J-A07043-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYLER PAUL SHELTON : : Appellant : No. 28 MDA 2023
Appeal from the PCRA Order Entered December 7, 2022 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000856-2015
BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: APRIL 24, 2024
Appellant, Tyler P. Shelton, appeals from the order dated December 6,
2022, entered in the Bradford County Court of Common Pleas. We affirm the
order and deny Appellant’s application for appointment of substitute counsel.
The relevant procedural history and facts are as follows: The
Commonwealth charged Appellant with 100 counts each of Rape of Child,
Involuntary Deviate Sexual Intercourse with Child, Aggravated Indecent
Assault of Child, Indecent Assault, and Corruption of Minors; 40 counts of
Corruption of Minors; and 10 counts of Attempted Involuntary Deviate Sexual
Intercourse with Child. Appellant’s 12-year-old daughter was the victim.
Appellant was convicted by a jury of fifteen counts of corruption of minors. On
September 15, 2016, Appellant was sentenced to 75 to 360 months’
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* Former Justice specially assigned to the Superior Court. J-A07043-24
incarceration. Appellant filed a post sentence motion which was denied on
March 6, 2017. In his direct appeal to this Court, Appellant challenged the
admission of evidence in his trial. On September 7, 1017, this Court affirmed.
See Commonwealth v. Shelton, 170 A.3d 549 (Pa. Super. 2017).
On December 7, 2018, Appellant filed a timely pro se PCRA petition
raising the two illegality of sentence claims at issues in this instant appeal. On
July 11, 2020, the court denied his PCRA petition without a hearing and gave
him twenty days to respond. Appellant filed a timely response that he had yet
to be appointed an attorney. The court appointed Attorney Jason Beardsley,
who inexplicably filed at least seven requests for an extension of time before
filing an amended PCRA petition in June 2022. On December 6, 2022,
Appellant’s PCRA petition was denied. Appellant filed a timely notice of appeal.
This appeal followed. 1
Appellant raises two issues for our review:
1. Whether an illegal sentence was imposed upon Mr. Shelton when the sentencing court imposed consecutive sentences on fifteen counts of Corruption of Minors, graded as misdemeanors of the first degree, when the legislature has specified that when Corruption of Minors occurred as a course
1 We note our extreme displeasure with the Commonwealth’s brief. An appellee is required to file a brief that at minimum must contain a summary of argument and the complete argument for appellee. Pa. R. App. P. 2112. Although Appellee’s brief here contains heading for “Summary of Argument” and “Argument,” the brief is a total of one-half page and does not contain any citation to any caselaw whatsoever. We do not find the Commonwealth to have set forth a sufficiently “complete argument” pursuant to Rule 2112 where it addressed two issues in its argument section in a total of seven sentences.
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of conduct the appropriate grading is a single felony of the third degree.
2. Whether the PCRA Court erred in finding Mr. Shelton was ineligible for RRRI, and therefore received an illegal sentence.
Appellant’s Br. at 3.
Initially, we note that Appellant, while represented by Attorney
Beardsley, filed a pro se application for the appointment of substitute counsel
pursuant to Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), on
January 30, 2023. By order of court dated September 15, 2023, Attorney
Beardsley was deemed withdrawn as counsel and Attorney Jordan Leonard
was appointed as appellate counsel. Instantly, Appellant’s counseled brief was
filed by Attorney Leonard, and thus Appellant’s application for appointment is
denied as moot.
Appellant’s first issue is that he received an illegal sentence when the
sentencing court imposed consecutive sentences on fifteen counts of
corruption of minors, graded as first-degree misdemeanors, instead of a single
third-degree felony. Appellant’s Br. at 8. “A claim a petitioner is serving an
illegal sentence is cognizable under the PCRA, as long as the claim is raised in
a timely petition.” Commonwealth v. Moore, 247 A.3d 990, 993 (Pa. 2021).
