Com. v. Clark, G., Jr.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GERALD CARROLL CLARK, JR., : No. 953 MDA 2016
:
Appellant :
Appeal from the PCRA Order, June 3, 2016,
in the Court of Common Pleas of Adams County
Criminal Division at No. CP-01-CR-0001003-2007
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 22, 2016
Gerald Carroll Clark, Jr., appeals pro se from the June 3, 2016 order
denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541–9546, on the basis that he was ineligible for relief
because he had completed serving his sentence. After careful review, we
affirm.1
Instantly, appellant was found guilty of failure to comply with
registration of sexual offenders requirements2 and sentenced to 30 days to
* Former Justice specially assigned to the Superior Court.
1
The Commonwealth has indicated that it will not be filing an appellee brief
in this matter and is relying on the rationale set forth in the PCRA court’s
August 23, 2016 Pa.R.A.P. 1925(a) opinion. (See PCRA court opinion,
8/23/16 at 2-3.)
2
18 Pa.C.S.A. § 4915(a)(1).
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one year of imprisonment, followed by one year of consecutive probation, on
October 21, 2008. On December 8, 2009, a panel of this court affirmed
appellant’s judgment of sentence, and our supreme court denied allowance
of appeal on November 17, 2010. See Commonwealth v. Clark, 990 A.2d
39 (Pa.Super. 2009), appeal denied, 13 A.3d 474 (Pa. 2010). On
March 27, 2013, the trial court entered an order indicating that appellant
had complied with all the terms of his probation and sentence. (Trial court
order, 3/27/13.) Thus, the PCRA court found that, when appellant filed his
pro se PCRA petition on April 7, 2016, he was no longer serving the
sentence at the above docket number.
Appellant does not dispute this fact but, rather, attempts to raise
substantive issues that are otherwise precluded by the PCRA court’s lack of
jurisdiction. (See appellant’s brief at 3.) This court has long recognized
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.
Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa.Super. 2009),
appeal denied, 990 A.2d 730 (Pa. 2010) (case citations and internal
quotation marks omitted). Additionally, we note that “[a]lthough it is
axiomatic that a first-time PCRA petitioner is entitled to assistance of
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counsel, regardless of whether or not the petition is timely on its face, the
failure to appoint counsel is not reversible error where the petitioner’s
sentence has expired[,]” as is the case here. Commonwealth v. Hart, 911
A.2d 939, 942 (Pa.Super. 2006).
Accordingly, we hold that the PCRA court correctly concluded that
appellant was ineligible for relief and properly dismissed his petition on that
basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2016
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