J-S19030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KALIS BRIGGS                          :
                                       :
                   Appellant           :   No. 1784 EDA 2019

            Appeal from the PCRA Order Entered May 21, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0201891-2003

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KALIS BRIGGS                          :
                                       :
                   Appellant           :   No. 1785 EDA 2019

            Appeal from the PCRA Order Entered May 21, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0204551-2003

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KALIS BRIGGS                          :
                                       :
                   Appellant           :   No. 1786 EDA 2019

            Appeal from the PCRA Order Entered May 21, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): MC-51-CR-0027022-2014


BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
J-S19030-20



MEMORANDUM BY McCAFFERY, J.:                           FILED JUNE 03, 2020

        In these consolidated cases,1 Kalis Briggs (Appellant) appeals from the

orders entered in the Philadelphia Court of Common Pleas denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA),2 seeking collateral

relief from convictions in three separate cases. On appeal, Appellant contends

the PCRA court erred when it determined he was barred from seeking PCRA

relief because he is no longer serving a sentence on the conviction for which

he alleges trial counsel’s ineffective assistance. We affirm.

        On July 7, 2004, Appellant entered open guilty pleas in the following

cases: (1) at Docket CP-51-CR-0201891-2003 (1891-2003), he pled guilty to

four counts of robbery,3 and (2) at Docket No. CP-51-CR-0204551-2003

(4551-2003), he pled guilty to one count each of robbery and criminal

conspiracy.4 That same day, the trial court sentenced Appellant to five to 10

years’ imprisonment on each of the robbery convictions, all to be served

concurrently, and a consecutive term of five years’ probation for criminal

conspiracy. No direct appeal was filed.

____________________________________________


1On January 2, 2020, this Court entered an order consolidating these appeals
sua sponte. Order, 1/2/20.

2   42 Pa.C.S. §§ 9541-9546.

3   18 Pa.C.S. § 3701.

4   18 Pa.C.S. 903.




                                           -2-
J-S19030-20



        On March 30, 2007, Appellant filed a pro se first PCRA petition, listing

both Docket Nos. 1891-2003 and 4551-2003. Counsel was appointed, but

later sought leave to withdraw, and filed a Turner/Finley5 “no merit” letter.

On February 1, 2008, the PCRA court denied Appellant’s petition, and

permitted counsel to withdraw.

        On June 4, 2010, Appellant filed a second pro se PCRA petition, again

challenging his convictions at both Docket Nos. 1891-2003 and 4551-2003.

See Appellant’s Motion for Post Conviction Collateral Relief, 6/4/10.           Our

review of the certified records reveals no action was taken on this petition.

        Seven years later, on May 25, 2014, while out of prison,6 but still on

probation for the conspiracy charge, Appellant was arrested for violating a

protection from abuse (PFA) order.7              While incarcerated awaiting trial,

Appellant, on July 21, 2014, threatened a prison guard and was charged with

terroristic threats8 at Docket MC-51-CR-0027022-2014 (7022-2014).                On

December      11,   2014,     Appellant    appeared   for   a   combined   probation

violation/guilty plea hearing.       At that time, Appellant entered a negotiated
____________________________________________


5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

6 The record reveals Appellant served the maximum aggregate 10-year term
for his robbery convictions at Docket Nos. 1892-2003 and 4551-2003. See
N.T., 12/11/14, at 15.

7 The PFA case was later withdrawn.               PCRA Ct. Op., 10/22/19, at 1
(unpaginated).

8   18 Pa.C.S. § 2706(a)(1).


                                           -3-
J-S19030-20



plea of nolo contendere on the charge of terroristic threats, and was sentenced

to a term of time-served to 23 months’ imprisonment. In addition, the trial

court revoked Appellant’s probation on the conspiracy count at Docket No.

4551-2003, and imposed a new violation of probation (VOP) sentence of 1½

to 3 years’ imprisonment, followed by five years’ probation. The court ordered

the sentences in both cases to run concurrently.

