J-S04041-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
              Appellee                 :
                                       :
              v.                       :
                                       :
MORRIS FOSTER MINTER,                  :
                                       :
              Appellant                :    No. 1089 MDA 2014


                Appeal from the Order Entered May 29, 2014
              in the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0000205-2014

BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED APRIL 21, 2015

     Morris Foster Minter (Appellant) appeals from the order entered May

29, 2014 denying his motion for application of credit time. We dismiss this

appeal as moot.

     On April 18, 2009, Appellant was arrested and charged at CP-28-CR-

0001052-2009 (1052-2009) with driving under the influence (DUI) and

other related offenses. On July 1, 2009, Appellant pled guilty to one count

of DUI, and was sentenced to a term of 90 days to 60 months of

incarceration. Appellant was paroled, violated, and resentenced three times

between 2009 and 2014.

     Subsequently, on January 15, 2014, Appellant was arrested and

charged with one count of DUI while operating privilege is suspended or

revoked – second offense, refusal at CP-28-CR-0000205-2014 (205-2014).


* Retired Senior Judge assigned to the Superior Court
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On   January     28,    2014,    through       the   Franklin   County   Court’s   Early

Accountability Program, Appellant pled guilty at 205-2014, and was

sentenced to 12 months of county intermediate punishment. The sentence

was structured such that Appellant was to serve the first four months on

work release from the Franklin County Jail, followed by two months of

electronic monitoring, with the final six months to be spent on probation.

Appellant was given credit time from January 15 to 28, 2014.

       Appellant’s new offense constituted another violation of his parole at

1052-2009. However, on March 18, 2014, Appellant successfully convinced

the trial court to vacate his sentence at 1052-2009 on the basis of this

Court’s decision in Commonwealth v. Musau, 69 A.3d 754 (Pa. Super.

2013).1    On April 20, 2014, the violation court determined that Appellant

had exceeded his maximum allowable sentence at 1052-2009 by three

months and 18 days. Accordingly, pursuant to 42 Pa.C.S. § 9760(3),2 the

court applied the excess credit time to the sentence imposed at 205-2014.



____________________________________________
1
  The Court in Musau held that the maximum allowable sentence for a first
or second DUI conviction under 75 Pa.C.S. § 3803 is six months’
imprisonment.
2
 The statute provides that: “[i]f the defendant is serving multiple sentences,
and if one of the sentences is set aside as the result of direct or collateral
attack, credit against the maximum and any minimum term of the remaining
sentences shall be given for all time served in relation to the sentence set
aside since the commission of the offenses on which the sentences were
based.”




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      However, the Franklin County Probation Department refused to apply

the credit time towards Appellant’s 205-2014 intermediate punishment

sentence.   On May 30, 2014, the trial court reversed course and denied

Appellant’s motion for application of credit time, stating that intermediate

punishment imposed at 204-2014 “does not meet the requirements of

confinement such that [Appellant] would be entitled to credit time.” Trial

Court Order, 5/30/2014.     The court noted that, if Appellant violated the

terms of his probationary sentence, the available credit time would be

applied to any period of incarceration resulting from the violation. Appellant

timely filed a notice of appeal. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant argues that the trial court erred by not applying the

applicable credit for time served. “A challenge to the trial court’s failure to

award credit for time served … involves the legality of a sentence.”

Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009).

“Issues relating to the legality of a sentence are questions of law[.] ... Our

standard of review over such questions is de novo and our scope of review is

plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)

(citations omitted).

      It is undisputed that Appellant is entitled to three months, 18 days

credit time under subsection 9760(a)(3). “Pennsylvania appellate courts

consistently have interpreted section 9760’s reference to ‘custody’ as



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confinement in prison or another institution.” Commonwealth v. Maxwell,

932   A.2d    941,   944   (Pa.   Super.   2007)   (citations   omitted).   See

Commonwealth v. Kyle, 874 A.2d 12, 18 (Pa. 2005) (holding the

defendant was not entitled to credit for time spent on release pending

appeal subject to electronic home monitoring since, under section 9760, “in

custody” means “time spent in an institutional setting”). Arguably, the

portion of Appellant’s sentence spent on work release from the county jail

would qualify as “incarceration” under the statute.      However, Appellant’s

issue is moot as he has served the entirety of his year-long sentence.

      “Generally, a case will be dismissed if at any stage of the judicial

process it is rendered moot.” Commonwealth v. Sloan, 907 A.2d 460, 465

(Pa. 2006). Additionally, a “challenge to [a] sentence, which has expired and

which bears no collateral civil or criminal consequences, is moot and will not

be addressed by this Court.” Commonwealth v. King, 786 A.2d 993, 996

(Pa. Super. 2001). An otherwise moot challenge to proper crediting of time

served may only be reviewed if it is shown that there is a “reasonable

expectation that the same complaining party would be subjected to the

same action again.” Mistich v. Pennsylvania Board of Probation and

Parole, 863 A.2d 116, 121 (Pa. Cmwlth. 2004).

      Instantly, it has been over a year since the imposition of Appellant’s

year-long sentence, and the official criminal docket sheet lists the case as

closed. The record bears no evidence that he was granted a stay, or bail



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pending the instant appeal.   Accordingly, the only relief he seeks, to have

time credited to his sentence at 205-2014, is now impossible to grant.

     Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2015




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