Com. v. O' Hara, D.

J-S91028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DENNIS WILLIAM O’HARA
Appellant No. 733 MDA 2016
Appeal from the PCRA Order April 14, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005631-1999
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 14, 2017
Appellant, Dennis William O’Hara, appeals from the April 14, 2016
order, denying as untimely his petition filed under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On April 12, 2000, Appellant pleaded guilty in Cumberland County to
one count of burglary. On May 1, 2000, Appellant pleaded guilty in York
County to burglary, theft, and receiving stolen property.1 See Notes of
Testimony (N. T.), 5/1/00, at 1-3. On June 12, 2000, Appellant was
sentenced to one and one-half to three years of incarceration.2 See N. T.
6/12/00 at 2.
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1
18 Pa.C.S. §§ 3502, 3921, and 3925, respectively.
2
The record indicates that Appellant’s York County sentence was also
imposed concurrent to a sentence imposed in Cumberland County, although
(Footnote Continued Next Page)
*
Former Justice specially assigned to the Superior Court.
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Following Appellant’s release, he was arrested and subsequently
pleaded guilty to three federal counts3 on April 3, 2014. See United States
v. O’Hara, 601 F. App’x 94, 95 (3d Cir. 2015) (unpublished memorandum).
On August 26, 2014, Appellant filed a petition in the York County Court
of Common Pleas, seeking to vacate his state sentences. See Notice of
Motion to Vacate Sentence, 8/26/14, at 1. Appellant claimed that the
sentences imposed after crimes committed in York and Cumberland counties
should have been “run together” and that the federal court had erred by
treating the sentences as separate convictions. Id. The lower court denied
this petition, treating it as an untimely post-sentence motion, and
subsequently denied Appellant’s motion for reconsideration on January 20,
2015.
On April 3, 2015, Appellant received an aggregate federal sentence of
180 months on the federal charges. On April 13, 2015, Appellant filed a
notice of appeal to this Court.
On January 13, 2016, by judgment order, a panel of this Court vacated
the trial court order and remanded for appointment of counsel, holding that
the trial court should have treated the August 26, 2014 petition as a first
_______________________
(Footnote Continued)
the record does not indicate the length of the Cumberland County Sentence.
See N. T. 6/12/00 at 2.
3
Distribution and possession with intent to distribute cocaine hydrochloride,
Oxycontin, and Opana, 21 U.S.C. § 841; unlawful use of a communication
facility to facilitate drug trafficking, 21 U.S.C. § 843(b); and conspiracy to
distribute cocaine hydrochloride, Oxycontin, and Opana, 21 U.S.C. § 846.
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PCRA petition. See Commonwealth v. O’Hara, 136 A.3d 1031 (Pa. Super.
2016) (unpublished memorandum).
PCRA counsel was appointed and filed a Turner/Finley4 letter. The
PCRA court granted counsel’s petition and gave Appellant notice pursuant to
Pa.R.Crim.P. 907 that his petition would be dismissed within twenty days.
On April 14, 2016, the PCRA court formally dismissed Appellant’s petition.
Appellant timely appealed pro se. The court did not order him to file a
statement of errors pursuant to Pa.R.A.P. 1925(b), as he filed his statement
of errors simultaneously with his appeal. The court issued a responsive
opinion.
We initially note that Appellant’s brief does not comply with the Rules
of Appellate Procedure, in that it does not contain a statement of
jurisdiction, order in question, statement of questions involved, statement of
the case, or summary of the argument. See Pa.R.A.P. 2114-2119.
However, we discern the gist of his argument. Essentially, Appellant argues
that his cases in 2000 should have been consolidated, but because they
were not, a 2007 change in federal sentencing guidelines resulted in an
enhanced sentence. See Appellant’s Brief at 4-8. Appellant argues that this
amounted to governmental interference and ineffective assistance of
counsel. Id.
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4
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).
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We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
To be eligible for PCRA relief, an Appellant must, at the time relief is
granted, be currently serving a sentence of imprisonment, probation, or
parole for the crime. See 42 Pa.C.S. § 9543(a)(1)(i) (emphasis added);
see also Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997); see
also Commonwealth v. Turner, 80 A.3d 754 (2013). Although Appellant
is serving a federal sentence, he is no longer serving a state sentence, and
accordingly, he is not eligible for PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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