       On June 2, 2015, Appellant filed the instant pro se PCRA petition, which

listed only Docket Nos. 4551-2003 (robbery and conspiracy) and 7022-2014

(terroristic threats).9 Counsel was appointed and filed an amended petition

on December 18, 2017, asserting prior counsel’s ineffectiveness for failing to

“warn [Appellant] of the consequences of his [nolo contendere] plea,”

specifically with regard to a pending federal indictment. Appellant’s Amended

Petition for Statutory Post-Conviction Relief, 12/18/17, at 2.

       By way of background, on November 5, 2014, Appellant was indicted on

federal drug charges. On February 4, 2016, he entered a guilty plea to one

count in the federal indictment and was sentenced to a minimum term of 57

months’ imprisonment.         Appellant asserted his “criminal history score, and

category, went from a 4 to a 9 [in the federal case] because of his [nolo

contendere] plea [at Docket no. 7022-2014] . . . and the VOP.” Appellant’s

Amended Petition at 5. He explained that in his federal case he received three
____________________________________________


9 We note that, by that time, Appellant had completed serving his aggregate
ten-year imprisonment sentence at Docket No. 1891-2003 (four counts of
robbery).


                                           -4-
J-S19030-20



points for the terroristic threats conviction and another two points because he

was charged with that crime while on probation for a prior offense. Appellant’s

PCRA petition further claimed plea counsel was ineffective for failing to inform

him the negotiated sentence for the nolo contendere plea did not include the

VOP sentence, and that it would negatively affect his sentencing in the pending

federal case.     Id. at 7-8.     After hearing argument, the PCRA court found

Appellant was not entitled to relief because he was no longer serving sentence

at Docket No. 7022-2014. Thus, on May 21, 2019, the court entered orders

at all three dockets dismissing the petition.10 These timely, counseled appeals

followed.11

       Appellant raises two, related issues on appeal:

       (A) Whether the court erred in failing to find a “short sentence”
       exception to the jurisdictional bar to bringing a PCRA petition on
       Appellant’s conviction for Terroristic Threats where Appellant is
       serving a lengthy federal sentence and the guidelines range for
       said sentence was lengthened due to this conviction.


____________________________________________


10 As noted supra, the PCRA petitions filed in June 2015 and December 2017
did not even list Docket No. 1891-2003. It is unclear from the record what
petition the PCRA court was denying when it entered the order on May 21,
2019, at Docket No. 1891-2003.

11 We note Appellant complied with the Pennsylvania Supreme Court’s decision
in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and filed separate
notices of appeal, each listing only one docket number. See Commonwealth
v. Creese, 216 A.3d 1142, 1144 (Pa. Super. 2019) (to comply with Walker,
each notice of appeal may contain only one docket number).

      Furthermore, after requesting an extension of time, Appellant complied
with the PCRA court’s directive to file a Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal.

                                           -5-
J-S19030-20


      (B) Whether the court erred in denying a hearing for ineffective
      assistance of counsel where trial counsel failed to explain to
      Appellant that a plea of nolo contendere could result in a sentence
      for a violation of probation.

Appellant’s Brief at 5.

      Our standard of review of an order denying PCRA relief is well-

established.   “[W]e examine whether the PCRA court’s determination ‘is

supported by the record and free of legal error.’”          Commonwealth v.

Mitchell, 141 A.3d 1277, 1283–84 (Pa. 2016) (citation omitted). “The PCRA

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

in the certified record.” Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.

Super. 2019) (citation omitted). Furthermore,

      a petitioner is not entitled to a PCRA hearing as a matter of right;
      the PCRA court can decline to hold a hearing if there is no genuine
      issue concerning any material fact, the petitioner is not entitled to
      PCRA relief, and no purpose would be served by any further
      proceedings.

Commonwealth v. Shaw, 217 A.3d 265, 269 (Pa. Super. 2019).

