Com. v. Blanchard, C. ( 2020 )

J-A09018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COREY MCKENZI BLANCHARD :
:
Appellant : No. 341 WDA 2019
Appeal from the Judgment of Sentence Entered February 14, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014910-2016
BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED APRIL 24, 2020
Corey Mckenzi Blanchard (Appellant) appeals from the judgment of
sentence imposed following the revocation of his probation. Upon review, we
dismiss as moot.
Appellant’s underlying conviction of one count of terroristic threats1
arose after he threatened the lives of healthcare workers at Western
Psychiatric Hospital in Pittsburgh. See Trial Court Opinion, 6/26/19, at 2.
Appellant entered a guilty plea on August 2, 2017, and on January 8, 2018,
the trial court sentenced him to 11½ to 23 months of imprisonment, followed
by 3 years of probation. Because Appellant had previously served 412 days
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2706(a)(1).
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in the Allegheny County Jail, the trial court granted him immediate parole.
See id. at 3; Sentencing Order, 1/8/18, at *1.
The Commonwealth subsequently alleged that Appellant violated the
terms of his probation. Appellant appeared before the trial court on February
14, 2019 for a Gagnon II2 hearing. The trial court found Appellant to be in
violation of the terms of his probation, revoked his probation, and resentenced
Appellant to a period of 1½ to 3 years of incarceration, with credit for 723
days of time served. Sentencing Order, 2/14/19, at *1.
On February 22, 2019, while still represented by the Allegheny County
Public Defender’s Office, Appellant filed a pro se notice of appeal.3 On
February 25, 2019, Appellant filed a counseled post-sentence motion. The
trial court denied Appellant’s post-sentence motion on February 28, 2019, and
Appellant’s counsel filed a notice of appeal on March 4, 2019. Both Appellant
and the trial court have complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant presents two issues for review:
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2 See Gagnon v. Scarpelli, 411 U.S. 788 (1973).
3 Appellant filed “a snap pro se notice of appeal.” See Commonwealth
Cooper, 27 A.3d 994, 1008 (Pa. 2011). Thereafter, his counsel filed a timely
post-sentence motion, which the court denied, and then a second timely notice
of appeal. “The merely premature pro se appeal did not divest the trial court
of jurisdiction to act upon the timely post-sentence motion later filed by
[Appellant’s] own counsel in accordance with Criminal Rule 720(A).” Id.Therefore, “[o]nce the motion was decided, the thirty day appeal clock was
triggered.” Id. (citing Pa.R.Crim.P. 720).
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1. Was the 18-to-36 month state prison sentence imposed on
Appellant at his Probation Violation Hearing manifestly excessive
per se, given that (A) Appellant was a Technical Probation
Violator, not a Convicted Probation Violator; (B) there was no
showing that he was likely to commit a crime while on probation
unless he was imprisoned; and (C) there was no showing that an
order of imprisonment was essential to vindicate the authority of
the probation court?
2. Was the 18-to-36 month state prison [sentence] imposed on
Appellant at his Probation Violation Hearing manifestly excessive,
even if imprisonment of some sort could be imposed, given that
(A) he was a First Degree Misdemeanor offender; (B) he was, as
previously indicated, a Technical Probation Violator rather than a
Convicted Probation Violator, and had not had any contact with
law enforcement during his probation term; (C) he suffered from
mental health disorders XXX that both interfered with his ability
to comply fully with probation conditions and which constituted
mitigating circumstances in their own right; and (D) he presented
reasons explaining his non-compliance with the conditions of his
probation, including XXX?
Appellant’s Brief at 4-5.4
Both of Appellant’s claims challenge the discretionary aspects of his
sentence. In response, the Commonwealth argues that Appellant’s claims are
moot because his maximum sentence expired while this appeal was pending.
Commonwealth Brief at 6-8. After careful review, we agree.
“An 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
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4 Appellant’s Rule 1925(b) statement raises two additional claims. See Rule
1925(b) Statement, 3/13/19, at *1-2. However, because Appellant
abandoned these claims in his brief, we do not address them. Appellant’s
Brief at 4-5; see also Commonwealth v. Briggs, 12 A.3d 291, 310 n.19
(Pa. 2011), cert. denied, 132 S.Ct. 267 (2011) (refusing to address claim
appellant raised with trial court but subsequently abandoned in brief).
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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 of collateral
consequences arises solely form 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, 812 A.2d 1128 (Pa.
2002) (finding appellant’s challenge to sentence moot where sentence
imposed had expired and there were no criminal or civil consequences).
Here, the trial court revoked Appellant’s probation and resentenced him,
on February 14, 2019, to 1½ to 3 years of incarceration, with credit for 723
days Appellant had already served. Appellant had one year and one week
remaining on his maximum 3-year sentence, and a release date of February
21, 2020. As that date has passed, Appellant’s appeal of the discretionary
aspects of his sentence is “moot and incapable of review.” See Schmohl,
975 A.2d at 1149; King, 786 A.2d at 996. Accordingly, we dismiss the appeal.
Appeal dismissed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2020
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