Opinion
J-S49041-19 No. 2215 EDA 2017
10-29-2019
COMMONWEALTH OF PENNSYLVANIA v. PHILLIP MCCOY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 23, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0509462-2001 BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant Phillip McCoy appeals from the June 23, 2017, order entered in the Court of Common Pleas of Philadelphia County dismissing his first petition for collateral relief filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. During the pendency of the instant appeal, Appellant's maximum sentence expired, and he became ineligible for relief under the PCRA. See 42 Pa.C.S.A. § 9543(a)(1)(i). Consequently, we affirm.
The facts underlying Appellant's arrest and conviction are well known to the parties, and were summarized by a panel of this Court in the memorandum decision affirming Appellant's sentence on direct appeal. See Commonwealth v. McCoy , 460 EDA 2009 (Pa.Super. filed 6/11/10) (unpublished memorandum). Therefore, we need not reiterate them herein. The following procedural history, however, is relevant to our disposition of the case.
After his conviction by a jury on the charges of possession with the intent to deliver a controlled substance ("PWID") and conspiracy, Appellant proceeded to a sentencing hearing. On January 13, 2009, the trial court sentenced Appellant to three years to six years in prison, to be followed by four years of reporting probation, for PWID, and three years to six years in prison, to be followed by four years of reporting probation, for conspiracy. The trial court ordered that the sentences for PWID and conspiracy run concurrently, and thus, Appellant's aggregate sentence was three years to six years in prison, to be followed by four years of reporting probation. The trial court's sentencing order specifically indicated that Appellant's sentence in the instant case commenced on January 13, 2009.
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
Appellant was on bail, but it was revoked when the jury rendered its guilty verdict.
Appellant filed a timely, counseled direct appeal, and this Court affirmed Appellant's judgment of sentence on June 11, 2010. See id. Appellant filed a petition for allowance of appeal, which our Supreme Court denied on February 23, 2011.
On July 19, 2011, Appellant filed a timely, pro se PCRA petition, and the PCRA court appointed counsel, who filed an amended PCRA petition on September 5, 2013. Thereafter, counsel filed a supplemental amended PCRA petition on September 26, 2016, and on December 15, 2016, the Commonwealth filed a motion to dismiss Appellant's PCRA petition.
In his petition, Appellant averred that he was in prison and currently serving the instant sentence.
On March 27, 2017, the PCRA court filed an order pursuant to Pa.R.Crim.P. 907 indicating its intent to dismiss Appellant's PCRA petition, and on April 24, 2017, PCRA counsel filed a response in opposition thereto. On June 23, 2017, the PCRA court dismissed Appellant's PCRA petition, and on June 28, 2017, PCRA counsel filed a timely notice of appeal on Appellant's behalf.
On August 8, 2017, Appellant filed in this Court a motion seeking permission to proceed pro se on appeal, and accordingly, on September 1, 2017, this Court directed the lower court to conduct an on-the-record colloquy pursuant to Commonwealth v. Grazier , 552 Pa. 9, 713 A.2d 81 (1998). On December 8, 2017, the lower court held a Grazier hearing, and on December 11, 2017, the lower court entered an order granting Appellant permission to proceed pro se. On that same date, the lower court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant timely complied on or about December 26, 2017. On March 16, 2018, the lower court filed a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant presents claims of ineffective assistance of counsel. However, before we may address the issues Appellant raises on appeal, we must first determine if Appellant is statutorily eligible for PCRA relief. It is well-established that to be eligible for PCRA relief a petitioner must prove that at the time relief is granted he is "currently serving a sentence of imprisonment, probation or parole for the crime[.]" 42 Pa.C.S.A. § 9543(a)(1)(i). "Case law has strictly interpreted the requirement that the petitioner be currently serving a sentence for the crime to be eligible for relief." Commonwealth v. Plunkett , 151 A.3d 1108, 1109 (Pa.Super. 2016).
This Court's decision in Plunkett is dispositive. In that case, the defendant filed a timely PCRA petition while on probation following a conviction of theft by deception. See id. The PCRA court conducted a hearing on the issues raised in the petition and, in June of 2015, entered an order denying relief. The defendant subsequently filed a timely appeal. Thereafter, in January of 2016, while the appeal was pending in this Court, the trial court entered an order terminating the defendant's probationary sentence. See id.
On appeal, this Court determined the defendant was not entitled to relief because he was no longer serving a sentence for the conviction at issue. Id. The panel opined: "[W]e find the statutory requirement that a PCRA petitioner be currently serving a sentence is applicable to the instant circumstance where the PCRA court's order was issued while petitioner was still serving the required sentence, but that sentence terminated prior to the resolution of his appeal." Id. at 1113. See Commonwealth v. Turner , 622 Pa. 318, 80 A.3d 754, 766 (2013) ("Because individuals who are not serving a state sentence have no liberty interest in and therefore no due process right to collateral review of that sentence, the statutory limitation of collateral review to individuals serving a sentence of imprisonment, probation, or parole is consistent with the due process prerequisite of a protected liberty interest.") (citation omitted)).
In the case sub judice, on January 13, 2009, Appellant was sentenced to a maximum prison term of six years, to be followed by four years of reporting probation. Appellant began serving his sentence immediately, and the certified docket entries reveal that Appellant's probation was never revoked. Consequently, Appellant's sentence expired on January 13, 2019, during the pendency of the instant appeal, and thus, he is statutorily ineligible for PCRA relief. See Commonwealth v. Williams , 977 A.2d 1174 (Pa.Super. 2009) (holding that as soon as a petitioner's sentence is completed, the petitioner becomes ineligible for relief, regardless of whether he was serving his sentence when he filed the PCRA petition).
In its Rule 1925(a) opinion, the PCRA court recognized that "Appellant's maximum incarceration [in] this case lapsed on January 13, 2015. [A]ppellant's entire sentence [in] this case, including probation, will conclude on January 13, 2019." PCRA Court Opinion, filed 3/16/18, at 1 n.3.
Because Appellant is no longer serving a sentence for the convictions that are the subject of the instant PCRA petition, he is not entitled to PCRA relief, and we affirm the order on appeal.
We note that Appellant was still serving his sentence when the PCRA court entered its order on June 23, 2017, dismissing Appellant's petition. Nevertheless, it is well-settled that we "may affirm a PCRA court's decision on any grounds if the record supports it." Commonwealth v. Benner , 147 A.3d 915, 919 (Pa.Super. 2016) (quotation omitted).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/29/19