Com. v. Jackson, A. ( 2014 )

J-S44034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE JAMAL JACKSON
Appellant No. 290 WDA 2014
Appeal from the PCRA Order April 23, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003387-2000
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 21, 2014
Andre Jamal Jackson appeals from the denial, without a hearing, of his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §
9541 et seq. Jackson’s counsel has filed a Turner/Finley1 no-merit letter
and concurrent petition to withdraw as counsel.2 The PCRA court denied
Jackson’s petition because he is ineligible for relief, having served his
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
2
This matter is before us from remand. See Order, 3/31/2014. As the
underlying petition is Jackson’s first PCRA petition, he was entitled to
appointment of counsel. Counsel was appointed and he entered his
appearance in this Court. See Order April 15, 2014. The matter is now
properly before this panel. See also, Commonwealth v. Hart, 911 A.2d
939, 942 (Pa. Super. 2005) (harmless error from original failure to appoint
counsel when petitioner’s sentence had expired).
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sentence in its entirety. Following a thorough review of the certified record,
submissions by the parties, and relevant law, we grant counsel’s petition to
withdraw and affirm the Order below.
Initially, we note:
Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us to determine whether the
determination of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court's findings will
not be disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Heredia, 97 A.3d 392, 294 (Pa. Super. 2014 )(citation
omitted).
Further, in conjunction with filing the Turner/Finley brief, counsel
has also provided Jackson with a copy of the brief, notified Jackson of his
request to withdraw, and of his rights to retain new counsel or file his own
brief.
We need not conduct a lengthy recital of the facts and procedural
history of this matter. To be eligible for relief pursuant to the PCRA, the
petitioner must be currently serving a sentence for the crime. See 42
Pa.C.S. § 9543(a)(1)(i).3
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3
Specifically, the statute reads in relevant 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:
(Footnote Continued Next Page)
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The certified record reveals that Jackson plead guilty to drug charges
in 2000 and was sentenced to an aggregate term of 9-18 months’
incarceration to be followed by one year of probation, effective January 4,
2001. Accordingly, Jackson’s sentence expired on July 4, 2003. The
certified record also reveals that no appeals were taken from that judgment
of sentence and Jackson did not violate parole or probation. However, in
2010, Jackson was indicted on drug charges by federal authorities. He pled
guilty in 2011 and was subsequently sentenced to 188 months’ incarceration
to be followed by four years of supervised release. The federal sentence was
enhanced due to Jackson’s state conviction. In 2013, Jackson filed this
PCRA petition, challenging his judgment of sentence for his 2000 conviction.
The PCRA court found that Jackson’s state judgment of sentence has
expired. See Opinion, 2/14/2014, at 1. Our review confirms this fact. As
such, Jackson has no standing to bring a PCRA petition, and we may not
address the merits of the present PCRA petition filed. See Commonwealth
v. Ahlborn, 699 A.2d 718 (Pa. 1997) (PCRA eligibility limited to those
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(Footnote Continued)
(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)(1)(i).
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serving sentence by plain language of statute). See also Commonwealth
v. O’Berg, 880 A.2d 597 (Pa. 2005) (same).4
Accordingly, we are required to affirm the PCRA court’s order
dismissing Jackson’s petition without a hearing. Motion to withdraw as
counsel is granted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
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4
Additionally, we note that proper notice, pursuant to Pa.R.Crim.P. 907, was
provided by the PCRA court to Jackson regarding notice of intent to dismiss
the petition without a hearing.
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