J-S11026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEONARD BUTTS                              :
                                               :
                       Appellant               :   No. 1757 EDA 2016

                    Appeal from the PCRA Order May 12, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003823-2010


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                               FILED MARCH 21, 2019

       Leonard Butts (Appellant) appeals from the order dismissing his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541–9546, as a petition ineligible for relief under the PCRA. Additionally,

Appellant’s attorney, Erin P. Boyle, Esq. (Counsel), has filed a petition for leave

to withdraw as counsel and “Anders Brief.”1 After careful consideration, we

affirm and grant Counsel’s petition to withdraw.


____________________________________________


1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967), apparently in the mistaken belief that an Anders brief is
required where counsel seeks to withdraw on appeal from the denial of PCRA
relief. A Turner/Finley no-merit letter, however, is the appropriate filing.
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Because an Anders
brief provides greater protection to a defendant, this Court may accept an
Anders brief in lieu of a Turner/Finley letter.         Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
J-S11026-19



       The PCRA court summarized the factual and procedural history of this

case as follows:

       On February 1, 2010 Appellant was arrested by Philadelphia police
       in connection with missing “Game Stop” packages at the UPS
       shipping package facility on Oregon Avenue in Philadelphia. On
       September 28, 2010, Appellant was found guilty by waiver trial of
       theft by unlawful taking-movable property, criminal conspiracy,
       and receiving stolen property. The next court date was scheduled
       for November 9, 2010. On November 9, 2010, Defense counsel
       requested a continuance which was granted. The new listing was
       scheduled for January 4, 2011. On January 4, 2011, the trial court
       granted the defense attorney’s Motion for a Continuance and the
       defense attorney waived a speedy sentencing. One February 15,
       2011, the sentencing was continued to February 28, 2011. On
       February 28, 2011, the defense attorney requested yet another
       continuance which was granted. On March 9, 2011, a sentence of
       one year probation was imposed.

       On April 8, 2011, Appellant filed his timely petition for relief under
       the PCRA pro se. Attorney Elayne Bryn was appointed as defense
       counsel on November 28, 2011. After several Delinquency Notices
       from the Court, Ms. Bryn received the Notes of Testimony from
       Appellant’s waiver trial on November 13, 2012 eight (8) months
       after the Appellant’s one year sentence expired. Five (5) separate
       hearings were scheduled by the Court for Attorney Compliance on
       this matter. On November 12, 2014, Attorney for Appellant filed
       a Petition for Writ of Corum Nobis.[2] No response was received
____________________________________________


2 The PCRA court properly determined that Appellant is not entitled to coram
nobis relief. “The PCRA . . . subsumes the remedies of habeas corpus and
coram nobis” where the PCRA provides a remedy for the claim.
Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013); see also 42
Pa.C.S.A. § 9542 (providing that “[t]he action established in this subchapter
shall be the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including . . . coram nobis.”). Here, Appellant
sought coram nobis relief based on a claim alleging that his prior counsel was
ineffective. Because such a claim is cognizable under the PCRA, Appellant is
not entitled to coram nobis relief. See Turner, 80 A.3d at 770.



                                           -2-
J-S11026-19


       from the Commonwealth until a Motion to Dismiss was filed on
       February 3, 2016. The trial court granted the Commonwealth’s
       Motion to Dismiss.

PCRA Court Opinion, 3/2/17, at 1-2 (citations omitted).3 This timely appeal

followed.

       On October 26, 2018, Counsel filed a petition for leave to withdraw with

this Court, attaching her Anders brief, with notice to Appellant that he had

the right to proceed pro se or retain private counsel. Appellant has not filed

a response to Counsel’s petition.

       Counsel’s Anders brief presents one issue for our review:

       WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT
       POST-CONVICTION RELIEF BECAUSE APPELLANT’S DUE PROCESS
       RIGHTS WERE VIOLATED BECAUSE THERE IS NO REMEDY FOR AN
       APPELLANT TO PURSUE A TIMELY FILED CLAIM OF INEFFECTIVE
       ASSISTANCE OF COUNSEL ON COLLATERAL REVIEWE [SIC] ONCE
       A CRIMINAL SENTENCE EXPIRES IN PENNSYLVANIA?

