J-S31021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

CHAD BRADLEY DICKSON,

                           Appellant                   No. 1240 MDA 2014


              Appeal from the PCRA Order entered July 3, 2014,
               in the Court of Common Pleas of Luzerne County,
             Criminal Division, at No(s): CP-40-CR-0000007-2010


BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.:

MEMORANDUM BY ALLEN, J.:                                 FILED MAY 15, 2015

      Chad Bradley Dickson (“Appellant”) appeals from the order denying his

second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).     42 Pa.C.S.A. §§ 9541-9546.        PCRA counsel has also filed a

motion to withdraw.        We grant PCRA counsel’s petition to withdraw and

affirm the PCRA court’s order denying post-conviction relief.

      The pertinent facts and procedural history have been summarized as

follows:

              On March 30, 2011, Appellant appeared before the trial
           court and entered a nolo contendere plea to one count of
           [forgery]. Within that plea, Appellant did not contest the
           charges that, sometime between November 2, 2007 and
           November 16, 2007, while an inmate at the Pennsylvania
           State Correctional Institution, Retreat (“SCI Retreat”), [he]
           created a counterfeit check in the amount of $4,900.00.
           Appellant was sentenced that same day.
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           Additionally, during both his plea colloquy and
        sentencing hearing, testimony was presented regarding
        similar infractions perpetrated by Appellant, wherein [he]
        apparently used the typewriter within his cell to counterfeit
        materials. As a result, within discussions resulting in his
        sentence and plea agreement, the Commonwealth
        informed Appellant that, assuming that [he] would be
        sentenced to incarceration, the Commonwealth intended to
        request, either from the trial court or from the Department
        of Corrections, that Appellant not be permitted to use a
        typewriter within his cell.      When the topic arose at
        sentencing, Superintendent McGrady explained to the trial
        court that, if Appellant were restricted to use of the
        typewriter in the [prison] library, as opposed to one in his
        cell, then department of corrections authorities would be
        able to monitor his use of the typewriter to the best of
        their ability. Authorities, however, would have no access
        or means to monitor Appellant’s use of a typewriter within
        his cell without having to do cell searches on a daily basis.

           The trial court accepted Appellant’s plea as knowingly
        and voluntarily entered and sentenced him to 10 to 20
        months’ incarceration and [a consecutive twelve-month
        probationary term.      At the conclusion of Appellant’s
        sentencing hearing, as a condition of his sentence, the trial
        court restricted Appellant to use of only the prison library
        typewriter].

           Appellant then filed a counseled post-sentence motion
        and a pro se motion to withdraw his guilty plea. The trial
        court denied both motions.

Commonwealth v. Dickson, 60 A.3d 847 (Pa. Super. 2012), unpublished

memorandum at 2-3 (citations and footnote omitted).

     Appellant filed a timely appeal to this Court. On September 10, 2012,

“[b]ecause we [held] that the portion of Appellant’s sentence restricting his

right to use a typewriter while incarcerated [was] illegal, we [vacated] that

portion of the sentence and [affirmed] the remaining aspects of the



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judgment of sentence.” Dickson, unpublished memorandum at 1. Neither

Appellant nor the Commonwealth filed a petition for allowance of appeal.

      The PCRA court summarized the subsequent procedural history as

follows:

               [Appellant] filed a PCRA Petition on January 14, 2013,
           that was ultimately withdrawn by [Appellant] after
           consultation with his counsel, John Hakim, on September
           5, 2013. [Appellant also withdrew all ineffective assistance
           claims he had raised against trial counsel.] [Appellant]
           filed a second PCRA Petition on November 19, 2013. []

                                      ***

              Thereafter, the Court issued [Pa.R.Crim.P. 907 notice of
           intent to dismiss Appellant’s petition] on May 29, 2014.
           On July 2, 2014 the Court issued an Order, without hearing
           and after review of [Appellant’s] PCRA Petition,
           Memorandum of Law, and [Appellant’s] Response to the
           [Pa.R.Crim.P.] 907 Notice, and denied and dismissed the
           PCRA Petition.

              Following the dismissal, [Appellant] filed a pro se
           Appeal to the PCRA dismissal on July 18, 2014. Attorney
           John Hakim was still counsel of record having previously
           represented [Appellant] for PCRA purposes. When he was
           advised of the Pro-Se appeal, he filed a Motion for
           Appointment of Appellate Counsel. The Court, having full
           knowledge of the Pro-Se Appeal and that the filing was
           actually hybrid representation in that [Appellant] continued
           to be represented by Attorney Hakim, issued an Order on
           August 1, 2014 and appointed [present counsel] to
           represent [Appellant] in all pending appellate matters. []

