J-S57028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MARIO KINDELIN-RAY

                            Appellant                No. 336 EDA 2014


                Appeal from the PCRA Order December 24, 2013
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001777-2011


BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                        FILED NOVEMBER 17, 2014

       Appellant, Mario Kindelin-Ray, appeals from the December 24, 2013

order, dismissing his petition for relief filed pursuant to the Post Conviction

Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review, we vacate the

order and remand for further proceedings.

       The central facts in this case are not in dispute, and may be

summarized as follows. On April 4, 2011, Appellant was charged with two

counts each of possession with intent to deliver a controlled substance

(cocaine and heroin), and possession of a controlled substance (cocaine and

heroin), and one count of providing false identification to law enforcement.1

After a trial conducted from November 29, 2011 to December 1, 2011, the
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1
  35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 18 Pa.C.S.A. § 4014,
respectively.
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jury    found    Appellant    guilty   of   providing   false   identification   to   law

enforcement and acquitted him of the remaining charges.                 Appellant was

immediately sentenced to a term of imprisonment of six to 12 months,

consecutive to any other sentence Appellant was serving. At the time of his

sentence in this case, Appellant was serving a sentence for a prior conviction

on drug charges, and was subject to Pennsylvania Board of Probation and

Parole (Parole Board).       No direct appeal was taken from the judgment of

sentence.2

        On March 14, 2012, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel, who filed an amended PCRA petition on May

24, 2012, alleging several instances of ineffective assistance of trial counsel.

Prior to the initial hearing, the Commonwealth presented a threshold

jurisdictional issue, asserting Appellant was ineligible for PCRA relief since he

was no longer serving the subject sentence.3 On December 13, 2012 and


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2
  Following sentencing, the Commonwealth sought forfeiture of funds seized
at the time of Appellant’s arrest, and Appellant petitioned for return of the
funds. On June 14, 2013, the trial court ordered forfeiture of the funds and
Appellant appealed pro se that same day. This Court quashed the appeal on
July 10, 2013 because Appellant abandoned his challenge to the forfeiture,
instead raising sentencing issues in his Rule 1925(b) statement and
appellate brief. Commonwealth v. Kindelin-Ray, 82 A.3d 1016 (Pa.
Super. 2013) (unpublished judgment order).
3
    The PCRA provides in pertinent part as follows.

                § 9543. Eligibility for relief

(Footnote Continued Next Page)

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September 10, 2013, the PCRA court conducted hearings on Appellant’s

amended petition.        By agreement of the parties, testimony and argument

were limited to the jurisdictional issue, with the understanding further

hearings would be conducted on the merits of Appellant’s claims if the PCRA

court ruled in favor of Appellant on the threshold issue. The PCRA court took

the matter under advisement and issued an order on December 24, 2013,

dismissing Appellant’s PCRA petition on the basis that Appellant was not

serving the subject sentence and was, therefore, ineligible for PCRA relief.

On January 23, 2014, Appellant filed a timely notice of appeal.4

      Appellant raises the following single issue on appeal.

             Did the trial court err in finding that defendant
             was ineligible for PCRA relief because he was
             not currently serving a sentence …[?]
                       _______________________
(Footnote Continued)
             (a) General rule.--To be eligible for relief under
             this subchapter, the petitioner must plead and prove
             by a preponderance of the evidence all of the
             following:

                       (1) That the petitioner has been convicted of a
                       crime under the laws of this Commonwealth
                       and is at the time relief is granted:

                             (i) currently serving a sentence of
                             imprisonment, probation or parole for
                             the crime;

                                                  …

42 Pa.C.S.A. § 9543(a)(1)(i).
4
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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Appellant’s Brief at 4.

      We are guided by the following standard when considering an appeal

from the denial of PCRA relief.

            On appeal from the denial of PCRA relief, our
            standard and scope of review is limited to
            determining whether the PCRA court’s findings are
            supported by the record and without legal error.
            [Our] scope of review is limited to the findings of the
            PCRA court and the evidence of record, viewed in the
            light most favorable to the prevailing party at the
            PCRA court level.      The PCRA court’s credibility
            determinations, when supported by the record, are
            binding on this Court. However, this Court applies a
            de novo standard of review to the PCRA court’s legal
            conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted).

      Contrary to the conclusion of the PCRA court, Appellant argues he is

currently serving the subject sentence.    Appellant’s Brief at 8.    Appellant

contends that because the instant sentence was made consecutive to any

prior sentence he was serving, the sentences became aggregated pursuant

to 42 Pa.C.S.A. § 9757. Id. at 7. Section 9757 provides as follows.

            § 9757. Consecutive sentences               of    total
            confinement for multiple offenses

            Whenever the court determines that a sentence
            should be served consecutively to one being then
            imposed by the court, or to one previously imposed,
            the court shall indicate the minimum sentence to be
            served for the total of all offenses with respect to
            which sentence is imposed. Such minimum sentence



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             shall not exceed one-half of the maximum sentence
             imposed.

42 Pa.C.S.A. § 9757.       “This statute mandates automatic aggregation of

sentences    once    a   trial   court   imposes   a   consecutive   sentence.”

Commonwealth v. Allshouse, 33 A.3d 31, 35 (Pa. Super. 2011) (citations

omitted), appeal denied, 49 A.3d 441 (Pa. 2012).               Aggregation of

consecutive sentences has been defined as follows.

             Aggregation of sentences is simply the combining of
             multiple consecutive sentences of total confinement
             and treating them as if they were a single sentence.
             The minimum sentences are added together to arrive
             at an aggregated minimum sentence while the
             maximum sentences are added together to arrive at
             an aggregated maximum sentence.