      Relevant to the issue herein, we note that in order to be eligible for relief

under the PCRA, a petitioner must plead and prove, inter alia, that he is

“currently serving a sentence of imprisonment, probation or parole” for the

conviction from which he seeks relief. 42 Pa.C.S. § 9543(a)(1)(i). This Court

has explained the requirements of Section 9543 “establish only a petitioner’s

eligibility for post-conviction relief, and do not implicate the PCRA court’s

jurisdiction to act on a petition.” Commonwealth v. Fields, 197 A.3d 1217,

1223 (Pa. Super. 2018) (en banc) (opinion in support of affirmance by Bender,



                                      -6-
J-S19030-20



J.), appeal denied, 206 A.3d 1025 (Pa. 2019).12       Therefore, to the extent

Appellant contends he was “jurisdictionally barred” from obtaining PCRA

review, we find this statement to be a mischaracterization.13 See Appellant’s

Brief at 13. Furthermore, we emphasize PCRA relief is offense specific, so that

when a defendant is no longer serving a sentence for the crime at issue, he is

no longer eligible for relief from that conviction.   See Commonwealth v.

Smith, 17 A.3d 873, 904 (Pa. 2011) (challenges to conspiracy and possession

of instrument of crime charges not cognizable under the PCRA because

although appellant was still serving death sentence for murder, sentences for

the other crimes had expired).

       Preliminarily, we consider the PCRA court’s order at Docket No. 1891-

2003. There is no dispute Appellant completed his five to 10-year aggregate

sentence for robbery at this docket. In fact, Appellant’s underlying claim does

not pertain at all to the convictions at that docket. Rather, Appellant focuses

on counsel’s alleged ineffectiveness for persuading him to enter a nolo

contendere plea to terroristic threats at Docket No. 7022-2014, without

informing him that he would receive a separate sentence for the violation of

____________________________________________


12 Although Fields was a plurality decision, all of the judges agreed that
Section 9543 pertains to the Act’s eligibility requirements and not
jurisdictional requirements. See Fields, 197 A.3d at 1223 (Opinion in Support
of Affirmance by Bender, J.), 1225 (Opinion in Support of Reversal by Olson,
J.), 1229 (Opinion in Support of Affirmance by Stabile J.).

13We note the PCRA court similarly misstated when it asserted Appellant’s
petition was “untimely.” PCRA Ct. Op. at 3 (unpaginated).


                                           -7-
J-S19030-20



his probation at Docket No. 4551-2003, or that the plea would affect his

sentence in a pending federal case.      Appellant’s Amended Petition at 7-8;

Appellant’s Brief at 21-22. In fact, Appellant does not include any argument

regarding his conviction at this docket in his brief. Therefore, we affirm the

order dismissing the petition at Docket No. 1891-2003.

      Appellant’s first issue on appeal challenges the PCRA court’s conclusion

that he is ineligible for relief at Docket No. 7022-2014 because he has,

similarly, concluded serving his sentence for his sole conviction of terroristic

threats at that docket. See Appellant’s Brief at 13. Essentially, Appellant

seeks an exception to the PCRA’s eligibility requirement that a petitioner be

“currently serving a sentence” for the crime at issue at the time relief is

sought. See 42 Pa.C.S. § 9543(a)(1)(i).

      Appellant’s argument focuses on the Supreme Court’s exceptions to its

holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that “as a

general rule, a petitioner should wait to raise claims of ineffective assistance

of trial counsel until collateral review.” See id. at 738. By way of background,

the Grant Court sought to alleviate certain concerns hindering direct appellate

review of ineffectiveness claims — “namely, the lack of a lower court opinion,

the lack of a record, and placing the appellate court in the role of fact finder.”

