Com. v. Langston, D. ( 2014 )

J-S68027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENEA LANGSTON
Appellant No. 166 EDA 2014
Appeal from the PCRA Order December 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1101532-2001
BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 19, 2014
Denea Langston (“Appellant”) appeals from the order dismissing her
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 After
careful review, we affirm.
The PCRA court summarized the facts underlying Appellant’s
convictions as follows:
The convictions arose from [Appellant’s] and [her co-
defendant’s] participation in fraudulent real estate transactions
involving fourteen Philadelphia area properties. [Appellant] and
[her co-defendant] forged deeds and falsified loan documents
and related correspondence to attempt to secure mortgages and
coerce the victims to enter into a business relationship for the
purchase of land not their own [and] renovation of said
properties for future return of capital in resale.
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1
42 Pa.C.S. §§ 9541-9546.
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PCRA Court Pa.R.A.P. 1925(a) Opinion, April 14, 2014, pp. 1-2.
On May 6, 2004, a jury convicted Appellant of theft (3 counts),2
forgery (14 counts),3 and criminal conspiracy.4 On September 14, 2004, the
trial court sentenced Appellant to an aggregate of 28 to 56 months’
imprisonment on the forgery convictions and 5 years’ probation on the
conspiracy conviction.5 The court further ordered Appellant to pay
$14,000.00 in restitution. This was an obligation imposed jointly and
severally with her co-defendant.
Appellant appealed her convictions, and the Commonwealth cross-
appealed the restitution order. On September 21, 2006, this Court affirmed
Appellant’s convictions and remanded the matter for the trial court to
determine the proper restitution amount. On May 20, 2009, the trial court
ordered Appellant and her co-defendant to pay the victims restitution
aggregating $95,000.00.
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2
One count of theft by unlawful taking or disposition, 18 Pa.C.S. § 3921;
one count of theft by deception, 18 Pa.C.S. § 3922; one count of theft by
failure to make required deposition of funds received, 18 Pa.C.S. § 3927.
3
18 Pa.C.S. § 4101.
4
18 Pa.C.S. § 903.
5
The theft convictions merged for sentencing purposes.
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On June 15, 2010, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel who filed a Turner/Finley6 no merit letter on July
15, 2011. Counsel subsequently withdrew the Turner/Finley letter and
filed an amended PCRA petition on October 11, 2013. The Commonwealth
responded by filing a motion to dismiss the PCRA petition on December 10,
2013. The PCRA court dismissed the petition without a hearing on
December 13, 2013.7 This timely appeal followed.8
Appellant raises the following question for our review:
I. Did the Honorable PCRA Court err when it dismissed
[Appellant’s] Amended PCRA Petition without holding a hearing,
even though [Appellant] properly pled, and would have been
able to prove, that she was entitled to PCRA relief where trial
counsel was ineffective for failing to file a motion to preclude the
use of certain tape recordings, as the Wire Tap Act prohibits the
taping of telephone conversations without the consent of all
parties to the conversation and where said evidence was
introduced and was integral to [Appellant’s] conviction?
Appellant’s Brief, p. 3.
In reviewing an order denying PCRA relief, our well-settled standard of
review is “to determine whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. The PCRA
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6
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
7
The Philadelphia Court of Common Pleas docket indicates Appellant waived
the formal filing of a Pa.R.Crim.P. 907 notice of intent to dismiss in open
court on December 13, 2013. See Docket, CP-51-CR-1101532-2001, p. 25.
8
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,
191-192 (Pa.Super.2013) (internal quotations and citations omitted).
Initially, 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.”). This is so even if the petitioner filed his PCRA petition during
the pendency of his sentence. See Commonwealth v. Williams, 977 A.2d
1174, 1176 (Pa.Super.2009) (“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.”).
Here, the trial court sentenced Appellant to 28 to 56 months’
incarceration followed by 5 years’ probation on September 14, 2004.
Therefore, even without accounting for any credit to which Appellant may
have been entitled for any time served prior to sentencing, Appellant’s
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sentence ended on May 14, 2014.9 As a result, Appellant is no longer
eligible for PCRA relief, regardless of the fact that she initially filed her pro se
PCRA petition during the pendency of her sentence in June 2010. See
Williams, supra. Accordingly, we affirm the PCRA court’s order dismissing
Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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9
Nothing in Appellant’s filings, the PCRA court summary, or the docket of
the underlying matter indicate or suggest that the sentence was modified at
any time beyond the imposition of the new restitution amount following this
Court’s remand as discussed supra.
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