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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
RUSSELL A. TINSLEY,                       :          No. 1882 EDA 2017
                                          :
                         Appellant        :


                   Appeal from the PCRA Order, May 26, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0501081-2005


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED NOVEMBER 02, 2018

        Russell A. Tinsley appeals pro se from the May 26, 2017 order entered

in the Court of Common Pleas of Philadelphia County that dismissed, without

a hearing, his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court set forth the following:

              On September 25, 2007, [appellant] appeared before
              the Honorable Gregory E. Smith Judge of the Court
              of Common Pleas for the First Judicial District
              Criminal Division and entered a negotiated plea of
              Nolo Contendere to the charges of Involuntary
              Deviate Sexual Intercourse and Simple Assault.[1]

              At the time the plea was proffered, the evidence
              adduced at the recorded hearing established that on
              September 4, 2004, the complainant, [L.A.], had
              met [appellant] on the 4200 block of Roosevelt

1   18 Pa.C.S.A. §§ 3123(a)(1) and 2701(a), respectively.
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             Boulevard in Philadelphia, PA. After spending the
             day together shopping and “hanging out,” they
             obtained a room at the Days Inn on Roosevelt
             Boulevard. While in the room, [appellant] struck
             [L.A.] in the face.     [L.A.] fell on the bed and
             [appellant] jumped on her, pushed her head into the
             area of his penis, and forced her to perform oral sex
             on him.

             Immediately after the Honorable Gregory Smith
             accepted the plea, he ordered that a Megan’s Law
             assessment be conducted pursuant to 42 Pa.C.S.[A.]
             § 9795.4. Following the assessment, it was
             determined that [appellant] met the definition of a
             Sexually    Violent    Predator,     as    defined    in
             42 Pa.C.S.[A.] § 9792 and [appellant] had been
             provided due Notice of his reporting requirements.
             Consequently, on January 4, 2008 pursuant to the
             negotiations,    the    Honorable     Gregory     Smith
             sentenced [appellant] to a minimum county
             supervised period of confinement of eleven and
             one-half (11½) to a maximum period of
             twenty-three (23) months followed by eight (8)
             years of reporting probation. [Appellant] filed a
             pro se Notice of Appeal to the Pennsylvania Superior
             Court that same day. On April 29, 2008, that Appeal
             was denied for failure to file a docketing statement.

             On October 11, 2008, [appellant] filed a pro se
             Petitioner [sic] seeking post-conviction collateral
             relief. Sondra R. Rodrigues, Esquire, was appointed
             counsel on behalf of [appellant]. On October 26,
             2009, Ms. Rodrigues filed an Amended Petition
             requesting [appellant’s] post-sentence and appellate
             rights be reinstated. On January 11, 2010, Judge
             Smith reinstated only [appellant’s] direct appellate
             rights nunc pro tunc. Notice of Appeal to the
             Superior Court was filed on February 9, 2010. On
             July 25, 2011, following a Grazier[2] hearing,
             [appellant] was permitted to represent himself. On
             May 10, 2013, the Pennsylvania Superior Court
             affirmed the judgment and Order of Sentence. On

2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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           December 4, 2013, the Pennsylvania Supreme Court
           denied Allocatur.

           On October 8, 2014, [appellant] filed his first
           substantive pro se Petition seeking relief pursuant to
           the [PCRA] and claimed ineffective assistance of his
           trial counsel. At the time of filing, [appellant] had no
           longer been serving any sentence of imprisonment,
           probation, or parole as a result of a conviction under
           the laws of this Commonwealth. Peter A. Levin,
           Esquire was appointed to represent [appellant]. On
           July 8, 2016, Mr. Levin filed an Amended PCRA
           Petition claiming counsel was ineffective for failing to
           fully    explain    the    consequences         of   his
           nolo contendere plea.       The instant matter was
           transferred to the Honorable Anne Marie Coyle Judge
           of the Court of Common Pleas First Judicial District
           Criminal Division, hereinafter referred to as [PCRA
           court]. After conducting a review of the record, this
           Court dismissed the petitions on May 26,
           2017.[Footnote 1] A timely Notice of Appeal was
           filed.

                 [Footnote 1]     The dismissal occurred
                 more than twenty days after [appellant]
                 was     served   with   notice of   the
                 forthcoming dismissal of his PCRA
                 petition. Pa.R.Crim.P. 907.

PCRA court opinion, 3/13/18 at 1-3 (record citation omitted).

