Com. v. Hunt, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MUSAYYEB HUNT
Appellant No. 2760 EDA 2015
Appeal from the PCRA Order Dated August 12, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0028529-2012
MC-51-CR-0028530-2012
BEFORE: OTT, J., SOLANO, J., and JENKINS, J.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 30, 2016
Appellant, Musayyeb Hunt, appeals from the order denying his petition
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Counsel also filed a petition to withdraw pursuant to Turner/Finley.1 We
affirm and grant counsel’s petition to withdraw.
On February 8, 2013, Appellant pleaded guilty to two counts of theft
by unlawful taking2 and was sentenced to an aggregate sentence of three
years’ probation. On August 22, 2013, Appellant filed a pro se PCRA
petition, which he amended pro se on March 21, 2014.
____________________________________________
1
Commonwealth v. [Geary] Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
18 Pa.C.S. § 3921(a).
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On April 9, 2014, Attorney Tingle entered his appearance for
Appellant, and on July 28, 2014, Attorney Tingle filed a petition to withdraw
pursuant to Turner/Finley. On December 18, 2014, after providing notice
pursuant to Pa.R.Crim.P. 907, the PCRA court granted Attorney Tingle’s
petition to withdraw and appointed Attorney Mosser to represent Appellant.
On January 14, 2015, Appellant filed a “Motion for Waiver of Counsel,”
requesting that he be permitted to proceed pro se for his PCRA petition; no
action was taken on this motion. On March 17, 2015, Attorney Mosser filed
an amended PCRA petition. On July 16, 2015, he filed a corrected amended
PCRA petition, alleging that Appellant timely requested trial counsel to file a
direct appeal but counsel failed to do so. The petition thus asked the PCRA
court to reinstate Appellant’s direct appeal rights nunc pro tunc. The PCRA
court denied Appellant’s PCRA petition on August 12, 2015. Appellant timely
appealed on September 11, 2015, and complied with Pa.R.A.P. 1925(b).
Appellant’s sentence ended on February 8, 2016.3 The PCRA court’s
Rule 1925(a) decision reasoned that Appellant was not entitled to relief
because Appellant was no longer serving his sentence of probation. PCRA
Ct. Op., 5/20/16, at 2. On May 24, 2016, Appellant’s certified record was
transmitted to this Court. On September 15, 2016, Attorney Mosser also
____________________________________________
3
This date is three years after February 8, 2013, with no applicable credit
for time served; Appellant is therefore not “currently serving a sentence.”
See 42 Pa.C.S. § 9543(a)(1)(i).
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filed a Turner/Finley letter and brief with this Court, along with a motion to
withdraw as counsel. He averred that Appellant’s appeal is moot because
his sentence expired. Appellant did not file a pro se or counseled response
to the Turner/Finley letter.
The Turner/Finley brief did not include a statement of questions
involved on appeal. See Pa.R.A.P. 2116(a) (requiring brief to “state
concisely the issues to be resolved” and adding, “No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby”). Nevertheless, we discern Appellant is asserting
that the PCRA court erred by refusing to reinstate his direct appeal rights
nunc pro tunc, because, allegedly, he repeatedly and timely requested that
his trial counsel file a direct appeal. See Appellant’s Rule 1925 Statement of
Matters Complained of on Appeal; Finley Letter, 9/15/16, at 1-3. Counsel,
however, explains that this issue lacks merit because Appellant’s sentence
has expired, rendering this appeal moot. Finley Letter, 9/15/16, at 8-9.
Additionally, Attorney Mosser asserts that there are no other issues of
arguable merit. Id.
Our standard of review of a PCRA court’s denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is supported by
the record evidence and free of legal error. Commonwealth v. Wilson,
824 A.2d 331, 333 (Pa. Super. 2003) (en banc). Before we review
Appellant’s claim, however, we must ascertain whether counsel satisfied the
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requirements to withdraw. Commonwealth v. Freeland, 106 A.3d 768,
774-75 (Pa. Super. 2014). The Court in Freeland explained:
The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney’s withdrawal. The necessary
independent review requires counsel to file a “no-merit” letter
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why those
issues are meritless. The PCRA court, or an appellate court if the
no-merit letter is filed before it, see Turner, supra, then must
conduct its own independent evaluation of the record and agree
with counsel that the petition is without merit.
