J-S34035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DAVID MANNING STODGHILL

                        Appellant                  No. 1911 MDA 2014


              Appeal from the Order Entered October 2, 2014
           In the Court of Common Pleas of Cumberland County
             Criminal Division at No: CP-21-CR-0001529-1995


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                    FILED SEPTEMBER 08, 2015

     Appellant, David Manning Stodghill, appeals pro se from the October 2,

2014 order of the Court of Common Pleas of Cumberland County denying his

“Motion to Vacate Conviction.” Upon review, we affirm.

     The underlying facts of the case are as follows. On August 12, 1995,

Appellant pled guilty to indecent assault (18 Pa.C.S.A. § 3126) following an

incident involving an 11-year-old victim. On December 12, 1995, Appellant

was sentenced to five to twenty-three months’ incarceration in the

Cumberland County Prison.

     On August 18, 2014, Appellant filed a motion with the trial court

arguing the record appeared inconsistent as to whether he was convicted

under Section 3126(a)(1) (without victim’s consent) or Section 3126(a)(6)

(victim with mental disability). Upon review of the record, and considering a
J-S34035-15



report prepared by the Pennsylvania State Police in response to an inquiry

made by Appellant, the trial court noted that Appellant’s sentence was

graded M1 which, under the 1995 version of Section 3126, meant that he

was convicted under Section 3126(a)(6), the only subsection carrying an M1

sentence. See Trial Court Order, 8/21/14. On August 28, 2014, Appellant

filed a “Motion to Vacate Conviction” whereby he asked the trial court to

vacate his conviction with prejudice because the Commonwealth failed to

prove the victim had a mental disability, as required under Section

3126(a)(6).   The trial court denied said motion on October 2, 2014.        This

appeal followed.

      On appeal, Appellant argues his 1995 conviction is void because the

trial court lacked jurisdiction in entertaining his case. Specifically, Appellant

argues the conviction is void because the Commonwealth did not prove all

elements of the crime, namely that victim had a mental disability.          See

Appellant’s Brief at 10-13. As a result, Appellant argues, his sentence is also

illegal. See Appellant’s Reply Brief at 5-6. Recognizing that approximately

20 years passed from the imposition of the sentence, Appellant argues he is

not barred from raising the instant claim because lack of jurisdiction (and

presumably illegality) can be raised at any time. We disagree.

      Before we can address the merits of his challenge, we must determine

the nature of the challenge before us. Appellant titled the document giving

rise to the instant action a “motion to vacate conviction.”      The trial court

denied the motion in a one–sentence order providing in essence no

                                      -2-
J-S34035-15



explanation.1     The Commonwealth argues Appellant’s motion should have

been treated as either an untimely post-sentence motion or an untimely Post

Conviction Relief Act (PCRA) petition. Commonwealth’s Brief at 5-9.

       Based on the allegations, it is appropriate to treat the instant motion

as a PCRA petition. Indeed, both claims—lack of jurisdiction and legality of

sentence—are specifically mentioned as possible grounds for a PCRA

petition. See 42 Pa.C.S.A. § 9543(a)(2); Commonwealth v. Butler, 566

A.2d 1209, 1211 (Pa. Super. 1989) (post-conviction relief is permitted

where it is established that tribunal lacked jurisdiction); Commonwealth v.

Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (legality of sentence cognizable

under PCRA).       As such, Appellant should have presented it, and the trial

court should have addressed it, as a PCRA petition.      See 42 Pa.C.S.A. §

9542; Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001)

(any collateral petition raising issues with respect to remedies offered under

the PCRA will be considered a PCRA petition).

       To be eligible for relief under the PCRA, a petitioner must either be

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

crime,” or “awaiting execution of a sentence of death for the crime,” or

“serving a sentence which must expire before the person may commence
____________________________________________


1
  Apparently, the trial court denied the motion because the Commonwealth
did not consent to the motion, as provided under local rule of civil procedure
No. 208.3(a)(9). See Trial Court Order, 9/10/14; Trial Court Order,
10/02/14.



                                           -3-
J-S34035-15



serving the disputed sentence.” 42 Pa.C.S.A. § 9543(a)(1)(i)-(iii). Here, it

is undisputed that Appellant has completed his sentence, and therefore,

does not meet any of the foregoing eligibility requirements. Accordingly, we

conclude Appellant is entitled to no relief.     See Commonwealth v.

Ahlborn, 699 A.2d 718, 720-21 (Pa. 1997).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2015




                                   -4-
