J-S55017-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
ALISHA JOHNSON,                          :
                                         :
                        Appellant        :     No. 3183 EDA 2013


          Appeal from the PCRA Order Entered October 18, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0007895-2010.


BEFORE: BOWES, SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 21, 2014

     Appellant, Alisha Johnson, appeals from the order dismissing her

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. After careful review, we hold that the PCRA court

lacked jurisdiction to consider Appellant’s petition. Accordingly, we reverse

the order of August 16, 2013 dismissing the 18 Pa.C.S. § 6111(g)(1) charge,

and affirm the order of October 18, 2013, denying PCRA relief.

     The PCRA court summarized the facts surrounding this case as follows:

           On April 27, 2009, Appellant was arrested and charged
     with various Violations of the Firearms Act. The facts, as set-
     forth by the Commonwealth on August 10, 2010, were that:
     Officer Vincent, Badge # 4892 would testify that on March 18,
     2009, while on patrol in the area of Oregon Avenue and
     Christopher Columbus Boulevard, he observed the Appellant
     making an illegal u-turn. Officer Vincent stopped Appellant’s
     vehicle and during his investigation recovered a nine millimeter
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     Luger handgun, bearing serial number 31466957, from her
     person. Appellant produced a valid Act 235 card at that time.
     (Notes of Testimony (“N.T.”), 8/10/2010 at 36-37).

           Further investigation by Agent DiBlasi (phonetically) of the
     Gun Violence Task Force revealed that the firearm was
     registered to Rodney Jefferson, who had purchased the firearm
     in 2003 from a dealer in New Kensington, Pennsylvania. After
     waiving her right to give a statement, Appellant informed DiBlasi
     that she and Jefferson both worked together as security guards
     at Einstein Hospital and that on March 14, 2009, she had
     purchased the firearm from him for $200. Appellant told officers
     that she was not on her way to or from work at the time of the
     stop. (N.T., 8/10/2010 at 36-37).

PCRA Court Opinion, 1/15/14, at 2-3.    The PCRA court further offered the

following summary of the procedural history of this case:

           On August 10, 2010, [Appellant] entered an open guilty
     plea to violating sections 6108 and 6111(g)(1) of the Uniform
     Firearms Act.     Appellant was sentenced to one year [of]
     probation for each charge, with the sentences to run
     concurrently. Appellant did not file a post sentence motion or a
     motion to withdraw her guilty plea, and a direct appeal was
     never pursued.

           On August 8, 2011, Appellant filed a pro-se petition under
     the [PCRA]. Appellant’s current counsel was appointed, and on
     May 25, 2012, counsel filed an Amended Petition on Appellant’s
     behalf. On August 16, 2013, this court issued an Order granting
     the petition in-part by dismissing Appellant’s section 6111(g)(1)
     charge.1
           1
             Appellant’s amended PCRA petition contends that
           her guilty plea based on her charge under 18
           Pa.C.S.A. § 6111 was an illegal sentence because,
           based on the facts of record, she is not subject to
           the statute. In this instance, this court dismissed
           Appellant’s 6111(g)(1) charge because it determined
           that the charge was indeed improper based upon the
           facts of the case. Thus, Appellant’s claim of an


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            illegal sentence has already been addressed by this
            court.

            On October 18, 2013, this court, determining that the rest
      of the issues raised by Appellant were without merit, entered an
      Order formally dismissing Appellant’s PCRA petition.2         On
      November 17, 2013, Appellant filed a timely appeal to the
      Superior Court from this court’s dismissal of her PCRA.
            2
               Subsequent to this court’s decision to grant the
            petition in part, regarding the section 6111(g)(1)
            charge, the Pennsylvania Supreme Court decided
            Commonwealth v. Turner, 2013 WL 6134575, No. 52
            EAP [2011], 1 (Nov. 22, 2013), where it held that a
            PCRA petitioner has no due process right to be heard
            outside the limits imposed by Section 9543(a)(1)(i)
            of the PCRA. The Court found that “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.” Id. at 9. Since this
            court has already granted Appellant’s PCRA petition
            in-part as to the 6111(g)(1) violation, the remainder
            of Appellant’s substantive claims will be addressed,
            despite the fact that Appellant was not serving her
            sentence     as    required     by  42   Pa.C.S.A.  §
            9543(a)(1)(i). See Commonwealth v. Ahlborn, 699
            A.2d 718 (Pa. 1997).

PCRA Court Opinion, 1/15/14, at 1-2 (footnotes in original).

      Appellant presents the following issue for our review:

             Did the court below commit error by failing to order and
      hold an evidentiary hearing to determine whether trial counsel
      rendered ineffective assistance of counsel, effectively resulting in
      the lack of an attorney in violation of the U.S. and Pennsylvania
      Constitutions, where counsel incorrectly advised her that her
      guilty plea would not jeopardize her ability to become a police
      officer or a licensed registered nurse?

Appellant’s Brief at 5.


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      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).       The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Before we review the issue raised by Appellant, we must first consider

whether Appellant is eligible for relief under the PCRA.       Thus, we must

address whether Appellant satisfied the requirements of the PCRA, which are

as follows:

      (a) General rule. -- To be eligible for relief under [the PCRA],
      the petitioner must plead and prove by a preponderance of the
      evidence all of the following:

              (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;

                   (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.


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42 Pa.C.S. § 9543.

      Our Supreme Court and this Court have consistently interpreted

section 9543(a) to require that a PCRA petitioner be serving a sentence

while relief is being sought.   Commonwealth v. Ahlborn, 699 A.2d 718,

720 (Pa. 1997); Commonwealth v. Martin, 832 A.2d 1141, 1143 (Pa.