Commonwealth v. O’Berg, 880 A.2d 597, 601-02 (Pa. 2005), citing Grant,

813 A.2d at 734, 737.     However, the general deferral rule resulted in lost

claims for defendants who were sentenced to short terms of imprisonment —

i.e., those whose terms of imprisonment, probation and/or parole expired

                                      -8-
J-S19030-20



before they had the opportunity to seek PCRA relief. Thus, the Supreme Court

considered whether to craft a “short sentence” exception to Grant in O’Berg.

      In that case, the defendant was sentenced to a term of 30 days to 23½

months’ imprisonment. O’Berg, 880 A.2d at 598. Following the denial of

post-sentence motions, the defendant obtained new counsel, and raised a

claim concerning trial counsel’s stewardship on direct appeal, which this Court

dismissed without prejudice pursuant to Grant. Id. at 598-99. The defendant

then requested the Supreme Court to recognize a “short sentence” exception

to Grant because he was “in the unfair position of losing his opportunity to

litigate his ineffectiveness claims” due to the short duration of his sentence.

Id. at 599. The O’Berg Court rejected a blanket a “short sentence” exception,

opining:

      [I]n Grant, we highlighted three main concerns underlying our
      decision . . . namely, the lack of a lower court opinion, the lack of
      a record, and placing the appellate court in the role of fact finder.
      . . . All of these concerns . . . are implicated in the instant case
      and simply cannot be ignored because of [the defendant’s] “short
      sentence.” In this case, there is no trial court record devoted to
      [the defendant’s] claim of ineffectiveness. Thus, the appellate
      court would be entertaining an issue for the first time on appeal.
      Recognizing an exception in these circumstances would not serve
      our decision in Grant.

      Furthermore, the concept of a “short sentence” exception is too
      ambiguous to give the lower courts any guidance on what is a
      sufficiently “short sentence” to apply the exception. Would it be
      [a] seven-day sentence . . . , [a] ninety-day sentence . . . , or the
      thirty-day to twenty-three-month sentence imposed in the instant
      case? Indeed, on occasion, there have been instances where a
      direct appeal took more than four years to be completed. Thus,
      is four years a “short sentence” under some circumstances? In
      other words, there is simply no way to define “short sentence.”


                                      -9-
J-S19030-20



Id. at 601-02 (citations omitted).

      Subsequently, however, in Commonwealth v. Holmes, 79 A.3d 562

(Pa. 2013), the Supreme Court, while reaffirming its holding in Grant, crafted

two limited exceptions when ineffectiveness claims may be reviewed on direct

appeal: (1) in “an extraordinary case where the trial court, in the exercise of

its discretion, determines that a claim (or claims) of ineffectiveness is both

meritorious and apparent from the record so that immediate consideration

and relief is warranted[;]” or (2) where the trial court “in its discretion, and

for good cause shown, permit[s] post-verdict review of multiple, and indeed

comprehensive, ineffectiveness claims if such review is accompanied by a

waiver of PCRA rights[.]” Id. at 577, 578 (footnote omitted). The Court noted

that “unitary review” under the second exception “offers defendants who

receive shorter sentences or probationary sentences the prospect of

litigating their constitutional claims sounding in trial counsel ineffectiveness;

for many of these defendants, post-appeal PCRA review may prove

unavailable.” Id. at 578 (emphasis added).

      Nevertheless, following Holmes, the Supreme Court once again

emphasized it did not endorse a general, “short sentence” exception to Grant,

and emphasized the eligibility requirement that a petitioner be currently

serving a sentence at the time relief is granted.       In Commonwealth v.