The Commonwealth argues that Appellant’s claim, cognizable under the PCRA,
was not raised in Appellant’s petition or any amended petition and is therefore
waived. Appellee’s Br. at 2. Specifically, the Commonwealth asserts,
“Appellant raised only the issue of his RRRI eligibility in the PCRA filed on
December 7, 2018. . . . The PCRA court does not address the issue in its
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1925(a) opinion because it was not raised.” Id. While it is true that the PCRA
court does not mention or address any issue other than the RRRI eligibility,
Appellant properly raised his first illegal sentence claim in a timely petition.
Our review of the record reveals that Appellant’s pro se PCRA petition states
this in the argument section:
I am eligible offender for RRRI under current law. Comm v. Robinson, 7 A.3d 868 (Pa. Super. 2010). No RRRI is an illegal sentence[.]
15 counts of 18 Pa.C.S. § 6301(2)(1)(i) should carry the same as one count of 18 Pa.C.S. § 6301(2)(1)(ii) if crime alleged satisfies “course of conduct.” Comm v. Kelly, 102 A.3d 1025 (Pa. Super. 2014)[.]
Appellant’s Pro Se PCRA Petition, 12/7/18, at 8 (punctuation added). Thus, it
is facially clear that Appellant raised both issues in his PCRA petition.
Had the Commonwealth properly briefed the issues, we would not have
to guess if the Commonwealth instead meant that Appellant failed to raise this
issue in his 1925(b) statement of matters complained of on appeal, which
should result in waiver. On January 11, 2023, the trial court ordered Appellant
to file a 1925(b) statement within twenty-one days or else the issues would
be waived. Appellant thereafter filed two (counseled) statements pursuant to
1925(b). The first was filed on February 6, 2023, and included only the RRRI
eligibility issue. The second was filed on February 10, 2023, and raised both
issues Appellant raises in his instant brief. Notably, neither 1925(b) statement
was filed within the twenty-one-day limit. The trial court, however, accepted
Appellant’s February 6, 2023, statement as timely and formulated its 1925(a)
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opinion in response to it, ignoring the additional issue raised in Appellant’s
February 10, 2023, statement. The record reflects that the trial court's order
directing Appellant to file a 1925(b) statement did not specify the address
where Appellant could mail his statement, as is required by Pa.R.A.P.
1925(b)(3)(iii). It would be inequitable to deem issues waived on appeal due
to the untimely filing of a 1925(b) statement where the trial court's order to
file the statement does not comport with the requirements of Rule 1925(b).
See Commonwealth v. Jones, 193 A.3d 957, 961 (Pa. Super. 2018).
Additionally, Appellant’s previous counsel, Attorney Beardsley, who filed both
1925(b) statements, was subsequently suspended from the practice of law
and imprisoned. “This Court has held that both the complete failure to file the
1925(b) statement and the untimely filing of a 1925(b) statement is per se
ineffectiveness because it is without reasonable basis designed to effectuate
the client's interest and waives all issues on appeal.” Commonwealth v.
Sanchez-Frometa, 256 A.3d 440, 442-443 (Pa. Super. 2021) (quotation
marks, citations, and corrections omitted). “While these circumstances often
require a remand, where the trial court addresses the issues raised in an
untimely Rule 1925(b) statement, we need not remand but may address the
issues on their merits.” Id. (quotation marks and citations omitted). For these
reasons, although the Commonwealth and trial court both declined to address
Appellant’s issue, we do not find it waived and will address the merits.
Appellant’s first issue is an illegal sentence claim cognizable under the
PCRA. Moore, supra. It is well settled that a challenge to the legality of a
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sentence raises a question of law. Commonwealth v. Smith, 956 A.2d 1029,
1033 (Pa. Super. 2008) (en banc). In reviewing this type of claim, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013). “An illegal
sentence must be vacated[.]” Commonwealth v. Ramos, 197 A.3d 766, 769
(Pa. Super. 2018) (citation and quotation marks omitted).
