Opinion
J-S45039-18 No. 1674 MDA 2017
10-02-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. DANA E. SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order September 27, 2017 in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0000488-2009 BEFORE: PANELLA, J., OTT, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Dana E. Smith, appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, because he is no longer serving his sentence. We affirm on the basis of the PCRA court's opinion.
We take the following pertinent background from our independent review of the certified record. On May 25, 2010, a jury convicted Appellant of intimidation of a witness. The charges related to Appellant's intimidating of a witness (his daughter) to tell the court that she could not remember what happened to her in the pending rape case against his son. On September 30, 2010, the court sentenced Appellant to an aggregate term of not less than two and one-half nor more than five years' incarceration. The court granted Appellant bail pending appeal, which he posted the same day. This Court affirmed the judgment of sentence on February 21, 2012, and our Supreme Court denied further review on July 2, 2013. ( See Commonwealth v. Smith , 46 A.3d 822 (Pa. Super. filed Feb. 21, 2012) (unpublished memorandum), appeal denied, 69 A.3d 601 (Pa. 2013)).
18 Pa.C.S.A. §§ 4952(a)(2) and (a)(3).
On February 8, and February 27, 2012, respectively, the Commonwealth filed a motion to revoke bail and an amended motion to revoke bail, which the trial court granted on March 1, 2012. The court ordered Appellant to report to Centre County Probation no later than March 2, 2012 to surrender to the custody of the Centre County Correctional Facility.
The PCRA court's September 27, 2017 opinion fully and correctly sets forth the ensuing procedural and factual histories of this case. ( See PCRA Court Opinion, 9/27/17, at 1-2). Therefore, we have no reason to restate them here.
Appellant raises one question for our review: "Whether the [PCRA] court erred in denying [his] . . . PCRA petition, and, in so doing . . . [f]inding that [he] no longer met the requirements under 42 Pa.C.S.A. § 9543(a)(1)[?]" (Appellant's Brief, at 4).
Our standard of review is well-settled: "This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Rizvi , 166 A.3d 344, 347 (Pa. Super. 2017) (citation omitted).
After our thorough review of the record, the briefs of the parties, and the well-reasoned opinion of the Honorable Thomas King Kistler, we conclude that there is no merit to the issue Appellant has raised on appeal. The PCRA court opinion properly disposes of the question presented. ( See PCRA Ct. Op., at 3-5) (finding: (1) because Appellant's sentence expired on April 22, 2017, he no longer is eligible for PCRA relief pursuant to 42 Pa.C.S.A. § 9543(a)(1); (2) Superior Court decisions on which Appellant relies are distinguishable; and (3) three-year delay in litigating PCRA petition was caused in part by Appellant, and he cannot now argue prejudice). Accordingly, we affirm on the basis of the PCRA court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/02/2018
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