Opinion
J-S57042-13 No. 788 MDA 2103
2013-10-21
COMMONWEALTH OF PENNSYLVANIA, Appellee v. BERNARD McMILLION, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered on April 22, 2013
in the Court of Common Pleas of Dauphin County,
Criminal Division, No(s): CP-22-CR-0003733-2010;
CP-22-CR-0003760-2010
BEFORE: PANELLA, MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Bernard McMillion ("McMillion") appeals from the Order denying his Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
42 Pa.C.S.A. §§ 9541-9546.
On October 2, 2011, McMillion pled guilty, pursuant to a negotiated plea agreement, to the charges of theft by unlawful taking, criminal conspiracy, flight to avoid apprehension, resisting arrest, tampering with or fabricating physical evidence, false identification to law enforcement authorities, possession with the intent to deliver a controlled substance and possession of drug paraphernalia. The trial court sentenced McMillion to an aggregate prison term of one to two years, to be served concurrently with a sentence imposed in a federal case. On February 2, 2012, McMillion was given 433 days of credit for time served in his state proceeding. As a result of the credit for time served, McMillion's maximum sentence in the instant case expired on July 29, 2012. In August 2012, McMillion began serving his federal sentence.
18 Pa.C.S.A. §§ 3921, 903, 5126, 5104, 4910(1), 4914; 35 P.S. § 780-113(a)(30), (32).
We are unable to discern from the certified record the sentence imposed in the federal case, or the charges underlying that sentence.
On October 22, 2012, McMillion filed a pro se PCRA Petition. The PCRA court appointed counsel, after which McMillion filed a counseled amended Petition. After appropriate Notice, the PCRA court dismissed McMillion's Petition without a hearing, concluding that the claim was "untimely raised." PCRA Court Opinion, 4/2/13, at 3. Thereafter, McMillion filed the instant timely appeal, and a Concise Statement of matters complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
McMillion presents the following claims for our review:
1. Whether [McMillion] was serving a sentence at the time his PCRA was filed?Brief for Appellant at 5.
2. Whether [McMillion's] constitutional rights were violated when a negotiated plea agreement was not honored?
3. Whether [McMillion's] guilty plea was unlawfully induced as the result of counsel's ineffectiveness?
McMillion first challenges the PCRA court's determination that he was not eligible for relief under the PCRA, as his maximum sentence on the underlying state charges had expired. Id. at 10. McMillion asserts that even if this Court finds that he is not "in custody," he is still eligible for relief under the PCRA as he is serving a sentence of parole from the charges. Id. at 11. According to McMillion, he was paroled from his state sentence on July 28, 2012, and therefore, he must still be considered "in custody" for purposes of PCRA eligibility. Id.
An appellate court's standard of review regarding an order denying a PCRA petition is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Treadwell, 911 A.2d 987, 989 (Pa. Super. 2006).
To be eligible for relief under the PCRA, a petitioner must be "currently serving a sentence of imprisonment, probation or parole for the crime[.]" 42 Pa.C.S.A. § 9543(a)(1). "As soon as his sentence is completed, the petitioner becomes ineligible for relief, regardless of whether he was serving his sentence when he filed the petition." Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997); accord Commonwealth v. Hart, 911 A.2d 939, 941-42 (Pa. Super. 2006). "In cases where petitioners have filed for relief after their sentences have been completely served, relief has been uniformly denied on the basis of the statutory eligibility provision." Ahlborn, 499 A.2d at 720 n.1.
Here, the trial court imposed an aggregate state prison term of one to two years for McMillion's convictions of violating Pennsylvania law. On February 2, 2012, McMillion was granted credit for 433 days that he already had served. Therefore, McMillion's maximum sentence expired on July 29, 2012. Because McMillion no longer was serving a sentence of incarceration, prison or parole, he was ineligible for relief under the PCRA on those charges. Accordingly, we discern no error or abuse of discretion by the PCRA court in dismissing McMillion's PCRA Petition. On that basis, we are unable to reach the merits of McMillion's claims.
McMillion's reliance upon the United States Supreme Court's decision in Garlotte v. Fordice, 515 U.S. 39 (1995) is unavailing. In Garlotte, the Supreme Court held that a petitioner who is serving consecutive state sentences is "in custody" and may attack the sentence scheduled to run first, even after it has expired, until all of the sentences have been served. Id. at 44-45. Here, McMillion was not sentenced to consecutive state sentences, and all of his state sentences had expired at the time he filed his PCRA Petition. Therefore, McMillion was not eligible for relief under the express provisions of the PCRA.
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Order affirmed. Judgment Entered. ______________________
Joseph D. Seletyn, Esq.
Prothonotary