J-S74027-16


                                  2016 PA Super 268

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHRIS PLUNKETT

                            Appellant                 No. 2271 EDA 2015


                   Appeal from the PCRA Order June 19, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004704-2009


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

OPINION BY OTT, J.:                               FILED DECEMBER 02, 2016

        Chris Plunkett appeals from the order entered June 19, 2015, in the

Court of Common Pleas of Philadelphia County, denying him relief on his

petition filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et

seq. The PCRA court reviewed the substance of Plunkett’s claim and denied

him relief based on lack of merit.1 However, because he is no longer serving



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Plunkett had claimed ineffective assistance of counsel for failure to call
character witnesses. The PCRA judge, who sat as the fact finder at trial,
denied Plunkett’s claim after finding Plunkett suffered no prejudice. The
PCRA court reviewed the affidavits of the proposed character witnesses and
found the proposed testimony would not have overcome the otherwise
overwhelming evidence of guilt. See Pa.R.A.P. 1925(a) Opinion, 3/22/2016,
at 5-6.
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the sentence associated with this petition, Plunkett has lost his standing to

seek relief. Accordingly, we affirm, albeit on different grounds.

      Briefly, on September 21, 2010, Plunkett was found guilty of theft by

deception, a third-degree felony, at a non-jury trial.      On November 30,

2010, he was sentenced to four years of probation and to pay restitution.

His direct appeal afforded him no relief. The Pennsylvania Supreme Court

denied allowance of appeal on August 29, 2013.        Plunkett timely filed the

instant PCRA petition on December 11, 2013.          On November 12, 2014,

Plunkett’s probation was terminated. However, on December 10, 2014, that

order was vacated due to a then pending violation of probation. Specifically,

he had failed to complete restitution payments.        Also on December 10,

2014, Plunkett received an additional one year of probation. A hearing on

Plunkett’s PCRA petition was held on March 26, 2015, and the petition was

denied on June 19, 2015. On July 7, 2015, Plunkett filed his notice of appeal

regarding the denial of his PCRA petition. On January 21, 2016, having fully

paid restitution, Plunkett’s probationary sentence was terminated by order of

Judge Robert P. Coleman.       See Docket.     The certified record was then

transmitted to our Court on March 22, 2016.

      The statutory requirements for eligibility for post-conviction collateral

relief are set forth at 42 Pa.C.S. § 9543, which states, in relevant part:

      (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:



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           (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;

42 Pa.C.S. § 9543(a)(1)(i).

        Case law has strictly interpreted the requirement that the petitioner be

currently serving a sentence for the crime to be eligible for relief.

        Here, the denial of 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.

Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (emphasis in

original).2

____________________________________________


2
    The procedural facts underlying Ahlborn are as follows:

        On May 4, 1990, the appellant, Clarence A. Ahlborn, pled guilty
        to three counts of driving under the influence (DUI) and one
        count of accident resulting in death or injury. Appellant was
        sentenced to forty-eight hours to twenty-three months on the
        first DUI count, a concurrent term of thirty days to twenty-three
        months on the second DUI count, a consecutive term of four to
        twenty-three months on the third DUI count, and a concurrent
        term of thirty days to twenty-three months on the accident
        resulting in death or injury count. On May 24, 1990, appellant
        filed a pro se motion to withdraw his guilty plea. A hearing on
        the motion was scheduled, but, for reasons not apparent on the
        record, the motion was never adjudicated. On December 9,
        1993, appellant filed a pro se PCRA petition. Subsequently,
        counsel was appointed and an amended petition was filed on
        January 25, 1994. The petition alleged that appellant was misled
(Footnote Continued Next Page)


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      The general proposition that a petitioner must be currently serving the

sentence for the crime has been applied in numerous PCRA cases.              See

Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013); Commonwealth v.

Stultz, 114 A.3d 865 (Pa. Super. 2015); Commonwealth v. Williams, 977

A.2d 1174 (Pa. Super. 2009); Commonwealth v. Pagan, 864 A.2d 1231

(Pa. Super. 2004); and Commonwealth v. Hayes, 596 A.2d 195 (Pa.

Super. 1991) (en banc). All of these cases differ from the instant case in

that, similar to Ahlborn, the petitioner had served the sentence prior to any

PCRA hearing or order disposing of the PCRA petition.            Here, Plunkett

completed his sentence after the PCRA hearing and order denying him relief,

as well as after filing his notice of appeal, but prior to the transmittal of the

certified record to this Court. Our review of case law leads us to conclude

this difference does not negate the applicability of the statutory language of

Section 9543(a)(1)(i) to this case.
                       _______________________
(Footnote Continued)

      as to the nature and consequences of his plea. It also alleged
      that he was never afforded a hearing on the motion to withdraw
      his plea.

