J-S55027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
            v.                            :
                                          :
KIM PHOUNG (a/k/a PHUONG KIM              :
LOI),                                     :
                                          :
                        Appellant         :     No. 3566 EDA 2013


           Appeal from the PCRA Order Entered October 18, 2013,
            In the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No. CP-51-CR-0701281-2004.


BEFORE: BOWES, SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 20, 2014

      Appellant, Kim Phoung, a/k/a Phuong Kim Loi, appeals from the order

denying her petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court summarized the history of this case as follows:

            In 2001, Appellant came to the United States from
      Vietnam as a legal permanent resident. She has been deaf since
      childhood. On April 14, 2004, Appellant threw a stroller carrying
      her two-year old daughter into the street. (N.T. 12/22/2004 at
      10). Her daughter sustained a cut on her forehead and was
      treated at Saint Christopher’s Hospital in Philadelphia,
      Pennsylvania. Id. at 11.

            On December 22, 2004, Appellant appeared before this
      Court and entered a negotiated guilty plea to the charge of
      aggravated assault, graded as a felony of the second degree.
      Appellant used an American Sign Language interpreter during
      the guilty plea hearing.
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               On March 2, 2005, Appellant was sentenced to four years
        probation.[1] On June 9, 2010, Appellant applied to renew her
        permanent resident card and during the application process, her
        conviction in this matter was discovered. On April 8, 2011, she
        was placed into removal proceedings by the United States
        Department of Homeland Security. While preparing for the
        removal proceedings, it was discovered that Appellant had
        difficulty communicating with the American Sign Language
        interpreter retained for her use.

              Consequently, Appellant filed a PCRA petition, and
        alternatively, a motion to withdraw her guilty plea and/or to
        reinstate her appellate rights nunc pro tunc on August 9, 2012.

PCRA Court Opinion, 12/18/13, at 2 (footnote added).

        On October 18, 2013, the PCRA court dismissed Appellant’s PCRA

petition on the basis that she was no longer in custody.            This appeal

followed.

        Appellant presents the following issues for our review:

        1. WHETHER IN THE CIRCUMSTANCES OF THIS CASE, WHERE
        APPELLANT WAS MANIFESTLY NOT COMPETENT TO ENTER A
        PLEA OR COMMUNICATE VIA AMERICAN SIGN LANGUAGE,
        JUSTICE AND DUE PROCESS REQUIRE THAT APPELLANT’S POST-
        CONVICTION    RELIEF   ACT    PETITION    BE    HEARD
        NOTWITHSTANDING APPELLANT’S COMPLETION OF HER
        CRIMINAL SENTENCE.

        2. WHETHER, IN THE EVENT APPELLANT’S PCRA PETITION MAY
        NOT BE HEARD, APPELLANT SHOULD BE PERMITTED TO
        WITHDRAW HER GUILTY PLEA, OR, ALTERNATIVELY, HAVE HER
        APPELLATE RIGHTS REINSTATED, ON THE GROUND THAT SHE
        WAS NEVER COMPETENT TO ENTER A GUILTY PLEA.

Appellant’s Brief at 4.


1
    Appellant did not file a direct appeal from her judgment of sentence.

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      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).       The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Before we address the issues before us, we must first consider

whether Appellant is eligible for relief under the PCRA.       Thus, we must

address whether Appellant satisfied the requirements of the PCRA, which are

as follows:

      (a) General rule. -- To be eligible for relief under [the PCRA],
      the petitioner must plead and prove by a preponderance of the
      evidence all of the following:

              (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

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


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42 Pa.C.S. § 9543.

      As our Supreme Court explained in Commonwealth v. Ahlborn, 699

A.2d 718, 720 (Pa. 1997), the denial of relief for a petitioner who has

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

statute.   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 appellant is not currently serving such a sentence would be to ignore

the language of the statute. Id.

      Our review of the record reflects that Appellant invoked the PCRA

when she filed the instant petition on August 9, 2012.            However, as

indicated in the PCRA court’s opinion dated December 18, 2013, the record

reveals Appellant has finished serving her Pennsylvania sentence pertinent

to the conviction stated above. Specifically, the PCRA court’s opinion offered

the following relevant analysis:

            The Post Conviction Relief Act was intended to limit relief
      to those petitioners whose sentences have not expired and to
      preclude relief for those whose sentences have expired,
      regardless of collateral consequences. Commonwealth v. Pierce,
      579 A.2d 963, 966 (Pa. Super. Ct. 1990).

            The Supreme Court of Pennsylvania recently issued a
      decision in Commonwealth v. Turner[, 80 A.3d 754 (Pa. 2013)],
      a case that dealt with the constitutionality of Section
      9543(a)(1)(i) of the Post Conviction Relief Act, which conditions
      the availability of post-conviction relief on whether the petitioner
      is currently serving a sentence of imprisonment, probation, or
      parole. Commonwealth v. Turner, 2013 WL 6134575, No. 52


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     EAP [2011], 1 (Nov. 22, 2013). In Turner, the PCRA court held
     that the petitioner’s constitutional right to due process would be
     violated if she were prohibited from obtaining collateral relief on
     her timely claim of trial counsel’s ineffectiveness, simply because
     she had completed her sentence. Id. The Supreme Court
     concluded that the petitioner had no due process right to be
     heard outside the limits imposed by Section 9543(a)(1)(i) of the
     PCRA, finding that “the legislature was aware that the result of
     the custody or control requirement of Section 9543(a)(1)(i)
     would be that defendants with short sentences would not be
     eligible for collateral relief.” Id. at 9.

            In the present action, this Court lacks jurisdiction to decide
     Appellant’s matter because Appellant’s sentence has expired.
     Pursuant to 42 Pa.C.S.A. § 9543(a)(1), and in accordance with
     our Supreme Court’s decision in Commonwealth v. Turner,
     Appellant must prove by a preponderance of the evidence that
     she is currently serving her sentence of probation.             When
     Appellant initially brought her PCRA Petition before this Court in
     August of 2012, her sentence had already expired. Appellant
     was sentenced to four years probation on March 2, 2005 and her
     sentence was complete in March of 2009. As a result, Appellant
     is not eligible for collateral relief under the PCRA.

PCRA Court Opinion, 12/18/13, at 3-4.

     Likewise, our review indicates that, at the time of the filing of this

PCRA petition, Appellant was neither in custody nor subject to any parole or

probation because she was sentenced on March 2, 2005, to a term of

probation of four years. Indeed, the record reflects Appellant has finished

serving her sentence of probation pertinent to the conviction stated above.

Appellant essentially concedes in her appellate brief that she has completed

serving her probationary sentencing in the instant matter. Appellant’s Brief

at 18.   Therefore, Appellant cannot satisfy the requirements of the PCRA.




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Accordingly, the PCRA court had no authority to entertain a request for relief

under the authority of the PCRA.       Thus, Appellant is ineligible for relief

pursuant to the PCRA, and the denial of Appellant’s PCRA petition was

proper.2

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2014




2
   To the extent that Appellant presents alternative attempts to invoke
jurisdiction, i.e., that her PCRA petition should be considered to be a petition
for reinstatement of her direct appeal rights nunc pro tunc, or an untimely
post-sentence motion, we observe that such claims lack merit. A petition for
nunc pro tunc relief “must be considered a PCRA petition, as the PCRA is the
only means for restoring direct appeal rights.”            Commonwealth v.
Johnson, 841 A.2d 136, 139 (Pa. Super. 2003).                       See also
Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (stating that
“[t]he plain language of the [PCRA] demonstrates that the General Assembly
intended that claims that could be brought under the PCRA must be brought
under that Act”).

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