              The Superior Court issued an Order dated August 22,
           2014, directing the Trial Court to conduct a [Grazier]
           Hearing and make a determination as to whether
           [Appellant] is entitled to and desires counsel on appeal. At
           the [Grazier] hearing, [present counsel] appeared and
           indicated to the Court that he was in possession of all
           materials and documents necessary to prepare and file the
           brief for the appeal. The Court conducted a colloquy [with

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         Appellant,] and reviewed the Remand Order with
         [Appellant] and assured [him] that his appellate rights
         remained intact and [Appellant] indicated he had the
         opportunity to speak with [present counsel] and was
         satisfied that he could adequately prepare the Appellate
         Brief in this matter. The Trial Court issued an Order on
         September 30, 2014, verifying that [Appellant] was
         represented in appellate matters and Ordered that
         [present counsel] file [] Appellant’s brief within twenty five
         (25) days.

PCRA Court Opinion, 9/30/14, at 1-3 (footnote omitted).

      In lieu of an advocate’s brief, Appellant’s counsel has filed a purported

“NO MERIT/TURNER FINLEY BRIEF” and a petition to withdraw pursuant

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

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

Thus, we will assess counsel’s assertion that Appellant’s appeal is frivolous

under a Turner/Finley analysis.

      Our Supreme Court has explained:

           These cases establish the procedure for withdrawal of
        court-appointed counsel in collateral attacks on criminal
        convictions.   Independent review of the record by
        competent counsel is required before withdrawal is
        permitted. Such independent review requires proof of:

        1) A “no-merit” letter by PCRA counsel detailing the
           nature and extent of his [or her] review;

        2) A “no-merit” letter by PCRA counsel listing each issue
           the petitioner wished to have reviewed;

        3) The PCRA counsel’s “explanation”, in the “no-merit”
           letter, of why the petitioner’s issues were meritless;

        4) The PCRA court conducting its own independent
           review of the record; and



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         5) The PCRA court agreeing with counsel that the
            petition was meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1, (Pa. 2009) (citations

omitted).    Here, counsel has complied with the mandates of Turner and

Finley, as summarized in Pitts, supra.1              We therefore must determine

whether we agree with counsel’s assessment of Appellant’s ineffectiveness

claim.

       This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported     by   the    evidence     of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).          Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).


____________________________________________


1
 PCRA counsel attached a copy of his letter to Appellant to his petition to
withdraw. See generally, Commonwealth v. Liebensperger, 904 A.2d
40 (Pa. Super. 2006).




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      PCRA counsel asserts that, because Appellant is no longer serving any

portion of his sentence at issue, he is ineligible for PCRA relief.       See   42

Pa.C.S.A. § 9543 (a)(1)(i).     Our review of the record supports counsel’s

conclusion. As stated by the PCRA court:

             In reviewing the procedural history of the case at bar, it
          is abundantly clear that [Appellant’s] sentence of
          incarceration expired on November 30, 2012 and the
          additional one year probation expired on November 30,
          2013. [Appellant] filed the PCRA petition on November 19,
          2013. [Appellant’s] probation sentence expired eleven
          (11) days after he filed the PCRA. At the time that the
          court issued the [Pa.R.Crim.P. 907 notice], the sentence to
          the one (1) count of [forgery] had expired.

PCRA Court Opinion, 9/30/14, at 5. We agree.

      As our Supreme Court has recently explained:

             Eligibility for relief under the PCRA is dependent upon
          the    petitioner    currently   serving  a   sentence    of
          imprisonment, probation, or parole for the crime. 42
          Pa.C.S. § 9543(a)(1)(i); [Commonwealth v. Ahlborn,
          699 A.2d 718, 720, (Pa. 1997)] (holding that the plain
          language of this section requires the denial of relief for a
          petitioner who has finished serving his sentence).

Commonwealth v. Turner, 80 A.3d 754, 761-62. Moreover, “[t]he [PCRA]

statute clearly contemplates that the petitioner will be serving a sentence at

both the pleading and proof stages of the proceeding.” Ahlborn, 699 A.2d

at 720.    Thus, as soon as a PCRA petitioner has completed his or her

sentence, he or she is no longer eligible for relief despite the pendency of his

or her petition.     See, e.g., Turner, 80 A.3d at 769 (holding PCRA

petitioner’s eligibility for relief expired two days after she filed her PCRA


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petition); Ahlborn, 699 A.2d at 719-20 (holding that petitioner was

ineligible for PCRA relief when, following the filing of a PCRA petition and the

scheduling of an evidentiary hearing, he was unconditionally released from

prison).

      Our review of the record supports the conclusion of both present

counsel and the PCRA court that Appellant is no longer eligible for post-

conviction relief because he completed his sentence eleven days after he

filed his PCRA petition.   We therefore grant present counsel’s petition to

withdraw, and affirm the PCRA court’s order dismissing Appellant’s PCRA

petition.

      Petition granted. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




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