Com. v. Phoung, K. ( 2014 )

J-S55027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KIM PHOUNG (a/k/a PHUONG KIM :
LOI), :
:
Appellant : No. 3566 EDA 2013
Appeal from the PCRA Order Entered October 18, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0701281-2004.
BEFORE: BOWES, SHOGAN and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 20, 2014
Appellant, Kim Phoung, a/k/a Phuong Kim Loi, appeals from the order
denying her petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the history of this case as follows:
In 2001, Appellant came to the United States from
Vietnam as a legal permanent resident. She has been deaf since
childhood. On April 14, 2004, Appellant threw a stroller carrying
her two-year old daughter into the street. (N.T. 12/22/2004 at
10). Her daughter sustained a cut on her forehead and was
treated at Saint Christopher’s Hospital in Philadelphia,
Pennsylvania. Id. at 11.
On December 22, 2004, Appellant appeared before this
Court and entered a negotiated guilty plea to the charge of
aggravated assault, graded as a felony of the second degree.
Appellant used an American Sign Language interpreter during
the guilty plea hearing.
J-S55027-14
On March 2, 2005, Appellant was sentenced to four years
probation.[1] On June 9, 2010, Appellant applied to renew her
permanent resident card and during the application process, her
conviction in this matter was discovered. On April 8, 2011, she
was placed into removal proceedings by the United States
Department of Homeland Security. While preparing for the
removal proceedings, it was discovered that Appellant had
difficulty communicating with the American Sign Language
interpreter retained for her use.
Consequently, Appellant filed a PCRA petition, and
alternatively, a motion to withdraw her guilty plea and/or to
reinstate her appellate rights nunc pro tunc on August 9, 2012.
PCRA Court Opinion, 12/18/13, at 2 (footnote added).
On October 18, 2013, the PCRA court dismissed Appellant’s PCRA
petition on the basis that she was no longer in custody. This appeal
followed.
Appellant presents the following issues for our review:
1. WHETHER IN THE CIRCUMSTANCES OF THIS CASE, WHERE
APPELLANT WAS MANIFESTLY NOT COMPETENT TO ENTER A
PLEA OR COMMUNICATE VIA AMERICAN SIGN LANGUAGE,
JUSTICE AND DUE PROCESS REQUIRE THAT APPELLANT’S POST-
CONVICTION RELIEF ACT PETITION BE HEARD
NOTWITHSTANDING APPELLANT’S COMPLETION OF HER
CRIMINAL SENTENCE.
2. WHETHER, IN THE EVENT APPELLANT’S PCRA PETITION MAY
NOT BE HEARD, APPELLANT SHOULD BE PERMITTED TO
WITHDRAW HER GUILTY PLEA, OR, ALTERNATIVELY, HAVE HER
APPELLATE RIGHTS REINSTATED, ON THE GROUND THAT SHE
WAS NEVER COMPETENT TO ENTER A GUILTY PLEA.
Appellant’s Brief at 4.
1
Appellant did not file a direct appeal from her judgment of sentence.
-2-
J-S55027-14
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
Before we address the issues before us, we must first consider
whether Appellant is eligible for relief under the PCRA. Thus, we must
address whether Appellant satisfied the requirements of the PCRA, which are
as follows:
(a) General rule. -- To be eligible for relief under [the PCRA],
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;
(ii) awaiting execution of a sentence of
death for the crime; or
(iii) serving a sentence which must
expire before the person may commence
serving the disputed sentence.
-3-
J-S55027-14
42 Pa.C.S. § 9543.
As our Supreme Court explained in Commonwealth v. Ahlborn, 699
A.2d 718, 720 (Pa. 1997), the denial of relief for a petitioner who has
finished serving his sentence is required by the plain language of the PCRA
statute. To be eligible for relief a petitioner must be currently serving a
sentence of imprisonment, probation or parole. Id. To grant relief at a time
when appellant is not currently serving such a sentence would be to ignore
the language of the statute. Id.
