J-A30017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

TYLER LEWIS SLATE

                         Appellant                   No. 836 MDA 2016


                Appeal from the Order Entered May 20, 2016
              In the Court of Common Pleas of Adams County
            Criminal Division at No(s): CP-01-MD-0002107-2015


BEFORE: BOWES, OLSON and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                            FILED MARCH 01, 2017

      Appellant, Tyler Lewis Slate, appeals from the order entered on May

20, 2016 in the Court of Common Pleas of Adams County that denied his

petition for habeas corpus relief. After careful review, we dismiss this appeal

as moot.

      We summarize the relevant facts as follows. On July 1, 2015, the trial

court entered a protection from abuse (PFA) order directing Appellant to

refrain, among other things, from contacting a juvenile female identified as

A.S.P.   On October 17, 2015, after learning that Appellant sent a text

message to A.S.P. and posted a photographic depiction of her on his

Facebook account, Trooper Christopher Pasquale of the Pennsylvania State

Police (PSP) charged Appellant with indirect criminal contempt for violating

the PFA order.    See 23 Pa.C.S.A. § 6113(a).       The trial court convicted
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Appellant of indirect criminal contempt on November 18, 2015 and

sentenced him to serve six months’ probation. See 23 Pa.C.S.A. § 6114(a)

and (b)(1)(i)(B).1       The conditions of Appellant’s probationary sentence

forbade the commission of new criminal offenses and directed Appellant to

refrain from assaultive behavior.              Adams County Standard Rules of

Supervision for Probation, 11/18/15.

       On      March       7,      2016,       PSP   charged   Appellant   with

harassment - communicating lewd and threatening language, 18 Pa.C.S.A.

§ 2709(a)(4).      Later, on April 13, 2016, authorities added the charge of

terroristic threats, 18 Pa.C.S.A. § 2706(a)(1). Based on these charges, the

Adams County Department of Probation Services immediately detained

Appellant in the county jail.

       On April 14, 2016, the Department of Probation Services moved to

revoke Appellant’s probation based upon his commission of new offenses

and his failure to refrain from assaultive conduct. At a Gagnon I2 hearing

conducted on May 13, 2016, the master found probable cause that Appellant

violated his probation.         The master directed the matter to proceed to a
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1
  Pursuant to 23 Pa.C.S.A. § 6114(b)(1), the trial court has the option of
sentencing a contemnor to up to six months’ imprisonment or six months’
probation. See 23 Pa.C.S.A. § 6114(b)(1)(i)(A) (describing confinement
option) and (b)(1)(i)(B) (describing probationary option).
2
  See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)(noting that
probationer is entitled to two hearings, a pre-revocation hearing and a final
revocation hearing, before the final revocation decision can be made).



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Gagnon II hearing, which was scheduled for May 31, 2016.              In the

meantime, Appellant remained incarcerated pursuant to the detainer issued

by the Probation Department.

       On May 17, 2016, Appellant filed a counseled petition for writ of

habeas corpus alleging that his six-month probationary sentence was set to

expire on May 18, 2016 and that his continued confinement would be

unlawful.     The trial court denied Appellant’s petition on May 18, 2016,

observing that Appellant had not been incarcerated since November 18,

2015, that the case was scheduled for a Gagnon II hearing on May 31,

2016, and that Appellant had incurred two new criminal charges that were

listed for plea consideration and arraignment on May 19, 2016.     Appellant

filed a second habeas corpus petition on May 19, 2016 setting forth similar

averments as included in his original petition.      The trial court denied

Appellant’s second petition by order dated May 20, 2016. On May 23, 2016,

Appellant filed a timely notice of appeal from the order denying his petition

for relief on May 20, 2016.3



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3
  On May 24, 2016, the trial court, pursuant to Pa.R.A.P. 1925(b), directed
Appellant to file a concise statement of errors complained of on appeal
within 21 days. Appellant timely complied on May 26, 2016, alleging,
among other things, that the trial court erred in “illegally” modifying the
sentencing order of November 18, 2015, in allowing Appellant to serve a
sentence that exceeded the lawful maximum, and in failing to conduct a
hearing and develop a record for purposes of appellate review. The trial
court issued its Rule 1925(a) opinion on June 10, 2016.



