Dominic FAJOHN, Appellant v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF CORRECTIONS, Appellee

Supreme Court of Pennsylvania1997-04-22No. No. 99 Middle District Appeal Docket 1996

547 Pa. 649692 A.2d 1067

Summary · law.co

Holding. The Commonwealth Court's dismissal of the mandamus action is affirmed. Mandamus does not lie against the Department of Corrections to compel it to apply pre-sentence confinement credits when Rule 1406(c) prohibited the sentencing judge from legally ordering such credits in the first place; the appropriate remedy is an application for re-sentencing or sentence modification in the sentencing court.

Dominic Fajohn received multiple sentences in Butler County, including one imposed while he was already imprisoned under an earlier sentence. He requested that 190 days of pre-sentence confinement be credited toward one of his later sentences, and the sentencing judge apparently granted this request. However, the Department of Corrections refused to apply the credit, citing Pennsylvania Criminal Procedure Rule 1406(c), which prohibits a sentencing judge from directing that a new sentence commence before the date it is imposed when the defendant is already serving time for other offenses. Fajohn sought a writ of mandamus to force the department to honor the judge's order and apply the 190-day credit.

The court held that mandamus is not the appropriate remedy in this situation. Rule 1406(c) prevented the sentencing judge from legally ordering the credit in the first place, and therefore the Department of Corrections cannot be compelled by mandamus to honor an illegal order. The opinion noted that Fajohn is not without recourse, but that recourse lies in the sentencing court rather than through mandamus proceedings against the corrections department. The court suggested that Fajohn could seek relief through re-sentencing or, depending on timing, through a motion to modify the sentence nunc pro tunc in the trial court.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether mandamus will lie against the Department of Corrections to compel credit for pre-sentence confinement when the sentencing judge's order conflicts with Pa.R.Crim.P. 1406(c)
Whether Rule 1406(c) prevents a sentencing judge from directing that a sentence commence prior to the date of imposition when the defendant is already imprisoned on another sentence
What remedy is available when a prisoner claims not to have received the benefit of a plea bargain due to an allegedly illegal sentencing order

Procedural posture

Fajohn appealed the Commonwealth Court's dismissal of his mandamus action against the Department of Corrections, which sought to compel application of 190 days of pre-sentence confinement credit to his sentence.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

OPINION OF THE COURT

FLAHERTY, Chief Justice.

On September 30, 1994 Dominic Fajohn was sentenced by the Butler County Court of Common Pleas to fourteen and a half months to twenty-nine months for crimes committed at Nos. 192-94 and 194-94. While incarcerated on this sentence, on April 10,1995, Fajohn was sentenced at No. 1351-94,1262-94,1373-94,1379-94 and 136-95 pursuant to a negotiated plea agreement. The sentence was eighteen months to three years. Fajohn asserts that at his request, the court granted him 190 days credit for the period October 3, 1994 until April 10, 1995 on one of the three sentences, the sentence imposed at 1351-94.

The Department of Corrections declined to apply credit for the 190 days on the grounds that it was prevented from doing so by Pa.R.Crim.P. 1406(c), which provides:

When at the time sentence is imposed, the defendant is imprisoned under a sentence imposed for any other offense or offenses, the instant sentence which the judge is imposing shall be deemed to commence from the date of imposition thereof unless the judge states that it shall commence from the date of expiration of such other sentence or sentences.

Thus, the Department of Corrections took the position that it is precluded from applying credit for the period October 3, 1994 until April 10, 1995, for Fajohn was imprisoned for other offenses when the April 10 sentence was imposed.

Fajohn brought an action in the Commonwealth Court in mandamus to compel the department of corrections to apply the 190 day credit. Commonwealth Court sustained the Commonwealth’s preliminary objections in the nature of a demurrer, and Fajohn filed this direct appeal.

In Doxsey v. Commonwealth, 674 A.2d 1173, (Pa.Cmwlth.1996), the petitioner also brought an action in mandamus seeking to have his pre-sentence confinement credited toward his sentence. Commonwealth Court sustained the Commonwealth’s demurrer, relying on Pa.R.Crim.P. 1406(c):

It is clear that under this rule a sentencing judge cannot direct that a sentence commence on a date prior to the date of sentencing when the defendant is serving time on an unrelated charge____ Respondent relies on this rule in refusing to honor the sentencing judge’s order. The question we must decide is whether, when a sentencing judge issues a clearly illegal order, mandamus will lie against the Department of Corrections to compel it to honor that order. We hold that it will not.

Because rule 1406(c) makes it clear that the judge was precluded from ordering and, consequently, that respondent is precluded from applying, credit for the period of imprisonment for a second or subsequent conviction if the individual is already in prison under a sentence imposed for other offenses, mandamus will not lie against respondent to compel it to abide by the sentencing order.

This is not to say that petitioner has no remedy. In a situation where, because a sentence is illegal, a prisoner does not receive the benefit of his plea bargain, the proper avenue would appear to be to seek relief in the sentencing court. While the court cannot declare the vehicle for ob- taming such relief, what is clear is that the remedy is not one in mandamus against the Department of Corrections to compel it to honor an illegal order.

674 A.2d at 1175.

In this case as in Doxsey, mandamus is not available to compel the relief petitioner seeks. Rather, the proper avenue for petitioner’s request is an application for re-sentencing in which Fajohn alleges that he has not received the benefit of his plea bargain, coupled with a request that the sentencing court reduce his sentence to the extent of 190 days so that he may receive the benefit of the plea bargain.

Order of the Commonwealth Court is affirmed.

. Because Pa.R.Crim.P. 1410 allows the trial court to correct its orders before an appeal is taken or upon remand by an appellate court, and because 42 Pa.C.S. § 5505 limits that power to 30 days after the entry of the order, Fajohn’s access to the trial court appears to be foreclosed. His appropriate course of action at this point would be to file a motion for modification of sentence nunc pro tunc in the court of common pleas, asserting that the sentence as recorded did not reflect the bargain or the intent of the court, a fact which did not become apparent until beyond the thirty day appeal period.