Appellant was convicted of fifteen counts of corruption of minors, a
misdemeanor offense. He was sentenced to five months’ to twenty-four
months incarceration on each count consecutively, for an aggregate term of
incarceration of 75 to 360 months, or thirty2 years’ maximum. His issue on
appeal is not that he should have been sentenced concurrently rather than
consecutively. Instead, he argues that fifteen counts of corruption of minors
constitutes a “course of conduct,” which should be graded as a felony
according to statute, and thus he should have been subject to the penalty for
a felony. Had he been sentenced to one felony of the third degree instead of
fifteen first-degree misdemeanors, his maximum sentence would have been
seven years. Appellant’s Br. at 15.
The statute defining the offense of corruption of minors reads, in
pertinent part, as follows:
(a) Offense defined.-- (1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to ____________________________________________
2 Appellant argues in his brief that he was given a maximum sentence of 75
years. His maximum is 360 months, which equals 30 years, not 75 years.
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corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree. (ii) Whoever, being of the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense under Chapter 31 commits a felony of the third degree.
18 Pa.C.S. § 6301(a) (emphasis added).
A person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than: (1) Five years in the case of a misdemeanor of the first degree.
18 Pa.C.S. § 1104.
Except as provided in 42 Pa.C.S. § 9714 (relating to sentences for second and subsequent offenses), a person who has been convicted of a felony may be sentenced to imprisonment as follows: . . . (3) In the case of a felony of the third degree, for a term which shall be fixed by the court at not more than seven years.
18 Pa.C.S. § 1103.
Our research has revealed cases in which appellants convicted of a third-
degree felony charge of corruption of minors—by a course of conduct in
violation of Chapter 31—argue that a “course of conduct” was not established
and that their charge should have been graded as a first-degree misdemeanor.
Here, Appellant argues that a course of conduct was in fact established and
thus seeks to have his charges graded as a felony rather than as
misdemeanors. Accordingly, he argues, if we agree with him that a course of
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conduct was established, the fifteen misdemeanors should become a single
felony. We disagree.
Even if we found that a course of conduct was established “in violation
of Chapter 31,” which for the reasons below, however, we do not, it is
unreasonable to suggest that any number of corruption of minors
misdemeanors must merge into only one felony. Although misdemeanor
corruption of minors is a lesser included crime of felony corruption of minors,
it includes an additional element. Commonwealth v. Baker-Myers, 255
A.3d 223, 227 n.7 (Pa. 2021). It is more likely that if Appellant was convicted
of other Chapter 31 offenses establishing a “course of conduct,” he would have
been subject to a felony grading on each corruption of minors count, resulting
in a sentence much greater than the one he received.
We find Baker-Myers to be instructive. In that case, the defendant was
charged with rape, sexual assault, aggravated indecent assault, and indecent
assault, all Chapter 31 offenses. Id. at 225-26. He was also charged with
felony corruption of minors. Id. at 226. A jury convicted him of the corruption
of minors charge but acquitted him of the Chapter 31 offenses. Id. at 227.
The defendant argued that because he was acquitted of the Chapter 31
offenses and the felony corruption of minors statute includes the element “by
any course of conduct in violation of Chapter 31,” his conviction could not
stand. Id. at 227. This Court vacated in part, holding that “course of conduct”
is an essential element of felony corruption of minors that the Commonwealth
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charged and prosecuted but failed to prove beyond a reasonable doubt. Id. at
224. Our Supreme Court agreed, stating,
Although the Commonwealth is not required to formally charge or secure a conviction for a predicate Chapter 31 offense, where, as here, the jury is specifically instructed on the predicate offense or offenses pertaining to the corruption of minors charge, and the jury then renders an acquittal on all such predicates, a conviction for felony corruption of minors cannot stand.
Baker-Myers, 255 A.3d at 235.
A similar argument was made in Commonwealth v. Panattieri, Nos.
257 MDA 2022, 258 MDA 2022, 2023 Pa. Super. Unpub. LEXIS 2609, at *23
(Oct. 23, 2023).3 There, a defendant was charged with multiple counts of
indecent assault without consent, indecent assault of a person under thirteen,
indecent assault of a person under sixteen, and felony corruption of minors.
