Com. v. Fisher, T. ( 2019 )

J-S71028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE FISHER, :
:
Appellant : No. 105 EDA 2018
Appeal from the PCRA Order December 29, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: MC-51-CR-0003014-2016
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
JUDGMENT ORDER BY DUBOW, J.: FILED MARCH 28, 2019
Appellant, Terrance Fisher, appeals from the December 29, 2017 Order
dismissing his first Petition filed under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. Because Appellant is no longer serving his
sentence, he is not eligible for PCRA relief. We, thus, affirm the denial of
relief.
On April 6, 2016, Appellant entered a negotiated guilty plea to Driving
Under the Influence (“DUI”) and Driving While Operating Privilege is
Suspended or Revoked.1 On April 28, 2016, the trial court sentenced
Appellant to an aggregate term of 72 hours to 6 months’ incarceration. See
Order of Sentence, filed 4/28/16; N.T., 4/28/16, at 7-8. Appellant did not file
a direct appeal.
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1 75 Pa.C.S. § 3802(c) and 75 Pa.C.S. § 1543(a), respectively.
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On January 12, 2017, Appellant filed pro se the instant PCRA Petition,
his first, raising numerous claims. The court appointed counsel, who filed an
Amended PCRA Petition on August 27, 2017. The Commonwealth filed a
Motion to Dismiss Appellant’s PCRA Petition, noting that Appellant was
ineligible for PCRA relief because he had completed his sentence. The PCRA
court agreed and, after providing notice, dismissed Appellant’s PCRA Petition
on December 29, 2017.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
[1.] Whether the Petitioner challenged the reliability of the
breathalyzer test and relied to his detriment on the ineffectiveness
of counsel in advising him to plead guilty where said testing device
was faulty?
[2.] Whether the conviction based on the reliability of the
breathalyzer test and his reliance to his detriment on the
ineffectiveness of counsel in advising him to plead guilty where
said testing device was faulty, should his conviction be dismissed,
reversed, discharged, and expunged?
Appellant’s Brief at 5.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court’s legal
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conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that he is “currently serving a
sentence of imprisonment, probation[,] or parole for the crime[.]” 42 Pa.C.S.
§ 9543(a)(1)(i). A petitioner who has completed his sentence is no longer
eligible for post-conviction relief. Commonwealth v. Soto, 983 A.2d 212,
213 (Pa. Super. 2009); see also Commonwealth v. Turner, 80 A.3d 754,
765 (Pa. 2013) (“due process does not require the legislature to continue to
provide collateral review when the offender is no longer serving a sentence.”).
Thus, even where a PCRA petition is filed while a petitioner is serving his or
her sentence, once the sentence expires, a petitioner’s right to PCRA relief
also expires. Commonwealth v. Plunkett, 151 A.3d 1108, 1109-10 (Pa.
Super. 2016). “The burden of proving that a petitioner is currently serving a
sentence of imprisonment, probation[,] or parole rests on the petitioner.”
Soto, 983 A.2d at 213-14.
Appellant’s maximum sentence in the instant case expired on October
28, 2016, six months after the trial court imposed his sentence.2 Appellant
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2 Appellant’s negotiated guilty plea in this case violated his probation in
another case at docket no. CP-51-CR-0906001-2005; his new VOP sentence
of two years’ probation in that case expired on May 22, 2018. Appellant also
incurred a subsequent arrest at docket no. MC-51-CR-0013755-2016, but he
was acquitted after a bench trial. Those cases are not part of this appeal, and
they do not change our analysis.
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has completed his sentence and is, therefore, ineligible for PCRA relief.
Accordingly, we affirm the PCRA court’s Order dismissing Appellant’s PCRA
Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/19
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