Com. v. Everett, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/18
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