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Mistich v. Commonwealth12/7/2004
On March 29, 2004, the Pennsylvania Supreme Court vacated an order of this Court dated May 16, 2003, in which we sustained the preliminary objection of the Pennsylvania Board of Probation and Parole (Board) to the petition for review of Gerald Mistich (Petitioner). Petitioner sought to have this Court issue a writ of mandamus ordering the Board to give him credit for time he spent in state prison from March 12, 2001, through July 23, 2001, on a 23-1/2 month sentence for driving under the influence (DUI) towards a 14-year sentence for burglary and theft. We dismissed the petition, holding that it failed to state a cause of action because the relief requested would violate Section 21.1 of the statute commonly known as the Parole Act*fn1 , 61 P.S. §331.21a, and the Sentencing Code, 42 Pa. C.S. 9760. Both statutes require that service of a new sentence precede service on the original sentence. The sentencing court was precluded from ordering Petitioner's unrelated sentences to be served concurrently under Pennsylvania law.*fn2 Bailey v. Board of Probation and Parole, 591 A.2d 778, 781 (Pa. Cmwlth. 1991).
Also before this Court for disposition is a Suggestion of Mootness and a Motion to Suppress the Brief of Petitioner filed by the Board. The Board asserts that this matter is moot because Petitioner seeks credit on a sentence that was completed on September 25, 2004, and the issues raised in his petition can no longer be redressed by a favorable judicial decision. Spencer v. Kemna, 523 U.S. 1, 7 (1998) (case becomes moot when alleged injury to parolee can no longer be redressed by favorable judicial decision). Petitioner maintains that his petition for review is not moot. Alternatively, even if moot, his claim must be decided by this Court because it involves a question of great public importance, the Board's conduct is capable of repetition, while avoiding review, and "[Petitioner] and the bench and bar will suffer a detriment by the (sic) avoiding a determination." Petitioner's Brief at 4. The detriment is, apparently, that the Board will "[refuse] to accept ... that the lawful vacation of a sentence by a court in a post-conviction relief proceeding requires the Board to revisit an offender's credit for time spent in official detention prior to the current, valid sentencing order without evoking the talismanic utterances of 'penal checking accounts' and 'rewriting history.'" Id.
We consider, first, whether this appeal is moot. Generally, a case will be dismissed as moot if there exists no actual case or controversy. Fraternal Order of Police v. City of Philadelphia, 789 A.2d 858 (Pa. Cmwlth. 2002). The existence of a case or controversy requires
(1) a legal controversy that is real and not hypothetical, (2) a legal controversy that affects an individual in a concrete manner so as to provide the factual predicate for a reasoned adjudication, and (3) a legal controversy with sufficiently adverse parties so as to sharpen the issues for judicial resolution.
Dow Chemical Company v. United States Environmental Protection Agency, 605 F.2d 673, 678 (3 rd Cir. 1979). A controversy must continue through all stages of judicial proceedings, trial and appellate, and the parties must continue to have a "personal stake in the outcome" of the lawsuit. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478 (1990) (quotation omitted). Courts will not enter judgments or decrees to which no effect can be given. Britt v. Department of Public Welfare, 787 A.2d 457 (Pa. Cmwlth. 2001). An exception to mootness will be found where (1) the conduct complained of is capable of repetition yet likely to evade judicial review; (2) the case involves issues of great public importance; or (3) one party will suffer a det
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