Id. at *1. He was convicted on all counts except for aggravated indecent
assault. Id. at *5. On appeal, he challenged the grading of the corruption of
minors conviction as a felony, asserting that the jury did not make a specific
factual finding as to course of conduct to support the enhanced grading. Id.
at *20, *23. We disagreed and found two key factors distinguished Baker-
Myers. First, unlike in Baker-Myers where the jury acquitted the defendant
of all Chapter 31 offenses, the defendant in Panattieri was acquitted of one
Chapter 31 offense but convicted on the others. Id. at *23.
3 We note that, pursuant to Pa.R.A.P. 126(b), unpublished non-precedential
decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value. We find guidance in the unpublished memorandum cited supra and find it to be persuasive in this matter.
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Second, “[t]he Baker-Myers Court noted that the jury instructions
were limited to the offenses charged.” Panattieri, at *24. In other words, the
Baker-Myers trial court specifically instructed the jury that in order to convict
on felony corruption of minors, it was required to find “any course of conduct
in violation of Chapter 31, relating to the other sexual offenses being rape,
sexual assault, indecent assault,” and yet the jury acquitted defendant of all
Chapter 31 violations. In contrast, the Panattieri trial court instructed the
jury that is must find, inter alia, that “the defendant engaged in the course of
conduct that constituted the following sexual offenses under the crimes code
of Pennsylvania. And here it’s alleged to be indecent assault and/or
aggravated indecent assault.” Id. at *25. The jury proceeded to convict
defendant of indecent assault, which “was not limited to one discrete incident,”
so we found that Baker-Myers is distinguishable. Id. at *27. Thus, we held
that a course of conduct was indeed established and the felony corruption of
minors conviction was properly graded. Id. at *29.
With these principles in mind, we turn to Appellant’s convictions and the
jury instructions in the instant case. Here, Appellant was found guilty of fifteen
misdemeanor counts of corruption of minors, 18 Pa.C.S. § 6301(a)(1)(i), and
was acquitted of ten counts each of rape of child, involuntary deviate sexual
intercourse, indecent assault, and attempted involuntary deviate sexual
intercourse, all Chapter 31 offenses. The Commonwealth withdrew all other
charges. Tr. Ct. Order, 6/27/16. To be clear, here, like the appellant in Baker-
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Myers whose felony corruption of minors conviction could not stand, Appellant
was acquitted of each Chapter 31 offense that was presented to the jury.
As to the issues of jury instructions, “[w]ith respect to a charge of
corruption of minors as a third-degree felony, the trial court must instruct the
jury that the Commonwealth must prove that Appellant engaged in a ‘course
of conduct.’” Commonwealth v. Smith, 206 A.3d 551, 564 (Pa. Super.
2019). Here, the trial court’s charge to the jury defined corruption of minor as
this:
To find the defendant guilty of this offense, you must find that each of the following three elements has been proven beyond reasonable doubt. First, that the defendant was eighteen years of age or older at the time of the incident giving rise to the charge. Second, that [victim] was under eighteen years of age at that time. And third, that the defendant attempted, or the defendant corrupted or attempted to corrupt the morals of [victim] by the following alleged conduct: he had the child uncover herself and show her, show him her intimate parts, and did have the child look at his intimate parts.
N.T., 6/24/16, at 114. These instructions clearly explain the elements of
misdemeanor corruption of minors, and the court thereafter specifically and
separately instructed the jury on each of the Chapter 31 offenses. Unlike in
Panattieri where the felony conviction was proper, the trial court here did
not instruct the jury regarding a “course of conduct.”
Thus, because Appellant was acquitted of all Chapter 31 offenses, and
because the trial court did not instruct the jury as to course of conduct, a
critical element which distinguishes the felony version of corruption of minors
from the version graded as a first-degree misdemeanor, a sentence for
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corruption of minors graded as a third-degree felony cannot stand. We
conclude Appellant was properly sentenced on his misdemeanor corruption of
minors convictions and disagree that the convictions should have or even
could have been merged into a single felony.
