J-S26031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                      v.

LARRY L. WALTERS

                           Appellant                      No. 279 MDA 2016


                  Appeal from the PCRA Order January 15, 2016
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0000104-2013
                                                *
BEFORE: BOWES, DUBOW, and FITZGERALD                JJ.

MEMORANDUM BY FITZGERALD, J.:                              FILED JULY 10, 2017

        Appellant, Larry L. Walters, appeals from the order dismissing his first

Post Conviction Relief Act1 (“PCRA”) petition.       Appellant alleges ineffective

assistance of counsel. Appellant’s counsel, Allen C. Welch, Esq., has filed a

motion to withdraw and a Turner/Finley2 “no merit” letter. We affirm and

grant counsel’s motion to withdraw.

        The facts underlying Appellant’s conviction are not relevant to our

disposition. A jury convicted Appellant of harassment,3 and on February 11,

2014, the trial court sentenced him to two to twenty-three months’

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
    18 Pa.C.S. § 2709(a)(7)
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imprisonment with credit for time served. Appellant timely appealed. While

his appeal was pending, however, the trial court attempted to amend

Appellant’s sentence on January 12, 2015, to two to twelve months’

imprisonment.      Thereafter, this Court affirmed Appellant’s conviction, but

vacated his judgment of sentence and remanded for resentencing based on

an original illegal sentence.    Thus, on February 24, 2015, the trial court

resentenced Appellant to two to twelve months’ imprisonment with credit for

time served in prison and on parole.4       Appellant thereafter remained on

parole until April 27, 2015, when his sentence expired.

        Meanwhile, on March 30, 2015, Appellant filed a pro se PCRA petition,

in which he argued ineffective assistance of counsel.        The PCRA court

appointed counsel and ordered him to file an amended petition.            The

Commonwealth filed a motion to dismiss.         The PCRA court conducted a

hearing on the motion and dismissed Appellant’s petition on January 15,

2016. Despite being represented by counsel, Appellant submitted a pro se

filing on Tuesday, February 16, 2016, which the PCRA court treated as a

notice of appeal.5     The PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant complied through counsel.


4
    Appellant was on parole at the time of resentencing.
5
  We note that Monday, February 15, 2016, was President’s Day.          Thus,
Appellant’s notice of appeal was timely filed. See 1 Pa.C.S. § 1908.



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       Thereafter, this Court remanded on two separate occasions for the

PCRA court to determine if counsel had abandoned Appellant on appeal. The

PCRA    court   concluded   counsel   still   represented   Appellant.   Counsel

subsequently filed a Turner/Finley “no merit” letter and a motion to

withdraw with the PCRA court asserting that Appellant was ineligible for

relief because his sentence had expired. On December 8, 2016, the PCRA

court permitted counsel to withdraw and issued Pa.R.Crim.P. 907 notice to

reaffirm its January 15, 2016 dismissal of Appellant’s petition. However, this

Court entered an order on December 29, 2016, which vacated the PCRA

court’s order granting counsel’s motion to withdraw and stated that his

Turner/Finley letter would be accepted in this Court as Appellant’s brief.

On December 30, 2016, Appellant filed a pro se brief in response.

       As a preliminary matter, we must address counsel’s motion to

withdraw.       “Before an attorney can be permitted to withdraw from

representing a petitioner under the PCRA, Pennsylvania law requires

counsel to file and obtain approval of a ‘no-merit’ letter pursuant to the

mandates of Turner/Finley.” Commonwealth v. Karanicolas, 836 A.2d

940, 947 (Pa. Super. 2003) (citation omitted).

         [C]ounsel must . . . submit a “no-merit” letter to the trial
         court, or brief on appeal to this Court, detailing the nature
         and extent of counsel’s diligent review of the case, listing
         the issues which the petitioner wants to have reviewed,
         explaining why and how those issues lack merit, and
         requesting permission to withdraw.




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Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

Counsel must also send the petitioner a copy of the “no-merit” letter and the

motion to withdraw, and advise the petitioner of his right to proceed pro se

or with new counsel. Id.

      Instantly, counsel filed a Turner/Finley “no-merit” letter and a

separate motion to withdraw as counsel. Counsel’s letter indicated that he

intended to withdraw as Appellant’s counsel, that he was sending Appellant a

copy of his “no merit” letter and motion to withdraw, and that he was

sending Appellant a letter informing him that his appeal was frivolous but he

could retain counsel for further review.6    Counsel’s “no merit” letter also

discussed why Appellant’s ineffectiveness claims did not merit relief. Thus,

counsel has complied with the Turner/Finley requirements.              See id.

Accordingly,   we   proceed    to   an     independent   evaluation.      See

Commonwealth v. Widgins, 29 A.3d 816, 819-20 (Pa. Super. 2011)

(stating court must conduct an independent review and agree with counsel

that the issues raised were meritless).

      In his pro se brief, Appellant baldly asserts that both trial and PCRA

counsel were ineffective.   However, because Appellant has not established




6
   Although counsel did not provide evidence of his letter and notification to
Appellant, this Court’s December 29, 2016 order stated that Appellant could
file a pro se response to counsel’s petition.        Appellant subsequently
responded pro se on December 30, 2016.



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that he is still serving his sentence, we shall not address the merits of his

ineffectiveness claims.

      The PCRA provides:

         (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:

               (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); see Commonwealth v. Ahlborn, 699 A.2d

718, 720 (Pa. 1997); Commonwealth v. Fisher, 703 A.2d 714, 717 (Pa.

Super. 1997) (holding PCRA does not afford relief to petitioners whose only

outstanding sentence is payment of fines).

      In Ahlborn, our Supreme Court considered “whether one who has

filed a PCRA petition while serving a sentence of imprisonment remains

eligible for relief in the event that, prior to any final adjudication of the

petition, he is released from custody.”      Id. at 719.   In that case, the

petitioner filed a PCRA petition while he was serving his sentence, but

completed his sentence before the PCRA court ruled on the petition.      Id.



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The PCRA court dismissed the petition on the ground that “relief is available

only to persons still serving sentences of imprisonment, probation, or

parole.”   Id.   On appeal, our Supreme Court affirmed.     Id. at 721.   The

Ahlborn Court reasoned that the phrase “currently serving a sentence” in

Section 9543(a)(1)(i) “clearly contemplates that the petitioner will be

serving a sentence at both the pleading and proof stages of the proceeding.”

Id. at 720.      Thus, “the denial of relief for a petitioner who has finished

serving his sentence is required by the plain language of the statute.” Id.

      Here, the record indicates that Appellant finished serving his sentence

on April 27, 2015. Therefore, Appellant has failed to establish that he was

still serving his sentence at the time the PCRA court dismissed his petition

on January 15, 2016. Thus, the PCRA court properly dismissed his petition.

See 42 Pa.C.S. § 9543(a)(1)(i); Ahlborn, 699 A.2d at 719-21; Fisher, 703

A.2d at 717.      Accordingly, we affirm the PCRA court’s order dismissing

Appellant’s petition and grant counsel’s motion to withdraw.

      Order affirmed. Counsel’s motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2017




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