     The record reflects that by correspondence to this court dated

February 22, 2018, appellant requested that his court-appointed counsel,

Attorney Peter Levin, file a motion to withdraw and that the case be

remanded to the PCRA court for a Grazier hearing because appellant wished

to proceed pro se.    On February 28, 2018, appellant then filed with this

court a petition for counsel withdrawal and for a remand to the PCRA court

for a Grazier hearing.   On March 28, 2018, this court entered an order


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directing the PCRA court to conduct a Grazier hearing and to provide written

notice of its determination to this court within 60 days.

      The PCRA court docket reflects that the PCRA court held a motions

hearing on May 10, 2018.       Although a transcript of that hearing is not

contained in the certified record (and it is unclear as to whether the hearing

was stenographically recorded), at the conclusion of the hearing, the PCRA

court entered an order and memorandum that directed Attorney Levin to

remain as appellant’s counsel.       (PCRA court order and memorandum,

5/10/18 at 1.) With respect to this court’s order directing the PCRA court to

conduct a Grazier hearing, the PCRA court informed this court that it was

unable to do so because appellant failed to appear. (Id. at 2.) The order

and memorandum further stated:

            On May 10, 2018 it was represented to this Court, by
            and through Peter Levin, Esquire as appearing
            appointed counsel for [appellant], that his client
            telephoned his office and claimed that he is in the
            State of New Jersey pursuant to a civil commitment
            for a separate matter.

            [Appellant] is not serving a sentence within the
            Commonwealth of Pennsylvania in the case docketed
            under CP-XX-XXXXXXX-2005. Thus, this Court as a
            duly elected Judge of the Court of Common Pleas for
            the First Judicial District of Pennsylvania has zero
            authority to direct the State of New Jersey to release
            [appellant] for any court appearance even if he is
            committed as claimed.

Id.




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      The record further reflects that on May 11, 2018, the PCRA court

entered an order that granted Attorney Levin leave to withdraw after

concluding that Attorney Levin provided credible information that appellant

threatened and harassed him in a telephone communication.                (PCRA court

amended order and memorandum, 5/11/18.)                The order further provided

that, “[a]bsent further direction from the Superior Court of Pennsylvania no

further action can or shall be taken.” (Id.)

      In this appeal, appellant requests that we review three ineffective

assistance of counsel claims.     The PCRA court and the Commonwealth,

however, contend that because appellant is no longer serving a sentence of

imprisonment, probation, or parole, he is not eligible for PCRA relief.

Indeed, the record reflects that appellant is no longer serving a sentence of

imprisonment, probation, or parole. Nevertheless, appellant contends that

because he has been civilly committed and is currently being involuntarily

held in a special treatment unit for sex offenders in New Jersey, he is still

serving a sentence. Appellant is mistaken.

      Our standard of review of the denial of a PCRA petition is limited to

examining   whether    the   record     evidence     supports     the   PCRA    court’s

determination   and    whether    its     decision    is   free    of   legal    error.

Commonwealth v. Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal

denied, 959 A.2d 319 (Pa. 2008). The PCRA statute plainly states that to

be eligible for PCRA relief, a PCRA petitioner must be “currently serving a



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sentence of imprisonment, probation or parole for the crime” at issue.

42 Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v. Williams, 977 A.2d 1174

(Pa.Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010). “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.”   Id. at 1176, quoting Commonwealth v. Hart, 911 A.2d 939,

942 (Pa.Super. 2006).     “To grant relief at a time when [the petitioner]

is not currently serving . . . a sentence would be to ignore the language

of the statute. ”   Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa.

1997) (emphasis in original).

      Here, the record reflects that appellant filed his PCRA petition on

October 8, 2014, but that his sentence of imprisonment, probation, or parole

expired on February 9, 2015.3    Therefore, appellant became ineligible for

PCRA relief on February 9, 2015.        Accordingly, the PCRA court properly

dismissed appellant’s PCRA petition.

      Order affirmed.




3  The Commonwealth contends that appellant’s sentence expired on
February 9, 2015. (Commonwealth’s letter brief, 4/19/17 at 2.) We do,
however, note that the record contains a letter from appellant to the PCRA
court dated April 28, 2017, that enclosed an undated letter from
Christopher McFillin, supervisor of the sex offender unit of the Philadelphia
Adult Probation Department, stating that appellant’s supervised probation in
Philadelphia County is “due to expire February 8, 2015.” (Appellant’s
correspondence to PCRA court, 4/28/17 at enclosure.)           We will give
appellant the benefit of the doubt and use the latter date.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/2/18




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