J-S37007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

THEODORE JAMES LUCIW

                            Appellant                No. 1722 MDA 2016


             Appeal from the PCRA Order Entered October 4, 2016
               In the Court of Common Pleas of Luzerne County
               Criminal Division at No: CP-40-CR-0001606-2012


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 22, 2017

       Appellant Theodore James Luciw appeals from the October 4, 2016

order entered in the Court of Common Pleas of Luzerne County (“PCRA

court”), which denied his request for collateral relief under the Post

Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. PCRA counsel

has filed a no-merit brief and petitioned to withdraw under Turner/Finley.1

Upon review, we grant the petition to withdraw and dismiss this appeal

because Appellant is ineligible for relief under the PCRA.

       The facts and procedural history of this case are undisputed. Briefly,

on October 25, 2012, Appellant pleaded guilty to driving under the influence

(“DUI”) under Section 3802(a)(1), 75 Pa.C.S.A. § 3802(a)(1). On that same
____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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date, he was sentenced to 90 to 365 days’ imprisonment. Appellant did not

appeal the conviction.

       On August 19, 2016, nearly four years after his judgment of sentence

became final and nearly three years after his one-year maximum sentence

expired, Appellant filed the instant PCRA petition.         Appellant sought relief

based on the United States Supreme Court’s decision in Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016).2               On October 4, 2016, the PCRA court

denied Appellant relief, concluding that Birchfield could not be applied

retroactively. Appellant timely appealed to this Court.

       On March 27, 2017, Appellant’s PCRA counsel filed in this Court an

application to withdraw as counsel and a no-merit letter, wherein counsel

raises a single issue for our review: “Whether Appellant’s constitutional

rights were violated pursuant to Birchfield?” Turner/Finley Brief at 1.

       Before we may consider this issue, we must address whether PCRA

counsel has met the requirements of Turner/Finley. For PCRA counsel to

withdraw under Turner/Finley in this Court:

       (1)    PCRA counsel must file a no-merit letter that details the
              nature and extent of counsel’s review of the record; lists
              the appellate issues; and explains why those issues are
              meritless.

____________________________________________


2
  Birchfield held that the Fourth Amendment to the United States
Constitution does not permit warrantless blood tests incident to arrests for
drunk driving and that a state may not criminalize a motorist’s refusal to
comply with a demand to submit to blood testing. Birchfield, 136 S. Ct. at
2185-86.



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       (2)    PCRA counsel must file an application to withdraw; serve
              the PCRA petitioner with the application and the no-merit
              letter; and advise the petitioner that if the Court grants
              the motion to withdraw, the petitioner can proceed pro se
              or hire his own lawyer.

       (3)    This Court must independently review the record and
              agree that the appeal is meritless.

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.

2008), overruled in part by, Pitts).

       We find that PCRA counsel has complied with Turner/Finley.          PCRA

counsel has petitioned for leave to withdraw and filed an Anders brief,

which we accept in lieu of a Turner/Finley no-merit letter.3 Further, PCRA

counsel informed Appellant of his right to hire a new lawyer or file a pro se

response.

       We now address whether this appeal is indeed meritless. “On appeal

from the denial of PCRA relief, our standard of review requires us to

determine whether the ruling of the PCRA court is supported by the record

and free of legal error.” Widgins, 29 A.3d at 819.



____________________________________________


3
  Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to
withdraw on direct appeal, which are more stringent than the Turner/Finley
requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817
n.2. “Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.”
Id.



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      At the outset, before we may review the issue raised by Appellant’s

counsel, we must consider whether Appellant is eligible for relief under the

PCRA. To be eligible for relief under the PCRA, a petitioner must either be

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

crime,” “awaiting execution of a sentence of death for the crime,” or “serving

a sentence which must expire before the person may commence serving the

disputed sentence.” 42 Pa.C.S.A. § 9543(a)(1)(i)-(iii).

      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).    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. Indeed,

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 PCRA. 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 that the PCRA court loses

jurisdiction   the   moment     an   appellant’s   sentence   expires.    See

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Commonwealth v. Turner, 80 A.3d 754, 769 (Pa. 2013) (holding that

when a petitioner’s sentence expires while his PCRA petition is pending

before the PCRA court, the PCRA court loses jurisdiction to rule on the merits

of the petition).

      Here, based on our review of the record, it is undisputed that

Appellant does not meet any of the foregoing eligibility requirements as he

has completed his October 25, 2012 sentence of 90 to 365 days’

imprisonment. Thus, the appeal sub judice must be dismissed for want of

jurisdiction.

      PCRA counsel has complied with Turner/Finley.        We independently

have reviewed the record, and we are convinced that no meritorious

appellate issues exist.

      Petition to withdraw granted. Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2017




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