J-S73045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     Appellee               :
                                            :
                     v.                     :
                                            :
WILLIAM THOMAS AYERS,                       :
                                            :
                      Appellant             :     No. 734 MDA 2017

                 Appeal from the PCRA Order April 21, 2017
             in the Court of Common Pleas of Luzerne County,
            Criminal Division at No(s): CP-40-CR-0001465-2005

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED DECEMBER 08, 2017

      William Thomas Ayers (Appellant) appeals from the April 21, 2017 order

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

      On [February 22, 2006, Appellant] was sentenced to an aggregate
      sentence of nine to 36 months of incarceration at [this docket
      number] in Luzerne County for convictions of corruption of minors,
      criminal conspiracy and criminal solicitation. The trial court also
      ordered that [Appellant] pay a fine as part of his sentence. The
      Luzerne County sentence was ordered to run concurrently with
      sentences [Appellant] was serving from Wayne, Wyoming and
      Lackawanna Counties.      On February 22, 2009, [Appellant]
      completed his Luzerne County sentence but remained
      incarcerated on sentences from the other counties.

Commonwealth v. Ayers, 34 A.3d 241 (Pa. Super. 2011) (unpublished

memorandum at 3) (footnotes omitted).



* Retired Senior Judge assigned to the Superior Court.
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      On October 20, 2016, Appellant pro se filed the PCRA petition at issue

in this case.    Counsel was appointed and requested a hearing on the

jurisdictional aspect of the PCRA petition only. A hearing was held on April

18, 2017, and on April 21, 2017, the PCRA court denied and dismissed

Appellant’s petition, concluding it lacked jurisdiction to entertain Appellant’s

petition because Appellant was no longer serving a sentence in this case.

Appellant timely filed a notice of appeal.1

      The timeliness of a post-conviction petition is jurisdictional.   See, e.g.,

Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves, that

an exception to the time for filing the petition is met, and that the claim was

raised within 60 days of the date on which it became available. 42 Pa.C.S.

§ 9545(b) and (c).

      [I]n circumstances in which no timely direct appeal is filed relative
      to a judgment of sentence, and direct review is therefore
      unavailable, the one-year period allowed for the filing of a post-

1The PCRA court did not order Appellant to file a concise statement of errors
complained on appeal, but did file an opinion pursuant to Pa.R.A.P. 1925(a).
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      conviction petition commences upon the actual expiration of the
      time period allowed for seeking direct review, as specified in the
      PCRA.

Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008).

      On March 28, 2007, Appellant withdrew his direct appeal. Accordingly,

Appellant’s   judgment     of   sentence    became     final   that   day.    See

Commonwealth v. Conway, 706 A.2d 1243, 1244 (Pa. Super. 1997)

(“Appellant’s judgment of sentence became final when his direct appeal was

discontinued at his request.”). Thus, Appellant’s October 2016 PCRA petition,

filed well after the one-year time period expired, was untimely filed, and

because he neither pled nor offered to prove any timeliness exception, the

PCRA court was without jurisdiction to consider the merits of the petition.

      Even if the PCRA court and this Court had jurisdiction to entertain

Appellant’s petition, he would still not be entitled to relief. To be eligible for

relief under the Post-Conviction Relief Act, at the time relief is granted, a

petitioner must be, inter alia, “currently serving a sentence of imprisonment,

probation or parole for the crime[.]” 42 Pa.S.C. § 9543.

      [T]he denial of relief for a petitioner who has finished serving his
      sentence is required by the plain language of the statute. To be
      eligible for relief a petitioner must be currently serving a sentence
      of imprisonment, probation or parole. To grant relief at a time
      when appellant is not currently serving such a sentence would be
      to ignore the language of the statute.

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

      Counsel for Appellant concedes that Appellant completed the sentence

at issue in this case in 2009. Appellant’s Brief at 6. However, he argues that

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the PCRA court still has jurisdiction due to the “collateral consequences

associated with [Appellant’s] conviction.” Id. at 7.     Specifically, Appellant

argues that while he was serving the sentence in this case, his “parental rights

to his child were terminated based in large part on his incarceration and

conviction.” Id. at 8. He further claims that the “alleged victim … went to

great lengths, in many different counties, to falsely accuse Appellant of crimes

as a way to maintain sole custody of their child.” Id.   Appellant’s argument

is unavailing.

      Our [S]upreme [C]ourt has held that, to be eligible for relief under
      the PCRA, the petitioner must be “currently serving a sentence of
      imprisonment, probation or parole for the crime.” 42 Pa.C.S.[]
      § 9543(a)(1)(i). 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. In addition,
      this [C]ourt determined in Commonwealth v. Fisher, 703 A.2d
      714 (Pa. Super. 1997), that the PCRA precludes relief for
      those petitioners whose sentences have expired,
      regardless of the collateral consequences of their sentence.

Commonwealth v. Hart, 911 A.2d 939, 941-42 (Pa. Super. 2006) (some

citations omitted; emphasis added).

      Thus, even if Appellant’s custody-related issues amounted to collateral

consequences of his sentence, he is still ineligible for relief under the PCRA

because he is no longer serving a sentence. In light of the foregoing, we

affirm the order of the PCRA court denying Appellant’s petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2017




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