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       We now summarize procedural developments that occurred after

Appellant filed his notice of appeal, as they have relevance to the issues we

discuss in our analysis. On May 31, 2016, Appellant’s counsel appeared at

the scheduled Gagnon II hearing and asked the court to continue the

proceeding to allow resolution of Appellant’s newly-incurred charges.       The

court granted the motion and continued the revocation hearing.4

       Ultimately, the court never convened a Gagnon II hearing; nor did it

pronounce a revocation sentence. We are advised by the parties 5 that, on or

around, August 1, 2016, the Probation Department lifted its detainer against

Appellant and he was released from jail.         Moreover, our own research

reveals that Appellant entered a negotiated guilty plea to resolve the

charges that gave rise to the revocation proceedings. As part of that plea, it

appears from the docket in that matter that the Commonwealth withdrew

the charge of terroristic threats and reduced the harassment charge to a


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4
  Appellant never moved for bail at any revocation proceeding. In addition,
apart from an assertion in Appellant’s brief that the Probation Department’s
detainer was the sole basis for his incarceration, see Appellant’s Brief at 6-7,
we cannot otherwise confirm whether Appellant was jailed for his
newly-incurred charges despite our review of the submissions of the parties,
the certified record in this case, and the online docket for the offenses that
triggered these revocation proceedings. We therefore shall assume, for
purposes of analysis, that Appellant was never held in custody on his new
offenses.
5
  No document in the certified record confirms Appellant’s release date from
jail or a final resolution of the revocation proceedings before the trial court.



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summary offense. Appellant received no further penalty for his harassment

conviction.

      Appellant identifies two claims in this appeal. See Appellant’s Brief at

5. First, Appellant alleges that the trial court erred in allowing his detention

beyond the terms of his original probationary sentence without issuing an

order within the 30-day period allowed for modification under 42 Pa.C.S.A.

§ 5505. Id. Next, Appellant argues that the trial court erred in detaining

him beyond the term of his original probationary sentence without a

Gagnon II revocation hearing.

      Before we address the merits of this appeal, we must assure ourselves

that we have jurisdiction to consider Appellant’s claims. See Forrester v.

Hanson, 901 A.2d 548, 554 (Pa. Super. 2006) (“This Court may raise the

issue of jurisdiction suo sponte.”). As we stated above, after Appellant filed

his notice of appeal, the Probation Department lifted its detainer and

Appellant was released from jail.    Moreover, Appellant received no further

penalty on his newly-incurred charges. In the face of these developments,

we conclude that this appeal should be dismissed as moot.

      As 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. An 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. In that case,
      an opinion of this Court is rendered advisory in nature. 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.




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In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (en banc) (internal

citations and quotations omitted).

     Appellant urges this Court to refrain from dismissing his appeal since

the issues he raises involve matters of public importance and the claims he

asserts are capable of repetition but likely to evade review. See Appellant’s

Brief at 17, citing Commonwealth v. Bernhardt, 519 A.2d 417, 419 (Pa.

Super. 1986). For the reasons that follow, we disagree.

     In his first issue, Appellant argues that his detention beyond May 18,

2016 (the date on which Appellant’s original probationary sentence was set

to conclude) was “illegal and unconstitutional” because the trial court

effectively modified his probationary sentence outside the 30-day period

established in 42 Pa.C.S.A. § 5505.   See Appellant’s Brief at 11.   Section

5505 authorizes a court to modify or rescind any order within 30 days of its

entry where no appeal has been taken.         42 Pa.C.S.A. § 5505.     Here,

however, Appellant was serving a probationary sentence for violating a PFA

order when he incurred new charges and violated the terms of his

supervision shortly before his sentence concluded.        Appellant’s actions

therefore triggered revocation proceedings that bear little resemblance to

the procedures for modification contemplated in § 5505. Hence, Appellant’s

efforts to analogize the modification procedures set forth in § 5505 with the

revocation procedures established in 42 Pa.C.S.A. § 9771 are meritless and




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we see no reason to deem Appellant’s opening claim as a viable one capable

of repetition yet apt to avoid review.

