J-S93044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JARVIS DUNCAN,

                            Appellant                 No. 907 EDA 2015


                   Appeal from the PCRA Order March 6, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0005262-2007


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 31, 2017

        Appellant, Jarvis Duncan, appeals from the order of March 6, 2015,

which dismissed without a hearing, his first petition brought under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel has filed

a petition to withdraw. For the reasons discussed below, we grant counsel’s

petition to withdraw and affirm the dismissal of the PCRA petition.

        We take the underlying facts and procedural history in this matter

from the PCRA court’s March 3, 2016 supplemental opinion and our

independent review of the certified record. On August 20, 2008, Appellant

pleaded guilty to one count each of possession with intent to deliver a

controlled substance and intentional possession of a controlled substance.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Appellant   was    immediately    sentenced,    in   accordance    with   the

Commonwealth’s recommendation, to a term of incarceration of not less

than fifteen months nor more than thirty months. Appellant did not file a

direct appeal.

      On February 4, 2013, the Defender Association of Philadelphia, on

behalf of Appellant, filed a PCRA petition alleging newly discovered evidence,

namely corruption by one of the police officers involved in his arrest.    On

January 28, 2015, the PCRA court issued notice of its intent to dismiss the

petition pursuant to Pennsylvania Rule of Criminal Procedure 907.         See

Pa.R.Crim.P. 907(1).    On March 6, 2015, the PCRA court dismissed the

petition.

      On March 23, 2015, Appellant, acting pro se, filed a notice of appeal.

On April 15, 2015, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On

May 13, 2015, the Defender Association of Philadelphia filed a motion to

withdraw.    On May 29, 2015, noting that new counsel, Attorney Todd

Michael Mosser, had entered an appearance for Appellant, the trial court

granted the motion of previous counsel to withdraw.      Attorney Mosser did

not file a Rule 1925(b) statement. On June 10, 2015, the PCRA court issued

an opinion. See Pa.R.A.P. 1925(a).

      On September 1, 2015, this Court issued an order remanding the

matter for a determination of whether PCRA counsel had abandoned


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Appellant on appeal.        On December 8, 2015, Attorney Stephen Thomas

O’Hanlon, entered a notice of appearance on behalf of Appellant.                 On

December 9, 2015, the PCRA court ordered Appellant to file a Rule 1925(b)

statement.     See Pa.R.A.P. 1925(b).          Attorney O’Hanlon filed a timely Rule

1925(b) statement on behalf of Appellant on December 24, 2015. See id.

On March 3, 2016, the PCRA court issued a supplemental opinion.                 See

Pa.R.A.P. 1925(a). On April 11, 2016, Attorney O’Hanlon filed a motion to

withdraw with this Court, together with a Turner/Finley letter.

       On appeal, the Turner/Finley letter1 raises the following question for

our review:

       [Did t]he PCRA [c]ourt err[] when it dismissed Appellant’s PCRA
       [p]etition seeking to withdraw his guilty plea nunc pro tunc
       because: (a) there was key newly-discovered evidence and this
       requires a more thorough analysis of whether the plea was
       voluntary or not. Appellant has suffered manifest injustice and
       should have been permitted to withdraw his uninformed guilty
       plea because he did not know of the corruption of the arresting
       officer(s) even if other officers were involved in the arrest and
       Appellant faced a substantial sentence if he had gone to trial; (b)
       there were Brady [v. Maryland, 373 U.S. 83 (1963)] violations
       by the Philadelphia District Attorney’s Office which denied
       Appellant [p]rocedural [d]ue [p]rocess because this [o]ffice
       knew or should have known of the issues of corruption of the
       arresting officer(s) in the present case but the [o]ffice continued
       to prosecute cases without divulging anything to defendants
       such as Appellant regarding arrest and subsequent prosecution
       involving corrupt police officer(s); (c) Appellant faced unequal
       application of justice because some cases involving said
       officer(s) are automatically granted PCRA relief when said
____________________________________________


1
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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     corrupt officer(s) were involved in arrests and Appellant was not
     granted such relief[?]

(Turner/Finley Letter, at 2).

     Here, as noted, Appellant’s court-appointed counsel has petitioned this

Court for permission to withdraw and has submitted a Turner/Finley letter.

Appellant has not responded to the motion to withdraw.       Court-appointed

counsel who seeks to withdraw from representing an appellant on appeal of

a denial of a PCRA petition on the basis that the appeal lacks merit must

review the case zealously.      See Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa. Super. 2007).

     Turner/Finley counsel must then submit a “no-merit” letter to
     the trial court, or brief on appeal to this Court, detailing the
     nature and extent of counsel’s diligent review of the case, listing
     the 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 of the
     “no-merit” letter/brief; (2) a copy of counsel’s petition to
     withdraw; and (3) a statement advising petitioner of the right to
     proceed pro se or by new counsel.

Id. (citations omitted). Counsel has substantially complied with the dictates

of Turner/Finley.

     When this Court receives a Turner/Finley letter, we conduct an

independent review of the record in light of the PCRA petition and the issues

set forth within it, as well as of the contents of the petition of counsel to

withdraw.   See Wrecks, supra at 721.         We will grant the petition to

withdraw, where, as here, we agree with counsel that the petition is

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meritless. See id. Accordingly, we grant counsel’s petition to withdraw and

proceed to conduct an independent review of Appellant’s claims.

     Our standard of review for an order denying PCRA relief is well-settled:

           This Court’s standard of review regarding a PCRA court’s
     order is whether the determination of the PCRA court is
     supported by the evidence of record and is free of legal error.
     Great deference is granted to the findings of the PCRA court, and
     these findings will not be disturbed unless they have no support
     in the certified record. . . .

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

     In the instant matter, Appellant has not shown that he is eligible for

PCRA relief. The trial court sentenced Appellant on August 20, 2008, to a

term of incarceration of not less than fifteen nor more than thirty months.

Therefore, it appears that Appellant maxed out his sentence in February

2011, approximately two years before he filed the instant PCRA petition.

Thus, the PCRA court concluded that Appellant was not eligible for PCRA

relief because he had completed his sentence.            (See PCRA Court

Supplemental Opinion, 3/03/16, at 4).      Similarly, in his Turner/Finley

letter, counsel agrees that Appellant completed his sentence in February

2011 and is therefore, ineligible for PCRA relief. (See Turner/Finley Letter,

at 2-3).   Likewise, the Commonwealth concurs, stating that Appellant

completed his sentence prior to the filing of the PCRA petition.         (See

Commonwealth’s Brief, at 3).




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      We agree that Appellant is ineligible for PCRA relief. To be eligible for

relief under the PCRA, a petitioner must be “currently serving a sentence of

imprisonment, probation or parole for the crime[.]”           42 Pa.C.S.A. §

9543(a)(1)(i). The Pennsylvania Supreme Court has stated that as soon as

the sentence is completed, the petitioner is ineligible for PCRA relief,

regardless of whether he was serving his sentence when he filed the

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

Commonwealth v. Matin, 832 A.2d 1141, 1143 (Pa. Super. 2003), appeal

denied, 843 A.2d 1237 (Pa. 2004). Thus, Appellant has not demonstrated

that he is entitled to PCRA relief.

      For the reasons discussed above, we hold that Appellant is ineligible

for PCRA relief. Accordingly, we affirm the dismissal of his PCRA petition and

grant counsel’s petition to withdraw.

      Petition to withdraw as counsel granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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