Com. v. Everett, S.

• Court: Superior Court of Pennsylvania
• Decided: September 25, 2018
• Docket: 1443 EDA 2017
• Status: Unpublished

Opinion

J-S53040-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : STEVEN EVERETT : : Appellant : No. 1443 EDA 2017

Appeal from the Judgment of Sentence April 7, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004228-2012, CP-51-CR-0004237-2012, CP-51-CR-0004238-2012

BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 25, 2018

Appellant, Steven Everett, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following

revocation of house arrest/probation. We dismiss the appeal as moot.

The relevant facts and procedural history of this case are as follows.

Following a waiver trial, the court sentenced Appellant to 1 to 3 years’

incarceration, followed by 4 years’ probation, on August 19, 2014. Appellant

was paroled immediately to house arrest. At a Violation of Probation/Parole

(“VOP”) hearing on March 4, 2016, the court found Appellant in violation of

his house arrest and sentenced him to 11½ to 23 months of additional house

arrest supervision plus 5 years’ probation. Appellant, however, remained in

custody from February 11, 2016, until March 8, 2017, due to difficulties in

arranging a place to stay. Soon after his release on house arrest, Appellant ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S53040-18

again violated his supervision when the house arrest box was unplugged and

Appellant absconded from house arrest on March 20, 2017. He turned himself

in the following day. On April 7, 2017, the trial court conducted a second VOP

hearing and found Appellant in technical violation for absconding while under

house arrest supervision. The court ordered Appellant to serve his remaining

back-time of 10 months in prison, followed by 5 years’ probation. Appellant

filed a motion for reconsideration of the VOP sentence on April 17, 2017, which

the court denied on April 27, 2017. On May 4, 2017, Appellant timely filed a

notice of appeal. No Pa.R.A.P. 1925(b) statement was ordered or filed.

Appellant raises the following issue on appeal:

DID NOT THE SENTENCING COURT VIOLATE THE REQUIREMENTS OF § 9771(C) OF THE SENTENCING CODE WHEN, AFTER REVOKING HIS PAROLE/PROBATION, IT SENTENCED APPELLANT TO A PERIOD OF TOTAL CONFINEMENT WHERE: 1) HE HAD NOT BEEN CONVICTED OF A NEW CRIME, 2) THE RECORD DID NOT DEMONSTRATE ANY LIKELIHOOD THAT HE WOULD COMMIT A NEW CRIME IF NOT INCARCERATED, AND 3) INCARCERATION WAS NOT ESSENTIAL TO VINDICATE THE AUTHORITY OF THE COURT?

(Appellant’s Brief at 4).

Preliminarily, “[a]n issue before a court is moot if in ruling upon the

issue the court cannot enter an order that has any legal force or effect.”

Commonwealth v. Nava, 966 A.2d 630, 633 (Pa.Super. 2009). “[W]hen a

criminal defendant appeals the lower court’s interpretation of his sentence and

does not challenge the legality of his sentence or conviction and the sentence

is completed before the case is decided, the case is moot unless the possibility

-2- J-S53040-18

of collateral consequences arises solely from the interpretation of the

sentence.” Commonwealth v. Kelly, 418 A.2d 387, 388 (Pa.Super. 1980)

“Under Pennsylvania law, if Appellant completed the aggregate maximum

term of imprisonment while his appeal was pending, he would not be subjected

to any direct criminal consequences and his challenge to the legality of his

sentence…would be moot and incapable of review.” Commonwealth v.

Schmohl, 975 A.2d 1144, 1149 (Pa.Super. 2009). See also

Commonwealth v. King, 786 A.2d 993, 996 (Pa.Super. 2001), appeal

denied, 571 Pa. 704, 812 A.2d 1228 (2002) (holding “appellant’s challenge to

the legality of the sentence, which has expired and which bears no collateral

civil or criminal consequences, is moot…”).

Instantly, on April 7, 2017, the trial court revoked house

arrest/probation and ordered Appellant to serve the remaining back-time of

his sentence, which was 10 months, followed by 5 years’ probation. Appellant

challenges the total confinement aspect of the revocation sentence. The

record, however, indicates Appellant’s final incarceration release date was

January 25, 2018. Appellant completed his term of imprisonment while his

appeal was pending. Therefore, Appellant’s appeal regarding the total

confinement aspect of his sentence is now moot and incapable of appellate

review. See Schmohl, supra; King, supra; Kelly, supra. Accordingly, we

dismiss the appeal as moot.

Appeal dismissed as moot.

-3- J-S53040-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/25/18

-4-