Com. v. Ettison, W. ( 2014 )

J-S53026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM LEE ETTISON,
Appellant No. 254 WDA 2014
Appeal from the PCRA Order of January 17, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000865-2010
BEFORE: DONOHUE, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 29, 2014
Appellant, William Lee Ettison, appeals from the order entered on
January 17, 2014 dismissing his petition filed under the Post-Conviction
. §§ 9541-9546. We affirm.
We have previously summarized the factual background of this case as
follows:
On February 18, 2010, Officer Michael Hertel of the Erie Bureau
of Police was riding in a two-man patrol car operated by Corporal
Jody Raeger when Officer Hertel observed Appellant drive past in
a gray Cadillac. Officer Hertel immediately recognized Appellant
from a previous encounter, and was aware that Appellant had an
outstanding arrest warrant. The police officers proceeded to
turn their car around, and followed Appellant. Officer Hertel
on roads that were partly snowcovered and wet. As a result of
to bring his vehicle to a complete stop at a stop sign and
consequently his vehicle slid through the intersection. The police
officers activated their vehicle lights and Appellant pulled his car
* Retired Senior Judge assigned to the Superior Court.
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over by the side of the road as close as he could to the curb
given the large piles of snow lining the street. Appellant then
exited his vehicle and closed the door behind him. Prior to
Appellant exiting the vehicle, Officer Hertel observed Appellant
moving around inside the vehicle. The police officers
immediately exited their vehicle and Officer Hertel . . . ordered
Appellant to the ground.
Appellant complied and Officer Hertel handcuffed him, and
conducted a patdown search. Corporal Raeger then retrieved
in a marked patrol car and transported by another officer to the
vehicle was obstructing traffic and needed to be towed. Corporal
vehicle, and upon doing so, detected an odor of burnt marijuana.
Corporal Raeger proceeded to conduct a search of the interior of
vehicle revealed no contraband. Officer Hertel then returned to
registration, which revealed that the registration did not belong
to the Cadillac that Appellant was driving, but rather to a Ford
The Cadillac was subsequently impounded and towed to the Erie
Police Department where it was subjected to a canine sniff,
which resulted in a positive indication for illegal drugs. The
police officers obtained a warrant for the vehicle and a
subsequent search yielded a clear plastic bag of marijuana in the
glove box, and a marijuana joint and a clear plastic bag of
narcotic pills in the center console.
Commonwealth v. Ettison, 43 A.3d 525 (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 51 A.3d 837 (Pa. 2012) (internal quotation
marks and citations omitted; first paragraph break added).
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The relevant procedural history of this case is as follows. On January
18, 2011, a jury found Appellant guilty of fleeing or attempting to elude a
police officer,1 reckless driving,2 failure to stop at a stop sign,3 altering,
forging or counterfeiting a certificate of title, registration card or plate,
inspection certificate or proof of financial responsibility, 4 possession of a
controlled substance (pills);5 possession of a small amount of marijuana,6
and possession of drug paraphernalia.7 On March 9, 2011, Appellant was
mprisonment. We affirmed the judgment of
sentence. Commonwealth v. Ettison, 43 A.3d 525 (Pa. Super. 2012)
(unpublished memorandum).
On November 27, 2012, Appellant filed a pro se PCRA petition. On
November 28, 2012, counsel was appointed. On December 20, 2012,
counsel 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). On February 20, 2013, counsel withdrew his
1
75 Pa.C.S.A. § 3733(a).
2
75 Pa.C.S.A. § 3736(a).
3
75 Pa.C.S.A. § 3323(b).
4
75 Pa.C.S.A. § 7155(a).
5
35 P.S. § 780-113(a)(16).
6
35 P.S. § 780-113(a)(31).
7
35 P.S. § 780-113(a)(32).
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Turner/Finley letter. On October 4, 2013, an evidentiary hearing was
dismiss on January 17, 2014. This timely appeal followed.8
Appellant raises one issue for our consideration:
contention that the Appel
expired thereby vitiating any jurisdictional grounds?
legal conclusions de novo. See
Commonwealth v. Charleston, 2014 WL 2557575, *4 (Pa. Super. June 6,
review in determining whether a court has subject matter jurisdiction is de
novo a Beneficial Consumer Disc. Co.
v. Vukman, 77 A.3d 547, 550 (Pa. 2013) (citation omitted).
8
On February 13, 2014, the PCRA court ordered Appellant to file a concise
See
Pa.R.A.P. 1925(b). On February 25, 2014, Appellant filed his concise
statement. On April 8, 2014, the PCRA court issued its Rule 1925(a)
statement.
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The PCRA court determined that it lacked jurisdiction to rule on
ing his
sentence. The PCRA provides, in relevant part, that:
(a) General rule.--To be eligible for relief under [the PCRA], the
petitioner must plead and prove by a preponderance of the
evidence . . .
(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.
42 Pa.C.S.A. § 9543(a)(1).
does not challenge the fact that the maximum
at 5. Our independent review of the record confirms that Appellant ceased
to be on parole as of December 15, 2013.9
Appellant instead argues that the PCRA court had jurisdiction to decide
the case because he was eligible for relief at the pleading and proof stage of
the proceedings, i.e., when the matter was submitted to the PCRA court.
Appellant avers that the trial court could have ruled on his petition sooner.
9
Appellant was granted bail while his direct appeal was pending.
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This argument is without merit. 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), appeal
denied, 843 A.2d 1237 (Pa. 2004); Commonwealth v. James, 771 A.2d 33(Pa. Super. 2001); Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa.
Super. 1997).
Our Supreme Court has previously rejected the distinction that
Appellant is attempting to draw. See Commonwealth v. Turner, 80 A.3d
754, 769 (Pa. 2013) (holding that when a petiti
his PCRA petition is pending before the PCRA court, the PCRA court loses
jurisdiction to rule on the merits of the petition). As noted in Turner,
Appellant had other options to expedite review of the claims raised in his
PCRA petition. See id. Appellant could have sought expedited review of his
PCRA petition. Instead, the record reflects that counsel delayed review of
the PCRA petition by originally filing a Turner/Finley letter. Furthermore,
at the PCRA hearing, counsel (incorrectly) implied that time was not of the
would suffice for jurisdictional purposes. See N.T., 10/4/13, at 61.
Appellant also could have proceeded under Commonwealth v. Bomar, 826
A.2d 831 (Pa. 2003), which permitted defendants to raise claims of
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ineffective assistance of counsel on direct appeal in certain circumstnaces.10
Accordingly, it is irrelevant that Appellant was still on parole when the
instant petition was filed or when the evidentiary hearing occurred before
the PCRA court. It is well-settled under Pennsylvania law that the PCRA
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
10
Although the Bomar exception was severely limited by our Supreme
Court in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), Bomar was
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