Anders Brief at 7.

       As set forth above, Counsel has filed with this Court a petition for leave

to withdraw as counsel and an appellate brief. Pursuant to Turner/Finley,

an “[i]ndependent review of the record by competent counsel is required

before withdrawal [on collateral appeal] is permitted.” Commonwealth v.

Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).         In Pitts, our Supreme Court

explained that such independent review requires proof of:

____________________________________________


3 On March 31, 2017, Attorney Bryn filed a petition to withdraw as counsel
and for the appointment of new counsel, stating that she was retiring from
the practice of law. This Court granted Attorney Bryn’s motion by order dated
April 25, 2017. The matter was remanded back to the PCRA court where
current counsel, Attorney Boyle, was appointed.

                                           -3-
J-S11026-19



      1. A “no merit” letter by PC[R]A counsel detailing the nature and extent
         of his review;

      2. The “no merit” letter by PC[R]A counsel listing each issue the
         petitioner wished to have reviewed;

      3. The PC[R]A counsel’s “explanation”, in the “no merit” letter, of why
         the petitioner’s issues were meritless[.]

Id. (citation and brackets omitted).       Further, PCRA counsel seeking to

withdraw in this Court must contemporaneously forward to the petitioner a

copy of the petition to withdraw that includes (i) a copy of both the no-merit

letter, and (ii) a statement advising the PCRA petitioner that, upon the filing

of counsel’s petition to withdraw, the petitioner has the immediate right to

proceed pro se, or with the assistance of privately retained counsel.

Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super. 2016).

      Upon review of Counsel’s petition for leave to withdraw and the appellate

brief submitted on Appellant’s behalf, we conclude that Counsel has

substantially complied with the procedural requirements of Turner and

Finley, as restated in Pitts.     Counsel identified the claim asserted by

Appellant, reviewed the merits of that claim and explained why the claim lacks

merit. Finally, Counsel represented to this Court that she advised Appellant

he may proceed with privately retained counsel or pro se. Appellant has not

filed any responsive pleadings. Thus, we conclude that Counsel has complied

with the requirements necessary to withdraw as counsel. We now turn to an

independent review of Appellant’s PCRA petition to ascertain whether his claim

warrants relief.


                                     -4-
J-S11026-19



      To be eligible for PCRA relief, a petitioner must prove that he or she is

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

crime[.]” 42 Pa.C.S.A. § 9543(a)(1)(i). “Case law has strictly interpreted the

requirement that the petitioner be currently serving a sentence for the crime

to be eligible for relief.” Commonwealth v. Plunkett, 151 A.3d 1108, 1109

(Pa. Super. 2016).

      Our Supreme Court has explained:

      [b]ecause individuals who are not serving a state sentence have
      no liberty interest in and therefore no due process right to
      collateral review of that sentence, the statutory limitation of
      collateral review to individuals serving a sentence of
      imprisonment, probation, or parole is consistent with the due
      process prerequisite of a protected liberty interest.

Commonwealth v. Turner, 80 A.3d 754, 766 (Pa. 2013) (emphasis added).

      Here, the trial court sentenced Appellant to one year of probation. The

effective date of Appellant’s sentence was March 9, 2011. Thus, Appellant’s

sentence expired on March 9, 2012.       Because Appellant is not “currently

serving” a sentence for the underlying convictions, he is no longer eligible for

relief under the PCRA, see 42 Pa.C.S.A. § 9543(a)(1)(i), and thus the PCRA

court properly dismissed his petition.     Moreover, in light of our Supreme

Court’s reasoning in Turner, there is no merit to Appellant’s claim that the

PCRA court’s application of section 9543(a)(1)(i) violates his right to due

process. Anders Brief at 11.

      Order affirmed. Petition to withdraw granted.




                                     -5-
J-S11026-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/19




                          -6-
