Com. v. Sheeler, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DARREL HOUCK SHEELER
Appellant No. 990 MDA 2020
Appeal from the Judgment of Sentence entered June 29, 2020
In the Court of Common Pleas of Adams County
Criminal Division at No: CP-01-CR-0001060-2018
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 08, 2021
Appellant, Darrel Houck Sheeler, appeals from the June 29, 2020
judgment of sentence imposed in the Court of Common Pleas of Adams
County, by which Appellant’s parole was revoked and he was recommitted for
back time of five months and 26 days. Appellant contends he was denied the
right to a speedy violation of parole (“VOP”) hearing in Adams County while
he was incarcerated in Franklin County. Following review, we dismiss the
appeal as moot.
In its Rule 1925(a) opinion, the trial court explained:
On February 11, 2019, Appellant pled guilty to [simple assault].
That same day, Appellant was sentenced to 6 to 12 months of
partial confinement at the Adams County Adult Correctional
Complex. The effective date of Appellant’s sentence was August
9, 2018. [Appellant] was subsequently paroled within a few days
after completing his minimum sentence as soon as a home plan
was approved. On May 21, 2019, the Adams County Department
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of Probation Services filed a motion for revocation based on [five
rule violations]. On June 29, 2020, Appellant acknowledged that
he committed the violations, including a new felony criminal
trespass, and this court revoked Appellant’s parole and
recommitted Appellant to the bad [sic] time of 5 months and 26
days with custody credit starting on May 24, 2020.
Rule 1925(a) Opinion, 10/28/20, at 1 (some capitalization omitted).
The court further explained that the May 21, 2019 revocation motion
filed by the Adams County Probation Department was based on several parole
violations, including the commission of new violations in Franklin County,1
failure to notify probation of police contact, failure to complete community
service, and failure to complete his drug and alcohol evaluation. Id. at 2-3.
On July 10, 2019, Appellant was convicted of criminal trespass in
Franklin County (see n.1) and was sentenced to 12 to 24 months in state
prison. He was incarcerated at SCI Chester until May 24, 2020, when he was
paroled from the state sentence and was transferred to the Adams County
Adult Correctional Complex. Id. at 3.
On June 29, 2020, the trial court conducted a Gagnon II2 hearing. As
reflected in the excerpt from the trial court’s Rule 1925(a) opinion, Appellant
acknowledged his parole violations. The court revoked his parole and
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1 The charges included April 8, 2019 motor vehicle violations and,
subsequently, May 14, 2019 felony charges of burglary and criminal trespass
and a misdemeanor charge of theft. Rule 1925(a) Opinion, 10/28/2020, at 2
n. 1.
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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recommitted Appellant to five months and 26 days of back time that remained
on his original sentence. The court acknowledged custody credit from May
24, 2020, the date on which he was first available to the Adams County court
following his time at SCI Chester, and denied his petition for immediate re-
parole.
On July 29, 2020, Appellant filed a timely pro se notice of appeal from
his judgment of sentence. Counsel was appointed and both counsel and the
trial court complied with Pa.R.A.P. 1925.
Appellant asks this Court to consider four issues in this appeal, arguing
his due process rights were violated and he was denied his right to a speedy
trial because 13 months elapsed between his alleged parole violation and his
Gagnon II hearing despite the fact he was incarcerated and available during
that time. See Appellant’s Brief, Statement of Issues Presented, at 6-7.
Before we consider Appellant’s arguments, we first address whether this
appeal should be dismissed as moot, as urged by both the Commonwealth
and the trial court, because Appellant’s sentence maxed out on November 19,
2020.
As the trial court recognized in its Rule 1925(a) opinion:
Appellant is currently on parole[3] and his sentence will max out
on November 19, 2020, thus making this appeal moot as there
will not be sufficient time for briefing by counsel or a decision by
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3 On September 24, 2020, Appellant was re-paroled. See Trial Court Opinion,
10/28/20, at 3.
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appellate authority prior to the expiration of the sentence.
Appellant is not entitled to relief on any of the issues raised. . . .
Appellant can accomplish nothing from this appeal, and any merit
Appellant’s claims may have on their surface will become moot on
November 19, 2020.
Id. at 3-4 (some capitalization omitted).
In Commonwealth v. Dennis, 164 A.3d 503 (Pa. Super. 2017), this
Court reiterated that, “[a]s a general rule, an actual case or controversy must
exist at all stages of the judicial process, or a case will be dismissed as moot.”
Id. at 505 (citation omitted). Further,
[a]n issue can become moot during the pendency of an appeal
due to an intervening change in the facts of the case or due to an
intervening change in the applicable law. . . . 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.
In the Interest of N.C., 171 A.3d 275, 279-80 (Pa. Super. 2017) (citation
omitted). However, in Dennis, this Court also reiterated that it will decide
questions otherwise rendered moot when “the question presented is capable
of repetition and apt to elude appellate review.” Dennis, 164 A.3d at 505(quoting Commonwealth v. Nava, 966 A.2d 630, 633 (Pa. Super. 2009)).
In Dennis, the appellant entered a guilty plea to DUI. Sentencing was
scheduled but the appellant was required to undergo, inter alia, a pre-
sentence drug and alcohol assessment. However, he was financially unable
to pay the $100 Allegheny County preliminary fee for the assessment. As a
result, he was incarcerated. Eventually, he was sentenced and filed an appeal
asserting violations of his equal protection and due process rights because the
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trial court incarcerated him prior to sentencing so the assessment could be
conducted in prison. On appeal, we declined the Commonwealth’s request to
dismiss the appeal as moot because “Allegheny County requires the $100 fee
in all cases, an assertion corroborated by the trial court, [and, therefore,] this
issue is likely to reoccur and apt to elude our review.” Id.Appellant here suggests that Dennis is analogous because “Adams
County revocation proceedings [based on commission of a new crime
violation] and resulting in a defendant receiving a new and separate sentence,
are generally continued until the defendant is paroled in the new matter.”
