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Smith v. PaA Board of Probation

United States District Court, W.D. Pennsylvania

August 26, 2014

ROBERT SMITH, Petitioner,
v.
PA BOARD OF PROBATION and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

MEMORANDUM OPINION

LISA PUPO LENIHAN, Chief Magistrate Judge.

On August 27, 2013, Petitioner, Robert Smith, petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("the petition"). For the reasons discussed herein, the Court finds that the petition is moot.

A. Background

In 2007, Petitioner was charged with various crimes in the Court of Common Pleas of Allegheny County in three separate criminal informations. At CC XXXXXXXXX, Petitioner was charged with one count of Escape, one count of Resisting Arrest, and one count of Criminal Mischief. He pleaded guilty to Resisting Arrest and Criminal Mischief. He received a sentence of 24 months of probation for Resting Arrest, effective the date of sentencing, and no further penalty for the Mischief charge. The Escape charge was withdrawn.

At CC XXXXXXXXX, Petitioner was charged with out count of Unlawful Restraint, one count of Resisting Arrest, one count of Simple Assault, one count for Violation of PFA Order, one count of Possession of Drug Paraphernalia, and one count of Burglary. He pleaded guilty to Unlawful Restraint, Simple Assault, and Resisting Arrest. All other charges were withdrawn. He received a sentence of 11½ months to 23 months incarceration for Unlawful Restraint and a 24 month period of probation, both effective the date of sentencing. No further penalty was imposed on the other counts. Petitioner was given seven days of time credit and permission to serve the sentence in alternative housing.

Petitioner was committed to the Allegheny County Jail and continuously lodged there from September 7, 2007 to June 24, 2008, at which time he pleaded guilty to one count of Escape at CC XXXXXXXXX. He received a sentence of 9 to 18 months of incarceration and 24 months of probation. He was given time credit from October 12, 2007 and paroled forthwith.

On January 9, 2009, Petitioner was detained for technical violations of his probation. On June 25, 2009, he appeared for a revocation hearing, at the conclusion of which his probation was revoked at all three criminal cases. He was sentenced as follows:

CC XXXXXXXXX: Count Three (Resisting Arrest): One to two years of incarceration.
CC XXXXXXXXX: Count Seven (Unlawful Restraint): One to two years of incarceration.
CC XXXXXXXXX: Count One (Escape): One to two years of incarceration, effective January 9, 2009.

These periods of incarceration were imposed consecutive to each other. As noted infra, the Commonwealth submits that Petitioner did not properly receive time credit for his previous incarceration when he was resentenced on June 25, 2009.

On July 8, 2009, Petitioner filed a counseled post-sentence Motion to Reconsider, which was denied as untimely. No direct appeal was filed.

On September 28, 2009, Petitioner filed a pro se Post-Conviction Relief Act ("PCRA") petition. He was appointed counsel, and Attorney Scott Coffey entered his appearance on behalf of Petitioner on October 1, 2009. On November 24, 2009, Petitioner filed an Amended PCRA Petition raising the following two claims.

1. Probation violation counsel was ineffective for failing to file a timely motion to modify sentence, causing it to be denied, and for ...

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