Com. v. Zigarski, B., Jr. ( 2019 )

J-A06033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRUCE EDWARD ZIGARSKI, JR :
:
Appellant : No. 725 MDA 2018
Appeal from the Judgment of Sentence Entered April 5, 2018
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0000676-2017
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 27, 2019
Bruce Edward Zigarski, Jr. (Zigarski) appeals from the judgment of
sentence imposed after his probation revocation in the Court of Common Pleas
of Northumberland County (trial court). Specifically, he challenges the court’s
failure to grant him credit for time-served. Even though the Commonwealth
agrees that the court erred in failing to give Zigarski thirty-one days of credit
for time served, we dismiss the action as moot.
We take the following factual and procedural history from our review of
the certified record. On May 31, 2017, Zigarski pleaded guilty to one count
of possession of drug paraphernalia, 35 P.S. § 780-113(a)(32), and the court
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06033-19
sentenced him to six months of probation.1 When Zigarski violated his
probation terms, the court issued a bench warrant and he was apprehended
on October 31, 2017. He remained detained on the warrant until his
revocation hearing.
At the December 7, 2017 hearing, the court revoked Zigarski’s probation
and sentenced him to a term of incarceration of not less than two nor more
than twelve months. Although Zigarski requested credit for time served since
October 31, 2017, the court declined to do so. Instead, it elected to preserve
the time-served for sentencing in another case, for which Zigarski had been
in jail since November 4, 2017 (Case 802-2017), and granted him a credit of
four days for the period of October 31-November 3, 2017 in this case.
However, when Zigarski later pleaded guilty in case 802-2017, the court
sentenced him only to pay a fine and did not give him credit for time-served
from November 4, 2017, until December 7, 2017.
When Zigarski was paroled, he once more violated its terms. At the
April 5, 2018 revocation hearing, Zigarski again requested that the court
amend his sentence to include credit for all time-served. His probation officer
also recommended that the court grant the time since it had not been applied
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1 The same day, Zigarski also pleaded guilty to one count of possession of
paraphernalia at Docket Number 675-2017, and the court sentenced him to
the same term of probation to run concurrently. The issue in that case is
identical to the one raised here and is the subject of another appeal filed at
724 MDA 2018.
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to the sentence imposed in Case 802-2017. (See N.T. Hearing, 4/05/18, at
3). The court applied the available time to his minimum term, allowing him
to seek parole in July 2018, but it denied Zigarski’s request as to his maximum
sentence, and re-sentenced him to serve the remainder of his term scheduled
to expire on December 3, 2018. After the trial court denied his post-sentence
motion, Zigarski timely appealed.
On appeal, Zigarski challenges the legality of his sentence, arguing that
the trial court’s failure to grant credit for time-served resulted in a sentence
that exceeds the maximum penalty of twelve months pursuant 35 P.S. § 780-
113(i).2 He maintains that since his period of incarceration commenced on
October 31, 2017, his maximum date should have been October 30, 2018, not
December 3, 2018. (See Zigarski’s Brief, at 8-10).
Before we address Zigarski’s claim, we must determine if we have
jurisdiction to consider it. It is well-settled that “an actual case or controversy
must exist at all stages of appellate review.” Commonwealth v. Benn, 680
A.2d 896, 897 (Pa. Super. 1996) (citation omitted). “Since the existence of
an actual controversy is essential to appellate jurisdiction, if, pending an
appeal, an event occurs which renders it impossible for the appellate court to
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2 Pursuant to 35 P.S. § 780-113(i): “Any person who violates clause[] (32) .
. . of subsection (a) is guilty of a misdemeanor and upon conviction thereof
shall be sentenced to pay a fine not exceeding two thousand five hundred
dollars ($2,500) or to imprisonment not exceeding one (1) year, or both.
. . .” 35 P.S. § 780-113(i) (emphasis added).
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grant any relief, the appeal generally will be dismissed.” Id. (citation
omitted).
In this case, based on the facts as pleaded by the parties, Zigarski
completed his sentence on December 3, 2018, while this appeal was pending.
Because he is no longer is incarcerated on the conviction in this case and does
not argue that the sentence has collateral civil or criminal consequences, his
issue is moot. See Commonwealth v. King, 786 A.2d 993, 996 (Pa. Super.
2001), appeal denied, 812 A.2d 1228 (Pa. 2002) (finding court would not
address appellant’s moot legality of sentence issue where sentence had
expired and bore no collateral civil or criminal consequences). Because the
matter is moot, we are precluded from considering the merits of this appeal
and must dismiss the appeal due to lack of jurisdiction. See id.; see also
Benn, supra at 898 (appellate court will not consider moot issue).
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2019
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