Appellant’s Brief at 14. In the event the new crime results in a state sentence,
a defendant may be subjected to additional restrictions within the State
Correctional System. Id. at 14-15. Appellant contends that because Adams
County generally continues Gagnon II hearings until the defendant is
paroled, “Appellant’s issue is likely to reoccur and apt to elude review of the
higher court.” Id. at 14-15. Therefore, he argues, even though Appellant’s
sentence expired on November 19, 2020, his issues on appeal are not moot.
We cannot agree. The $100 Allegheny County fee is required in every
instance where a drug and alcohol assessment is ordered. By contrast, as
even Appellant acknowledges, Adams County revocation proceedings are
“generally continued until the defendant is paroled in the new matter[,]”
Appellant’s Brief at 14 (emphasis added), when those revocation proceedings
are based on commission of a new crime. Appellant does not suggest that
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every revocation proceeding is based on commission of a new crime or, more
broadly, that a continuance occurs in every case. The instant situation is
easily distinguished from the situation in Dennis. We do not find this issue is
likely to reoccur or is apt to elude our review. Further, as the trial court noted:
At no time during Appellant’s incarceration in Franklin County or
state prison, did Appellant’s revocation counsel request to bring
Appellant to Adams County to address the revocation matter. As
a practical matter this court cannot track where every defendant
on the various docket sheet is imprisoned or when they are
released. Appellant was brought before this court once he was
made available in Adams County.
Trial Court Opinion, 10/28/20, at 5 (some capitalization omitted). Moreover,
our Supreme Court recently reiterated that it “has expressed a preference for
deferring VOP proceedings until after the resolution of a defendant’s new
charges.” Commonwealth v. Mayfield, 247 A.3d 1002, 1007 (Pa. 2021).
That is exactly what happened here. Appellant was convicted of the new
charges and incarcerated. He was re-paroled 12 months into his 12-24 month
sentence and was returned to Adams County where the VOP hearing was
scheduled within days. Although the hearing was postponed due to technical
issues, it was conducted on June 29, 2020, only five weeks after he was
paroled. His sentence expired on November 19, 2020. Therefore, Appellant
cannot gain any relief from this appeal and any merit that his claims might
otherwise have had became moot at that time.
Even if not moot, Appellant would not succeed on the merits of his
claims. Importantly, Appellant has failed to demonstrate prejudice beyond an
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assertion that “[h]is personal liberty was unduly restrained when he was
denied parole on April 10, 2020 and remained incarcerated for 6 more weeks.”
Appellant’s Brief at 24. As this Court stated in Commonwealth v.
Christmas, 995 A.2d 1259 (Pa. Super. 2010):
To demonstrate a violation of his right to a speedy probation
revocation hearing, a defendant must allege and prove the delay
in holding the revocation hearing prejudiced him. There is no per
se rule of prejudice for technical violations of the Rules of Criminal
Procedure. Commonwealth v. Marchesano, 519 Pa. 1, 7–8,
544 A.2d 1333, 1336–37 (1988) (holding defendant cannot
establish prejudice merely by alleging court held probation
revocation hearing after defendant’s period of probation expired).
...
Prejudice in this context has been interpreted as being something
which would detract from the probative value and reliability of the
facts considered, vitiating the reliability of the outcome itself. One
specific purpose of our rule in requiring a prompt revocation
hearing is to avoid such prejudice by preventing the loss of
essential witnesses or evidence, the absence of which would
contribute adversely to the determination. Another is to prevent
unnecessary restraint of personal liberty. Id. at 7, 544 A.2d at
1336. If a defendant is already incarcerated on the charges that
triggered the probation revocation, he cannot claim the delay in
holding his revocation hearing caused him any loss of personal
liberty. Likewise, where a conviction on new charges conclusively
establishes the defendant’s probation violation, the defendant
cannot claim a delay in his VOP hearing prejudiced him because
he lost favorable witnesses and evidence.
Id. at 1263-64 (citations omitted).4
In the case before us, the trial court determined:
At a minimum there was no prejudice to Appellant arising from
the time he was in Franklin County Prison awaiting disposition of
[new felony] charges. Appellant was first made available to this
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4 As noted above, Appellant admitted his probation violations.
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jurisdiction when he was returned to Adams County on May 24,
2020 on his parole detainer. Once Appellant returned, the matter
was immediately listed and the Gagnon II hearing occurred
within 36 days.
Trial Court Opinion, 10/28/20, at 4-5 (footnote omitted). Although his VOP
hearing did not take place until he was returned to Adams County after being
paroled in Franklin County, Appellant has failed to demonstrate any prejudice
stemming from that delay. This is especially true because the Franklin County
sentence stemmed from a charge that resulted in the revocation of his parole.
In conclusion, we agree with the Commonwealth and the trial court that
the instant appeal is moot because Appellant’s sentence has expired. As the
court observed in its Rule 1925 opinion issued less than one month before the
sentence expired, “[t]here will be no case or controversy for appellate
authority to review as the facts of the case will change during the pendency
of Appellant’s appeal, with Appellant no longer serving the sentence in this
case by the time it reaches the Superior Court for disposition.” Id. at 4 (some
capitalization omitted).
Appeal dismissed as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2021
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