Com. v. Oliver, A. ( 2022 )

J-S33008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY OLIVER :
:
Appellant : No. 2488 EDA 2021
Appeal from the PCRA Order Entered November 8, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0011716-2011.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY OLIVER :
:
Appellant : No. 2489 EDA 2021
Appeal from the PCRA Order Entered November 8, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0011718-2011.
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 24, 2022
Anthony Oliver appeals from the order denying his petition for relief filed
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
46. Additionally, Oliver’s court-appointed PCRA counsel has filed a motion for
leave to withdraw, as well as a “no-merit” letter pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
J-S33008-22
A.2d 213 (Pa. Super. 1988) (en banc). We grant counsel’s motion to withdraw
and affirm the PCRA court’s order denying Oliver post-conviction relief.
The pertinent facts and procedural history are as follows: On June 24,
2011, Oliver was charged at two separate dockets with thefts of computers
from a laboratory on the campus of the University of Pennsylvania. Between
2011 and 2016, the proceedings were prolonged; Oliver initially sought a jury
trial, later entered a guilty plea on August 11, 2015, and was permitted to
withdraw it on October 20, 2015.
On August 22, 2016, Oliver entered a negotiated plea of nolo contendere
to two counts of burglary and conspiracy. That same day, pursuant to the
plea agreement, the trial court entered a sentence of 2½ to 5 years of
imprisonment for each offense. These sentences were imposed concurrent to
each other and concurrent to any other sentence already being served.
Oliver filed an appeal on September 27, 2016, which this Court quashed
as untimely on November 21, 2016. Following the filing of a PCRA petition
and the appointment of counsel, Oliver’s appellate rights were reinstated nunc
pro tunc on March 28, 2018. Oliver filed a timely appeal to this Court claiming
that his sentence was illegal because the Pennsylvania Department of
Corrections ran the sentence consecutive to a sentence he was already
serving. He also raised claims of ineffective assistance of counsel.
In a judgment order filed on August 14, 2019, this Court concluded that
Oliver must pursue his challenge to the computation of his sentence via an
original action in Commonwealth Court. Commonwealth v. Oliver, 221 A.3d
-2-
J-S33008-22
270 (Pa. Super. 2019), non-precedential decision at 2-3. We further
concluded Oliver’s ineffectiveness claims must await post-conviction review.
Id. at 3-4. Thus, this Court transferred Oliver’s sentence computation claim
to Commonwealth Court and dismissed his ineffectiveness claims without
prejudice to raise them in a PCRA petition. Id. at 4.
On December 2, 2019, Oliver filed a pro se PCRA petition. The PCRA
court appointed counsel, and PCRA counsel filed an amended petition on
August 18, 2020. The Commonwealth filed a motion to dismiss on April 23,
2021, and Oliver filed a supplemental amended petition on May 31, 2021. On
August 22, 2021, Oliver’s sentence in this case expired. Because Oliver was
no longer serving his sentence, the PCRA court dismissed his petition on
November 8, 2021. This consolidated appeal followed.1 Both Oliver and the
PCRA court complied with Pa.R.A.P. 1925.
On June 27, 2022, PCRA counsel filed a Turner/Finley “no-merit” letter
and petition to withdraw. We first address PCRA counsel’s petition to
withdraw. When counsel decides to withdraw from representing a PCRA
petitioner, counsel must
review the case zealously. [PCRA] counsel must then
submit a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of
counsel’s diligent review of the case, listing the issues which
[the] petitioner wants to have reviewed, explaining why and
____________________________________________
1 We sua sponte consolidated Oliver’s notice of appeal at each docket on
January 10, 2022.
-3-
J-S33008-22
how those issues lack merit, and requesting permission to
withdraw.
Counsel must also send to the petitioner: (1) a copy of
the “no-merit” letter/brief; (2) a copy of counsel’s petition
to withdraw; and (3) a statement advising [the] petitioner
of the right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that
. . . satisfy the technical demands of Turner/Finley, the
court—[PCRA] court or this Court—must then conduct its
own review of the merits of the case. If the court agrees
with counsel that the claims are without merit, the court will
permit counsel to withdraw and deny relief.
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
Upon review, we conclude that PCRA counsel has substantially complied
with the Turner/Finley requirements as set forth above. See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)
(holding that substantial compliance with requirements to withdraw as counsel
will satisfy the Turner/Finley criteria). In his “no-merit” letter, PCRA counsel
asserts that Oliver is no longer eligible for post-conviction relief because his
sentence in this case has expired.
Using the applicable standard of review, we must determine whether
the ruling of the PCRA court is supported by the record and is free of legal
error. Commonwealth v. Blakeney, 108 A.3d 739, 749-50 (Pa. 2014)
(citations omitted). We apply a de novo standard of review to the PCRA court’s
legal conclusions. Id.-4-
J-S33008-22
To be eligible for relief under the PCRA, a petitioner must be “currently
serving a sentence of imprisonment, probation, or parole for the crime.” 42
Pa.C.S.A. § 9543(a)(1)(i). Thus, a petitioner who is not serving such a
sentence “is not eligible for PCRA relief.” Commonwealth v. Williams, 977
A.2d 1174, 1177 (Pa. Super. 2009). This is true even when a petitioner is still
serving a sentence when he filed his or her petition but that sentence expires
before the PCRA court adjudicates his petition. Commonwealth v. Tinsley,
200 A.3d 104, 107 (Pa. Super. 2018). Additionally, a petitioner whose
sentence expires on the case at issue is not eligible for PCRA relief on that
case simply because he or she still is serving a sentence on an unrelated case.
Commonwealth v. Hayes, 596 A.2d 195, 199 (Pa. Super. 1991) (en banc).
Here, the PCRA explained its decision to deny post-conviction relief:
This court commenced an evidentiary hearing on the
merits of [Oliver’s] PCRA petition on October 12, 2021. The
hearing was bifurcated to allow the court time to confirm
with the Department of Corrections whether [Oliver] was
still serving a sentence in this case. This court then
dismissed the PCRA petition on November 8, 2021, after
receiving confirmation from the Department of Corrections
that [Oliver’s] sentence in this case had reached its natural
expiration on August 22, 2021. [Oliver] remains in state
custody to serve a sentence for [a] separate and distinct
case. Dismissal of [Oliver’s] PCRA petition was proper
because this court accurately determined that [Oliver] had
finished serving his sentence.
PCRA Court Opinion, 3/16/22, at 10.2
____________________________________________
2 The evidentiary hearing has not been transcribed.
-5-
J-S33008-22
Our independent review of the record supports the PCRA court’s
conclusion. Because Oliver has completed serving the sentence at issue, he
is ineligible for post-conviction relief. We therefore grant PCRA counsel’s
motion to withdraw and affirm the PCRA court’s order denying Oliver post-
conviction relief.
Motion to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2022
-6-