Super. 2003); Commonwealth v. James, 771 A.2d 33 (Pa. Super. 2001).

As our Supreme Court explained in Ahlborn, the denial of relief for a

petitioner who has finished serving his sentence is required by the plain

language of the PCRA statute. Ahlborn, 699 A.2d at 720. To be eligible for

relief a petitioner must be currently serving a sentence of imprisonment,

probation or parole. Id. To grant relief at a time when an appellant is not

currently serving such a sentence would be to ignore the language of the

statute. Id.

      Moreover, we have explained that “the [PCRA] preclude[s] relief for

those petitioners whose sentences have expired, regardless of the collateral

consequences of their sentence.”     Commonwealth v. Fisher, 703 A.2d

714, 716 (Pa. Super. 1997). It is well-settled under Pennsylvania law that

the PCRA court loses jurisdiction the moment an appellant’s term of

probation expires. See Commonwealth v. Turner, 80 A.3d 754, 769 (Pa.

2013) (holding that when a petitioner’s sentence expires while his PCRA




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petition is pending before the PCRA court, the PCRA court loses jurisdiction

to rule on the merits of the petition).

      Our review of the record reflects that Appellant invoked the PCRA

when she filed her pro se PCRA petition on August 8, 2011. However, our

review of the record also reveals that on August 10, 2010, Appellant was

sentenced to two concurrent terms of probation of one year.                Hence, the

record indicates Appellant has finished serving her sentence of probation

pertinent to the conviction stated above.             As the PCRA court notes in its

Pa.R.A.P. 1925(a) opinion, Appellant is not serving a sentence as required by

the provisions of the PCRA.        PCRA Court Opinion, 1/15/14, at 2 n.2.

Therefore,   Appellant   cannot   satisfy       the    requirements   of   the   PCRA.

Accordingly, the PCRA court had no authority to entertain a request for relief

under the authority of the PCRA. Appellant is ineligible for relief pursuant to

the PCRA, and the PCRA court’s dismissal of Appellant’s PCRA petition on

October 18, 2013, was proper.

      Moreover, we would be remiss if we did not acknowledge the PCRA

court’s order entered on the docket on August 16, 2013, in that it appears

from our discussion above that the PCRA court lacked jurisdiction to enter

any such relief. Our review of the record reflects that a separate document

containing the August 16, 2013 order is not included in the record certified




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to this Court. The docket contained in the certified record from the court of

common pleas does reflect the following entry dated August 16, 2013:

     Order Granting PCRA Petition in Part; Denied in Part
     PCRA Granting PCRA Petition in Part- Denied in Part. Court
     granted petition as to count 4 (18-6111-G1). 907 notice to be
     sent out. PCRA continued to 10/18/13 for formal dismissal.
     NCD: 10/18/13 Room 200. Hon K. Shreeves-Johns ADA: C.
     Mahler ATTY: S. Weaver STENO: J. Hall CLERK: K. Dandy

Docket entry dated 08/16/2013.1



1
  We note that Count 4 of Appellant’s amended PCRA petition provides
verbatim as follows:

     IV. Imposition of a sentence greater than the lawful
     maximum.

           “It is thus settled law that any allegation relating to
     whether a sentence exceeds the lawful maximum is a legality-of-
     sentence question.”       Commonwealth v. Foster, 2008
     Pa.Super. 252, 960 A.2d 160, 165 (P2008). An illegal sentence
     claim is not a waivable issue. Commonwealth v. Turner, 290
     Pa. Super. 428, 434 A.2d 827 (1981); Commonwealth v.
     Welch, 291 Pa. Super. 1, 435 A.2d 189 (1981);
     Commonwealth v. Martinez, 293 Pa. Super. 260, 438 A.2d
     984 (1981).

           Petitioner entered a guilty plea to a charge under 18
     Pa.C.S. § 6111. However, the statute, generally, applies to
     persons who sell or transfer firearms, i.e., a seller. 18 Pa.C.S. §
     6111 et. Seq. It is further applicable to persons/buyers makes
     false written or oral statements to authorities or sellers while
     attempting to obtain a firearm. The facts articulated on the
     record, and as are known to Petitioner and current counsel, do
     not make the Petitioner subject to the statute. “[S]ection 6111,
     … in pertinent part addresses the eligibility of purchasers or
     transferees”, essentially to sell or transfer firearms.       See,
     Commonwealth v. Hernandez, 2012 PA.Super. 40, 39 A.3rd
     406 (2012) (decided on other grounds).

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      However, as explained previously, the PCRA court lacked jurisdiction to

enter the above order because Appellant was no longer serving her

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

Commonwealth v. Ahlborn, 699 A.3d 718 (Pa. 1997), Commonwealth v.

Martin, 832 A.2d 1141 (Pa. Super. 2003), Commonwealth v. Fisher, 703

A.3d 714 (Pa. Super. 1997). Accordingly, because Appellant was ineligible

for PCRA relief when the PCRA court entered the August 16, 2013 order

upon the docket, we are compelled to reverse that order.

      Order of August 16, 2013, reversed.        Order of October 18, 2013,

affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




             Consequently, the acceptance of a guilty plea to a charge
      where the elements of the offense cannot be sustained by the
      plea. Petitioner argues that a sentence imposed on a charge not
      supported by the facts is an illegal sentence.         Therefore
      Petitioner seeks nolle pros on the § 6111 charge; that the court
      to [sic] vacate the sentence imposed; or that the court grant a
      judgment of acquittal or dismissal on the charge.

Amended PCRA Petition, 5/25/12, at 8-9 (verbatim).

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