Com. v. Dancey, D. ( 2016 )

J-S09034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID DANCEY
Appellant No. 427 MDA 2015
Appeal from the Judgment of Sentence March 26, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002097-2012
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 09, 2016
Appellant David Dancey appeals from the November 13, 2014 order of
the Lackawanna County Court of Common Pleas granting Appellant 10 days
of credit for time served. Because Appellant is no longer serving a sentence
in this case, we dismiss this appeal as moot.
On December 12, 2012, Appellant pled guilty to simple assault. 1 On
March 12, 2013, the trial court sentenced Appellant to two years’
intermediate punishment pursuant to 42 Pa.C.S. § 9763, with the first 90
days to be served on the Lackawanna County house arrest program.
Appellant was unable to serve the house arrest portion of his sentence and
he, instead, served a portion of his sentence at the Lackawanna County work
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1
18 Pa.C.S. § 2701(a)(1).
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release program. Appellant violated the terms and conditions of the work
release program on numerous occasions, which resulted in periods of
incarceration.
On March 26, 2014, following another violation of the work release
program, the trial court revoked Appellant’s sentence and re-sentenced
Appellant to time served to two years’ incarceration. The trial court credited
Appellant with 357 days.
Appellant filed a timely motion for reconsideration, which the trial
court denied on March 31, 2014. Appellant did not file a direct appeal.
On July 11, 2014, Appellant filed a pro se petition pursuant to the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, arguing counsel was
ineffective because, inter alia, counsel failed to request that the trial court
award credit for an additional period of incarceration, for participation in the
work release program, and for time spent at a Salvation Army rehabilitation
program. Motion for Post Conviction Collateral Relief, filed July 11, 2011.
The PCRA petition also referenced an appeal nunc pro tunc. Id. On July 22,
2014, the PCRA court appointed counsel. On August 29, 2014, the
Commonwealth filed a response.
On November 13, 2014, the trial court issued an order stating
Appellant “shall receive credit from [July 18, 2013] to [August 12, 2013].”2
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2
It appears Appellant may have been incarcerated for the period from July
18, 2013 to August 12, 2013. The original sentencing order granted credit
(Footnote Continued Next Page)
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The trial court did not mention the PCRA petition, or any other motion filed
on behalf of Appellant, when granting this credit.
On November 20, 2014, PCRA counsel filed a motion to withdraw
pursuant to Turner/Finley.3 On December 11, 2014, Appellant filed a pro
se notice of appeal. Although it appears the PCRA court did not address
counsel’s motion to withdraw, it appointed new counsel for Appellant on
appeal.
This Court made numerous requests that the trial court file an opinion
pursuant to Pennsylvania Rule of Appellate 1925(a), including a May 7, 2015
order asking the trial court to elaborate on its November 13, 2014 order and
address whether Appellant’s July 11, 2014 PCRA petition had been resolved.
On October 8, 2015, the trial court finally issued a Rule 1925(a) opinion.
The Rule 1925(a) opinion mentions the PCRA petition filed and, in the same
paragraph, acknowledges its November 13, 20144 order awarding Appellant
credit for an additional ten days that Appellant sent in custody. The 1925(a)
opinion, however, stated that Appellant’s December 11, 2014 notice of
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(Footnote Continued)
for time served, including time served from July 18, 2013 through August 1,
2013. Therefore, this order granted an additional 10 days of credit, from
August 2, 2013 through August 12, 2013.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1987) (en banc).
4
This order was dated October 13, 2014, but stamped and docketed on
November 13, 2014.
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appeal was an untimely appeal from the March 26, 2014 judgment of
sentence. Memorandum, 10/8/2015, at 4-5, 5 n.3 (“PCRA Opinion”). The
1925(a) opinion did not explain the status of the PCRA petition.
On October 30, 2015, Appellant’s counsel filed an Anders brief and a
motion to withdraw as counsel.
The Anders brief raises the following issue on appeal:
Whether the [trial] court erred when it failed to credit []
Appellant with time spent on work release, on house
arrest, and at the Salvation Army Rehabilitation towards
his total intermediate punishment sentence?
Anders Brief at 4.
The trial court and the Commonwealth argue that the December 11,
2014 appeal was an untimely appeal of the March 26, 2014 judgment of
sentence. PCRA Opinion at 5, 5 n.3; Appellee’s Brief at 4. The
Commonwealth maintains the November 13, 2014 order awarding credit was
not a final order. Appellee’s Brief at 4. We disagree. The November 13,
2014 order, which granted additional credit, was an appealable order. See,
e.g., Commonwealth v. Clark, 885 A.2d 1030, 1031 (Pa.Super.2005)
(reviewing appeal from order applying credit for pre-trial detention).
Further, Appellant timely appealed this order, as he filed his notice of appeal
within 30 days of the date of the order. Pa.R.A.P. 903.
However, we are unable to review Appellant’s issue, as his appeal is
moot. Where an appellant has completed the aggregate maximum term of
imprisonment while his appeal is pending, an appeal challenging the
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sentence imposed is moot and incapable of review. See Commonwealth v.
Schmohl, 975 A.2d 1144, 1149 (Pa.Super.2009); Commonwealth v.
Kelly, 418 A.2d 387, 388 (Pa.Super.1980) (because appellant’s interest is
limited to the sentence he received, his interest does not survive the
completion of the sentence, and the case must be dismissed as moot). We
have reasoned that, if an appellant has completed serving his sentence, he
is no longer subjected to any direct criminal consequences, and, therefore,
any challenge to his sentence would be moot. Id.; Commonwealth v.
King, 786 A.2d 993, 996–97 (Pa.Super.2001) (appeal moot where appellant
challenged the legality of the 24-month probationary sentence imposed and
already served because there were no criminal or civil consequences).5
Appellant completed serving this sentence on March 24, 2015. He is,
therefore, no longer serving the sentence he attempts to challenge and is
not suffering any consequences as a result of the sentence.6 Accordingly,
this appeal is moot.
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5
The Turner/Finley letter notes that Appellant correctly claims he was
charged twice for an item of cost labeled “OSP” and correctly claims the
restitution amount ordered differed from the restitution amount requested.
Letter from Kurt T. Lynott, Esq. to the Honorable Michael J. Barrasse dated
November 20, 2014, at 2. If Appellant was incorrectly assessed costs or if
the restitution amount is inaccurate, Appellant can request an abatement at
the trial court.
6
Even if we construed the November order as an order addressing the PCRA
petition, Appellant still would not be entitled to relief. Because Appellant is
no longer serving a sentence of imprisonment, probation or parole for the
crime, he is ineligible for PCRA relief. 42 Pa.C.S. § 9543(a)(1)(i).
(Footnote Continued Next Page)
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Appeal dismissed as moot and motion to withdraw granted.7
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
_______________________
(Footnote Continued)
7
Counsel complied with the technical requirements of Anders because he
provided a summary of the procedural history and facts, referred to things of
record that arguably supported the appeal, set forth his conclusion the
appeal was frivolous and his reasons for concluding the appeal was frivolous.
Anders Brief; Commonwealth v. Santiago, 978 a.2d at 361. Counsel also
sent his Anders brief and petition to withdraw to Appellant, along with a
letter advising Appellant he could retain new counsel, proceed pro se, or
raise any points Appellant deemed worthy of this Court’s attention. Letter
from Daniel B. Lipson, Esq. to David Dancey dated Oct. 28, 2015. Further,
because Appellant is no longer serving his sentence, there are no non-
frivolous claims related to his sentence.
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