J-S04045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SADIYYAH F. YOUNG                          :
                                               :
                       Appellant               :   No. 1538 EDA 2018

                  Appeal from the PCRA Order March 23, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): MC-51-CR-0006208-2015


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                               FILED MARCH 19, 2020

       Sadiyyah F. Young (Appellant) appeals from the order dismissing her

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546.        In this appeal, Appellant’s court-appointed counsel (PCRA

Counsel) filed a petition to withdraw as counsel and brief pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).1         For the reasons explained below, we grant PCRA

Counsel’s petition to withdraw and dismiss the appeal.

____________________________________________


1 Counsel filed an Anders brief, as opposed to a Turner/Finley letter,
apparently in the mistaken belief that an Anders brief is required where
counsel seeks to withdraw on appeal from the denial of PCRA relief. A
Turner/Finley no-merit letter, however, is the appropriate filing. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Generally, we accept an
Anders brief in lieu of a Turner/Finley letter because an Anders brief
provides greater protection to the defendant.       Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
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        On July 1, 2015, the trial court convicted Appellant of simple assault and

possession of an instrument of crime relating to Appellant’s assault of her

brother. That same day, the trial court sentenced Appellant to 6 to 12 months

of incarceration, with credit for time served, and a concurrent term of two

years of probation. Appellant filed a motion for reconsideration of sentence,

which the trial court denied on August 19, 2015. Appellant did not file a direct

appeal.

        On July 15, 2016, Appellant filed a timely pro se PCRA petition. On July

18, 2017, Counsel was appointed and filed an amended petition on Appellant’s

behalf. On November 14, 2017, the Commonwealth filed a motion to dismiss

Appellant’s petition, stating that Appellant was no longer serving a sentence

and was therefore ineligible for relief. On February 26, 2018, the PCRA court

issued notice of its intent to dismiss Appellant’s petition without a hearing

pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure. On

March 8, 2018, Appellant filed a response to the court’s notice.

        On March 23, 2018, the PCRA court issued an order dismissing

Appellant’s petition without a hearing “based on Counsel’s Finley letter.”

PCRA Court Order, 3/23/18. Subsequently, on June 7, 2018, the PCRA court

issued a corrected order of dismissal, vacating the March 23, 2018 order, and

dismissing Appellant’s PCRA petition for lack of standing.2 PCRA Court Order,

6/7/18. This timely appeal followed.

____________________________________________


2   PCRA Counsel did not file a Turner/Finley letter.

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      On November 28, 2018, Appellant filed a pro se request for the

appointment of counsel, and on December 26, 2018, a pro se appellate brief

with this Court. On December 28, 2018, this Court, recognizing that Appellant

was still represented by counsel, issued an order directing the Prothonotary

of this Court to strike Appellant’s pro se brief and issue a new briefing

schedule.   On February 27, 2019, after Counsel failed to file a brief on

Appellant’s behalf, this Court entered an order remanding this case back to

the PCRA court to determine whether Counsel abandoned Appellant on appeal.

On March 27, 2019, the PCRA court filed a responsive order, indicating that

after a hearing, Counsel had not abandoned Appellant and wished to represent

Appellant on appeal.      Upon receiving the PCRA court’s response, the

Prothonotary of this Court issued a new briefing schedule.

      On April 5, 2019, Counsel requested an extension of time to file an

appellate brief.   We granted Counsel’s request, but stated that no further

extensions would be granted.     Counsel failed to file a brief by the stated

deadline, and on June 12, 2019, we remanded the matter to the PCRA court,

directing that Counsel be removed as attorney for Appellant.           We also

instructed the PCRA court to appoint new counsel for Appellant within 30 days.

      On August 5, 2019, PCRA Counsel entered his appearance.                On

September 16, 2019, PCRA Counsel filed a petition to withdraw and Anders

brief with this Court. On September 27, 2019, this Court issued an order

explaining that PCRA Counsel failed to attach to his petition to withdraw a

letter to Appellant, informing her of her right to retain counsel or proceed pro

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se in this appeal. We directed PCRA Counsel to comply with the technical

requirements of Anders within 14 days. On October 1, 2019, Appellant filed

a response to PCRA Counsel’s petition to withdraw, raising 12 additional claims

for our review.

      On October 22, 2019, PCRA Counsel filed a revised petition to withdraw

and Anders brief.    In his petition to withdraw, PCRA Counsel explains his

conclusion, that “[a]fter a careful review of the record in this matter,

undersigned counsel has determined there is no non-frivolous issue which may

be presented to the Court.”     Petition to Withdraw, 10/22/19, at ¶ 2.     In

addition, PCRA Counsel represented that he furnished a copy of the brief to

Appellant and advised Appellant of her right to retain new counsel or act on

her own behalf to raise additional arguments or points for this Court’s

consideration.    In addition to fulfilling the technical requirements of

Anders/Santiago, PCRA Counsel also recognized that Appellant is ineligible

for relief because she is no longer serving the underlying sentence. We agree

with PCRA Counsel’s assessment of this appeal, and dismiss it because

Appellant does not meet the PCRA eligibility requirements.

      To be eligible for relief under the PCRA, a petitioner must be “(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 (iii)

serving a sentence which must expire before the person may commence

serving the disputed sentence.” 42 Pa.C.S.A. § 9543(a)(1).




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      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);

Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006) (noting that

“[a]s 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”), and Commonwealth v. Matin, 832 A.2d 1141 (Pa. Super. 2003)

(“A petitioner is ineligible for relief under the PCRA once the sentence for the

challenged conviction is completed.”).    As our Supreme Court explained in

Ahlborn, the denial of relief for a petitioner who 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, the record reflects that Appellant finished serving her maximum

sentence on July 6, 2017; consequently, she is ineligible for collateral relief.

See 42 Pa.C.S.A. § 9543 (a)(1)(i) (requiring, inter alia, proof that the

petitioner is “currently serving a sentence of imprisonment, probation or

parole for the crime”).   Accordingly, this appeal must be dismissed.      See

Ahlborn, supra.

      PCRA Counsel’s petition to withdraw granted. Appeal dismissed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/20




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