Com. v. Kindelin-Ray, M. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARIO KINDELIN-RAY
Appellant No. 336 EDA 2014
Appeal from the PCRA Order December 24, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001777-2011
BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 17, 2014
Appellant, Mario Kindelin-Ray, appeals from the December 24, 2013
order, dismissing his petition for relief filed pursuant to the Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review, we vacate the
order and remand for further proceedings.
The central facts in this case are not in dispute, and may be
summarized as follows. On April 4, 2011, Appellant was charged with two
counts each of possession with intent to deliver a controlled substance
(cocaine and heroin), and possession of a controlled substance (cocaine and
heroin), and one count of providing false identification to law enforcement.1
After a trial conducted from November 29, 2011 to December 1, 2011, the
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1
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 18 Pa.C.S.A. § 4014,
respectively.
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jury found Appellant guilty of providing false identification to law
enforcement and acquitted him of the remaining charges. Appellant was
immediately sentenced to a term of imprisonment of six to 12 months,
consecutive to any other sentence Appellant was serving. At the time of his
sentence in this case, Appellant was serving a sentence for a prior conviction
on drug charges, and was subject to Pennsylvania Board of Probation and
Parole (Parole Board). No direct appeal was taken from the judgment of
sentence.2
On March 14, 2012, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel, who filed an amended PCRA petition on May
24, 2012, alleging several instances of ineffective assistance of trial counsel.
Prior to the initial hearing, the Commonwealth presented a threshold
jurisdictional issue, asserting Appellant was ineligible for PCRA relief since he
was no longer serving the subject sentence.3 On December 13, 2012 and
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2
Following sentencing, the Commonwealth sought forfeiture of funds seized
at the time of Appellant’s arrest, and Appellant petitioned for return of the
funds. On June 14, 2013, the trial court ordered forfeiture of the funds and
Appellant appealed pro se that same day. This Court quashed the appeal on
July 10, 2013 because Appellant abandoned his challenge to the forfeiture,
instead raising sentencing issues in his Rule 1925(b) statement and
appellate brief. Commonwealth v. Kindelin-Ray, 82 A.3d 1016 (Pa.
Super. 2013) (unpublished judgment order).
3
The PCRA provides in pertinent part as follows.
§ 9543. Eligibility for relief
(Footnote Continued Next Page)
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September 10, 2013, the PCRA court conducted hearings on Appellant’s
amended petition. By agreement of the parties, testimony and argument
were limited to the jurisdictional issue, with the understanding further
hearings would be conducted on the merits of Appellant’s claims if the PCRA
court ruled in favor of Appellant on the threshold issue. The PCRA court took
the matter under advisement and issued an order on December 24, 2013,
dismissing Appellant’s PCRA petition on the basis that Appellant was not
serving the subject sentence and was, therefore, ineligible for PCRA relief.
On January 23, 2014, Appellant filed a timely notice of appeal.4
Appellant raises the following single issue on appeal.
Did the trial court err in finding that defendant
was ineligible for PCRA relief because he was
not currently serving a sentence …[?]
_______________________
(Footnote Continued)
(a) General rule.--To be eligible for relief under
this subchapter, the petitioner must plead and prove
by a preponderance of the evidence all of the
following:
(1) That the petitioner has been convicted of a
crime under the laws of this Commonwealth
and is at the time relief is granted:
(i) currently serving a sentence of
imprisonment, probation or parole for
the crime;
…
42 Pa.C.S.A. § 9543(a)(1)(i).
4
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Appellant’s Brief at 4.
We are guided by the following standard when considering an appeal
from the denial of PCRA relief.
On appeal from the denial of PCRA relief, our
standard and scope of review is limited to
determining whether the PCRA court’s findings are
supported by the record and without legal error.
[Our] scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the
light most favorable to the prevailing party at the
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted).
Contrary to the conclusion of the PCRA court, Appellant argues he is
currently serving the subject sentence. Appellant’s Brief at 8. Appellant
contends that because the instant sentence was made consecutive to any
prior sentence he was serving, the sentences became aggregated pursuant
to 42 Pa.C.S.A. § 9757. Id. at 7. Section 9757 provides as follows.
§ 9757. Consecutive sentences of total
confinement for multiple offenses
Whenever the court determines that a sentence
should be served consecutively to one being then
imposed by the court, or to one previously imposed,
the court shall indicate the minimum sentence to be
served for the total of all offenses with respect to
which sentence is imposed. Such minimum sentence
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shall not exceed one-half of the maximum sentence
imposed.
42 Pa.C.S.A. § 9757. “This statute mandates automatic aggregation of
sentences once a trial court imposes a consecutive sentence.”
Commonwealth v. Allshouse, 33 A.3d 31, 35 (Pa. Super. 2011) (citations
omitted), appeal denied, 49 A.3d 441 (Pa. 2012). Aggregation of
consecutive sentences has been defined as follows.
Aggregation of sentences is simply the combining of
multiple consecutive sentences of total confinement
and treating them as if they were a single sentence.
The minimum sentences are added together to arrive
at an aggregated minimum sentence while the
maximum sentences are added together to arrive at
an aggregated maximum sentence.
