J-S04041-15

* Retired Senior Judge assigned to the Superior Court 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

MORRIS FOSTER MINTER,

 Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 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-CR0001052-2009 (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). 
J-S04041-15

- 2 -

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),2the 

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.”
J-S04041-15

- 3 -

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 
J-S04041-15

- 4 -

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 
J-S04041-15

- 5 -

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