Com. v. Arnold, C.

J-A21001-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CARL DINGMAN ARNOLD : No. 230 EDA 2021
Appeal from the Order Entered January 11, 2021,
in the Court of Common Pleas of Pike County,
Criminal Division at No(s): CP-52-CR-0000208-2017.
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 19, 2022
The Commonwealth appeals from the trial court’s order deferring Carl
Dingman Arnold’s sentence of incarceration, due to the COVID pandemic.
Following review, we dismiss this appeal as moot.
The facts and procedural history are as follows. On July 6, 2017, Arnold
pled guilty to DUI1 and was sentenced to intermediate punishment. In October
2019, after a hearing, the court found that Arnold violated his IP. On January
2, 2020, the court sentenced Arnold to 12 months to 5 years of incarceration,
to commence effective that date. Arnold filed a post-sentence motion, which
the court denied.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802.
J-A21001-21
On March 26, 2020, Arnold requested an emergency furlough from the
trial court; he was concerned about the COVID pandemic given his physical
health and age. The trial court denied his request.
Arnold subsequently filed an emergency motion for reconsideration of
his sentence, nunc pro tunc, requesting that his sentence be modified so that
he could serve it at home. On April 1, 2020, with the Commonwealth’s
agreement, the trial court granted Arnold’s request and vacated its January 2,
2020, order. The court imposed various conditions, including the use of an
alcohol detection device, and indicated it would resentence Arnold at some
point in the future.
On October 29, 2020, the trial court resentenced Arnold to the original
sentence of 12 months to 5 years of incarceration, with credit for time served
of 180 days. However, the court deferred Arnold’s report date until November
30, 2020, due to the number of COVID cases in Pennsylvania and Arnold’s
advanced age and medical conditions. The court retained parole authority.
As Arnold’s report date approached, the number of COVID cases
increased significantly. Consequently, the trial court, sua sponte, again
postponed Arnold’s report date to January 11, 2021.
On January 11, 2021, Arnold reported to the Pike County Correctional
Facility as required. The jail notified the trial court that Arnold had reported.
Concerned about the even greater number of COVID cases, the court
determined that it was still not a good time to incarcerate Arnold.
-2-
J-A21001-21
Consequently, the court again, sua sponte, postponed Arnold’s report date to
March 11, 2021. Shortly thereafter, the Commonwealth appealed that order.
On March 11, 2021, Arnold reported to the Pike County Correctional
Facility, and started serving his sentence.
The Commonwealth and the trial court complied with Pennsylvania Rule
of Appellate Procedure 1925.
On appeal the Commonwealth raises two issues:
I. Whether the lower court erred as a matter of law by sua
sponte entering an order of court releasing [Arnold] from
the Pike County Correctional Facility without any statutory
power that permits a court to release a defendant sentenced
to a maximum term of five years?
II. Whether the lower court erred in releasing [Arnold] from the
Pike County Correctional Facility sua sponte without notice
and opportunity to be heard provided to the
Commonwealth?
Commonwealth’s Brief at 4.
In its first issue, the Commonwealth claims that the trial court erred by
“furloughing” Arnold from jail on January 11, 2021. Specifically, the
Commonwealth argues that the court lacked statutory authority to do so.
According to the Commonwealth, “[a] trial court may only release an inmate
of a correction facility upon the expiration of the minimum term of
imprisonment on parole, or if an inmate is sentenced to a maximum period of
imprisonment of less than five years.” Thus, because Arnold’s maximum
sentence was for 5 years, the trial court did not have the authority to “release”
Arnold from jail. Commonwealth’s Brief at 7-8.
-3-
J-A21001-21
The Commonwealth further maintains that this appeal is not moot even
though Arnold started serving his sentence. It claims that the exceptions to
the mootness doctrine apply in cases involving an inmate’s furlough, citing
Commonwealth v. Benn, 680 A.2d 896 (Pa. Super. 1996).
Commonwealth’s Reply Brief at 2.
