J-S81008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    SIMON EUGENE GIGEE

                             Appellant                 No. 812 MDA 2018


               Appeal from the PCRA Order entered April 16, 2018
                 In the Court of Common Pleas of Tioga County
                Criminal Division at No: CP-59-CR-0000492-2015


BEFORE: STABILE, J., DUBOW, J., and STEVENS,* P.J.E.

MEMORANDUM BY STABILE, J.:                            FILED MARCH 22, 2019

        Appellant, Simon Eugene Gigee, appeals from the April 16, 2018 order

of the Court of Common Pleas of Tioga County, which dismissed his request

for collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

46. Upon review, we affirm.

         The PCRA court summarized the relevant background as follows: On

January 13, 2016, Appellant pled guilty to one count of operating a vehicle

without required ignition interlock device, an ungraded misdemeanor. The

same day Appellant was sentenced to a period of incarceration for a minimum

period of 42 days and a maximum period of 90 days. The sentencing court

gave Appellant credit for time served and released him.


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*   Former Justice specially assigned to the Superior Court.
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       On May 9, 2016, Appellant filed his first PCRA petition, which the PCRA

court dismissed on June 23, 2016, without holding a hearing.

       On January 11, 2018, Appellant filed the instant PCRA petition, which

the PCRA court dismissed on April 16, 2018, without holding a hearing. This

appeal followed.

       At the outset, before we can address the merits of the petition,1 we must

consider whether Appellant is eligible for relief under the PCRA. To be eligible

for relief under the PCRA, a petitioner must be either “currently serving a

sentence of imprisonment, probation or parole for the crime,” “awaiting

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

must expire before the person may commence serving the disputed sentence.”

42 Pa.C.S.A. § 9543(a)(1)(i)-(iii).

       Our Supreme Court and this Court have consistently interpreted Section

9543(a) to require that a PCRA petitioner be serving a sentence while relief is

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

see also Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011), and

Commonwealth v. Matin, 832 A.2d 1141 (Pa. Super. 2003).                  As our

Supreme Court explained in Ahlborn, the denial of relief for a petitioner who
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1 In the instant PCRA petition, Appellant argues the trial court erred in finding
him subject to the ignition interlock requirements. In his appellate brief,
Appellant also argues that plea counsel was ineffective for not properly
reviewing the matter. In Appellant’s view, these two errors gave rise to a
“miscarriage of justice,” as discussed in Commonwealth v. Szuchon, 633
A.2d 1098 (Pa. 1993) and Commonwealth v. Lawson, 549 A.2d 107 (Pa.
1988). Finally, in his appellate brief, Appellant argues that the PCRA court
erred in not holding a hearing on his petition.

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has finished serving his sentence is required by the plain language of the PCRA

statute.    Ahlborn, 699 A.2d at 720.            Indeed, to be eligible for relief, a

petitioner must be currently serving a sentence of imprisonment, probation,

or parole. Id. To grant relief at a time when an appellant is not currently

serving such a sentence would be to ignore the language of the PCRA. Id.

       Here, based on our review of the record, Appellant does not meet the

foregoing eligibility requirements as he had completed his sentence of 90 days’

imprisonment by the time he filed the instant petition (January 11, 2018).

Thus, Appellant is not eligible for PCRA relief.2

       Even if Appellant was eligible for relief, we would not have the authority

to review the instant appeal because the underlying PCRA petition is untimely.

       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

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2The PCRA court, in its notice of intent to dismiss issued in connection with
Appellant’s first PCRA petition (filed May 9, 2016), noted the following:

       In the present case, [Appellant] was sentenced on January 13,
       2016 to a maximum period of imprisonment of ninety (90) days
       with credit for forty-two (42) days time served and immediately
       paroled. As [Appellant]’s parole was never revoked in this case,
       his period of parole supervision expired on or around March 1,
       2016.    [Appellant]’s sentence[] did not include any further
       punishment. [Appellant] has completed his sentence and is
       therefore ineligible for any PCRA relief[.]

Notice of Intent to Dismiss, 5/25/16, at 1-2.



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an exception to the time for filing the petition is met. 42 Pa.C.S.A.

§ 9545(b)(1).

       Appellant’s petition is facially untimely.    Appellant’s judgment of

sentence was imposed on January 13, 2016. Appellant had one year from

that date to file a timely PCRA petition. The instant PCRA petition, which was

filed January 11, 2018, is therefore facially untimely.

       Additionally, Appellant failed to discuss whether any of the exceptions

to the timeliness requirement are applicable. As such, even if Appellant were

eligible to relief, we would have concluded that Appellant's PCRA petition was

filed more than one year after his judgment of sentence became final and that

he had failed to establish the applicability of any PCRA timeliness exception.

Accordingly, because the underlying petition was untimely, we would not have

reviewed the merits of the petition. See Commonwealth v. Fahy, 737 A.2d

214, 222 (Pa. 1999) (if the PCRA petition is determined to be untimely, and

no exception has been pled and proven, the petition must be dismissed

without a hearing because Pennsylvania courts are without jurisdiction to

consider the merits of the petition).3
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3 In his brief with this Court, as mentioned, Appellant discusses Szuchon,
supra, and Lawson, supra, for the proposition that enhanced pleadings are
required in connection with a second or subsequent PCRA petition. Even if
Appellant met the enhanced pleading requirements, Appellant failed to raise
and address why the instant petition is reviewable despite being facially
untimely. At any rate, Szuchon and Lawson do not provide an equitable
timeliness exception for miscarriage of justice. Thus, Szuchon and Lawson
are of no help to Appellant.



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       In light of the foregoing, we affirm the PCRA Court’s order dismissing

without a hearing Appellant’s instant PCRA petition.4

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2019




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4In its notice of intent to dismiss, the PCRA court concluded that Appellant
was not entitled to relief because the issue raised in the instant petition was
waived for failure to raise it at earlier stages. We do not need address whether
Appellant has waived his issue because Appellant failed to meet the eligibility
and timeliness requirements.

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