      A PCRA hearing was scheduled for February 17, 1994. On
      February 14, 1994, however, appellant finished serving his
      sentence. He was unconditionally released from prison. The
      scheduled hearing was then continued, and, on June 8, 1994,
      the PCRA petition was dismissed on the ground that appellant
      was no longer eligible for relief. The court reasoned that relief is
      available only to persons still serving sentences of imprisonment,
      probation, or parole.

Id. at 719.



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       Additionally, we note that in Ahlborn, our Supreme Court framed the

question before it as follows: “At issue is 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. The term “final adjudication”, although

not defined in the opinion, implies the petitioner must be serving the

relevant sentence throughout the PCRA process, including any appeals. We

also note that had the Supreme Court intended to limit the scope of the

question before it, it could have explicitly done so, but it did not. 3   We

therefore believe there is, at minimum, a strong inference in Ahlborn that

the section 9543(a)(1)(i) requirement applies throughout the appellate

process.

       We take additional guidance from Commonwealth v. Turner, supra,

which provides a detailed analysis of the application of section 9543(a)(1)(i)

and due process. Ultimately, Turner determined, because the petitioner’s

liberty interest was no longer affected after his or her sentence was

completed, there was no due process violation in denying relief when the

PCRA petition had been filed in a timely manner, but the sentence expired

____________________________________________


3
  For example, the Supreme Court could have framed the question as: “At
issue is whether one who has filed a PCRA petition while serving a sentence
of imprisonment remains eligible for relief in the event that, prior to the
PCRA court’s determination [rather than “final adjudication”], he is released
from custody.”



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prior to any adjudication.      The Turner decision begins its analysis

acknowledging,

     Eligibility for relief under the PCRA is dependent upon the
     petitioner currently serving a sentence of imprisonment,
     probation, or parole for the crime. 42 Pa.C.S. § 9543(a)(1)(i);
     Ahlborn, 699 A.2d at 720 (holding that the plain language of
     this section requires the denial of relief for a petitioner who has
     finished serving his sentence).

Turner, 80 A.3d at 761-62.

     The Turner Court further reasoned,

     In the collateral review context, the United States Supreme
     Court has held that although “states have no constitutional
     obligation to provide a means for collaterally attacking
     convictions,” Commonwealth v. Haag, 570 Pa. 289, 809 A.2d
     271, 283 (2002) (citing [Pennsylvania v.] Finley, 481 U.S.
     [551] at 557, 107 S.Ct. 1990 [95 L.Ed.2d 539 (1990)]), if they
     do, “then such procedures must comport with the fundamental
     fairness mandated by the Due Process Clause.” Id.; Finley, 481
     U.S. at 557, 107 S.Ct. 1990. In this regard, states have
     “substantial discretion to develop and implement programs to
     aid prisoners seeking to secure postconviction review.” Finley,
     481 U.S. at 559, 1078 S.Ct. 1990. When a state choses to offer
     help to those seeking relief from convictions and custody, due
     process does not “dictat[e] the exact form such assistance must
     assume.” [Dist. Attorney’s Office for the Third Judicial Dist.
     v.] Osborne, 557 U.S. [52] at 69, 129 S.Ct. 2308 [174 L.Ed.2d
     28 (1009)] (citing Finley, 481 U.S. at 559, 107 S.Ct. 1990).
     Moreover, states need not provide post-conviction petitioners
     with “the full panoply of procedural protections that the
     Constitution requires be given to defendants who are in a
     fundamentally different position-at trial and on first appeal as of
     right.” Finley, 481 U.S. at 552, 107 S.Ct. 1990. Indeed, the
     United States Supreme Court has stated that post-conviction
     petitioners “have only a limited interest in post-conviction relief.”
     Osborne, 557 U.S. at 69, 129 S.Ct. 2308. To deny due process,
     the complained-of aspect of the state post-conviction procedures
     must be “fundamentally inadequate to vindicate” the defendant's
     liberty interest, and must offend “some principle of justice so
     rooted in the traditions and conscience of our people as to be

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     ranked as fundamental” or transgress “any recognized principle
     of fundamental fairness in operation.” Osborne, 557 U.S. at 69,
     129 S.Ct. 2308 (internal citations omitted).

Turner, 80 A.3d at 764.

