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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                             :
CURTIS HOLBROOK A/K/A                        :
CURTIS DIGGS,                                :          No. 1156 WDA 2014
                                             :
                            Appellant        :


                      Appeal from the PCRA Order, May 28, 2014,
                   in the Court of Common Pleas of Cambria County
                   Criminal Division at No. CP-11-CR-0000886-1991


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED OCTOBER 30, 2015

      Curtis Holbrook a/k/a Curtis Diggs appeals from the order denying his

petition   filed    pursuant   to   the   Post   Conviction   Relief   Act   (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546.

      On July 31, 1991, appellant was pulled over for speeding.               Officers

noticed that there were numerous air fresheners about the car, a VCR in a

paper bag in the back seat, and the car had tinted windows. Appellant gave

officers permission to search his vehicle and signed a search agreement. A

cursory search of the vehicle revealed a small vial containing crack cocaine

under the driver’s seat. Appellant had $924 and a pager on his person. A

further search of the vehicle at the police department revealed a bag




* Retired Senior Judge assigned to the Superior Court.
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containing nine smaller bags of crack cocaine which weighed 3.2 grams,

small vials, and tiny plastic Ziploc baggies.

        Appellant was charged with possession with the intent to deliver,

possession of drug paraphernalia, and simple possession.1 In exchange for

appellant’s    guilty   plea   to   possession   with   intent   to   deliver,   the

Commonwealth agreed to nolle pros the other charges.

        At the plea colloquy, appellant admitted that he was in possession of

3.2 grams of crack cocaine and that he intended to sell it:

              THE COURT. Okay. Mr. Diggs, you are here with
              your lawyer to enter a plea to the charge of
              possession of 3.2 grams of crack cocaine with intent
              to deliver, which is a felony. And before I accept
              your plea I want to make sure that you know what
              you are doing, so I have some questions to ask of
              you.

                    First of all, did you sign this document entitled
              “Guilty Plea Explanation of Defendant’s Rights”?

              APPELLANT: Yes.

              ....

              THE COURT: Do you admit for the purposes of your
              guilty plea that on August 1, 1991, you were in
              possession of 3.2 grams of crack cocaine and that
              you possessed it at that time with the intent to
              deliver same?

              APPELLANT: Yes.

Guilty plea/sentencing transcript, 1/9/92 at 6, 8.



1
    35 P.S. §§ 780-113(a)(30), (a)(32), and (a)(16), respectively.


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        On January 9, 1992, appellant was sentenced to serve 15 months to

5 years in state prison. Appellant did not appeal his sentence to this court.

        On February 10, 2014, appellant filed his first PCRA petition pro se.

Appellant alleged that counsel was ineffective in advising him to plead guilty

to possession of 3.2 grams of crack cocaine, when he was actually only in

possession of ½ gram (a personal use amount).          He requested that his

Pennsylvania state sentence be vacated. Appellant claimed he only became

aware of the fact that he pled guilty to having 3.2 grams of crack cocaine at

the time of his sentencing in federal court. He stated that he is currently

confined in the U.S. Bureau of Prisons in Lexington, Kentucky.        (Docket

#19.)

        On May 2, 2014, the PCRA court provided appellant with notice of its

intent to dismiss the PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907(a). (Docket #21.) The PCRA court found that appellant’s

judgment of sentence became final on February 9, 1992 (expiration of

30-day appeal period from the date of sentencing), that appellant’s PCRA

petition was filed more than one year after such date, and that none of the

exceptions at 42 Pa.C.S.A. § 9545(b)(1) was pled or applied. On May 28,

2014, the PCRA court dismissed the PCRA petition. (Docket #23.)