Appellant argues his acquittals under Chapter 31 should be considered
as an inconsistent verdict. Appellant’s Br. at 13. He states, “jury acquittals
should not be interpreted as specific factual findings arising from the evidence;
rather, an acquittal may merely show lenity on the jury’s behalf, or that the
verdict may have been the result of compromise, or of a mistake on the part
of the jury.” Appellant’s Br. at 13 (quoting Baker-Myers, 255 A.3d at 231).
The normal rule is that acquittals do not have dispositive effect, as an acquittal
may be due to an act of mercy. Commonwealth v. Moore, 103 A.3d 1240,
1246 (Pa. 2014) (noting that “jury acquittals may not be interpreted as
specific factual findings with regard to the evidence, as an acquittal does not
definitively establish that the jury was not convinced of a defendant's guilt”).
However, Appellant fails to acknowledge a relevant exception to this principle:
when the fact-finder acquits of an offense where the commission of that
offense is an element of a separate crime, then the acquittal must be given
special effect. Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005).
Appellant cites the criminal information at “COUNT 5-CORRUPTION OF
MINORS-(MISDEMEANOR 1)” which alleged that he “namely, did have child
uncover and touch her intimate parts and did have her touch his intimate
parts.” Appellant’s Br. at 12 (citing Criminal Information at Count 5). Appellant
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submits that this language indicates that in order for the jury to have
convicted him of this count, that it necessarily found he violated Chapter 31
by a course of conduct. Id. We disagree with this argument for three reasons.
First, count 5 on its face alleges only misdemeanor corruption of minors.
Second, the language does not include “course of conduct” or the element of
“Chapter 31 violations.” Third, our precedents indicate that the language
relevant to this analysis is that which was charged to the jury, not that which
was in the indictment or information. Smith, supra; Panattieri, supra. We
acknowledged in Panattieri that Baker-Myers appeared to leave “open the
possibility that the Commonwealth could charge one count of felony corruption
of minors, without charging any other Chapter 31 offense.” But the
Commonwealth in Panattieri did charge the defendant with Chapter 31
offenses and he was convicted of at least one. Here, the Commonwealth also
charged Appellant with Chapter 31 offenses, and he was not convicted of any.
We find it appropriate to reiterate:
Although the Commonwealth is not required to formally charge or secure a conviction for a predicate Chapter 31 offense, where, as here, the jury is specifically instructed on the predicate offense or offenses pertaining to the corruption of minors charge, and the jury then renders an acquittal on all such predicates, a conviction for felony corruption of minors cannot stand.
Baker-Myers, 255 A.3d at 235. Accordingly, Appellant’s first claim fails.
Appellant’s second issue is that he received an illegal sentence when he
was denied the benefit of participating in Recidivism Risk Reduction Incentive
(RRRI), a program for which he claims he was eligible. Appellant’s Br. at 17.
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A challenge to a court's failure to impose an RRRI sentence implicates the legality of the sentence. Commonwealth v. Tobin, 2014 PA Super 61, 89 A.3d 663, 670 (Pa. Super. 2014). “It is legal error to fail to impose a[n] RRRI minimum on an eligible offender.” Id. Thus, as “statutory interpretation implicates a question of law, our scope of review is plenary and our standard of review is de novo.” Commonwealth v. Gerald, 2012 PA Super 127, 47 A.3d 858, 859 (Pa. Super. 2012) (citation omitted).
Commonwealth v. Finnecy, 135 A.3d 1028, 1033 (Pa. Super. 2016).
The RRRI Act “seeks to create a program that ensures appropriate
punishment for persons who commit crimes, encourages inmate participation
in evidence-based programs that reduce the risks of future crime and ensures
the openness and accountability of the criminal justice process while ensuring
fairness to crime victims.” 61 Pa.C.S.A. § 4502. In pursuit of these goals, the
RRRI Act provides prisoners with “the opportunity ... to be considered for
parole at the expiration of their RRRI minimum sentence.” Commonwealth
v. Robinson, 7 A.3d 868, 872 (Pa. Super. 2010). The RRRI Act provides that
“[a]t the time of sentencing, the court shall make a determination whether
the defendant is an eligible offender.” 61 Pa.C.S.A. § 4505(a). An eligible
offender is defined, inter alia, as a defendant who does not demonstrate a
history of present or past violent behavior. 61 Pa.C.S. § 4503(1). Here, during
the sentencing proceedings, the trial court did fulfil its statutory duty in stating
its determination on the record that Appellant was not RRRI eligible. N.T.,
9/15/16, at 5.
