Com. v. Tyack, R.

J. S67041/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
ROBERT F. TYACK, :
:
Appellant : No. 867 WDA 2014
Appeal from the PCRA Order April 17, 2014
In the Court of Common Pleas of Blair County
Criminal Division No(s).: CP-07-CR-0000408-1994
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 02, 2014
Appellant, Robert F. Tyack, appeals from the order entered in the Blair
County Court of Common Pleas dismissing his first Post Conviction Relief Act
(“PCRA”)1 petition for ineligibility for relief as he was no longer serving a
sentence for the crime that underlies the petition. Appointed counsel has
filed a petition for leave to withdraw with this Court. We affirm the order
and grant counsel’s petition to withdraw.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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Appellant pleaded no contest to a charge of simple assault on May 13,
1994. He was sentenced to probation for a period of eight months. Order,
5/16/94. Appellant did not appeal.
On March 26, 2013 he filed the underlying pro se PCRA petition.
Counsel was appointed to represent Appellant. On March 7, 2014, the
Commonwealth filed a motion to dismiss the PCRA petition. The PCRA court
held a hearing on April 17, 2014, and on the same day dismissed the PCRA
petition based upon lack of jurisdiction because Appellant was no longer
serving his sentence. Counsel filed a motion to withdraw with the PCRA
court on May 16, 2014. The PCRA court denied the motion. Order, 6/10/14.
This timely appeal followed. Appellant was not ordered to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
Instantly, counsel has filed a petition to withdraw pursuant to Anders
v. California, 386 U.S. 738 (1967), Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Nischan, 928 A.2d 349 (Pa.
Super. 2007). Paul M. Puskar, Esq.’s Pet. to Withdraw as Counsel, 7/28/14,
at Ex. 4. Because the instant case involves a petition for post-conviction
relief, counsel should follow the procedures of Turner and Finley2 to
withdraw as counsel. Commonwealth v. Fusselman, 866 A.2d 1109,
1111 n.3 (Pa. super. 2004). “However, because an Anders brief provides
2
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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greater protection to the defendant, we may accept an Anders brief in lieu of
a Turner/Finley brief.” Id.Prior to reviewing the merits of this appeal, we first decide
whether counsel has fulfilled the procedural requirements
for withdrawing as counsel. As we have explained:
Counsel petitioning to withdraw from PCRA
representation must proceed . . . under [Turner,
supra and Finley, supra and] . . . must review the
case zealously. Turner/Finley counsel must then
submit a “no-merit” letter to the trial court, or brief
on appeal to this Court, detailing the nature and
extent of counsel’s diligent review of the case, listing
the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy
of the “no merit” letter/brief; (2) a copy of counsel’s
petition to withdraw; and (3) a statement advising
petitioner of the right to proceed pro se or by new
counsel.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations
omitted).
Upon review of the instant petition to withdraw and brief filed with this
Court, we conclude that counsel has complied with the requirements
necessary to withdraw as counsel. “[W]e now undertake our own review of
the case to consider whether the PCRA court erred in dismissing Appellant’s
petition.” Id.Appellant avers that he was misrepresented and led to believe a no-
contest plea meant that he was neither innocent nor guilty. Appellant stated
that nineteen years after the plea, he was told that a no-contest plea is
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tantamount to pleading guilty. Appellant raises the following issue for our
review: “Whether the [PCRA] Court erred in dismissing [his] current PCRA
petition.” Appellant’s Brief at 2.
Instantly, the PCRA court opined:
[Appellant] pled no contest to Simple Assault on March 13,
1994 and was placed on probation for a period of eight
months and said probation would have concluded in
1995. Therefore, the Court is constrained to agree with
the Commonwealth that [Appellant] completed his
sentence eighteen years ago and does not meet the
eligibility requirements for relief.
Order, 4/17, 2014 (emphasis added). We agree Appellant is ineligible for
relief.
The PCRA provides, in pertinent part:
(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. § 9543(a)(1)(i) (emphasis added).
Our supreme court [sic] has held that, to 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. In addition, this
court determined in Commonwealth v. Fisher, 703 A.2d
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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[.]
Commonwealth v. Hart, 911 A.2d 939, 941-42 (Pa. Super. 2006) (some
citations omitted and emphasis added).
In the instant case, Appellant’s probation ended and his sentence was
completed in 1995. Because he is no longer serving a sentence for the
conviction he challenges, we agree with the PCRA court that he is ineligible
for relief under the PCRA. See 42 Pa.C.S. § 9543(a)(1)(i); Hart, 911 A.2d
at 942.
Order affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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