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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
THOMASINE TYNES,                          :         No. 2772 EDA 2017
                                          :
                         Appellant        :


                   Appeal from the PCRA Order, July 31, 2017,
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos. CP-51-CR-0012304-2014,
                            MC-51-CR-0036312-2014


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 17, 2018

      Thomasine Tynes appeals from the order filed in the Court of Common

Pleas of Philadelphia County that dismissed her petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.          After

careful review, we affirm.

      The facts and procedural history, as recounted by the trial court, are

as follows:

              [Appellant], at all times material, was the President
              Judge of the Philadelphia Traffic Court.

              [Appellant]    took   a   gift   of   jewelry    under
              circumstances that brought her to the attention of
              the Office of Attorney General for the Commonwealth
              of Pennsylvania, hereinafter, OAG.       Following an
              investigation, the then Attorney General, Kathleen
              Kane, declined to prosecute [appellant] for reasons
              not relevant to the disposition of this PCRA.
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           [Appellant] was concurrently investigated by the
           United States Attorney’s Office for the Eastern
           District of Pennsylvania and ultimately charged and
           prosecuted by that agency.

           Once the OAG declined to prosecute [appellant], the
           then District Attorney of Philadelphia County, Seth
           Williams, had his office undertake the prosecution.
           When [appellant] was charged[,] the entire
           Philadelphia County bench recused and I was
           assigned to handle the case against [appellant].

           [Appellant] was represented by privately retained
           counsel who had entered into a plea agreement with
           the District Attorney’s Office which called for a
           sentence that       would run concurrently with
           [appellant’s] federal sentence, an agreement I
           approved on December 17, 2014 when I accepted
           her guilty plea.[1]

           [Appellant] was aware that her plea put           her
           entitlement to receive a pension from             the
           Commonwealth of Pennsylvania at risk.

           By agreement, [appellant] surrendered to the federal
           authorities on February 6, 2015 to begin her federal
           and state sentences.

           Inexplicably, she was released to the street by the
           federal authorities on or about August 28, 2016,
           instead of being returned to the State court system
           for supervision. In fact, she was never paroled and
           should have been returned to Pennsylvania to serve
           the balance of her maximum sentence.

           [Appellant] did not seek to withdraw her plea before
           me, nor did she file a direct appeal from the
           sentence I imposed.

           On December 6, 2015, current counsel filed a PCRA
           Petition which did not raise any issues. Rather, it

1 Appellant pled guilty to restricted activities – accept improper influence
under Section 1103(c) of the Public Officers Code, 65 Pa.C.S.A. § 1103(c).


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            sought 90 days within which to evaluate the matter.
            The petition was never forwarded to me for
            consideration as required by Pa.R.C[rim].P., Rule
            903(A).

            [Appellant’s]  maximum        sentence    expired    on
            January 6, 2017.

            On January 18, 2017, counsel filed his “First
            Amended PCRA Petition.”        He noted therein the
            failure of the court to act on his filing of
            December 16, 2015. As of January 18, 2017, I was
            still unaware that the Petition of December 16, 2015
            had been filed. The Petition of January 18, 2017 was
            NOT forwarded to me as required by Pa.R.C[rim].P.,
            Rule 903(A). Accordingly, I had no knowledge of
            either filing.

Trial court opinion, 12/7/17 at 1-3.

      On June 16, 2017, the PCRA court issued a notice of intent to dismiss

the petition without a hearing, pursuant to Pa.R.Crim.P. 907(1). The PCRA

court intended to dismiss because appellant did not have standing to receive

relief under the PCRA because she was not serving a sentence. On July 18,

2017, appellant responded and asserted that the PCRA court did not

acknowledge her petition for many months in bad faith because the court

wanted the petition to “die on the vine” so that the PCRA court would not be

called upon to explain its role in the collusion that produced the unjust result

of this case.   (Defendant’s response to Rule 907 notice of intention to

dismiss, 7/18/17 at 2.)      On July 31, 2017, the PCRA court dismissed

appellant’s petition because she was no longer subject to incarceration

and/or supervision. On August 28, 2017, appellant filed a notice of appeal.



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On September 12, 2017, the PCRA court ordered appellant to file a concise

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

Appellant complied with the order on October 3, 2017.         On December 7,

2017, the PCRA court then filed its opinion, pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for this court’s review:

            1.     Was the sentenced [sic] imposed on 12/17/14
                   Illegal [sic] and therefore “void ab initio”,
                   causing     [appellant]  to  remain    in   a
                   pre-sentence posture and accrue ZERO time
                   served toward the Philadelphia sentence while
                   in Federal Custody; and/or

            2.     Is the sentence imposed on 12/17/14
                   “incomplete” because [appellant] only served
                   17 months of a 23-month sentence and was
                   never paroled by The Court; and/or

            3.     Did The Honorable Judge Gavin “interfere” with
                   the presentation of issues by [appellant][?]

Appellant’s brief at 4.

      Before we can consider appellant’s claim on the merits, we must first

determine whether appellant is eligible for relief under the PCRA. The PCRA

limits eligibility for relief, inter alia, to petitioners “currently serving a

sentence of imprisonment, probation or parole for the crime” at the time

relief is granted. 42 Pa.C.S.A. § 9543(a)(1). See also Commonwealth v.

Stultz, 114 A.3d 865, 872 (Pa.Super. 2015), appeal denied, 125 A.3d

1201 (Pa. 2015); Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa.

1997); Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa.Super.

2009), appeal denied, 990 A.2d 730 (Pa. 2010).


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      Here, appellant was sentenced on December 17, 2014, to a term of

11½ to 23 months’ imprisonment to run concurrent with appellant’s federal

sentence.   The trial court stayed the sentence until appellant began her

federal sentence on February 6, 2015.        On December 16, 2015, appellant

filed a counseled PCRA petition in which she alleged that she had meritorious

issues   concerning   ineffective   assistance   of   counsel,   illegal   sentence,

non-knowing/intentional/voluntary      guilty    plea,   and     after     discovered

evidence. (Petition for post-conviction collateral relief, 12/16/15 at 2.)

      On August 28, 2016, appellant was released from her federal

sentence. For reasons that are not apparent from the record, appellant was

released to the “street” and was not returned to Pennsylvania to serve the

balance of her Pennsylvania sentence or to be paroled from it as the

minimum sentence had expired and the maximum had more than four

months to run.     On January 6, 2017, appellant’s Pennsylvania sentence

expired.

      On January 18, 2017, appellant filed a first amended PCRA petition

and request for an evidentiary hearing. Appellant and her counsel expanded

upon the original grounds alleged for collateral relief.            As appellant’s

sentence has expired, she is not eligible for relief. Ahlborn. Further, even

though, appellant asserts in her petition that her ability to receive a pension

from the Commonwealth of Pennsylvania is jeopardized due to her

conviction, there is no relief available under the PCRA for a petitioner whose



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sentence has expired, even if there are collateral consequences of his

conviction.   Williams, 977 A.2d at 1176.   Accordingly, appellant is not

eligible for relief under the PCRA.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/17/18




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