J-A34034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANTONIO L. HORNE, SR.                               IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

DAUPHIN COUNTY PRISON AND
DOMINIC DEROSE

                            Appellee                     No. 911 MDA 2015


                   Appeal from the Order Entered May 4, 2015
                In the Court of Common Pleas of Dauphin County
                    Civil Division at No(s): 2015-CV-03336MP


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED DECEMBER 11, 2015

        Appellant Antonio L. Horne, Sr., proceeding pro se, challenges the May

4, 2015 order of the Dauphin County Court of Common Pleas dismissing his

Petition for Writ of Habeas Corpus Ad Subjiciendum (“the petition” or

“Appellant’s petition”). For the reasons that follow, we affirm.

        On January 23, 2014, Appellant pleaded guilty to driving under the

influence (“DUI”), general impairment1 at Docket No. CP-22-CR-0003334-

2013 (“first DUI conviction”).          That same day, the trial court sentenced

Appellant to 72 hours in jail followed by 6 months’ probation. Appellant did

not file a direct appeal.

____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).
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        On November 12, 2014, following a bench trial, the Dauphin County

Court of Common Pleas convicted Appellant of another DUI, general

impairment, from a separate incident at Docket No. CP-22-CR-0000173-

2014 (“second DUI conviction”). Also on November 12, 2014, the trial court

sentenced Appellant to 6 months’ intermediate punishment, with the first 30

days to be served under house arrest on electronic home monitoring. Again,

Appellant did not file a direct appeal.

        On April 28, 2015, Appellant filed the instant petition in which he

alleges that both his DUI convictions should be vacated on evidentiary

grounds not previously raised.2 See Appellant’s Petition, pp. 7-11. On May

4, 2015, the Court of Common Pleas of Dauphin County, Civil Division (“the

trial court”) noted that the petition was an improper filing that Appellant

should have presented as a PCRA petition under 42 Pa.C.S. § 6503.3 Trial
____________________________________________


2
  Appellant argues the evidence used to convict him on both DUI convictions
should have been suppressed for various reasons. See Appellant’s Petition,
pp. 7-11. To the extent this Court can discern discreet claims, as to his first
DUI conviction, Appellant alleges the results of the portable breathalyzer test
should have been suppressed because the police did not obtain a warrant
prior to administering the test. See id. at 10-11. As to his second DUI
conviction, Appellant claims that the police did not transport him to a
hospital for chemical testing, and that he never refused chemical testing
despite information to the contrary contained in the police affidavit of
probable cause from the criminal complaint, the hospital’s Certification of
Request for Testing to Determine Presence of Alcohol and/or Controlled
Substance Under Pennsylvania Motor Vehicle Code, and the PennDOT Report
of Refusal to Submit to Chemical Testing – all attached as exhibits to
Appellant’s habeas petition. See id. at 8.
3
    42 Pa.C.S. 6503 provides, in relevant part:
(Footnote Continued Next Page)


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Court Order, May 4, 2015, pp. 1-2.               The trial court denied the petition,

explaining:

       The Plaintiff/Petitioner has attempted to resurrect an otherwise
       untimely filing through his Petition when the proper vehicle for
       the averments alleged in his Petition is a Petition for Post-
       Conviction Relief. Additionally, the Post Conviction Relief Act
       specifically states that an “action established in this subchapter
       shall be the sole means of obtaining collateral relief and
       encompasses all other common law and statutory remedies for
       the same purpose that exist when this subchapter takes effect,
       including habeas corpus.” 42 Pa.C.S. § 9542. Therefore, the
       Plaintiff/Petitioner’s proper method of recourse is through the
       Post Conviction Relief Act.

Id.4

                       _______________________
(Footnote Continued)


       Where a person is restrained by virtue of sentence after
       conviction for a criminal offense, the writ of habeas corpus shall
       not be available if a remedy may be had by post-conviction
       hearing proceedings authorized by law.

42 Pa.C.S. § 6503(b).
4
   We note that the trial court was correct that Appellant’s petition should
have been viewed as a PCRA petition. See Commonwealth v. Stout, 978
A.2d 984, 986 (Pa.Super.2009) (“[F]or the most part, the PCRA has
subsumed the writ of habeas corpus as a means for obtaining post-
conviction collateral relief from a judgment of sentence.”); 42 Pa.C.S. §
9542 (“The [PCRA] shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exist when [the PCRA] takes effect, including habeas corpus
and coram nobis.”). We further note that, as a result, the trial court should
have treated the petition as a PCRA petition and appointed PCRA counsel.
See Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super.2009)
(“Pursuant to the rules of criminal procedure and interpretive case law, a
criminal defendant has a right to representation of counsel for purposes of
litigating a first PCRA petition through the entire appellate process.”).
(Footnote Continued Next Page)


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      Appellant filed a timely notice of appeal on May 20, 2015, and a

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal on

June 15, 2015.     On July 6, 2015, the trial court filed a Pa.R.A.P. 1925(a)

opinion that simply adopted the court’s May 4, 2015 order.