Turner, 80 A.3d 754 (Pa. 2013), the petitioner was sentenced to a term of

two years’ probation. Id. at 758. She did not file a direct appeal, but instead

filed a timely PCRA petition. Id. While the petition was pending, Appellant

                                     - 10 -
J-S19030-20



completed her sentence, and the Commonwealth moved to dismiss the

petition. Id. The PCRA court denied the Commonwealth’s motion and found

the eligibility requirement under Section 9543(a)(1)(i) unconstitutional as

applied to the petitioner because it deprived her of “her due process right to

a remedy arising from the alleged denial of the effective assistance of

counsel.” Id. at 759. The Commonwealth appealed, and the Supreme Court

reversed, explaining:

             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. 42 Pa.C.S. §
      9543(a)(1)(i). Of course, the legislature was free to extend a
      statutory right of collateral review to individuals like [the
      p]etitioner who had completed their sentence and, had they done
      so, they would be constitutionally obligated to ensure that those
      rights were impacted only in accord with due process. However,
      the legislature did not do so. Rather, the General Assembly,
      through the PCRA, excluded from collateral review those
      individuals who were no longer subject to a state sentence,
      thereby limiting the statutory right of collateral review to those
      whose liberty was constrained.

             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. Indeed, that was the apparent intent: to restrict collateral
      review to those who seek relief from a state sentence. See
      [Commonwealth v.] Ahlborn, 699 A.2d 718 [(Pa. 1997)]
      (petitioner ineligible for PCRA relief where, following filing of PCRA
      petition and pending hearing, he was unconditionally released
      from prison). . . .

                                   *     *      *

      [D]ue process, however, does not require infinite opportunity to
      attack a conviction under any and all circumstances; rather, it

                                       - 11 -
J-S19030-20


       permits our legislature through the PCRA statute to place
       limitations on claims of trial error and “strikes a reasonable
       balance between society’s need for finality in criminal cases and
       the convicted person’s need to demonstrate that there has been
       an error in the proceedings that resulted in [ ] conviction.”

Commonwealth v. Turner, 80 A.3d 754, 766-67 (Pa. 2013) (some citations

omitted).

       Most recently, in Commonwealth v. Delgros, 183 A.3d 352 (Pa.

2018), the Court introduced another limited exception to Grant for those

defendants who, at the time of sentencing, are statutorily precluded from

seeking PCRA relief.    In that case, the defendant, who was convicted of

receiving stolen property, was not sentenced to any term or imprisonment or

probation; instead, the trial court imposed a fine and ordered him to pay

restitution. Id. at 354. He obtained new counsel and filed a post-sentence

motion challenging, inter alia, trial counsel’s infectiveness. Id. The trial court

declined to review the ineffectiveness claims under Grant, and on direct

appeal, this Court affirmed, finding neither of the Holmes exceptions applied.

Id. at 355. Particularly, with regard to the second Holmes exception, the

panel concluded the defendant could not waive PCRA review because he

“would never be entitled to PCRA review under Subsection 9543(a)(1)(i),”

since he was not incarcerated or on probation or parole. Id. The Supreme

Court, however, vacated the judgment of sentence and remanded for the trial

court to consider the defendant’s post-sentence ineffectiveness claims. Id. at

363.




                                     - 12 -
J-S19030-20



      The Court explained that the second exception in Holmes was crafted

to permit trial courts to “entertain challenges to trial counsel’s stewardship

where the defendants may not have the ability to raise such claims in collateral

proceedings due to their potential ineligibility for PCRA review.” Delgros, 183

A.3d at 361. Accordingly, the Court found the “reasoning in Holmes applie[d]

with equal force to [the] circumstances” in Delgros, where the defendant “can

never satisfy Subsection 9543(a)(1) because he was sentenced only to pay a

fine.” Id. (emphasis added). Thus, the Supreme Court opined:

      [T]o ensure that defendants are afforded an opportunity to
      challenge trial counsel’s stewardship, we adopt an additional
      exception to Grant’s general deferral rule, requiring trial courts to
      address claims challenging trial counsel’s performance where the
      defendant is statutorily precluded from obtaining subsequent
      PCRA review. While we have cautioned lower courts against
      creating exceptions to Grant’s general deferral rule, there is no
      impediment to this Court establishing a change in procedure
      where, as here, it serves the interests of justice.