See [Commonwealth v.] Pitts[, 603 Pa. 1, 3 n.1, 981 A.2d
875, 876 n.1 (2009)].
In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
2006) abrogated in part by Pitts, supra, this Court imposed
additional requirements on counsel that closely track the
procedure for withdrawing on direct appeal. Pursuant
to Friend, counsel is required to contemporaneously serve upon
his client his no-merit letter and application to withdraw along
with a statement that if the court granted counsel’s withdrawal
request, the client may proceed pro se or with a privately
retained attorney. Though Chief Justice Castille noted
in Pitts that this Court is not authorized to craft procedural
rules, the Court did not overturn this aspect of Friend as those
prerequisites did not apply to the petitioner in Pitts. See Pitts,
supra at 881 (Castille, C.J., concurring).
After the decision in Pitts, this Court held in Commonwealth v.
Widgins, 29 A.3d 816 (Pa. Super. 2011), that the additional
procedural requirements of Friend were still applicable during
collateral review.
Id.Here, we conclude that counsel’s Turner/Finley no-merit letter
complies with all of these requirements. See Freeland, 106 A.3d at 774-
75. Accordingly, we conduct our own independent evaluation of the record
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to ascertain whether we agree with counsel that Appellant is not entitled to
relief. See id.
Eligibility for relief under the PCRA is governed by 42 Pa.C.S. § 9543,
which provides in pertinent part:
(a) General rule.—To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime
under the laws of this Commonwealth and is at the
time relief is granted:
(i) currently serving a sentence of
imprisonment, probation or parole for the crime
....
42 Pa.C.S. § 9543(a) (emphasis added).
In our recent opinion, Commonwealth v. Plunkett, ___ A.3d ___,
2016 WL 7030486 (Pa. Super., Dec. 2, 2016), we noted the following:
The general proposition that a petitioner must be currently
serving the sentence for the crime has been applied in numerous
PCRA cases. See Commonwealth v. [Emma] Turner, 80 A.3d
754 (Pa. 2013); Commonwealth v. Stultz, 114 A.3d 865 (Pa.
Super. 2015); Commonwealth v. Williams, 977 A.2d 1174(Pa. Super. 2009); Commonwealth v. Pagan, 864 A.2d 1231(Pa. Super. 2004); and Commonwealth v. Hayes, 596 A.2d
195 (Pa. Super. 1991) (en banc). All of these cases differ from
the instant case in that . . . the petitioner had served the
sentence prior to any PCRA hearing or order disposing of the
PCRA petition. Here, Plunkett completed his sentence after the
PCRA hearing and order denying him relief, as well as after filing
his notice of appeal, but prior to the transmittal of the certified
record to this Court. Our review of case law leads us to conclude
this difference does not negate the applicability of the statutory
language of Section 9543(a)(1)(i) to this case. . . . Because
Plunkett’s sentence has expired, he is no longer entitled to PCRA
relief. Accordingly, we affirm the PCRA court’s order.
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Id. at *2 (affirming denial of PCRA relief because the defendant completed
his sentence during the pendency of his appeal from the order denying his
PCRA petition).
Similar to the defendant in Plunkett, Appellant completed his
sentence after the PCRA hearing and order denying him relief, as well as
after filing his notice of appeal, but prior to the transmittal of the certified
record to this Court. The statutory language of Section 9543(a)(1)(i) thus
applies to this case. See Plunkett, 2016 WL 7030486, at *2. Because
Appellant’s sentence expired during the pendency of his appeal, he is not
entitled to relief pursuant to the PCRA. 42 Pa.C.S. § 9543(a)(1)(i);
Plunkett, 2016 WL 7030486, at *2. Hence, we affirm the PCRA court’s
order and grant counsel’s petition to withdraw.
Petition to withdraw granted. Order affirmed.
Judge Ott joins the memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2016
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