than [3½], no more than [7] years of state incarceration, however, it is to run concurrent, that is to be served at the same time, as the sentence served on the charge of attempted murder.
Do you understand that?
[FOXE]: Yes, sir.
THE COURT: Finally, in accordance with the negotiations, the Court directs that the [New S]entence . . .
is to run concurrent with [Foxe's Original S]entence . . . .
Do you understand your sentence, sir?
[FOXE]: Yes.
THE COURT: [] Foxe, I'm going to ask your attorney to articulate for you your appellate rights. Please listen.
MS. KULICK: Your Honor, I would just ask that you state for the record that he [is] entitled to credit for time served.
THE COURT: Your motion is granted.
MS. KULICK: Thank you.
[] Foxe, you heard the terms of your [New S]entence as well as the fact that your guilty plea was accepted. Basically, you're serving [8] to [18] years plus [2] years reporting probation in total to run concurrent, which means at the same time, as ...

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