Opinion
J-S72007-17 No. 669 EDA 2017
01-22-2018
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ADRIAN SIMS-EL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered January 8, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0008238-2007 BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Adrian Sims-El, appeals nunc pro tunc from the judgment of sentence imposed on January 8, 2016, after his previous terms of probation and parole were revoked. We affirm.
Briefly, in September of 2008, Appellant pled guilty to statutory sexual assault and was sentenced in July of 2009 to a term of incarceration of 6 to 23 months, plus one year probation. He did not file a direct appeal. In August of 2009, Appellant was released on parole. Approximately one year later, in June of 2010, he was found to be in possession of child pornography, which constituted a violation of his parole/probation. Accordingly, he was arrested on June 7, 2010. In September of 2010, criminal charges were filed against Appellant in Philadelphia County. Due to the pendency of those charges, as well as other delays, Appellant's parole/probation revocation hearing was not conducted until January of 2016, at which time his parole/probation were revoked and he was resentenced to serve a term of 393 days of 'back time' incarceration, plus a consecutive term of 2 to 8 years' incarceration.
Appellant did not file a timely appeal from his judgment of sentence, but ultimately sought, and was granted, leave to file a nunc pro tunc appeal. He filed a nunc pro tunc notice of appeal on February 16, 2017, and he also filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, despite not being ordered by the court to do so. The court filed a responsive opinion on June 15, 2017. Herein, Appellant presents one issue for our review:
I. The revocation hearing that took place was not timely. [Appellant] was incarcerated from June 7, 2010 and the revocation did not occur until January 8, 2016. The original sentence imposed was six (6) to twenty[-]three (23) months followed by one year probation. Once [Appellant] reached the maximum, the detainer should have been lifted and the violations dismissed.Appellant's Brief at 4 (unnecessary capitalization omitted).
We have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have reviewed the thorough and well-crafted opinion of the Honorable George A. Pagano of the Court of Common Pleas of Delaware County. We have also considered the "Case Timeline" created by Judge Pagano and attached to his opinion as "Exhibit A." We conclude that Judge Pagano's extensive, well-reasoned opinion and case timeline accurately set forth the procedural history of this case, and correctly dispose of the issue presented by Appellant. Accordingly, we adopt Judge Pagano's opinion and timeline as our own and affirm Appellant's judgment of sentence on that basis.
Appellant seemingly takes issue with the trial court's statement that a Gagnon I hearing was held on June 22, 2010. See Gagnon v. Scarpelli , 411 U.S. 778 (1973) (holding that due process requires a determination at a pre-revocation hearing, i.e., a Gagnon I hearing, that probable cause exists to believe a violation has been committed). See also Appellant's Brief at 9 ("The Commonwealth represented and the [c]ourt echoed that a Gagnon I [h]earing was held on June 22, 2010. In fact, it was not."). While there is no transcript of the June 22, 2010 hearing contained in the certified record, the trial court's docket demonstrates that a hearing was conducted on that date, and it was determined at that proceeding that Appellant would be held for a Gagnon II hearing. Appellant does not seem to dispute any other dates set forth in the trial court's opinion or e timeline. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/22/18
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