Id. (citations omitted and emphasis added).

      With this authority in mind, we consider Appellant’s argument on appeal.

Although he recognizes the general deferral rule in Grant, Appellant maintains

“Grant was not meant to prevent ineffectiveness claims, but to ensure they

were brought in the best forum for the majority of defendants.” Appellant’s

Brief at 17. Thus, he insists he “must be granted some way to bring his claim”

of plea counsel’s ineffectiveness. Id. at 14.

      To that end, Appellant argues we should find an exception to Grant

based on the procedural posture of his case. First, he contends we should

recognize a “short sentence” exception. Although the Supreme Court rejected

                                     - 13 -
J-S19030-20



this exception in O’Berg, Appellant emphasizes the Court did so because the

term “short sentence” was “too ambiguous to give the lower courts any

guidance.” Appellant’s Brief at 18-19, citing O’Berg, 880 A.2d at 602. He

insists, however, there is no ambiguity in his case, because the trial court

sentenced him to “time served and was given credit for his time in custody.”

Id. at 19. Thus, Appellant argues we can find a short sentence exception in

his case “without implicating any of our Supreme Court’s concerns in O’Berg.”

Id.

      Second, Appellant asserts he is entitled to relief pursuant to the

Supreme Court’s decision in Delgros. Appellant’s Brief at 19-20. Appellant

insists it “serves the interest of justice to remand for post sentence motions

here.” Id. at 20. Appellant emphasizes that following sentencing, he was

represented by the same court-appointed counsel until the time for filing post-

sentence motions expired, and, therefore, he did not have the opportunity to

challenge counsel’s ineffectiveness. Id. Moreover, he argues he “suffered a

serious infringement of his liberty as a result” of counsel’s ineffectiveness

because the guideline range for his federal sentence increased due to his

terroristic threats conviction. Id. at 21. Appellant also claims he is “effectively

still serving a sentence for the [terroristic threats] conviction[ ] because the

present conviction caused the lengthy sentence in the federal matter,” but he

has no way to “challenge his current custody in any forum.” Id.

      Here, the PCRA court found Appellant is ineligible for relief. The court

opined:

                                      - 14 -
J-S19030-20


     The Post Conviction Relief Act requires that in order to be eligible
     for relief, “[a]t the time relief is granted”, a petitioner must be,
     “[c]urrently serving a sentence of imprisonment, probation or
     parole for the crime.” 42 Pa. C.S.A. § 9543(a)(I)(i). Appellant is
     currently in custody serving a federal sentence and serving
     probation on his VOP for his [conspiracy] case however, his
     sentence on the terroristic threats case, at issue here, has
     expired. The PCRA eligibility requirements are both case specific
     and crime specific. Appellant made it clear during a PCRA hearing
     that the only charge relevant to the PCRA petition was the
     terroristic threats charge.

                                 *     *      *

            Appellant argues that he is eligible for relief under the PCRA
     because he is serving a federal sentence that was lengthened due
     to his nolo contendere plea. However, collateral consequences of
     a sentence do not extend eligibility of PCRA relief to people whose
     sentences have expired. See [ ] Ahlborn, 699 A.2d [at] 720 [ ]
     (Appellant not granted relief despite complaining of still suffering
     under consequences of his conviction including: driver’s license
     suspension, future sentencing possibilities and recidivist
     enhancements); Commonwealth v. Fisher, 703 A.2d 714, 716
     (Appellant’s sentence expired on the crime he sought relief for
     even though he was still incarcerated on a different case). . . .
     Appellant in this case is no longer serving a sentence on the
     criminal case in which he pled nolo contendere, therefore he is not
     entitled to PCRA relief.