12 West’s Pa. Prac., Law of Probation and Parole § 4:9 (2012-2013 ed.);
see Commonwealth v. Harris, 620 A.2d 1175, 1179 (Pa. Super. 1993),
appeal denied, 645 A.2d 1115 (Pa. 1993); Jamieson v. Pa. Bd. of
Probation and Parole, 478 A.2d 152, 154 (Pa. Cmwlth. 1984).
Instantly, our review of the record discloses the following. Appellant
was serving a state sentence at the time he was charged with the new
offense on April 2, 2011. On May 24, 2011, the Parole Board recommitted
Appellant as a technical parole violator to serve nine months’ back-time or
his unexpired term, noting a maximum date for his recommitment of
November 10, 2011 “subject to change if convicted of [the subject
charges].” N.T., 12/13/12, at 21-24; Commonwealth’s Ex. C2, Prison
Tracking Card. As noted, Appellant was convicted and sentenced on
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December 1, 2011. His sentence of six to 12 months’ incarceration was
ordered to run “consecutively to any other sentence presently being served.”
Sentencing Order, 12/1/11, at 1. By operation of law, Appellant’s instant
sentence and prior unexpired sentence aggregated pursuant to Section
9757. The Parole Board thereafter, on February 22, 2012, recommitted
Appellant as a convicted parole violator, based on the instant conviction, to
serve seven months’ and 10 days’ back-time and six months’ for the new
conviction. N.T. 9/10/13, at 8-9; Defendant’s Ex. D1, Notice of Board
Decision. Based on Appellant’s recommitments, the Parole Board
recalculated Appellants aggregated maximum sentence date to December
10, 2017. N.T. 12/13/12, at 40-41; Defendant’s Ex. D1, Order to
Recommit.5 In consideration of these facts, we agree with Appellant that he
is “currently serving a sentence … for the crime.” 42 Pa.C.S.A.
§ 9543(a)(1)(i).
The Commonwealth cites our decision in Commonwealth v. Hart,
911 A.2d 939 (Pa. Super. 2006), for the proposition that “[r]evocation of
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5
We note that on December 16 2011, the trial court issued an order
granting Appellant parole. Trial Court Order, 12/16/11, at 1. However, as
Appellant’s aggregate maximum sentence exceeded two years, the trial
court was without authority to do so. See Commonwealth v. Miller, 770
A.2d 362, 363 (Pa. Super. 2001) (noting that “where the total aggregate
sentence carries a maximum of two years or more, exclusive parole
authority lies with the Pennsylvania Board of Probation and Parole”), citing
Commonwealth v. Tilghman, 673 A.2d 898 (Pa. 1996); Commonwealth
v. Harris, 620 A.2d 1175 1178 (Pa. Super. 1993), appeal denied, 634 A.2d
1115 (Pa. 1993).
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parole is a collateral consequence, and the PCRA does not provide relief from
collateral consequences of a criminal conviction.” Commonwealth’s Brief at
8. We conclude Hart is distinguishable and not dispositive of the issue
presented in this case. It is well settled that collateral consequences of a
conviction cannot provide a jurisdictional basis for relief under the PCRA
when an appellant is not currently serving the challenged sentence. See,
e.g., Commonwealth v. Descardes, --- A.3d ---, 2014 WL 4696243, at *2
(Pa. Super. 2014) (en banc) (holding immigration repercussions from
conviction were collateral and did not provide a jurisdictional basis for PCRA
relief where appellant was no longer serving underlying sentence);
Commonwealth v. Williams, 977 A.2d 1174, 1177 (Pa. Super. 2009)
(holding that a registration and reporting requirement under Megan’s Law,
as a collateral consequence of Appellant’s conviction, did not provide a
jurisdictional basis for PCRA relief where Appellant was no longer serving
underlying sentence), appeal denied, 990 A.2d 730 (Pa. 2010).
In Hart, the appellant was convicted of a summary offense and
received a sentence of 90 days’ incarceration. Hart, supra, at 940. The
sentence was ordered “to run concurrently with sentences imposed after
probation revocation.” Commonwealth v. Hart, 894 A.2d 817 (Pa. Super.
2005) (unpublished memorandum at 2) (emphasis added). The appellant
subsequently filed a PCRA petition and was denied relief because he was no
longer serving a sentence for his conviction. Id. On appeal from that
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determination, the appellant conceded he was no longer serving his
sentence on the summary conviction, but argued that because his summary
conviction was the basis for revoking his probation on another prior
sentence, and he was still serving that sentence, PCRA relief should be
available. Id. at 941. The Hart Court determined that an expired sentence
could not provide a jurisdictional basis for PCRA relief, even though the
offense underlying the expired sentence resulted in appellant’s revocation on
an unrelated probation, which sentence he continued to serve. Id. at 942.
Unlike Hart, Appellant’s sentence in the instant case was ordered to
run consecutively with all prior sentences. As discussed above, those
sentences were thereupon aggregated per Section 9757, and the effect of
Appellant’s probation revocation was to prolong the aggregated maximum
date of his consecutive sentences to December 10, 2017. Accordingly, we
conclude Appellant continues to serve the underlying sentence in this case.
We further conclude the PCRA court erred in its determination that Appellant
was ineligible for relief because his sentence “maxed out on April 2, 2012.”
Trial Court Opinion, 12/24/13, at 2. Furthermore, because no record was
developed on the merits of Appellant’s PCRA claims in deference to this
threshold eligibility issue, we are constrained to vacate the PCRA court’s
December 24, 2013 order, and remand for further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2014
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