        A separate theme underlying both issues raised by Appellant is his

implication that the trial court’s failure to conduct a revocation hearing

somehow caused him to serve a sentence that exceeded the lawful statutory

maximum set forth in 23 Pa.C.S.A. § 6114(b)(1)(i),6 relating to maximum

sentences for indirect criminal contempt relating to PFA orders. We find that

this claim lacks merit, as the custodial term served by Appellant did not

exceed the lawful maximum for a revocation sentence. Under 42 Pa.C.S.A.

§ 9771, a court may revoke an order of probation where a probationer

violates a specific condition of his supervision.       42 Pa.C.S.A. § 9771(b).

“[T]he sentencing alternatives available to the court [are] the same as were

available at the time of initial sentencing[.]”   Id.    Although the statutory

provisions relating to time credit require credit for time served in custody, no

similar provision applies to time spent serving an order of supervisory

probation. Compare 42 Pa.C.S.A. § 9760(1) (time credit) with 42 Pa.C.S.A.

§ 9771(b) (time spent serving order of probation entitled only to “due

consideration” at revocation); Commonwealth v. Crump, 995 A.2d 1280,

1284 (Pa. Super. 2010) (“[Section 9760(1)] is clear that a person is entitled

to credit toward his or her sentence if time is spent in custody. The statute
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6
  This provision offers the trial court the option to direct a contemnor to
serve either a sentence of incarceration or probation. See supra at note 1.



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does not address credit in relation to a probationary sentence.”), appeal

denied, 13 A.3d 475 (Pa. 2010). Moreover, a sentence of total confinement

upon revocation may be ordered where the court finds that the probationer

has been convicted of another crime, that his conduct indicates that it is

likely that he will commit another crime if he is not imprisoned, or that a

sentence of imprisonment is necessary to vindicate the authority of the

court. 42 Pa.C.S.A. § 9771(c).

       We acknowledge that the trial court in this case never convened a

Gagnon II hearing. Nevertheless, if it had done so,7 it could have found

that Appellant committed new offenses and, therefore, he was subject to a

sentence of total confinement of up to six months with no reduction for the

time   spent    serving    the    probationary   sentence.   See   23   Pa.C.S.A.

§ 6114(b)(1)(i)(A); see also 42 Pa.C.S.A. § 9771(b). Because Appellant did

not serve six months in custody, his claim that he served a sentence that

exceeded the lawful maximum is meritless and again we see no reason to



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7
  Although the court did not conduct a Gagnon II hearing, there is every
indication in the record that Appellant’s probation would have been revoked
because of his new offenses. At the Gagnon I hearing, the master found
probable cause to believe that Appellant committed new offenses and
Appellant eventually pled guilty to a summary offense of harassment. The
trial court also demonstrated its strong inclination to revoke Appellant’s
probation. See Trial Court Opinion, 6/10/16, at 4 (“When Appellant is
re-sentenced, his sentence cannot exceed six months, credit given for any
time spent in custody.”) (emphasis added).



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deem this claim as a viable one capable of repetition but likely to avoid

review.

        Finally, we confront Appellant’s claim that the trial court erred in failing

to conduct a Gagnon II hearing. Here, Appellant argues that if we dismiss

this appeal as moot, the situation before us could occur again since it is the

policy of Adams County to forego revocation hearings.8             See Appellant’s

Brief at 17.     In addition, Appellant argues that he would be left without a

remedy. Because of this, Appellant essentially seeks the creation of a “time

account” such that the time Appellant spent incarcerated beyond May 18,

2016 “[would] be credited towards any criminal cases for which Appellant is

currently on probation in Adams County.” Appellant’s Brief at 18. Although

there is some merit to Appellant’s contention that the court erred in failing to

convene a revocation hearing and impose a revocation sentence on the

record, Appellant’s position does not alter our view that this case is moot

since we do not believe that this claim constitutes an issue that is capable of

repetition but likely to evade review.           In addition, the remedy Appellant

seeks is contrary to settled Pennsylvania sentencing jurisprudence.

        Although the trial court possessed authority to impose the sentence at

issue in this case, Appellant is correct that, under 42 Pa.C.S.A. § 9771(c)

and (d), the court was required to conduct a hearing and make certain

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8
    Appellant offers no support for this claim.



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findings before revoking Appellant’s probation and imposing a sentence of

total confinement. See also Pa.R.Crim.P. 708(B). Since this did not occur,

the court arguably erred. Contrary to Appellant’s suggestion, however, our

analysis does not end here.

