Submitted: February 15, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
E. COVEY, JUDGE
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.
to the Petition and the documents attached thereto,
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. See Petition ¶
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). 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and his bail therefor was revoked.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.
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
[O]ffense was to run concurrently
with the sentence for the
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?
THE COURT: On . . . Count 3 [(firearms charge)], . . . the
Court imposes a term of not less than [3½], no more
than  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?
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  to  years plus  years reporting
probation in total to run concurrent, which means at the same
time, as ...