J-S18009-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DONNA CAROL ARNDT,

                            Appellant                      No. 1410 MDA 2015


                    Appeal from the PCRA Order August 10, 2015
                 In the Court of Common Pleas of Lancaster County
                              Criminal Division at No(s):
                              CP-36-CR-0001784-2014


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                                  FILED MARCH 04, 2016

       Donna Carol Arndt appeals from the order of the Lancaster County

Court of Common Pleas denying her PCRA petition. We affirm.

       On June 19, 2014, Appellant, represented by counsel, pled guilty to

the criminal charge of driving under the influence of a controlled substance

pursuant to 75 Pa.C.S. § 3802(d)(2), and a summary offense for violating

duties at stop sign pursuant to 75 Pa.C.S. § 3323(b).              The charges arose

from a traffic stop on November 26, 2013.               Appellant, while driving her

white Ford truck, was observed by law enforcement drifting into the center

of the road before failing to stop properly at a stop sign. Following the stop,

the    officer   noticed    Appellant   had   slurred    speech,    was   unable   to


*
    Retired Senior Judge assigned to the Superior Court.
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communicate, and was confused as to what was happening.           Appellant

admitted to taking Clonazepam and heroin prior to operating her vehicle. A

later test revealed Appellant had drugs in her system.

        Concurrent with her plea, Appellant completed a written guilty plea

colloquy and the court conducted an oral plea colloquy.1 In the written

colloquy, Appellant acknowledged, inter alia, she understood her rights

regarding post-sentence motions and direct appeal. At that time, Appellant

was sentenced to seventy-two hours to six months incarceration, fines, and

costs. Appellant was released on parole the same day. Appellant did not file

a post-sentence motion or a direct appeal.

        In December 2014, Appellant sought the aid of the public defender’s

office. On January 1, 2015 a counseled PCRA petition seeking reinstatement

of Appellant’s direct appeal rights was filed.    A hearing on Appellant’s

petition was held on March 11, 2015. At the hearing, counsel testified that

Appellant contacted him after the ten-day period for filing a motion to

withdraw her guilty plea and expressed dissatisfaction with her guilty plea.

While the call was made within thirty days of the judgment of sentence, an

appeal would have been futile since no motion was filed, and any claim that

Appellant’s plea was invalid would not have been preserved for purposes of

appeal. The court denied Appellant PCRA relief.
____________________________________________


1
    That colloquy was not transcribed.



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      Appellant filed this timely notice of appeal on August 17, 2015. At the

time of her appeal, Appellant was incarcerated in Lancaster County prison

for violating the terms of her parole.       She served the balance of her

maximum sentence and was released on September 1, 2015.              Trial Court

Opinion, 10/9/15, at 2.

      Appellant raises one issue for our consideration, contending:         “The

PCRA Court erred by failing to find counsel was ineffective for failing to file a

direct appeal.” Appellant’s brief at 4.

      Prior to addressing the issue raised, we must first determine whether

Appellant is eligible for relief under the PCRA. Eligibility for relief under the

PCRA is governed by 42 Pa.C.S. § 9543, which provides in pertinent part:

      (a)     General Rule.—To be eligible for relief under this
              subchapter, 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.

42 Pa.C.S. § 9543(a).

      We observe, “[e]ligibility for relief under the PCRA is dependent upon

the petitioner currently serving a sentence of imprisonment, probation, or

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parole for a crime.” Commonwealth v. Turner, 80 A.3d 754, 761-62 (Pa.

2013). As such, “the denial of relief for a petitioner who has finished serving

his   sentence   is   required   by   the   plain   language   of   the   statute.”

Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997).

      Here, the record indicates that Appellant completed serving her

sentence on September 1, 2015. Because Appellant is no longer serving a

sentence of imprisonment, probation, or parole for the crime, she is

ineligible for PCRA relief.      42 Pa.C.S. § 9543(a)(1)(i); Turner, supra;

Ahlborn, supra.       As Appellant is ineligible for PCRA relief, we need not

reach the merits of her claim. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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