J. S38012/14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
SHABORN WINSTON,                          :         No. 2116 EDA 2013
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, June 27, 2013,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0000689-2008


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED AUGUST 27, 2014

      This is an appeal from an order denying ap

                                                                                -



                                                                         -mer

letter in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)

(en banc



      On October 9, 2008, appellant entered a guilty plea to aggravated

assault for kicking a police officer in the face in the course of being arrested.

On November 13, 2008, appellant was sentenced to a term of imprisonment

of 4 months to 23 months to be followed by 12 months of probation. No
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direct appeal was filed.   On May 15, 2013, appellant filed a pro se PCRA

petition.   Counsel was appointed and subsequently filed a Turner/Finley

no-merit letter contending that appellant was not eligible for relief.   An

evidentiary hearing was conducted on June 27, 2013. At the conclusion of



followed.

      This court has explained the procedure for counsel seeking to withdraw

on collateral appeal:

             Turner/Finley counsel must then submit a
                -
             to this Court, detailing the nature and extent of

             issues which the 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
                        -
             petition to withdraw; and (3) a statement advising
             petitioner of the right to proceed pro se or by new
             counsel.

             If counsel fails to satisfy the foregoing technical
             prerequisites of Turner/Finley, the court will not
             reach the merits of the underlying claims but, rather,

             Upon doing so, the court will then take appropriate
             steps, such as directing counsel to file a proper
             Turner/Finley

             However, where counsel submits a petition and
             no-merit letter that do satisfy the technical demands
             of Turner/Finley, the court trial court or this
             Court must then conduct its own review of the
             merits of the case. If the court agrees with counsel
             that the claims are without merit, the court will


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            permit counsel to withdraw and deny relief. By
            contrast, if the claims appear to have merit, the



Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (internal

citations omitted).

      PCRA counsel has filed a Turner/Finley no-merit letter with this court

detailing the nature and extent of his review. PCRA counsel has also filed a



behalf. While counsel did not send a separate letter or statement advising

appellant of his right to proceed pro se or with new counsel, counsel did

advise appellant in the last paragraph of his no-

Superior Court grants my request to withdraw, you may proceed on your

own or with the aid of private counsel to pursue a review of the issue that

                                                          -merit letter at 6.)1

Therefore, we conclude that PCRA counsel has satisfied the prerequisites of

Turner/Finley.

      Our standard of review for an order denying post-conviction relief is



                                                          Commonwealth v.

Franklin



1
 Additionally, we note that this court advised appellant of his rights to file a
pro se response and/or hire a private attorney in an order issued on
April 11, 2014. A pro se response was filed by appellant on May 2, 2014.


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will not be disturbed unless there is no support for the findings in the

certified record. Id.

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d

1163 (Pa. 2008).

                                                             al   on   Monday,

December 15, 2008, 30 days after the judgment of sentence was entered,

and the time for seeking direct appeal before this court expired.2        See

42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. The instant

petition, filed May 15, 2013, is manifestly untimely, and cannot be reviewed

unless appellant invokes a valid exception to the time bar of the PCRA. See

42 Pa.C.S.A. § 9545(b)(1)(i-iii). Appellant has failed to invoke any time of

filing exception; thus, his untimely petition cannot be reviewed for lack of

jurisdiction.

      Furthermore, as appellant is no longer serving the sentence imposed

on this conviction, he is clearly ineligible for relief.    See 42 Pa.C.S.A.

§ 9543(a)(1)(i) (to be eligible for relief petitioner must plead and prove that


2
   The actual 30th day, December 13, 2008, fell on a Saturday.
Consequently, that day, as well as the next day Sunday, December 14 th, are
not included in the computation of time. 1 Pa.C.S.A. § 1908.


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he has been convicted of a crime under the laws of this Commonwealth and

is at the time relief is granted currently serving a sentence of imprisonment,

probation or parole for the crime).    Moreover, even where the petition is

filed while the sentence is still being served, the petitioner is ineligible for

relief if the sentence is completed before the petition is resolved.

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

      We are aware appellant filed a pro se statement in response to

c           -merit letter.   Appellant claims he did not understand his plea

agreement and would like to change it.       Appellant asserts that his public

defender and the judge were aware of his low I.Q. and they should not have

taken a plea from him. We have reviewed the notes of testimony from the

June 27, 2013 PCRA hearing. Appellant indicated to the court that he was

struggling getting a job because of his felony conviction.       Judge Dantos

listened to everything appellant had to say, and she responded:

            I
            let us do anything about those things.       And I am



            with you for a while.

Notes of testimony, 6/27/13 at 14. The judge further noted:

            [The officer] was prepared to take this to trial and go
            for it. And so [the public defender] negotiated you a
            good deal. It was a cap of five months. And I know




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Id. at 19.

      The Ahlborn court also ruled that under the PCRA, even where the

petitioner may yet be suffering collateral criminal consequences, he or she is

nonetheless ineligible for relief where the actual sentence has been

completed. Id., 699 A.2d at 720-721. Accordingly, appellant is ineligible for

relief under the PCRA.

      Accordingly, having found no error on appeal, we will affirm the court

below.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




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