     Accordingly, the denial of relief to a petitioner who was no longer

serving a sentence, even when the PCRA process had begun in a timely

manner, was not constitutionally infirm. Turner stated:

     We agree with the Commonwealth that due process does not
     require the legislature to continue to provide collateral review
     when the offender is no longer serving a sentence. Analogously,
     because the common law and statutory writ of habeas corpus in
     federal court challenges the basis of criminal conviction and
     custody, it requires that a petitioner be in custody before habeas
     jurisdiction can attach. Preiser v. Rodriguez, 411 U.S. 475,
     484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (providing that the
     essence of the common law writ of habeas corpus is an attack by
     a person in custody upon the legality of that custody, and that
     the traditional function of the writ is to secure release from
     illegal custody); U.S. ex rel. Dessus v. Com. of Pa., 452 F.2d
     557, 559-60 (3d Cir. 1971) (“the sine qua non of federal habeas
     corpus jurisdiction is that petitioner be ‘in custody’ ...” even as
     to claims of constitutional dimension: “Thus, custody is the
     passport to federal habeas corpus jurisdiction. Without custody,
     there is no detention. Without detention, or the possibility
     thereof, there is no federal habeas jurisdiction.” (emphasis
     added)). See also 28 U.S.C. § 2255(a) (extending the right to
     seek habeas corpus relief to “[a] prisoner in custody under
     sentence” of a federal court); 28 U.S.C. § 2254(b) (extending
     the right to “a person in custody pursuant to the judgment of a
     State court”). Accordingly, because Petitioner's liberty is no
     longer burdened by a state sentence, she has no due process
     right to collateral review of that sentence.

     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. §

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     9543(a)(1)(i). Of course, the legislature was free to extend a
     statutory right of collateral review to individuals like Petitioner
     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. See Evitts v.
     Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 83 L.Ed.2d 821
     (1985) (“when a State opts to act in a field where its action has
     significant discretionary elements, it must nonetheless act in
     accord with the dictates of the Constitution—and, in particular, in
     accord with the Due Process Clause”)[.]

Turner, 80 A.3d at 765-66.

     Turner determined that a PCRA petitioner is not entitled to even a

hearing on the PCRA petition once the petitioner’s sentence has terminated.

Logically, if due process does not require a petitioner be given a hearing or

to have the petition ruled on once the sentence expires, then there would be

no due process violation in the instant circumstance.

     Further, in Commonwealth v. Stultz, 114 A.3d 865 (Pa. Super.

2015), Stultz, on July 27, 2011, was given a 48 hour to six month sentence

for DUI, concurrent with a one to five year sentence of incarceration for

fleeing or attempting to elude a police officer.        On January 28, 2013,

approximately one year after the expiration of his DUI sentence, Stultz filed

his PCRA petition. In reviewing the matter, our Court stated:

     We begin by noting that Appellant is no longer eligible for relief
     with respect to his DUI convictions, having completed serving his
     sentence for the DUI count for which he was incarcerated. 42
     Pa.C.S. § 9543(a)(1)(i); Commonwealth v. Turner, 622 Pa.
     318, 80 A.3d 754 (2013); Commonwealth v. Ahlborn, 548 Pa.
     544, 699 A.2d 718 (1997); Commonwealth v. Williams, 977
     A.2d 1174 (Pa. Super. 2009); Commonwealth v. Pagan, 864
     A.2d 1231 (Pa. Super. 2004); Commonwealth v. Hayes, 408
     Pa.Super. 68, 596 A.2d 195 (1981) (en banc). Thus, to the

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      extent his claims relate solely to the DUI charges, he is not
      entitled to relief.

Stultz, 114 A.3d at 872.

      Even though Stultz was still serving the sentence associated with the

petition, he was no longer eligible for relief for the convictions associated

with the expired portion of the total sentence.

      Finally, our Court’s recent decision in Commonwealth v. Volk, 138

A.3d 659 (Pa. Super. 2016), is of particular note.     In Volk, there was an

unexplained 21-month delay in the PCRA court that allowed Volk’s sentence

to expire prior to the PCRA court addressing the substance of the petition.

Even though the delay was not attributable to Volk, pursuant to the strict

application of section 9534(a)(1)(i), he was not entitled to relief. Instantly,

Plunkett’s sentence expired before the certified record was transmitted to

our Court. Our review of the certified record finds no improper procedural

delay in the transmittal of the record to our Court. Nonetheless, we could

not have reviewed this case prior to the expiration of Plunkett’s sentence.

      In light of reasoning found in Ahlborn, Turner, Stultz, and Volk, we

find the statutory requirement that a PCRA petitioner be currently serving

the sentence is applicable to the instant circumstance where the PCRA

court’s order was issued while petitioner was still serving the required

sentence, but that sentence terminated prior to the resolution of his appeal.

      Because Plunkett’s sentence has expired, he is no longer entitled to

PCRA relief. Accordingly, we affirm the PCRA court’s order of June 19, 2015.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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