Before addressing the substance of the Commonwealth’s claim, we must
first determine whether we have jurisdiction to consider this appeal. It is well
settled that “an actual case or controversy must exist at all stages of appellate
review.” Benn, 680 A.2d at 897 (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
grant any relief, the appeal generally will be dismissed as moot.” Id.However, our courts have repeatedly emphasized that cases will not be
dismissed as moot when the issue presented is one of great public importance,
Meyer v. Strouse, 221 A.2d 191 (Pa. 1966); Graziano Construction, Inc.
v. Lee, 444 A.2d 1190 (Pa. Super 1982); Janet D. v. Carros, 362 A.2d 1060(Pa. Super. 1976), or when the issue is capable of repetition yet escaping
judicial review, Devlin v. Osser, 254 A.2d 303 (Pa. 1969); Werner v. King,
164 A. 918 (1933); Graziano, supra.Notably, in Benn, which the Commonwealth relies on, this Court found
that the issue of whether a trial court had the authority to temporarily furlough
a state prisoner satisfied both of the exceptions to the mootness doctrine. In
that case, Benn was serving a 4 to 8 year sentence in a state prison. Benn
-4-
J-A21001-21
petitioned the trial court for a temporary furlough to attend his grandson’s Bar
Mitzvah, which the trial court granted. The Commonwealth appealed claiming
that the court did not have the authority to furlough a state prisoner.
On appeal, this Court concluded that, although the Bar Mitzvah had
already occurred, the matter was not moot. The Court reasoned that Benn
could request other furloughs during the term of his incarceration. Thus, the
trial court’s authority to grant him a furlough would continue to be a possible
issue throughout the term of his incarceration, yet likely to escape review.
Benn, supra at 542. Additionally, the issue presented in Benn would
generally address a trial court’s jurisdiction to furlough any prisoner under the
authority of the Bureau of Corrections, which had not been addressed
previously, and therefore, was a matter of great public importance. Id.
The instance case, however, is distinguishable from Benn. Here, shortly
after the Commonwealth filed this appeal, Arnold started serving his sentence.
Based upon the credit time, Arnold had already served 6 months of his one-
year minimum sentence when he returned to jail on March 11, 2021.
Furthermore, as of October 5, 2021, when this Court heard argument in this
matter, Arnold had finished serving his minimum sentence. At that point, the
trial court undeniably had the authority to parole Arnold.2 Therefore, unlike
____________________________________________
2 Generally, the Sentencing Code provides that all persons sentenced to
“maximum terms of five years or more shall be committed to the Bureau of
Corrections for confinement.” 42 Pa.C.S.A. § 9762. However, the Legislature
created an exception to that provision in the Vehicle Code, which provides that
(Footnote Continued Next Page)
-5-
J-A21001-21
Benn, the trial court’s authority to release Arnold would not continue to be a
possible issue during the remainder of his incarceration.
Additionally, unlike Benn, the trial court’s decision here was limited to
a very narrow set of circumstances relating to only Arnold’s particular health
situation in the midst of a global pandemic. The Commonwealth agreed to
Arnold’s release from the county jail at the start of the pandemic. The same
facts regarding the risk to Arnold continued to be present when the trial court
authorized the subsequent deferrals. As such, we cannot say that this was a
matter of great public importance to qualify as an exception to the mootness
doctrine.
We therefore conclude that the exceptions to the mootness doctrine do
not apply, and the Commonwealth’s appeal is moot. As such, we are
precluded from considering the merits of this appeal and must dismiss it for
lack of jurisdiction.
Appeal dismissed.
____________________________________________
DUI offenders subject to a maximum sentence of five years may serve their
confinement in a county facility. 75 Pa.C.S.A. § 3804. The Vehicle Code
further grants the sentencing judge parole supervision over offenders whose
sentences are being served in county prison. 75 Pa.C.S.A. § 3815(a). Parole
may be granted once the defendant has served the mandatory minimum term
of imprisonment, subject to certain requirements. 75 Pa.C.SA. 3815(b). See
Commonwealth v. Flaherty, 89 A.3d 286, 290 (Pa. Super. 2014).
-6-
J-A21001-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2022
-7-