           Appellant seeks to claim relief under a short sentence
     exception to the PCRA eligibility requirement. Appellant cites [ ]
     O'Berg . . . to support this claim. In O'Berg, [the] claimant’s
     sentence was a maximum of twenty[-]three and a half months
     and he asked for an exception to the PCRA’s eligibility rule because
     he wished to bring an ineffectiveness claim, which can only be
     brought in a PCRA, but his sentence had already ended due to its
     brevity. The Court in O'Berg ruled that a “short sentence” rule
     would be too ambiguous for courts to interpret. The Court later
     decided to carve out a limited exception allowing defendants to
     make ineffectiveness claims to the trial court instead of waiting
     for collateral review where the defendant is statutorily precluded
     from obtaining PCRA review. [ ] Delgros, 183 A.3d [at] 361 . . .
     . Here, Appellant does not fall into this exception as he did not


                                     - 15 -
J-S19030-20


      file post-sentence motions or a direct appeal raising claims. No
      relief is due to Appellant.

PCRA Ct. Op. 3-6 (some citations omitted).

      We agree. Appellant’s attempt to resurrect a “short sentence” exception

to Grant fails. Regardless of the duration of the sentence at issue herein, the

Supreme Court has repeatedly rejected a “short sentence” exception to the

general rule deferring ineffectiveness claims to collateral review. See Turner,

80 A.3d at 766-67; O’Berg, 880 A.2d at 601-02.

      We also agree Appellant is entitled to no relief under Delgros. Indeed,

unlike the defendant in that case, here, Appellant was not statutorily

precluded from seeking PCRA relief by the very terms of his sentence. We

note Appellant implies he completed serving his sentence immediately after

the sentence was imposed. Indeed, he states he “received time served and

was given credit for his time in custody[, and h]is continuing detention was

only a result of the concurrent VOP.” Appellant’s Brief at 19. This, however,

is a mischaracterization. Appellant was sentenced to time-served to 23½

months’ imprisonment. At the December 11, 2014, plea hearing, counsel

requested Appellant receive credit for time served from May 2014. Therefore,

although he may have been eligible for release on the date of his hearing

(absent his detention on the VOP sentence), he only “served” seven of the

23½-month maximum term imposed.              Therefore, Appellant could have

sought PCRA relief (and did) during his remaining 16½ months “on parole” for

that crime.   See 42 Pa.C.S. § 9543(a)(1)(i).      Therefore, no relief under

Delgros is warranted.

                                    - 16 -
J-S19030-20



      Recognizing his predicament, Appellant requests we remand the case so

that he can file post-sentence motions nunc pro tunc, and raise counsel’s

ineffectiveness before the trial court, like the defendants in Holmes and

Delgros. See Appellant’s Brief at 20-22. He emphasizes he was represented

at the plea hearing by court-appointed counsel, who remained counsel of

record during the time period for filing post-sentence motions and a direct

appeal. Id. at 18 n.2, 20. Appellant insists “[h]e should not be denied his

constitutional rights because he was unable to replace his attorney[,]” and

counsel’s “failure to file a direct appeal should not preclude him from pursuing

an ineffectiveness claim against her.”        Id.   However, nothing prevented

Appellant from requesting new counsel after sentencing or during the period

for filing a direct appeal. In addition, he did file a timely pro se PCRA petition

in June of 2015, nine months before his sentence in this case expired in April

of 2016. During that period, Appellant could have sought expedited review,

but did not. Neither Holmes nor Delgros permits the type of nunc pro tunc

relief Appellant requests here.

      We also summarily reject Appellant’s contention that he is “effectively

still serving a sentence for the present conviction” because it increased his

sentence in the federal matter. See Appellant’s Brief at 21. As noted supra,

PCRA relief is offense specific. Smith, 17 A.3d at 904. Here, Appellant’s PCRA

sought relief for counsel’s purported ineffectiveness at Docket No. 7022-2014.

However, he has completed serving that sentence. Accordingly, he is ineligible

for PCRA relief. See 42 Pa.C.S. § 9543(a)(1)(i); Turner, 80 A.3d at 766-67.