The record reveals that the lower court has given two reasons for
denying Appellant relief on his RRRI claim. First, the lower court’s order
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denying Appellant’s pro se PCRA petition—which raised the RRRI issue for the
first time—dismissed the RRRI eligibility issue as waived because Appellant
did not raise the claim on direct appeal. Tr. Ct. Order, 7/11/20. Second, the
court’s 1925(a) opinion in response to the instant appeal states, “Here, the
acts described by the victim during her testimony are ‘present or past violent
behavior.’ Although the jury found Appellant not guilty of these crimes of
Rape, Indecent Assault, etc., the acts were described by the victim.” Tr. Ct.
Op. at 2. Appellant first questions if a burden of proof less than beyond a
reasonable doubt is sufficient when determining eligibility for RRRI. He then
asserts that even if the court could decide that sentencing factor under a lesser
burden of proof, it did not decide here that he exhibited “a history of” present
or past violent behavior. Appellant’s Br. at 22.
We note that while Appellant failed to raise this claim in his direct
appeal, his claim that he was entitled to an RRRI sentence implicates the
legality of his sentence. Commonwealth v. Pardo, 35 A.3d 1222, 1230 (Pa.
Super. 2011), appeal denied, 50 A.3d 125 (Pa. 2012) (“This Court has
previously held that when a defendant challenges a trial court's disqualification
of his entry into the RRRI program, the issue is one of legality of the sentence
and is non-waivable.”). See Commonwealth v. Tobin, 89 A.3d 663 (Pa.
Super. 2014) (“[A] defendant's challenge relative to the failure to apply a RRRI
minimum [is] a non-waivable illegal sentencing claim.”). Thus, we find the
issues is not waived, however, the issue is moot.
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The RRRI statute offers, as an incentive for completion of the program,
the opportunity for prisoners to be considered for parole at the expiration of
their RRRI minimum sentence. 61 Pa.C.S.A. § 4506. The RRRI minimum
sentence “shall be equal to three-fourths of the minimum sentence imposed
when the minimum sentence is three years or less [and] ... five-sixths of the
minimum sentence if the minimum sentence is greater than three years.” 61
Pa.C.S.A. § 4505(c)(2). Here, Appellant was sentenced to 75 to 360 months.
N.T., 9/15/16, at 5. Assuming arguendo that Appellant was an RRRI eligible
offender, because his minimum sentence is greater than three years, his RRRI
minimum would have been five-sixths of his minimum, i.e., five-sixths of 75
months, which equals a minimum RRRI sentence of sixty-two and a half
months. Appellant’s minimum RRRI sentence would have expired in November
2021. Additionally, by December 2022, Appellant had served his minimum
sentence of 75 months. Appellant did not participate in the program and now
cannot be incentivized to receive early parole.
The claim of mootness . . . stands on the predicate that a subsequent change in circumstances has eliminated the controversy so that the court lacks the ability to issue a meaningful order, that is, an order that can have any practical effect.
Burke ex rel. Burke v. Indep. Blue Cross, 103 A.3d 1267, 1271 (Pa. 2014).
Because Appellant has already served a sentence in excess of the
minimum sentence without the RRRI application, a determination of
Appellant’s RRRI eligibility “wouldn’t change one day in the amount of time
that he is sitting in prison on these charges” and therefore, the issue is moot.
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See Commonwealth v. Johnson, 280 A.3d 10, 2022 Pa. Super. Unpub.
LEXIS 1036 (Pa. Super. 2022).4 Accordingly, we affirm.
Order Affirmed. Application for appointment of substitute counsel
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 04/24/2024
4 See supra note 3.
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