Com. v. Fullman, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANDREW FULLMAN
Appellant No. 2228 EDA 2014
Appeal from the PCRA Order July 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1124071-1986
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 22, 2015
Appellant, Andrew Fullman, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his serial
petition, filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On June 18, 1987, a jury convicted Appellant of aggravated
assault, simple assault, and possessing instruments of crime. The court
sentenced Appellant on May 17, 1988, to an aggregate term of five to ten
years’ imprisonment. On March 31, 1989, this Court affirmed Appellant’s
judgment of sentence, and our Supreme Court denied allowance of appeal
on December 20, 1989. See Commonwealth v. Fullman, 560 A.2d 825
(Pa.Super. 1989), appeal denied, 524 Pa. 625, 574 A.2d 67 (1989). On
November 4, 2011, Appellant filed the current, serial PCRA petition,
attempting to invoke the “new facts” exception to the PCRA’s time-bar at 42
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Pa.C.S.A. § 9545(b)(1)(ii). The court issued Pa.R.Crim.P. 907 notice on July
19, 2012. Appellant filed a pro se response on August 6, 2012. On October
15, 2012, the court appointed counsel, who filed an amended PCRA petition
on December 5, 2013. On July 18, 2014, the court heard argument on
whether Appellant is eligible for relief under the PCRA; Appellant was present
at the hearing. At the conclusion of the hearing, the court dismissed
Appellant’s PCRA petition.1 Appellant timely filed a notice of appeal on July
28, 2014. On September 8, 2014, the court ordered Appellant to file a
Pa.R.A.P. 1925(b) statement. Counsel subsequently filed a Pa.R.A.P.
1925(c)(4) statement of intent to file a “no-merit” brief.2
A PCRA petitioner must be currently serving a sentence of
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1
The court did not re-issue Rule 907 notice because Appellant was present
for the hearing, and the court informed Appellant that it would not hold an
evidentiary hearing concerning the merits of Appellant’s PCRA petition based
on Appellant’s ineligibility for relief under the PCRA.
2
Counsel has filed a petition to withdraw and an accompanying brief
pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
In his brief, counsel detailed the nature of counsel’s review and explained
why Appellant’s issues are entitled to no relief (because Appellant is no
longer serving a sentence). Counsel’s brief also demonstrates he reviewed
the certified record and determined the record was devoid of any issues
which would entitle Appellant to relief. Counsel notified Appellant of
counsel’s request to withdraw and advised Appellant regarding his rights.
Thus, counsel substantially complied with the Turner/Finley requirements.
See generally Commonwealth v. Freeland, 106 A.3d 768 (Pa.Super.
2014) (stating requirements of Turner/Finley); Commonwealth v.
Karanicolas, 836 A.2d 940 (Pa.Super. 2003) (explaining substantial
compliance with requirements will satisfy Turner/Finley).
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imprisonment, probation or parole for the conviction at issue to be eligible
for PCRA relief. 42 Pa.C.S.A. § 9543(a)(1)(i). See also Commonwealth
v. Williams, 977 A.2d 1174 (Pa.Super. 2009), appeal denied, 605 Pa. 700,
990 A.2d 730 (2010) (explaining petitioner must be serving sentence of
imprisonment, probation, or parole for crime at issue to be eligible for PCRA
relief; as soon as sentence is completed, petitioner becomes ineligible for
PCRA relief; PCRA precludes relief for those petitioners whose sentences
have expired, regardless of collateral consequences of their sentences).
Instantly, Appellant admits he began serving his 5-10 year sentence on July
2, 1990, and is no longer serving a sentence for the offenses at issue. (See
Appellant’s Pro Se PCRA Petition, filed November 4, 2011, at 1; Appellant’s
Amended PCRA Petition, filed December 5, 2013, at 2 ¶4, ¶7; N.T. Hearing,
7/18/14, at 7, 9.) Therefore, Appellant is ineligible for PCRA relief. See 42
Pa.C.S.A. § 9543(a)(1)(i); Williams, supra. Thus, the court properly
dismissed the petition. Accordingly, we affirm and grant counsel’s petition
to withdraw.
Order affirmed; petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2015
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