12 West’s Pa. Prac., Law of Probation and Parole § 4:9 (2012-2013 ed.);

see Commonwealth v. Harris, 620 A.2d 1175, 1179 (Pa. Super. 1993),

appeal denied, 645 A.2d 1115 (Pa. 1993); Jamieson v. Pa. Bd. of

Probation and Parole, 478 A.2d 152, 154 (Pa. Cmwlth. 1984).

     Instantly, our review of the record discloses the following. Appellant

was serving a state sentence at the time he was charged with the new

offense on April 2, 2011. On May 24, 2011, the Parole Board recommitted

Appellant as a technical parole violator to serve nine months’ back-time or

his unexpired term, noting a maximum date for his recommitment of

November 10, 2011 “subject to change if convicted of [the subject

charges].”    N.T., 12/13/12, at 21-24; Commonwealth’s Ex. C2, Prison

Tracking Card.      As noted, Appellant was convicted and sentenced on

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December 1, 2011.         His sentence of six to 12 months’ incarceration was

ordered to run “consecutively to any other sentence presently being served.”

Sentencing Order, 12/1/11, at 1.            By operation of law, Appellant’s instant

sentence and prior unexpired sentence aggregated pursuant to Section

9757.    The Parole Board thereafter, on February 22, 2012, recommitted

Appellant as a convicted parole violator, based on the instant conviction, to

serve seven months’ and 10 days’ back-time and six months’ for the new

conviction.       N.T. 9/10/13, at 8-9; Defendant’s Ex. D1, Notice of Board

Decision.      Based     on       Appellant’s   recommitments,       the   Parole   Board

recalculated Appellants aggregated maximum sentence date to December

10, 2017.         N.T. 12/13/12, at 40-41; Defendant’s Ex. D1, Order to

Recommit.5 In consideration of these facts, we agree with Appellant that he

is   “currently    serving    a    sentence     …   for   the   crime.”    42   Pa.C.S.A.

§ 9543(a)(1)(i).

        The Commonwealth cites our decision in Commonwealth v. Hart,

911 A.2d 939 (Pa. Super. 2006), for the proposition that “[r]evocation of
____________________________________________
5
  We note that on December 16 2011, the trial court issued an order
granting Appellant parole. Trial Court Order, 12/16/11, at 1. However, as
Appellant’s aggregate maximum sentence exceeded two years, the trial
court was without authority to do so. See Commonwealth v. Miller, 770
A.2d 362, 363 (Pa. Super. 2001) (noting that “where the total aggregate
sentence carries a maximum of two years or more, exclusive parole
authority lies with the Pennsylvania Board of Probation and Parole”), citing
Commonwealth v. Tilghman, 673 A.2d 898 (Pa. 1996); Commonwealth
v. Harris, 620 A.2d 1175 1178 (Pa. Super. 1993), appeal denied, 634 A.2d
1115 (Pa. 1993).



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parole is a collateral consequence, and the PCRA does not provide relief from

collateral consequences of a criminal conviction.” Commonwealth’s Brief at

8.   We conclude Hart is distinguishable and not dispositive of the issue

presented in this case. It is well settled that collateral consequences of a

conviction cannot provide a jurisdictional basis for relief under the PCRA

when an appellant is not currently serving the challenged sentence.          See,

e.g., Commonwealth v. Descardes, --- A.3d ---, 2014 WL 4696243, at *2

(Pa. Super. 2014) (en banc) (holding immigration repercussions from

conviction were collateral and did not provide a jurisdictional basis for PCRA

relief   where   appellant   was   no   longer   serving   underlying   sentence);

Commonwealth v. Williams, 977 A.2d 1174, 1177 (Pa. Super. 2009)

(holding that a registration and reporting requirement under Megan’s Law,

as a collateral consequence of Appellant’s conviction, did not provide a

jurisdictional basis for PCRA relief where Appellant was no longer serving

underlying sentence), appeal denied, 990 A.2d 730 (Pa. 2010).

         In Hart, the appellant was convicted of a summary offense and

received a sentence of 90 days’ incarceration.       Hart, supra, at 940. The

sentence was ordered “to run concurrently with sentences imposed after

probation revocation.” Commonwealth v. Hart, 894 A.2d 817 (Pa. Super.

2005) (unpublished memorandum at 2) (emphasis added).              The appellant

subsequently filed a PCRA petition and was denied relief because he was no

longer serving a sentence for his conviction.        Id.    On appeal from that


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determination, the appellant conceded he was no longer serving his

sentence on the summary conviction, but argued that because his summary

conviction was the basis for revoking his probation on another prior

sentence, and he was still serving that sentence, PCRA relief should be

available. Id. at 941. The Hart Court determined that an expired sentence

could not provide a jurisdictional basis for PCRA relief, even though the

offense underlying the expired sentence resulted in appellant’s revocation on

an unrelated probation, which sentence he continued to serve. Id. at 942.

     Unlike Hart, Appellant’s sentence in the instant case was ordered to

run consecutively with all prior sentences.     As discussed above, those

sentences were thereupon aggregated per Section 9757, and the effect of

Appellant’s probation revocation was to prolong the aggregated maximum

date of his consecutive sentences to December 10, 2017. Accordingly, we

conclude Appellant continues to serve the underlying sentence in this case.

We further conclude the PCRA court erred in its determination that Appellant

was ineligible for relief because his sentence “maxed out on April 2, 2012.”

Trial Court Opinion, 12/24/13, at 2.   Furthermore, because no record was

developed on the merits of Appellant’s PCRA claims in deference to this

threshold eligibility issue, we are constrained to vacate the PCRA court’s

December 24, 2013 order, and remand for further proceedings.

     Order vacated. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2014




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