Com. v. Warren, K.

J-S08028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEITH WARREN
Appellant No. 2063 EDA 2014
Appeal from the PCRA Order of July 1, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0434601-1986
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED FEBRUARY 17, 2015
Keith Warren appeals the July 1, 2014 order that dismissed his pro se
petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
[Warren] entered a guilty plea to the charges of robbery and
criminal conspiracy before the Honorable Judge Theodore A.
McKee on April 2, 1987. That same day, [Warren] was
sentenced by Judge McKee to serve four to twenty-three [and
one-half] months [of] incarceration for the robbery charge, and
three years’ probation for the robbery along with [an] additional
seven years [of] probation for the criminal conspiracy charge.
No motion for reconsideration or direct appeal was filed. On July
19, 1989, [Warren] appeared before Judge McKee for a
[violation of probation (“VOP”)] hearing at the conclusion of
which Judge McKee revoked probation and sentenced [Warren]
to an aggregate term of imprisonment totaling eight to eighteen
years [of] incarceration.1 . . . [Warren] did not file any motion
for reconsideration or direct appeal of his sentence.
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1
[Warren] had been arrested and charged . . . with, inter
alia, Rape, Corrupting a Minor and Criminal Conspiracy,
charges which he was found guilty of committing after a
jury trial held before the Honorable Marvin R. Halbert. On
November 9, 1989, [Warren] was sentenced to serve nine
to twenty years for the rape conviction, two and a half to
five years for the corrupting a minor conviction, and five to
ten years for the criminal conspiracy conviction.
[Warren] filed his first post conviction relief petition on June 26,
2000. Thereafter counsel was appointed, and the petition was
dismissed as frivolous on June 15, 2001, after counsel filed a
Finley/Turner3 no-merit letter. [Warren] did not file an
4
appeal.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) [(describing the method by which counsel may seek
to withdraw from representation in a PCRA case)].
4
The docket indicates that [Warren] filed a Writ of
Habeas Corpus on August 8, 2008 seeking reinstatement
of his previous PCRA nunc pro tunc. No further documents
or docket entries corresponding to the August 2008 writ
can be found. . . .
[Warren] filed his current post conviction petition on June 11,
2013. After conducting an extensive and exhaustive review of
the record and applicable case law, [the PCRA court] determined
that [Warren’s] petition for post-conviction collateral relief was
untimely filed.
PCRA Court Opinion (“P.C.O.”), 10/3/2014, at 1-2 (some footnotes omitted).
On March 13, 2014, the PCRA court issued notice of its intent to
dismiss Warren’s PCRA petition pursuant to Pa.R.Crim.P. 907 because it was
untimely. On March 28, 2014, Warren filed a response to the Rule 907
notice. On July 1, 2014, the PCRA court dismissed Warren’s petition. On
July 18, 2014, Warren filed a notice of appeal. The PCRA court did not
order, and Warren did not file, a concise statement of errors complained of
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on appeal. On October 3, 2014, the PCRA court issued its Pa.R.A.P. 1925(a)
opinion.
Warren raises one issue for our review:
Whether [Warren] is entitled to PCRA relief pursuant to 42
Pa.C.S.A. § 9545(b)(1)(i); Interference by Government Officials,
of his right to defend himself against the charges, by way of
direct appeal?
Warren’s Brief at 4 (citation modified).
Before reaching the merits of Warren’s claim, we must ensure that he
is eligible for relief under the terms of the PCRA.
(a) General rule.--To be eligible for relief under this
subchapter, 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. . . .
42 Pa.C.S.A. § 9543. “Petitioners are required to satisfy, inter alia, the
criteria for eligibility for relief, see 42 Pa.C.S.A. § 9543, and the timeliness
restrictions, id. at § 9545.” Commonwealth v. Turner, 80 A.3d 754, 767
(Pa. 2013) (citation modified) (holding that petitioner’s constitutional claim
“does not overcome the legislature’s restrictions on collateral review”).
Further, “even if a petitioner is serving a sentence when a PCRA petition is
filed, the petitioner cannot obtain relief under the PCRA once the sentence
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has expired.” Commonwealth v. Auchmuty, 799 A.2d 823, 825 (Pa.
Super. 2002) (emphasis in original).1
Here, on April 2, 1987, Warren was sentenced to four to twenty-three
and one-half months’ incarceration, with credit for time served, to be
followed by three years of probation. At the VOP hearing, Warren testified
that he was released on September 12, 1987. Notes of Testimony,
7/19/1989, at 20. However, he was arrested on new charges on June 13,
1988. On April 10, 1989, Warren was found guilty of the new charges. On
July 19, 1989, Warren appeared for a VOP hearing. At that time, he was
given a new sentence on the instant charges of three to eight years’
imprisonment for robbery and five to ten years for criminal conspiracy to run
consecutively to the robbery sentence. Therefore, he received an aggregate
sentence of eight to eighteen years’ imprisonment on those charges.
On November 8, 1989, Warren was sentenced on the new charges. He
received a two-and-one-half- to five-year term of imprisonment for
corruption of minors and a five- to ten-year term for criminal conspiracy.
Both of those sentences were ordered to begin immediately. Warren also
received a nine- to twenty-year term of imprisonment on the rape charge.
____________________________________________
1
In Auchmuty, we also held that the PCRA court’s failure to appoint
counsel was harmless error. Even though we would generally remand for
appointment of counsel, because the petitioner was no longer eligible for
relief, counsel could obtain no other result for the petitioner. 799 A.2d at
826-27.
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That term was to run consecutively to the sentences Warren already was
serving.
On the robbery convictions at issue in the instant PCRA petition,
Warren was sentenced to a maximum of eighteen years. He began serving
that sentence on July 19, 1989. Therefore, because he has been imprisoned
since that date, he necessarily finished serving it no later than July 19,
2007. Although Warren is still in prison, he currently is serving his rape
sentence, not the robbery sentence for which he has filed his PCRA petition.
Because Warren is no longer serving a sentence for the robbery conviction,
he is not eligible for relief related to that conviction pursuant to the PCRA.
The PCRA court dismissed Warren’s petition on the basis of timeliness.
However, we may affirm upon any basis. See Commonwealth v.
Charleston, 94 A.3d 1012, 1028 (Pa. Super. 2014).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2015
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