        On June 30, 2014, appellant filed a pro se notice of appeal and filed

his statement of matters complained of on appeal on August 14, 2014. It

appearing that this was appellant’s first PCRA petition, this court remanded



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to the trial court on October 29, 2014, to determine if appellant was entitled

to the appointment of counsel under Pa.R.Crim.P. 904(c) and, if so, directed

counsel to file a new Rule 1925(b) statement.2 On November 21, 2014, the

trial court appointed Gregory Neugebauer, Esq., to represent appellant on

appeal.   (Docket #30.)    Attorney Neugebauer timely filed a statement of

matters complained of on appeal and raised the following issue:

            I.     Whether the Trial Court abused its discretion
                   and/or committed an error of law when it
                   dismissed, without a hearing, Appellant’s
                   Motion for Post-Conviction Collateral Relief as
                   untimely when the said Motion alleged an
                   exception to the timeliness provisions as
                   codified at 42 Pa.C.S.A. § 9545(a)(1)(ii).

Appellant’s brief at 1.

      Attorney    Neugebauer    has   now   filed   a   motion   to   withdraw

contemporaneously with an “appellate brief filed on behalf of appellant” in

which counsel indicates why he believes appellant’s appeal is without merit.

      Pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc),

in order to withdraw, counsel must file a “no merit” letter, outlining the



2
  It appears that our October 29, 2014 order erroneously remanded for the
appointment of appeal counsel when, in fact, we should have remanded for
the appointment of PCRA counsel since this was appellant’s first PCRA
petition. However, even if PCRA counsel was able to establish one of the
§ 9545(b)(1) exceptions, appellant’s PCRA petition would be dismissed in
any event because, as discussed infra, he is not currently serving a
sentence. Therefore, it is unnecessary for us to address the timeliness
exceptions or remand for PCRA counsel.


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issues sought to be raised by appellant and explaining why those issues are

meritless. In addition, counsel must state that the post-conviction court has

conducted   its   own    review   and   has    reached    the    same   conclusion.

Commonwealth        v.   Granberry,      644    A.2d     204    (Pa.Super.   1994);

Commonwealth v. Dukeman, 605 A.2d 418 (Pa.Super. 1992).

      Presently, counsel has asserted that the one issue presented by

appellant is without merit. His Finley letter brief demonstrates that he has

examined the issues carefully and has provided an explanation of why the

appeal lacks merit. Finally, he has furnished a copy of the brief to appellant,

as well as a letter advising appellant of his option of proceeding pro se or

with retaining an attorney.3

      Turning to the issue on appeal, we agree with counsel that the PCRA

court was correct in its assessment that appellant is ineligible for relief under

the PCRA.    To be eligible for relief under the PCRA, the petitioner must

prove:

            (1)   That the petitioner has been convicted of a
                  crime under the laws of this Commonwealth
                  and is at the time relief is granted:

                  (i)    currently serving a sentence of
                         imprisonment, probation or parole
                         for the crime;

                  (ii)   awaiting execution of a sentence of
                         death for the crime; or

3
   We note that although appellant has properly been advised of appeal
counsel’s intention to withdraw, appellant has not filed a pro se appeal brief
in support of his claims.


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                    (iii)   serving a sentence which must
                            expire before the person may
                            commence serving the disputed
                            sentence.

42 Pa.C.S.A. § 9543 (a)(1).

        Pursuant to the clear language of the statute, at the time relief is

granted, the petitioner must be currently serving a sentence for the same

crime which is being challenged by the petition. Presently, while appellant is

indeed currently serving a sentence, it is not for the conviction challenged in

his petition.4 The sentence for the conviction being challenged has already

been completed. According to counsel, he spoke with the Board of Probation

and Parole which indicated that appellant had committed at least one parole

violation and was ultimately paroled on March 21, 2001, with a maximum

date of January 3, 2002.         Accordingly, appellant’s sentence expired on

January 3, 2002, while he was serving parole.            (Appellant’s brief at 4.)

Therefore, appellant is no longer eligible for relief.

        Order affirmed. Counsel is granted permission to withdraw.



        Donohue, J. joins the Memorandum.

        Strassburger, J. files a Dissenting Memorandum.




4
    According to appellant, he is currently in federal prison in Kentucky.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/30/2015




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