                                     - 17 -
J-S19030-20



       In his second issue, Appellant “challenges [plea counsel’s] effectiveness

concerning his VOP.” Appellant’s Brief at 22. He claims counsel “neglected to

inform [him] that a plea of nolo contendere would result in a sentence for the

VOP as well, and that the VOP was not included within the plea.” Id. Indeed,

Appellant maintains that if he had known this information, “he would not have

pleaded.” Id.

       As noted supra, Appellant is still serving the VOP sentence at Docket

No. 4551-2003. Thus, he is eligible for PCRA relief on that sentence pursuant

to Subsection 9543(a)(1)(i). However, while Appellant appears to challenge

counsel’s ineffectiveness with regard to the VOP sentence, his requested relief

is leave to withdraw the underlying plea at Docket No. 7022-2014.          See

Appellant’s Amended Petition at 3 (“Accordingly, [Appellant] is entitled to

withdraw his plea and pursue his trial.”); Appellant’s Brief at 22 (“Had

[Appellant] been aware of the 1-3 sentence for the VOP, he would not have

pleaded guilty.”).      Furthermore, Appellant acknowledged in his amended

petition that only the conviction at Docket No. 7022-2014, and not the VOP

sentence, increased the grading of his federal sentence.       See Appellant’s

Amended Petition at 5. Therefore, to the extent this claim is a “back door”

challenge to his conviction at Docket No. 7022-2014, we conclude Appellant

is ineligible for relief.

       Nevertheless, even if we were able to review this claim under the rubric

of Docket No. 4551-2003, we would agree with the PCRA court’s conclusion

that no relief is warranted:

                                     - 18 -
J-S19030-20


            Prior to the taking of the [nolo contendere] plea, Appellant’s
      Parole Agent was present recommending revocation on the
      underlying case and a sentence of state incarceration. N.T.
      12/11/14 at 4. This Court, during the plea colloquy, advised
      Appellant of the direct violation consequences of his plea, to which
      Appellant affirmed he understood and still wished to enter his
      plea. Id. at 6-7. Additionally, Appellant confirmed that he had
      discussed the plea along with the consequences thereof with his
      attorney. Id. at 8. Appellant expressed satisfaction with his
      attorney who the record indicates was fully knowledgeable about
      his violation matter. Id. at 15-16, 21-22. There is nothing to
      support Appellant’s claim that counsel did not discuss with
      Appellant the violation consequences of his plea. During the
      colloquy, Appellant confirmed that “There is no agreement for a
      recommendation with regards to [his] state probation violation
      matter[.]” Id. at 6. Appellant’s ineffectiveness of counsel claim
      is meritless.

PCRA Ct. Op. at 6.

      The PCRA court’s findings are supported by the record, and free of legal

error. See Mitchell, 141 A.3d at 1283–84; Cruz, 223 A.3d at 277. It is well-

settled that “[a] person who elects to plead guilty is bound by the statements

he makes in open court while under oath and he may not later assert grounds

for withdrawing the plea which contradict the statements he made at his plea

colloquy.” Commonwealth v. Pier, 182 A.3d 476, 480 (Pa. Super. 2018),

citing Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003).

Here, Appellant acknowledged at the plea hearing that, while there was a

negotiated sentence for the nolo contendere plea, there was no agreement as

to the sentence for the VOP, and furthermore that he had the opportunity to

discuss both the plea and VOP with counsel.      See N.T., 12/11/14, at 6-8.

Thus, his claim that counsel failed to advise him he would receive a separate




                                     - 19 -
J-S19030-20



sentence for his VOP is belied by the record. Therefore, we do not disturb the

PCRA court’s orders at Docket Nos. 4551-2003 and 7022-2014.

      Accordingly, we affirm the orders dismissing Appellant’s request for

PCRA relief at Docket Nos. 1891-2003, 4551-2003, and 7022-2014.

      Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2020




                                    - 20 -
