Com. v. Ayers, W. ( 2017 )


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  • J-S73045-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    Appellee               :
    :
    v.                     :
    :
    WILLIAM THOMAS AYERS,                       :
    :
    Appellant             :     No. 734 MDA 2017
    Appeal from the PCRA Order April 21, 2017
    in the Court of Common Pleas of Luzerne County,
    Criminal Division at No(s): CP-40-CR-0001465-2005
    BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
    MEMORANDUM BY STRASSBURGER, J.:                  FILED DECEMBER 08, 2017
    William Thomas Ayers (Appellant) appeals from the April 21, 2017 order
    dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),
    42 Pa.C.S. §§ 9541-9546. We affirm.
    On [February 22, 2006, Appellant] was sentenced to an aggregate
    sentence of nine to 36 months of incarceration at [this docket
    number] in Luzerne County for convictions of corruption of minors,
    criminal conspiracy and criminal solicitation. The trial court also
    ordered that [Appellant] pay a fine as part of his sentence. The
    Luzerne County sentence was ordered to run concurrently with
    sentences [Appellant] was serving from Wayne, Wyoming and
    Lackawanna Counties.      On February 22, 2009, [Appellant]
    completed his Luzerne County sentence but remained
    incarcerated on sentences from the other counties.
    Commonwealth v. Ayers, 
    34 A.3d 241
     (Pa. Super. 2011) (unpublished
    memorandum at 3) (footnotes omitted).
    * Retired Senior Judge assigned to the Superior Court.
    J-S73045-17
    On October 20, 2016, Appellant pro se filed the PCRA petition at issue
    in this case.    Counsel was appointed and requested a hearing on the
    jurisdictional aspect of the PCRA petition only. A hearing was held on April
    18, 2017, and on April 21, 2017, the PCRA court denied and dismissed
    Appellant’s petition, concluding it lacked jurisdiction to entertain Appellant’s
    petition because Appellant was no longer serving a sentence in this case.
    Appellant timely filed a notice of appeal.1
    The timeliness of a post-conviction petition is jurisdictional.   See, e.g.,
    Commonwealth v. Lewis, 
    63 A.3d 1274
    , 1280-81 (Pa. Super. 2013)
    (quoting Commonwealth v. Chester, 
    895 A.2d 520
    , 522 (Pa. 2006)) (“[I]f
    a PCRA petition is untimely, neither this Court nor the [PCRA] court has
    jurisdiction over the petition. Without jurisdiction, we simply do not have the
    legal authority to address the substantive claims.”).
    Generally, a petition for relief under the PCRA, including a second or
    subsequent petition, must be filed within one year of the date the judgment
    of sentence is final unless the petition alleges, and the petitioner proves, that
    an exception to the time for filing the petition is met, and that the claim was
    raised within 60 days of the date on which it became available. 42 Pa.C.S.
    § 9545(b) and (c).
    [I]n circumstances in which no timely direct appeal is filed relative
    to a judgment of sentence, and direct review is therefore
    unavailable, the one-year period allowed for the filing of a post-
    1The PCRA court did not order Appellant to file a concise statement of errors
    complained on appeal, but did file an opinion pursuant to Pa.R.A.P. 1925(a).
    -2-
    J-S73045-17
    conviction petition commences upon the actual expiration of the
    time period allowed for seeking direct review, as specified in the
    PCRA.
    Commonwealth v. Brown, 
    943 A.2d 264
    , 268 (Pa. 2008).
    On March 28, 2007, Appellant withdrew his direct appeal. Accordingly,
    Appellant’s   judgment     of   sentence    became     final   that   day.    See
    Commonwealth v. Conway, 
    706 A.2d 1243
    , 1244 (Pa. Super. 1997)
    (“Appellant’s judgment of sentence became final when his direct appeal was
    discontinued at his request.”). Thus, Appellant’s October 2016 PCRA petition,
    filed well after the one-year time period expired, was untimely filed, and
    because he neither pled nor offered to prove any timeliness exception, the
    PCRA court was without jurisdiction to consider the merits of the petition.
    Even if the PCRA court and this Court had jurisdiction to entertain
    Appellant’s petition, he would still not be entitled to relief. To be eligible for
    relief under the Post-Conviction Relief Act, at the time relief is granted, a
    petitioner must be, inter alia, “currently serving a sentence of imprisonment,
    probation or parole for the crime[.]” 42 Pa.S.C. § 9543.
    [T]he denial of relief for a petitioner who has finished serving his
    sentence is required by the plain language of the statute. To be
    eligible for relief a petitioner must be currently serving a sentence
    of imprisonment, probation or parole. To grant relief at a time
    when appellant is not currently serving such a sentence would be
    to ignore the language of the statute.
    Commonwealth v. Ahlborn, 
    699 A.2d 718
    , 720 (Pa. 1997).
    Counsel for Appellant concedes that Appellant completed the sentence
    at issue in this case in 2009. Appellant’s Brief at 6. However, he argues that
    -3-
    J-S73045-17
    the PCRA court still has jurisdiction due to the “collateral consequences
    associated with [Appellant’s] conviction.” Id. at 7.     Specifically, Appellant
    argues that while he was serving the sentence in this case, his “parental rights
    to his child were terminated based in large part on his incarceration and
    conviction.” Id. at 8. He further claims that the “alleged victim … went to
    great lengths, in many different counties, to falsely accuse Appellant of crimes
    as a way to maintain sole custody of their child.” Id.   Appellant’s argument
    is unavailing.
    Our [S]upreme [C]ourt has held that, to be eligible for relief under
    the PCRA, the petitioner must be “currently serving a sentence of
    imprisonment, probation or parole for the crime.” 42 Pa.C.S.[]
    § 9543(a)(1)(i). 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. In addition,
    this [C]ourt determined in Commonwealth v. Fisher, 
    703 A.2d 714
     (Pa. Super. 1997), that the PCRA precludes relief for
    those petitioners whose sentences have expired,
    regardless of the collateral consequences of their sentence.
    Commonwealth v. Hart, 
    911 A.2d 939
    , 941-42 (Pa. Super. 2006) (some
    citations omitted; emphasis added).
    Thus, even if Appellant’s custody-related issues amounted to collateral
    consequences of his sentence, he is still ineligible for relief under the PCRA
    because he is no longer serving a sentence. In light of the foregoing, we
    affirm the order of the PCRA court denying Appellant’s petition.
    Order affirmed.
    -4-
    J-S73045-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/10/2017
    -5-