Com. v. Eley, D. ( 2023 )

J-S34039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRELL DONTAY ELEY :
:
Appellant : No. 72 WDA 2023
Appeal from the PCRA Order Entered December 8, 2022
In the Court of Common Pleas of Indiana County
Criminal Division at CP-32-CR-0000231-2020
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: October 20, 2023
Darrell Dontay Eley (Appellant) appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA court set forth the following procedural history:
On October 26, 2020, [Appellant] was convicted by a jury
of … resisting arrest (M2), 18 Pa.C.S.A. [§] 5104, and disorderly
conduct (M3), 18 Pa.C.S.A. [§] 5503(a)(4).[1] [Appellant’s]
sentencing hearing was held on November 2, 2020, and the order
imposing sentence is dated the same day. As to the offense of
resisting arrest, [Appellant] was sentenced to undergo
incarceration for a period of not less than 9 months nor more than
2 years less one day[. A]s to the offense of disorderly conduct,
[Appellant] was sentenced to undergo incarceration for a period
of not less than 6 months nor more than 12 months. The
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1 We reference this case as the “Indiana County case.”
At trial, Appellant was
represented by public defender Taylor Johnson, Esquire (trial counsel).
Appellant was tried jointly with co-defendant Andrew McCrommon (Co-
defendant). Another public defender represented Co-defendant.
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sentences were ordered to run concurrently[, as well as
concurrently with any other sentence Appellant was serving. The
sentencing court gave Appellant] credit for time served as allowed
by law, and [Appellant] was paroled forthwith [at sentencing].[2]
[Appellant’s] parole supervision in this matter
expired on November 29, 2021, and Indiana County’s
supervision of [Appellant] was terminated that day.
[Appellant’s first pro se PCRA] petition was filed and docketed with
th[e PCRA] court on December 27, 2021. The envelope in which
the petition was mailed was postmarked on December 22, 2021.
[On October 31, 2022, the PCRA court held an evidentiary]
hearing [(PCRA hearing)] to address the threshold issues
regarding [Appellant’s PCRA] petition, i.e., the timeliness of the
petition and whether [Appellant] is eligible for relief.[3] … With
regard to the timeliness of the petition, [Appellant] testified that
he was precluded from filing the petition on or before the
expiration of the one-year period as required by 42 Pa.C.S.A. [§]
9545(b)(1) because he was “in the hole” [(solitary confinement)]
at SCI Frackville prior to and at the time the [filing] period expired.
PCRA Court Order and Opinion, 12/8/22, at 1-3 (footnotes and emphasis
added; paragraph numbers and some page breaks omitted).
In his pro se PCRA petition, Appellant raised several claims of trial
counsel’s ineffectiveness. See, e.g., PCRA Petition, 12/27/21, at 3-4
(claiming trial counsel failed to file a requested pre-trial suppression motion
and did not advise Appellant of his appeal rights). The PCRA court appointed
attorney Andrew Skala, Esquire (PCRA counsel), to represent Appellant. After
several requests for extensions of time, PCRA counsel filed an amended PCRA
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2 Appellant did not file a post-sentence motion or direct appeal.
3 A PCRA petition must be filed within one year of the judgment of sentence
becoming final. 42 Pa.C.S.A. § 9545(b)(1).
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petition on June 20, 2022. PCRA counsel claimed, “reversible error occurred
because the Indiana County Public Defender’s Office represented both
[Appellant] and Co-defendant….” Amended PCRA Petition, 6/20/22, at 3
(unpaginated). But see id. at 4 (unpaginated) (conceding “Co-defendant did
not testify against [Appellant] at trial”).
On December 8, 2022, the PCRA court denied Appellant’s PCRA petition.
As we discuss below, the PCRA court found Appellant was statutorily ineligible
for relief, as he was not serving a period of incarceration, parole, or probation
in the Indiana County case when he filed his PCRA petition.4 See PCRA Court
Order and Opinion, 12/8/22, at 3-4 (citing 42 Pa.C.S.A. § 9543(a)(1)(i)
(providing that to be eligible for relief, a petitioner must be “currently serving
a sentence of imprisonment, probation or parole for the crime.”)). Appellant
timely appealed.
On January 9, 2023, the PCRA court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Appellant
timely complied. On January 24, 2023, the PCRA court issued a Rule 1925(a)
opinion adopting the reasoning in the December 8, 2022, order and opinion.
Appellant raises a single issue for review:
1. Did the PC[]RA court err when it made a ruling that [Appellant]
was not eligible for post-conviction collateral relief under 42
Pa.C.S.A. § 9543(a) because the conviction in the above-
captioned case caused [Appellant’s] parole to be revoked and
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4 The PCRA court “decline[d] to address the timeliness of [Appellant’s PCRA
p]etition ….” PCRA Court Order and Opinion, 12/8/22, at 3.
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further caused him to receive an additional parole hit or
additional period of incarceration, even though [Appellant’s]
initial sentences was [sic] served?
Appellant’s Brief at 6 (some capitalization omitted).
We examine Appellant’s eligibility for relief:
[T]o 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.A. § 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. Commonwealth v. Ahlborn, 699 A.2d 718,
720 (Pa. 1997); Commonwealth v. Matin, 832 A.2d 1141, 1143
(Pa. Super. 2003). In addition, this Court 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. Id. at 716 (citations omitted).
Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009)
(brackets omitted; citations modified).
Appellant “concedes that he is presently not serving a sentence of
incarceration in the Indiana County [c]ase.” Appellant’s Brief at 14.
Nonetheless, Appellant claims he should be entitled to PCRA relief because
“there is no available legal remedy for [Appellant] to overturn his Indiana
County sentence and the collateral consequence that exists.” Id.In finding Appellant ineligible for relief, the PCRA court explained:
[Appellant] currently is incarcerated[;] however, he
acknowledges he is not serving a period of incarceration,
parole, or probation on [the Indiana County case].
[Appellant] testified [at the PCRA hearing] that at the time of the
incident that served as the basis for the charges in this matter, he
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was serving a period of parole on a case from Allegheny County.
The Allegheny County case is docketed at CP-02-CR-0006867-
2016. The sentencing date in that matter was October 20, 2016,
and [Appellant] was sentenced to a period of incarceration of not
less than 36 months nor more than 72 months.
[Appellant] testified that he received an 18-month “parole
hit” on the Allegheny County case as a result of the Indiana County
case. [Appellant] then testified that his “parole hit” was set to
expire on May 22, 2022[;] however, because of his conduct while
incarcerated, he received an additional “parole hit.” [Appellant’s]
maximum sentence on the Allegheny County sentence is now set
to expire [in] October of 2023.
The [PCRA] court finds that since [Appellant] is not serving
a period of incarceration, parole, or probation in this matter, he is
not entitled to relief. It is true [Appellant] received a parole hit
on his Allegheny County sentence as a result of the Indiana
County case[;] however, this original parole hit has expired.
The court finds that [Appellant’s] current incarceration is, at most,
a collateral consequence of the Indiana County sentence. And
the Pennsylvania Superior Court has interpreted “the Post
Conviction Relief Act to preclude relief for those petitioners whose
sentences have expired, regardless of the collateral consequences
of their sentence.” Fisher, 703 A.2d at 716 ([] citations omitted).
PCRA Court Order and Opinion, 12/8/22, at 4-6 (emphasis added; paragraph
numbers omitted; citation and some capitalization modified).
The PCRA court’s reasoning is supported by the record and the law. See
id. As Appellant was ineligible for relief pursuant to 42 Pa.C.S.A. §
9543(a)(1)(i), the PCRA court did not err in denying the PCRA petition. See
Commonwealth v. Descardes, 136 A.3d 493, 503 (Pa. 2016) (holding
petitioner’s “PCRA petition should have been dismissed because, as he was no
longer incarcerated at the time it was filed, he was ineligible for PCRA relief,
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and, thus, both the PCRA court and the Superior Court lacked jurisdiction to
entertain the petition.”).
Moreover, even if Appellant was eligible for relief, the PCRA court lacked
jurisdiction to address Appellant’s petition because it was untimely. See 42
Pa.C.S.A. § 9545(b)(1), supra; see also id. § 9545(b)(3) (providing that a
judgment of sentence becomes final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.”); Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)
(“If a PCRA petition is untimely, neither this Court nor the [PCRA] court has
jurisdiction over the petition.” (citation omitted)).5
The Commonwealth persuasively states:
Appellant was sentenced by the trial court on November 2, 2020.
Accordingly, the Appellant’s time allowance for a direct appeal
expired on December 2, 2020. The Appellant did not file any post-
sentence motions or appeals prior to the filing of the present PCRA
petition. Therefore, the Commonwealth submits that the
Appellant had until December 2, 2021, in order to file a [PCRA]
petition … in a timely manner. The current petition … was filed
and docketed on December 27, 2021. Additionally, it was noted
during the … []PCRA[] hearing that the envelope in which
[Appellant’s pro se] petition was mailed was postmarked on
December 22, 2021.
Commonwealth Brief at 10-11.
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5 Appellant did not invoke any of the exceptions to the PCRA time-bar codified
at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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Pursuant to the prisoner mailbox rule, a prisoner’s pro se filing “is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Kennedy, 266 A.3d 1128, 1132 n.8 (Pa. Super. 2021)
(citation omitted)); Pa.R.A.P. 121(f) (same); see also Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997) (explaining types of evidence a prisoner
can present under prisoner mailbox rule, including cash slips, postal forms, or
“any reasonably verifiable evidence of the date that the prisoner deposits the
[filing] with the prison authorities.”); Commonwealth v. Diclaudio, 210
A.3d 1070, 1074 (Pa. Super. 2019) (stating that where the “certified record
does not indicate when [the pro se a]ppellant delivered the [PCRA petition] to
prison authorities for mailing, but the envelope is postmarked …, [] we … use
[the postmark] date as the filing date.”). Thus, the PCRA court and this Court
also lack jurisdiction because Appellant’s petition was untimely. 42 Pa.C.S.A.
§ 9545(b)(1); Chester, supra; see also Commonwealth v. Adams, 882
A.2d 496, 498 (Pa. Super. 2005) (stating “pro se status confers no special
benefit upon” litigants).
Order affirmed.
Date: 10/20/2023
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