Our review of the record reflects that Appellant invoked the PCRA
when she filed the instant petition on August 9, 2012. However, as
indicated in the PCRA court’s opinion dated December 18, 2013, the record
reveals Appellant has finished serving her Pennsylvania sentence pertinent
to the conviction stated above. Specifically, the PCRA court’s opinion offered
the following relevant analysis:
The Post Conviction Relief Act was intended to limit relief
to those petitioners whose sentences have not expired and to
preclude relief for those whose sentences have expired,
regardless of collateral consequences. Commonwealth v. Pierce,
579 A.2d 963, 966 (Pa. Super. Ct. 1990).
The Supreme Court of Pennsylvania recently issued a
decision in Commonwealth v. Turner[, 80 A.3d 754 (Pa. 2013)],
a case that dealt with the constitutionality of Section
9543(a)(1)(i) of the Post Conviction Relief Act, which conditions
the availability of post-conviction relief on whether the petitioner
is currently serving a sentence of imprisonment, probation, or
parole. Commonwealth v. Turner, 2013 WL 6134575, No. 52
-4-
J-S55027-14
EAP [2011], 1 (Nov. 22, 2013). In Turner, the PCRA court held
that the petitioner’s constitutional right to due process would be
violated if she were prohibited from obtaining collateral relief on
her timely claim of trial counsel’s ineffectiveness, simply because
she had completed her sentence. Id. The Supreme Court
concluded that the petitioner had no due process right to be
heard outside the limits imposed by Section 9543(a)(1)(i) of the
PCRA, finding that “the legislature was aware that the result of
the custody or control requirement of Section 9543(a)(1)(i)
would be that defendants with short sentences would not be
eligible for collateral relief.” Id. at 9.
In the present action, this Court lacks jurisdiction to decide
Appellant’s matter because Appellant’s sentence has expired.
Pursuant to 42 Pa.C.S.A. § 9543(a)(1), and in accordance with
our Supreme Court’s decision in Commonwealth v. Turner,
Appellant must prove by a preponderance of the evidence that
she is currently serving her sentence of probation. When
Appellant initially brought her PCRA Petition before this Court in
August of 2012, her sentence had already expired. Appellant
was sentenced to four years probation on March 2, 2005 and her
sentence was complete in March of 2009. As a result, Appellant
is not eligible for collateral relief under the PCRA.
PCRA Court Opinion, 12/18/13, at 3-4.
Likewise, our review indicates that, at the time of the filing of this
PCRA petition, Appellant was neither in custody nor subject to any parole or
probation because she was sentenced on March 2, 2005, to a term of
probation of four years. Indeed, the record reflects Appellant has finished
serving her sentence of probation pertinent to the conviction stated above.
Appellant essentially concedes in her appellate brief that she has completed
serving her probationary sentencing in the instant matter. Appellant’s Brief
at 18. Therefore, Appellant cannot satisfy the requirements of the PCRA.
-5-
J-S55027-14
Accordingly, the PCRA court had no authority to entertain a request for relief
under the authority of the PCRA. Thus, Appellant is ineligible for relief
pursuant to the PCRA, and the denial of Appellant’s PCRA petition was
proper.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2014
2
To the extent that Appellant presents alternative attempts to invoke
jurisdiction, i.e., that her PCRA petition should be considered to be a petition
for reinstatement of her direct appeal rights nunc pro tunc, or an untimely
post-sentence motion, we observe that such claims lack merit. A petition for
nunc pro tunc relief “must be considered a PCRA petition, as the PCRA is the
only means for restoring direct appeal rights.” Commonwealth v.
Johnson, 841 A.2d 136, 139 (Pa. Super. 2003). See also
Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (stating that
“[t]he plain language of the [PCRA] demonstrates that the General Assembly
intended that claims that could be brought under the PCRA must be brought
under that Act”).
-6-