J-S58023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                          Appellee

                    v.

KIRK DANIEL WHITE,

                          Appellant                No. 449 MDA 2017


              Appeal from the PCRA Order February 10, 2017
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0008460-2012


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                       FILED JANUARY 18, 2018

     Kirk Daniel White (“Appellant”) appeals from the order denying his

petition for relief filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. In addition, counsel for Appellant has filed a motion

to withdraw and a no-merit letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). We grant counsel’s motion to withdraw and affirm

the PCRA court’s order.

     On April 18, 2013, Appellant pled nolo contendere to the second degree

misdemeanor offense of indecent assault.        Following Appellant’s nolo

contendere plea, the trial court sentenced him to a term of three to twenty-

three months of imprisonment, on July 29, 2013. Appellant did not appeal

from that sentence, and it became final on August 28, 2013.
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      Appellant filed a pro se motion for PCRA relief on October 13, 2016.

Counsel entered his appearance and filed a counseled PCRA petition on

October 17, 2016. The PCRA court held a hearing on February 10, 2017, and

the PCRA court denied Appellant’s PCRA petition as untimely.

      Appellant filed a timely appeal from the denial of his PCRA petition on

March 10, 2017, while he was still represented by counsel. On March 24,

2017, PCRA counsel filed a motion seeking to withdraw.        The PCRA court

granted the motion on March 27, 2017, and appointed new PCRA counsel on

April 11, 2017.

        On June 30, 2017, PCRA counsel filed a motion to withdraw and filed

a Turner/Finley letter with this Court. When counsel seeks to withdraw from

representation in a collateral appeal, the following conditions must be

satisfied:

      1) As part of an application to withdraw as counsel, PCRA counsel
         must attach to the application a “no-merit” letter,

      2) PCRA counsel must, in the “no-merit” letter, list each claim the
         petitioner wishes to have reviewed, and detail the nature and
         extent of counsel's review of the merits of each of those
         claims,

      3) PCRA counsel must set forth in the “no-merit” letter an
         explanation of why the petitioner's issues are meritless,

      4) PCRA counsel must contemporaneously forward to the
         petitioner a copy of the application to withdraw, which must
         include (i) a copy of both the “no-merit” letter, and (ii) a
         statement advising the PCRA petitioner that, in the event the
         trial court grants the application of counsel to withdraw, the
         petitioner has the right to proceed pro se, or with the
         assistance of privately retained counsel[,]

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      5) The court must conduct its own independent review of the
         record in light of the PCRA petition and the issues set forth
         therein, as well as of the contents of the petition of PCRA
         counsel to withdraw; and

      6) The court must agree with counsel that the petition is
         meritless.

Commonwealth v. Daniels, 947 A.2d 795, 798–799 (Pa. Super. 2008)

(internal punctuation marks omitted).

      In the instant case, we find that PCRA counsel complied with the

requirements for withdrawal from a collateral appeal. First, in the motion filed

with this Court, PCRA counsel alleged that he conducted a thorough review of

the record and pertinent law and concluded the issue was of no merit. In his

no-merit letter to Appellant, PCRA counsel set forth the issue relevant to this

appeal and explained why he believed the issue was of no merit. PCRA counsel

also advised Appellant of his right to proceed pro se or with privately retained

counsel. Thus, we will allow PCRA counsel to withdraw if, after our review,

we conclude that the issue raised in Appellant’s appeal lacks merit.

      Appellant presents a single issue for review in his Concise Statement of

Errors Complained of on Appeal:

      Whether the trial court erred in denying the Petition for Post-
      Conviction Relief on the basis that Appellant’s Exhibit Nos. 1 and
      2, which purported to show evidence of the complainant A.Y.’s
      recantation of the criminal allegations against the Appellant in an
      August 22, 2016 Facebook Message conversation between the
      Appellant’s fiancée Stevee Kopp and A.Y. constituted inadmissible
      hearsay not subject to a recognized exception?




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Appellant’s Concise Statement of Matters Complained of on Appeal, 5/5/17,

at 1.

        Our standard of review of a denial of PCRA relief is well-settled. “In

conducting review of a PCRA matter, we consider the record in the light most

favorable to the prevailing party at the PCRA level.”      Commonwealth v.

Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (citations and internal

punctuation omitted). Our review is limited to the findings of the PCRA court

and the evidence of record. Commonwealth v. Rykard, 55 A.3d 1177, 1183

(Pa. Super. 2012). Further, “[w]e will not disturb a PCRA court’s ruling if it is

supported by evidence of record and is free of legal error.” Id. This Court

may affirm the PCRA court on any basis. Id. “We grant great deference to

the factual findings of the PCRA court and will not disturb those findings unless

they have no support in the record.”        Id.   “Where the petitioner raises

questions of law, our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014).

        Before we address the merits of the issue before us, we must determine

whether Appellant is eligible for relief under the PCRA. In order to be eligible

for relief, Appellant must satisfy the following requirements:

        (a) General rule —To be eligible for relief under this subchapter,
        the petitioner must plead and prove by a preponderance of the
        evidence all of the following:

             (1) That the petitioner has been convicted of crime
             under the laws of this Commonwealth and is at the
             time relief is granted:



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                  (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. § 9543(a)(1)(i)-(iii).

      As our Supreme Court held in Commonwealth v. Ahlborn,

      [T]he denial of a relief for a petitioner who has finished serving
      his sentence is required by the plain language of the statute. To
      be eligible for relief a petitioner must be currently serving a
      sentence of imprisonment, probation or parole. To grant relief at
      a time when appellant is not currently serving such a sentence
      would be to ignore the language of the statute.

699 A.2d 718, 720 (Pa. 1997) (emphasis in original).                  See also

Commonwealth v. Plunkett, 151 A.3d 1108, 1112 (Pa. Super. 2016)

(“Because individuals who are not serving a state sentence have no liberty

interest in and therefore no due process right to collateral review of that

sentence, the statutory limitation of collateral review to individuals serving a

sentence of imprisonment, probation, or parole is consistent with the due

process prerequisite of a protected liberty interest”). “[T]he denial of relief to

a petition who was no longer serving a sentence, even when the PCRA process

was begun in a timely manner, was not constitutionally infirm.” Id. at 1111.

Indeed, our Supreme Court has held that when a petitioner’s sentence expires

while his PCRA petition is pending, the PCRA court loses jurisdiction to rule on

the merits. Commonwealth v. Turner, 80 A.3d 754, 765-766 (Pa. 2013).


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     Our review of the record reflects that Appellant invoked the PCRA when

he filed the instant petition. However, a review of the supplemental record

and the PCRA court’s supplemental 1925(a) statement indicates that Appellant

completed his sentence on October 9, 2017. Specifically, the PCRA stated,

“[Appellant] is currently not serving a sentence in this case, having Maxed

Out on October 9, 2017.” PCRA Court’s Supplemental 1925(a) Statement,

12/19/17, at 1 (emphases in original).

     Hence, the record reflects that, currently, Appellant is neither in custody

nor subject to probation or parole for his conviction in this case. As such,

Appellant is unable to satisfy the requirements of the PCRA. Accordingly, we

have no authority to entertain a request for relief under the PCRA. Appellant

is ineligible for PCRA relief, and Appellant’s PCRA petition was properly

denied.1

     Petition to withdraw as counsel granted. Order affirmed.




1 We note that an appellate court may affirm on a basis different than the
PCRA court. Commonwealth v. Davis, 816 A.2d 1129, 1136 n.4 (Pa. Super
2003) (citing Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super
2001).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/18/2018




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