J-S21009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GERALD S. LEPRE, JR.                       :
                                               :
                       Appellant               :   No. 543 WDA 2017

                   Appeal from the PCRA Order March 8, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015773-2015


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                  FILED JULY 11, 2018

       Appellant, Gerald S. Lepre, Jr., appeals from the March 8, 2017 order

dismissing his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant’s court-appointed counsel

filed both a petition to withdraw as counsel and an accompanying brief

pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and

its federal predecessor, Anders v. California, 386 U.S. 738 (1967).1 We

____________________________________________


1 Counsel seeking to withdraw from post-conviction representation must
satisfy the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a [brief pursuant
to Turner/Finley].” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2
(Pa. Super. 2011) (citation omitted). Although counsel refers to the appellate
brief submitted in this case as an “Anders” brief, we shall refer to her
submission as a “Turner/Finley” brief, reflecting the correct line of authority
under which it is filed.
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conclude that Appellant’s counsel complied with the procedural requirements

necessary to withdraw. Furthermore, we conclude that the appeal is without

merit; however, we also conclude that the PCRA court lacked authority to

enter the February 6, 2017 order granting Appellant relief. Hence, we vacate

the PCRA court’s February 6, 2017 order and affirm the PCRA court’s March 8,

2017 order.

        The factual background and procedural history of this case are as

follows. On September 24, 2015, Appellant was pulled over by University of

Pittsburgh Police after he failed to stop at a red light. On February 1, 2016,

the Commonwealth charged Appellant via criminal information with two counts

of driving under the influence (“DUI”) – general impairment2 and failing to

stop at a red light.3 On August 1, 2016, Appellant pled guilty to one count of

DUI – general impairment.          He was immediately sentenced to six months’

probation. On September 12, 2016, Appellant filed a pro se PCRA petition.

Counsel was appointed and filed an amended petition. On February 1, 2017,

Appellant’s probationary period expired. On February 6, 2017, the PCRA court

granted the amended petition in part and lowered Appellant’s fine. In that

same order, the PCRA court issued notice of its intent to dismiss the remainder

of the petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On



____________________________________________


2   75 Pa.C.S.A. § 3802(a)(1).

3   75 Pa.C.S.A. § 3112(a)(3)(i).

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March 8, 2017, the PCRA court dismissed the remainder of Appellant’s PCRA

petition. This timely appeal followed.

       Appellant’s counsel raises two issues in her Turner/Finley brief:

       1. Did the [PCRA] court err in denying relief upon finding that it
          lacked jurisdiction over [Appellant’s] PCRA petition insofar as
          [Appellant] is no longer serving a sentence . . . ?

       2. [Did the PCRA court err in dismissing Appellant’s ineffective
          assistance of counsel claim?]

Turner/Finley Brief at 5 (complete capitalization removed).4

       Prior to addressing the merits of the issues raised in counsel’s

Turner/Finley brief, we must determine whether she met the procedural

requirements to withdraw as counsel. Counsel seeking to withdraw in PCRA

proceedings

       must review the case zealously. Turner/Finley counsel must
       then submit a “no-merit” letter to the PCRA court, or brief on
       appeal to this Court, detailing the nature and extent of counsel’s
       diligent review of the case, listing the issues which petitioner
       wants to have reviewed, explaining why and how those issues lack
       merit, and requesting permission to withdraw.

       Counsel must also send to the petitioner: (1) a copy of the “no-
       merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
       and (3) a statement advising petitioner of the right to proceed pro
       se or by new counsel.

       Where counsel submits a petition and no-merit letter that satisfy
       the technical demands of Turner/Finley, the court — PCRA court
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4  Appellant filed a response to counsel’s Turner/Finley brief in which he
argues that his PCRA counsel failed to meet the procedural requirements for
withdrawing. This argument is without merit for the reasons set forth in note
1, supra. He also argues that his plea counsel was per se ineffective by not
filing a direct appeal. As we conclude the PCRA court lacked the authority to
grant him relief, we need not address this claim.

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      or this Court — must then conduct its own review of the merits of
      the case. If the court agrees with counsel that the claims are
      without merit, the court will permit counsel to withdraw and deny
      relief.

Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)

(cleaned up). In this case, counsel fulfilled the procedural requirements for

withdrawing as PCRA counsel.

      The first issue raised in counsel’s Turner/Finley brief is whether the

PCRA court had jurisdiction over Appellant’s petition. “Whether a court has

subject matter jurisdiction presents a question of law, making our standard of

review de novo and the scope of our review plenary.”            Hendricks v.

Hendricks, 175 A.3d 323, 328 (Pa. Super. 2017) (citation omitted).         The

PCRA provides, in relevant part, that:

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

      (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.

42 Pa.C.S.A. § 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



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being sought.5 Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997);

Commonwealth v. Martin, 832 A.2d 1141, 1143 (Pa. Super. 2003), appeal

denied, 843 A.2d 1237 (Pa. 2004); Commonwealth v. James, 771 A.2d 33

(Pa. Super. 2001); Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa.

Super. 1997). If a petitioner is not eligible for relief under section 9543, the

PCRA court lacks jurisdiction to consider the merits of the petition.

Commonwealth v. Ahlborn, 683 A.2d 632, 641 (Pa. Super. 1994) (en

banc), aff’d, 699 A.2d 718 (Pa. 1997). Although jurisdiction is determined at

the time a petition is filed, a case becomes moot if the petitioner finishes

serving his or her sentence while the petition is pending.             See id.

Furthermore, “courts cannot decide moot or abstract questions[.]” Orfield v.

Weindel, 52 A.3d 275, 288 (Pa. Super. 2012). In other words, courts lack

authority to grant relief when a case is moot.

        In this case, Appellant filed his PCRA petition while he was still on

probation. However, he ceased serving his probationary term on February 1,

2017.    Hence, although the PCRA court had jurisdiction over the petition,

Appellant’s case became moot as of February 1, 2017, when his probationary

period expired. The PCRA court lacked the authority to grant Appellant relief


____________________________________________


5Our Supreme Court’s recent decision in Commonwealth v. Delgros, 2018
WL 1959478 (Pa. Apr. 26, 2018) does not impact our analysis of this issue.
That decision only addressed a trial court’s ability to consider ineffective
assistance of counsel claims when raised in a post-sentence motion. See id.
at *1. In this case, Appellant filed a PCRA petition and did not raise plea
counsel’s alleged ineffectiveness in a post-sentence motion.

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after that date.   Five days later, the PCRA court granted Appellant’s PCRA

petition in part despite lacking the authority to grant Appellant relief.

Therefore, we are constrained to vacate the February 6, 2017 order to the

extent that it granted Appellant relief. Moreover, as Appellant was not eligible

for relief after February 1, 2017, we also affirm the PCRA court’s March 8,

2017 order denying him relief with respect to his ineffective assistance of

counsel claim.

      Order vacated in part and affirmed in part.        Counsel’s petition to

withdraw granted. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2018




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