      As we explained above, § 9771 delineates a trial court’s obligations

when considering revocation and allows the imposition of a sentence of total

confinement where the court determines that the defendant has committed

new offenses, that the defendant is likely to re-offend if not placed in

custody, or that confinement is necessary to vindicate the court’s authority.

42 Pa.C.S.A. § 9771(c).       This Court has repeatedly cited § 9771 as the

guiding influence that directs a trial court’s decision-making in the context of

revocation proceedings. See e.g. Crump, 995 A.2d at 1282-1283 (“When

imposing a sentence of total confinement after a probation revocation, the

sentencing court is to consider the factors set forth in 42 Pa.C.S.A. § 9771.”)

(citations omitted). The existence of § 9771, coupled with our prior case law

applying that provision, leads us to conclude that the situation before us is

not likely to repeat itself in the future, as Appellant suggests.

      Indeed, the procedural history in this case supports this view. Here,

the trial court convened a revocation hearing on May 31, 2016. Appellant’s

counsel appeared at the hearing and, before it could go forward, requested a

continuance to allow resolution of Appellant’s newly-incurred charges. The

trial court granted this request but counsel never sought to reconvene the


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revocation hearing.       In our view, the fact that the trial court convened a

revocation hearing substantially undermines Appellant’s contention that it is

the policy in Adams County to incarcerate probationers without affording

them an opportunity to be heard.9 Indeed, on the record before us, it is at

least conceivable that Appellant used his incarceration as leverage in plea

negotiations to induce the Commonwealth to reduce the severity of his new

harassment charge and to agree, ultimately, to a sentence of no further

punishment. Under these circumstances, we are not inclined to agree that

the scenario before us is likely to re-occur.

       As a final matter, we conclude that Appellant seeks a remedy that we

lack the authority to impose. Appellant reasons that, since his detention was

illegal, “the time [he] spent incarcerated in the Adams County Prison beyond

May 18, 2016 [should] be credited towards any criminal cases for which



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9
  The trial court prepared its Rule 1925(a) opinion on June 10, 2016, shortly
after Appellant appealed from the denial of his habeas corpus petition and
nearly two months before Appellant’s release from jail. In its opinion, the
court demonstrated its thorough familiarity with the requirements of § 9771,
its full expectation that Appellant would return to court for a final revocation
hearing, and its awareness of the maximum penalty that could be imposed if
the court revoked Appellant’s probation and sentenced him to total
confinement. The court stated as follows: “Th[e trial court] has not yet
heard the Gagnon II hearing and therefore, Appellant has not yet been
re-sentenced in revocation proceedings. When Appellant is re-sentenced,
his sentence cannot exceed six months, credit given for any time spent in
custody.” Trial Court Opinion, 6/10/16, at 4.




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Appellant is currently on probation in Adams County.” 10 Appellant’s Brief at

18 (emphasis added).           Our Supreme Court has held that “there is no

constitutional right to pre-sentence confinement credit” and has warned

against the creation of “penal checking accounts.” Martin v. Pennsylvania

Bd. Of Probation and Parole, 840 A.2d 299, 304 and 309 (Pa. 2003).

Thus, “where an offender is incarcerated on both a [] detainer and new

criminal charges, all time spent in confinement must be credited to either

the new sentence or the original sentence.”11      Id. at 309.   In this case,

Appellant has served a lawful revocation sentence, Appellant’s revocation

proceedings have concluded, and he received no further penalty on his new

offenses.    Thus, Appellant’s request in the present case for time credit

towards unspecified sentences (i.e. other than his revocation sentence or the

punishment imposed for his newly-incurred charges) equates to the creation

of a penal checking account, which is forbidden.          Here, post-appeal

developments, including Appellant’s release from confinement and the

imposition of no further penalty for Appellant’s new charges, have led to a

situation in which this Court is unable to enter an order that has any legal



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10
  As we stated above, Appellant’s sentence did not exceed the lawful
maximum and thus did not constitute an illegal sentence.
11
   We see no reason to distinguish this case simply because Appellant was
incarcerated based solely on a detainer.



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force or effect.   In these circumstances, the appeal must be dismissed as

moot.

        Appeal dismissed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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