Com. v. Thorpe, J. ( 2018 )

J-S39006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JUSTIN E. THORPE
Appellant No. 333 MDA 2018
Appeal from the PCRA Order Entered February 1, 2018
In the Court of Common Pleas of the 41st Judicial District
Perry County Branch
Criminal Division at No.: CP-50-CR-491-2016
BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 14, 2018
Appellant Justin E. Thorpe pro se appeals from the February 1, 2018
order of the Court of Common Pleas of the 41st Judicial District, Perry County
Branch, which denied his request for collateral relief under the Post Conviction
Relief Act, 42 Pa.C.S. §§ 9541-46. Upon review, we dismiss this appeal
because Appellant is not eligible for relief under the PCRA.
The facts and procedural history of this case are uncontested. On
January 12, 2017, Appellant entered into a negotiated guilty plea to one count
of possession of drug paraphernalia (35 P.S. § 780-113(a)(32)) and was
sentenced to 30-days’ imprisonment,1 which was to run concurrently with any
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1 Based on the guilty plea transcript, it appears that his 30-days’ sentence
“would begin January 4th, 2017.” N.T. Guilty Plea, 1/12/17, at 2. In effect,
he received credit for time served since January 4, 2017.
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other sentence Appellant was then serving. Appellant did not file a direct
appeal. On May 25, 2017, Appellant pro se filed a PCRA petition, claiming
ineffective assistance of counsel for failing to apprise him of the consequences
of the guilty plea. Appellant claimed that his guilty plea triggered a parole
violation, resulting in recommitment until early 2021. The PCRA court
appointed counsel who eventually filed a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) and petitioned to
withdraw from the case. The PCRA court granted counsel’s petition on
September 27, 2017. Following its issuance of a Pa.R.Crim.P. 907 notice of
its intent to dismiss the petition without a hearing, the PCRA court denied
Appellant PCRA relief on November 17, 2017. Appellant did not appeal to this
Court.
On January 18, 2018, Appellant filed a “Petition for Writ of Habeas
Corpus/Coram Nobis,” reasserting a claim for ineffective assistance of counsel
with respect to the January 12, 2017 guilty plea. Seemingly treating the filing
as his second PCRA petition, the court denied him relief on February 1, 2018.2
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2 Section 9542 of the PCRA provides in that the PCRA “shall be the sole means
of obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose that exist when this subchapter takes
effect, including habeas corpus and coram nobis.” 42 Pa.C.S.A. § 9542
(emphasis added). Thus, the PCRA statute subsumes habeas corpus and the
writ of coram nobis. See Commonwealth v. West, 938 A.2d 1034, 1043
(Pa. 2007) (stating that “the PCRA subsumes all forms of collateral relief,
including habeas corpus, to the extent a remedy is available under such
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Appellant timely appealed to this Court. The PCRA court directed Appellant to
file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant complied, asserting seventeen assertions of error. In response, the
PCRA court issued a Pa.R.A.P. 1925(a) opinion.
On appeal,3 Appellant raises twelve issues for our review:
[I.] Was counsel ineffective by advising [A]ppellant to enter into
an involuntary and unknowing plea of guilty without informing him
of all of the facts needed to make an intelligent and knowing
decision?
[II.] Did trial court err by not ordering a P.S.I., or stating on the
record the reason for dispensing of such?
[III.] Did trial court err by not informing [A]ppellant of the
collateral consequences regarding revocation of parole as a result
of pleading guilty?
[IV.] Did the sentencing judge err by never considering other pre-
existing orders imposed on the [A]ppellant prior to sentencing?
[V.] Did the judge fail to meet the requirements of Rule 590 in
that she did not conduct a proper oral colloquy?
[VI.] Did the trial court err by not providing written colloquy?
[VII.] Did trial court err by dismissing [A]ppellant’s PCRA as moot
due to his sentence being expired?
[VIII.] Would [A]ppellant have plead guilty had he understood the
consequences of his plea, and had known that a finding of guilt
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enactment.”) (emphasis omitted); see also Commonwealth v. Turner, 80
A.3d 754, 770 (Pa. 2013) (“The PCRA at Section 9542 subsumes the remedies
of habeas corpus and coram nobis.”); accord Commonwealth v.
Descardes, 136 A.3d 493, 501 (Pa. 2016). Accordingly, the trial court
properly treated Appellant’s filing as his second PCRA petition.
3“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
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would keep him incarcerated for 4 years instead of the agreed
upon 30 days?
[IX.] Was due process denied to [A]ppellant during the guilty plea
colloquy and process?
[X.] Was there a breakdown in the process of court?
[XI.] Was the paraphernalia in question ever tested for marijuana
use?
[XII.] Was the paraphernalia in question possessed by
[A]ppellant?
Appellant’s Brief at 3-4 (sic).
At the outset, before we may review the merits of this case, we must
consider whether Appellant is eligible for relief under the PCRA. To be eligible
for relief under the PCRA, a petitioner must either be “currently serving a
sentence of imprisonment, probation or parole for the crime,” “awaiting
execution of a sentence of death for the crime,” or “serving a sentence which
must expire before the person may commence serving the disputed sentence.”
42 Pa.C.S.A. § 9543(a)(1)(i)-(iii).
Our Supreme Court and this Court have consistently interpreted Section
9543(a) to require that a PCRA petitioner be serving a sentence while relief is
being sought. Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997);
Commonwealth v. Martin, 832 A.2d 1141, 1143 (Pa. Super. 2003). As our
Supreme Court explained in Ahlborn, the denial of relief for a petitioner who
has finished serving his sentence is required by the plain language of the PCRA
statute. Ahlborn, 699 A.2d at 720. Indeed, to be eligible for relief, a
petitioner must be currently serving a sentence of imprisonment, probation,
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or parole. Id. To grant relief at a time when an appellant is not currently
serving such a sentence would be to ignore the language of the PCRA. Id.
Moreover, we have explained that “the [PCRA] preclude[s] relief for
those petitioners whose sentences have expired, regardless of the collateral
consequences of their sentence.” Commonwealth v. Fisher, 703 A.2d 714,
716 (Pa. Super. 1997). It is well settled that the PCRA court loses jurisdiction
the moment an appellant’s sentence expires. See Commonwealth v.
Turner, 80 A.3d 754, 769 (Pa. 2013) (holding that when a petitioner’s
sentence expires while his PCRA petition is pending before the PCRA court,
the PCRA court loses jurisdiction to rule on the merits of the petition).
Here, based on our review of the record, we agree with the
Commonwealth that Appellant does not meet any of the foregoing eligibility
requirements as he had completed his January 12, 2017 sentence of 30 days’
imprisonment, by the time he filed the instant petition on January 18, 2018.
Thus, the appeal sub judice must be dismissed for want of jurisdiction.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/18
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