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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
J-S04041-15
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.”
-2-
J-S04041-15
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
-3-
J-S04041-15
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
-4-
J-S04041-15
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
-5-
Com. v. Minter, M.
Combined Opinion