J-S63042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

KAREEM ALI GARRETT

                              Appellant               No. 1684 EDA 2015


                   Appeal from the PCRA Order April 14, 2015
       in the Court of Common Pleas of Delaware County Criminal Division
                        at No(s): CP-23-CR-0001998-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 26, 2016

        Appellant, Kareem Ali Garrett, appeals pro se from the order entered

in the Delaware County Court of Common Pleas denying his first Post

Conviction Relief Act1 (“PCRA”) petition. We remand for a determination as

to whether Appellant is currently serving a sentence of imprisonment,

probation, or parole for the crimes he committed and retain panel

jurisdiction over this appeal.

        The trial court summarized the relevant facts and procedural history as

follows:

              On August 20, 2013, [Appellant] entered a negotiated
           guilty plea to [d]efiant [t]respass and one count of
           [h]arassment and was sentenced to a term of 6 to 12
           months [imprisonment] followed by 1 year of probation.

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S §§ 9541-9546.
J-S63042-16


         On August 21, 2014 [Appellant] filed a timely [PCRA]
         petition alleging (1) ineffective assistance of counsel, (2)
         that his guilty plea was unlawfully induced, and (3) newly-
         discovered evidence.[2]

            The [PCRA court] appointed counsel, Stephen D.
         Molineux, Esq., to review [Appellant’s] PCRA petition.
         Pursuant to [Commonwealth v. Turner, 544 A.2d 927
         (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213
         (Pa. Super. 1988) (en banc)] , counsel submitted a “No
         Merit” letter after determining [Appellant’s] PCRA petition
         was meritless and filed a Motion to Withdraw As Counsel.
         This Court dismissed [Appellant’s] PCRA petition without
         holding an evidentiary hearing and granted Mr. Molineux’s
         Withdrawal Motion. [Appellant] filed a timely Notice of
         Appeal and Concise Statement of Matters complained of on
         Appeal in compliance with Pa.R.A.P. 1925(b).[3]

Trial Ct. Op., 7/31/15, at 1-2.

      The trial court issued a responsive Pa.R.A.P. 1925(a) opinion on July

31, 2015. Appellant raises the following issues on appeal:

         1. Trial counsel rendered ineffective assistance, which
         failure violated the Pennsylvania and/or United States
         Constitution by undermining the truth determining
         process, such that no reliable adjudication of guilt or
         innocence could have taken place?

         2. A plea of guilty was unlawfully induced for the crimes to
         which he entered a guilty plea, where the circumstance


2
  In his PCRA petition, Appellant indicated that his sentence was to
commence August 20, 2013, but he failed to answer the question of whether
he was still serving his sentence. Appellant’s Mot. for Post Conviction
Collateral Relief, 8/21/14, at 2.
3
   We note that although the PCRA court states that Appellant filed a
Pa.R.A.P. 1925(b) statement, we can find no such document in the record or
indicated on the docket. Further, also not present in the record received by
this Court is Attorney Molineux’s “no merit” letter.



                                    -2-
J-S63042-16


           made it likely that the inducement caused [Appellant] to
           plead guilty and [Appellant] is innocent?

           3. Whether the unavailability at the time of exculpatory
           evidence would have changed the outcome of the trial if it
           had been introduced?

Appellant’s Brief at 3 (unpaginated).4

      As a prefatory matter, we must determine whether Appellant is eligible

for relief under the PCRA.     Pursuant to the PCRA, a petitioner must be

“currently serving a sentence of imprisonment, probation or parole for the

crime” or waiting to serve the disputed sentence in order to be granted

relief. 42 Pa.C.S. § 9543(a)(1)(i), (iii). Further, as soon as a petitioner’s

sentence is complete, he becomes ineligible for relief, regardless of whether

he was serving his sentence at the time he filed his PCRA petition.

Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006). Indeed,

our Supreme Court has held that to grant relief at a time when a petitioner

is not currently serving a sentence would ignore the plain language of the

statute.    Commonwealth v. Ahlborn 699 A.2d 718, 720 (Pa. 1997).

Accordingly, if a petitioner is no longer serving or waiting to serve a

sentence for the crimes at issue, our Courts lack jurisdiction and the

petitioner’s PCRA petition must be dismissed. Id.

      In this case, Appellant was convicted in August 2013 and sentenced to

serve a term of six to twelve months’ imprisonment followed by one year of

4
  Appellant’s brief was not mailed from a prison. See Certificate of Service,
3/11/16, to Appellant’s Brief (identifying address).



                                     -3-
J-S63042-16


probation. We note that in his initial PCRA petition Appellant indicated that

his sentence was to commence on August 20, 2013, but did not designate

whether he was currently serving, or waiting to serve, his sentence.

Appellant’s Mot. for Post Conviction Collateral Relief, 8/21/14, at 2. Indeed,

even if Appellant served his maximum sentence, it is likely that currently,

over three years later, he may no longer be serving a sentence of

imprisonment, probation, or parole for the crimes here at issue. See also

Certificate of Service, 3/11/16, to Appellant’s Brief (identifying address).

Accordingly, within thirty days of the date this Memorandum is filed, we

direct the PCRA court to determine whether Appellant is currently serving or

waiting to serve a sentence of imprisonment, probation, or parole for the

crimes he committed. If the PCRA court determines that Appellant is serving

or waiting to serve his sentence, we request that the court forward

Appellant’s Pa.R.A.P. 1925(b) statement, Attorney Molineux’s “no merit”

letter, and any other documents missing from the certified record as a

supplemental record.

      Case remanded for a determination by the PCRA court consistent with

this Memorandum. Panel jurisdiction retained.




                                    -4-
J-S63042-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2016




                          -5-