      Appellant purports to raise the following issue for our review:

      Did the civil trial court error as a matter of law holding that the
      post conviction relief act Encompasses all other common law and
      statutory remedies for the same purpose that exist when this
      subchapter takes effect, including the “habeas corpus”. 42
      Pa.C.S. section 6501. Writ not to be suspended. And the
      privilege of the writ of habeas corpus shall not be suspended,
      unless when in case of rebellion or invasion the public safety
      may require it. Pennsylvania Constitution, Article 1. Section 14.

Appellant’s Brief, p. 25 (verbatim).

      In reviewing an order denying PCRA relief, our well-settled standard of

review is “to determine whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. The PCRA

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

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).



                       _______________________
(Footnote Continued)

However, given our disposition herein, the trial court’s error of not
appointing counsel to represent Appellant was harmless.
5
 Appellant does not number the pages of his brief. This Court has supplied
page numbers beginning with the page that includes the Table of Contents
and the Table of Authorities numbered as page 1.



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       Initially, as a threshold matter, to be eligible for relief under the PCRA,

a petitioner must plead and prove by a preponderance of the evidence that

he is “currently serving a sentence of imprisonment, probation or parole for

the crime[.]” 42 Pa.C.S. § 9543(a)(1)(i). A petitioner who has completed

his sentence is no longer eligible for post-conviction relief. Commonwealth

v. Soto, 983 A.2d 212, 213 (Pa.Super.2009); see also Commonwealth v.

Turner, 80 A.3d 754, 765 (Pa.2013) (“due process does not require the

legislature to continue to provide collateral review when the offender is no

longer serving a sentence.”). This is so even if the petitioner filed his PCRA

petition during the pendency of his sentence.         See Commonwealth v.

Williams, 977 A.2d 1174, 1176 (Pa.Super.2009) (“As soon as his sentence

is completed, the petitioner becomes ineligible for relief, regardless of

whether he was serving his sentence when he filed the petition.”).6
____________________________________________


6
  Likewise, even assuming the PCRA did not provide a remedy and habeas
corpus was somehow an appropriate vehicle for Appellant to seek relief,
Appellant would still not be entitled to relief. As with the PCRA, “[t]he writ
of habeas corpus is used to determine whether a petitioner is entitled to an
immediate release from an unlawful confinement.” Commonwealth ex
rel. Powell v. Rosenberry, 645 A.2d 1328, 1330 (Pa.Super.1994)
(emphasis provided). While a petitioner need not be incarcerated when a
petition for a writ of habeas corpus is filed, a threshold requirement of
habeas corpus relief is that the petitioner must be “in custody” of some form
during the pendency of the petition. See Commonwealth ex rel. Ensor v.
Cummings, 215 A.2d 651, 652 (Pa.1966). Petitioners “in custody” include
those on parole or on bail. See Id. (parole); Commonwealth v. Hess, 414
A.2d 1043 (Pa.1980) (bail); Commonwealth ex rel. Paulinski v. Isaac,
397 A.2d 760 (Pa.1979) (bail). As the Supreme Court of the United States
has explained, “[w]hile we have very liberally constructed the ‘in custody’
requirement for purposes of federal habeas, we have never extended it to
(Footnote Continued Next Page)


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      Here, a review of the record reveals Appellant is no longer serving a

sentence of incarceration, probation, or parole for either of his DUI

convictions.   Accordingly, Appellant is not entitled to PCRA relief, and the

trial court properly denied his petition.7 See Commonwealth v. Clemens,

66 A.3d 373, 381 n.6 (Pa.Super.2013) (“This [C]ourt may affirm [the trial

court] for any reason, including such reasons not considered by the [trial]

court.”).

      Accordingly, we affirm the trial court’s order denying Appellant’s

petition and dismiss Appellant’s “Motion for Continuance of Oral Argument”

and “Motion for Summary Judgment on Pleadings” as moot.

      Order affirmed. Outstanding motions dismissed as moot.




                       _______________________
(Footnote Continued)

the situation where a habeas petitioner suffers no present restraint from a
conviction.” Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 1926
(1989).
7
  To the extent Appellant may still be paying restitution or fines attendant to
his convictions, such penalties do not satisfy the custody requirement for
PCRA relief.       See Commonwealth v. Fisher, 703 A.2d 714
(Pa.Super.1997) (the PCRA does not provide relief to those petitioners
whose only uncompleted aspect of sentence is a fine); Commonwealth v.
Jones, 771 A.2d 33 (Pa.Super.2001) (same regarding restitution).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




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