J-S73036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANTONIO FERGUSON

                            Appellant                No. 499 WDA 2016


                  Appeal from the PCRA Order March 16, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001279-2004

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED NOVEMBER 2, 2016

       Antonio Ferguson appeals from an order dismissing his petition for

relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. We affirm.1

       On December 22, 2003, Ferguson was arrested in Erie County and

charged with a series of burglaries and related crimes. The Commonwealth

filed bills of information accusing Ferguson of burglaries and related offenses

at Nos. 1279-, 1280-, 1281-, 1282-, 1283-, 1284- and 1285-2004 and at

No. 1810-2004.



____________________________________________


1
  This Court’s prothonotary interpreted Ferguson’s appeal to be an appeal
from seven actions in the Court of Common Pleas of Erie County (Nos. 1279-
through 1285-2004). As explained below, Ferguson only appealed in one
case, No. 1279-2004. We have amended our caption accordingly.
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        In 2004, a jury found Ferguson guilty of burglary, theft and receiving

stolen property at No. 1279-20042 and multiple offenses at Nos. 1280-

through 1285-2004. The charges at No. 1810-2004 were nolle prossed.

        On January 22, 2005, the trial court sentenced Ferguson to 4 - 10

years’ imprisonment for burglary3 at No. 1279-2004 and a series of

consecutive sentences at Nos. 1280- through 1285-2004.4 Specifically, the

court ordered Ferguson’s sentence at No. 1279-2004 to run first; his

sentence at 1280-2004 to run consecutively to his sentence at No. 1279-

2004; his sentence at 1281-2004 to run consecutively to his sentence at No.

1280-2004; and so forth.              Ferguson’s total sentence on all bills of

information totaled 24 - 76 years’ imprisonment, but his sentence at No.

1279-2004 only constituted the first 4 – 10 years of imprisonment.




____________________________________________


2
    18 Pa.C.S. §§ 3502, 3921, and 3925, respectively.
3
  The theft and receiving stolen property charges at No. 1279-2004 merged
for purposes of sentencing.
4
 There is some confusion in the record as to whether Ferguson’s sentence at
No. 1279-2004 began running on his date of sentencing or on an earlier
date. The PCRA court states that Ferguson has been imprisoned since his
date of sentencing, January 22, 2005. Several notations in the record
suggest, however, that Ferguson was incarcerated at least eight months
before sentencing, from May 21, 2004 onward.          For purposes of this
memorandum, we will assume that Ferguson’s sentence at No. 1279-2004
began running on his date of sentencing, January 22, 2005.



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      Ferguson filed a timely direct appeal, and this Court affirmed his

judgment of sentence on December 12, 2005.           On August 31, 2006, our

Supreme Court denied Ferguson’s petition for allowance of appeal.

      Subsequently, Ferguson filed three PCRA petitions, none of which

resulted in relief.

      On January 22, 2015, Ferguson completed service of his 4 - 10 year

sentence at No. 1279-2004.

      On January 14, 2016, acting pro se, Ferguson filed the present PCRA

petition, his fourth, at No. 1279-2004 alone. Therein, he alleged that he

was entitled to a new trial based on newly-discovered evidence that a

Commonwealth witness at his trial, Edward Dickens, lied during his

testimony.

      On February 24, 2016, the PCRA court entered a notice of intent to

dismiss Ferguson’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

On March 16, 2016, the court dismissed Ferguson’s petition. Ferguson filed

a timely notice of appeal, and both Ferguson and the PCRA court complied

with Pa.R.A.P. 1925.

      Ferguson asserts in this appeal that he is entitled to relief at No. 1279-

2004 (but not at any other caption number) based on newly-discovered

evidence that a Commonwealth witness lied during Ferguson’s trial.            The

fatal defect in this argument is that Ferguson is no longer eligible for relief at

No. 1279-2004.        The PCRA provides that to be eligible for relief, the

petitioner must plead and prove that he “has been convicted of a crime

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under the laws of this Commonwealth and is at the time relief is granted …

currently serving a sentence of imprisonment, probation or parole for the

crime.”     42 Pa.C.S. § 9543(a)(1)(i) (emphasis added).             The italicized

language precludes Ferguson from obtaining relief, because he completed

his sentence at No. 1279-2004 on January 22, 2015.

      Our    reasoning   in   Commonwealth          v.   Stultz,   114   A.3d   865

(Pa.Super.2015), is on point. There, on July 27, 2011, the defendant was

sentenced to 1 - 5 years’ imprisonment for fleeing and eluding a police

officer and a concurrent term of 48 hours – 6 months’ imprisonment on one

count of driving under the influence (“DUI”). Another DUI count merged for

purposes of sentencing. On January 28, 2013, following direct appeal, the

defendant filed a PCRA petition seeking relief on both the fleeing and DUI

convictions. The PCRA court held an evidentiary hearing and denied relief.

On April 28, 2015, this Court affirmed. We addressed the substance of the

defendant’s claims relating to his fleeing conviction because he had not

completed service of his sentence. But with regard to the defendant’s DUI

conviction, we held: “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 … Thus, to the extent his claims relate

solely to the DUI charges, he is not entitled to relief.” Id., 114 A.3d at 872

(citing, inter alia, 42 Pa.C.S. § 9543(a)(1)(i)).

      Ferguson cannot obtain relief in this case for the same reason that the

defendant could not obtain relief on his DUI sentences in Stultz. Ferguson

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only requested PCRA relief at No. 1279-2004, but he completed serving his

sentence at this caption number on January 22, 2015.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2016




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