Com. v. Robertson, K. ( 2022 )

J-A14032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KASHIF M. ROBERTSON :
:
Appellant : No. 232 MDA 2021
Appeal from the Order Entered January 29, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002276-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KASHIF M. ROBERTSON :
:
Appellant : No. 233 MDA 2021
Appeal from the PCRA Order Entered February 11, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002276-2017
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 25, 2022
In these consolidated appeals, Kashif M. Robertson appeals from the
January 29, 2021 order denying his motion for time-credit, and the February
11, 2021 order dismissing his petition filed pursuant to the Post Conviction
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A14032-22
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.
The factual background of this case is not relevant to our disposition and
need not be reiterated here. The procedural history of this case, as gleaned
from the certified record, is as follows: On August 8, 2019, Appellant pled
guilty to one count of possession of a controlled substance1 at docket No. CP-
22-CR-0002276-2017 and was sentenced that same day to 6 to 23 months’
imprisonment, with 6 months’ credit for time-served from January 5 to June
5, 2017. Appellant did not file a direct appeal to this Court.
The trial court subsequently learned that Appellant had already been
awarded time credit from January 5 to December 22, 2017 by the Honorable
Deborah E. Curcillo at a previous docket, No. CP-22-CR-0002526-2012, and
thus the time credit in the instant matter constituted double credit.
Following the filing and denial of a litany of pro se motions, Appellant
filed his first pro se PCRA petition on October 15, 2020, and counsel was
appointed to represent him. Appellant’s most recent amended PCRA petition
was filed on December 28, 2020. On January 14, 2021, the PCRA court
provided Appellant with notice of its intention to dismiss his petition without a
hearing, pursuant to Pa.R.Crim.P. 907(1).
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1 35 P.S. § 780-113(a)(16).
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About the same time, Appellant filed a pro se “Motion to Compel the
Imposition of Originally Imposed Time Credit,” arguing he was entitled to
time-credit from January 5 to December 22, 2017. The PCRA court denied
this motion on January 29, 2021. Thereafter, on February 11, 2021, the PCRA
court entered an order dismissing Appellant’s PCRA petition and all the
amendments thereto.
On February 16, 2021, Appellant filed two timely pro se notices of
appeal, which were docketed in this Court at Nos. 232 MDA 2021 and 233
MDA 2021. Appellant’s appeal at No. 232 MDA 2021 is from the PCRA court’s
January 29, 2021 order denying his motion for time-credit; the appeal at No.
233 MDA 2021 is from the PCRA court’s February 11, 2021 order dismissing
his PCRA petition. This Court consolidated the appeals sua sponte on March
26, 2021, and counsel entered his appearance on Appellant’s behalf that same
day.2
Preliminarily, we note that to the extent Appellant attempts to raise any
challenges with respect to imposition of time-credit, we find that his claim is
moot. The record reflects that Appellant was sentenced on August 8, 2019 to
6 to 23 months imprisonment, with 6 months’ credit for time-served, and has
since completed serving his sentence.
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2The record reflects that Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
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This Court has long recognized that where an appellant has completed
serving his sentence, he is no longer subject to any direct criminal
consequences and any challenge to the sentence imposed is moot and
incapable of review. Commonwealth v. Schmohl, 975 A.2d 1144, 1149
(Pa.Super. 2009) (stating, “[u]nder 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.”); see also Commonwealth v. King, 786 A.2d 993, 996–997
(Pa.Super. 2001) (holding that a defendant’s challenge to the legality of his
sentence was moot where the sentence imposed had already been served and
there were no criminal or civil consequences), appeal denied, 812 A.2d
1228 (Pa. 2002). As a result, the matter is moot and incapable of review.
We now turn to Appellant’s challenges to the PCRA court’s February 11,
2021 order dismissing his PCRA petition and various amendments thereto.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
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PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
We must first consider the timeliness of Appellant’s PCRA petition
because it implicates the authority of this court to grant any relief.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). If a petitioner fails to invoke a valid exception to the PCRA time-
bar, courts are without jurisdiction to review the petition or provide relief.
Commonwealth v. Spotz, 171 A.3d 675, 729 (Pa. 2017). All PCRA petitions,
including second and subsequent petitions, must be filed within one year of
when an Appellant’s judgment of sentence becomes final. See 42 Pa.C.S.A.
§ 9545(b)(1). “[A] judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3).
Here, the record reveals that Appellant’s judgment of sentence became
final on September 9, 2019,3 30 days after the time period for filing a direct
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3 We note that, for purposes of this Court’s computation, Appellant would have
needed to file his appeal on or before Monday, September 9, 2019, because
September 8, 2019 fell on the weekend. See 1 Pa.C.S.A. § 1908 (stating
that, for computations of time, whenever the last day of any such period shall
fall on Saturday or Sunday, or a legal holiday, such day shall be omitted from
the computation).
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appeal with this Court expired. See Pa.R.A.P. 903. Accordingly, Appellant
had until September 9, 2020 to file a timely PCRA petition. See 42 Pa.C.S.A.
§ 9545(b)(1). Appellant’s instant petition was filed on October 15, 2020, and
is thus untimely, unless he can plead and prove that one of the three statutory
exceptions to the one-year jurisdictional time-bar applies.4
In his brief to this court, Appellant fails to even acknowledge the
untimeliness of his petition, let alone invoke any of the statutory exceptions
to the PCRA time-bar set forth in Section § 9545(b)(1). See Appellant’s brief
at 1-3, 23-29. Accordingly, the PCRA court and this Court are without
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4 The three statutory exceptions to the PCRA time-bar are as follows:
(i) the failure to raise the claim previously was the
result of interference by government officials
with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i-iii).
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judication to entertain any of Appellant’s PCRA claims. See Spotz, 171 A.3d
at 729.
Furthermore, we note that because Appellant is no longer serving a
sentence of imprisonment, probation or parole for the crime, he is ineligible
for PCRA relief on this basis as well. 42 Pa.C.S.A. § 9543(a)(1)(i); see also
Commonwealth v. Descardes, 136 A.3d 493, 503 (Pa. 2016) (holding the
petitioner was no longer serving a sentence, so he was ineligible for PCRA
relief; the petitioner’s ineligibility deprived the court of jurisdiction to entertain
the petition); Commonwealth v. Williams, 977 A.2d 1174 (Pa.Super. 2009)
(explaining that once sentence is completed, petitioner is ineligible for PCRA
relief), appeal denied, 990 A.2d 730 (Pa. 2010). Based on the foregoing,
we discern no error on the part of the PCRA court in dismissing Appellant’s
petition.
Accordingly, we affirm the January 29 and February 11, 2021 orders of
the PCRA court.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2022
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