J-S45023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LESLEY COLON                               :
                                               :
                       Appellant               :     No. 98 MDA 2018

                Appeal from the PCRA Order December 13, 2017
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001832-2015


BEFORE:      PANELLA, J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                                       FILED APRIL 03, 2019

        Lesley Colon appeals from the order of the Court of Common Pleas of

Lebanon      County,    entered    December        13,   2017,   that   “vacate[d]   the

appointment and authorization” of counsel and clarified an order dated

October 27, 2017, that had denied Colon’s first petition filed under the Post

Conviction Relief Act (“PCRA”).1 When this appeal first appeared before this

panel, we vacated the December 13, 2017, order and remanded to the PCRA

court for the appointment of counsel for appeal purposes.                 Counsel was

promptly appointed, and the appeal is now ripe for our review. Nevertheless,

we find Colon is statutorily ineligible for relief.

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541–9546.
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      The underlying facts and procedural history of this matter are recounted

in our prior memorandum decision, which we need not recite in detail herein.

See Commonwealth v. Colon, 198 A.3d 453 (Pa. Super. 2018) (unpublished

memorandum).        For our purposes, we note Colon’s claim focuses on the

sentence he received following a guilty plea to one count of receiving stolen

property. On June 29, 2016, the trial court sentenced Colon, in accordance

with his negotiated plea, to a term of time-served to two years’ imprisonment.

See N.T., 6/29/2016, at 5. The court specifically directed, “This sentence will

run concurrent with all other sentences.” Id. At the time, Colon was awaiting

sentencing on an unrelated parole violation in Dauphin County.       No direct

appeal was filed.

      Colon filed a timely pro se PCRA petition on May 5, 2017, challenging

the validity of his guilty plea and sentence. He asserted, inter alia, that the

Pennsylvania Board of Probation and Parole failed to properly credit him for

time-served, and improperly imposed his sentence consecutively to the

Dauphin County matter.      On August 24, 2017, appointed counsel filed an

amended petition, arguing plea counsel was ineffective for failing to advise

Colon as to the effect of the Dauphin County matter on the present case.

Following an evidentiary hearing, on October 24, 2017, the PCRA court, upon

misinformation that the State Correctional Facility surrendered jurisdiction of

Colon to the PCRA court, entered an order granting Colon parole, and

extending counsel’s appointment to assist Colon with a potential mandamus


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action in the Commonwealth Court. See N.T., 10/24/2017, at 34. However,

when the PCRA court subsequently discovered the State Correctional Facility

did not surrender jurisdiction of Colon, it entered another order on October

27, 2017, vacating the October 24th order because the court lacked jurisdiction

to grant parole. See Order, 10/27/2017. On December 13, 2017, the PCRA

court further amended the October 27th order to vacate the extended

appointment of PCRA counsel. Colon filed a notice of appeal on January 7,

2018.

        As noted supra, when this appeal first appeared before this panel, we

concluded the PCRA court erred in vacating the appointment of PCRA counsel

since this was Colon’s first petition for collateral relief.     Accordingly, we

entered the following directive:

        [W]e vacate the December 13, 2017, order and remand for the
        appointment of counsel within 30 days of the filing of this decision
        for appeal purposes only. Once such appointment is made, the
        PCRA court shall remit the certified record to this Court
        immediately. Newly appointed counsel shall enter an appearance
        with this Court. Lastly, we direct our Prothonotary to establish an
        appropriate briefing schedule.

Colon, supra, 198 A.3d 453 (unpublished memorandum at 8).

        Upon remand, the PCRA court appointed present counsel on September

13, 2018. Thereafter, on October 15, 2018, counsel filed, in this Court, an

application for leave to withdraw, stating he had been informed by Colon’s

wife that Colon wanted to represent himself. See Application for Leave to

Withdraw and Remand for a Grazier Hearing, 10/15/2018, at ¶ 2. By order



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entered October 19, 2018, this panel denied counsel’s application because

Colon had not filed any documentation expressing his desire to proceed pro

se. See Order, 10/19/2018. Counsel subsequently filed a brief, asserting the

ineffectiveness of both plea counsel and prior PCRA counsel.2

       On appeal, Colon first contends plea counsel was ineffective for advising

him to accept an invalid plea agreement.3 See Colon’s Brief at 8. He argues

that although counsel informed him all of his sentences would run

concurrently, “there is no question that a recommitted offender on state parole

must serve his sentence for his violation consecutively to any sentence for

new charges.” Id. at 9. Therefore, Colon maintains plea counsel’s insistence

that Colon’s Dauphin County parole violation sentence would run concurrently

with the present one for his new charges, was erroneous advice. See id. at

10.    Similarly, Colon’s second ineffectiveness claim involves prior PCRA




____________________________________________


2 We note that on February 6, 2019, Colon filed a pro se document entitled,
“Affidavit to Withdraw and Remove from Court Record Any/All Counsel, to
Include, Mr. Daniel Bardo, Esq., as Petitioner’s Counsel.” See Affidavit,
2/6/2019. Because of our disposition of this appeal, we will deny Colon’s
request to remove counsel as moot.

3 Counsel acknowledged this issue was not addressed by the PCRA court in its
March 12, 2018, opinion. See Colon’s Brief at 4 n.1. Indeed, it was not
included in a pro se Pa.R.A.P. 1925(b) concise statement filed by Colon on
January 29, 2018. Nevertheless, counsel maintains that, because Colon was
abandoned by prior PCRA counsel and forced to appeal pro se, “[t]he interest
of judicial economy … supports setting aside the arguable waiver of this claim.”
Id.


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counsel’s decision to abandon these “meritorious claims in exchange for an

illegal agreement to parole” him. Id. at 10.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).

      Here, the PCRA court found Colon’s claims lack merit, and the remedy

he seeks is only available through the Commonwealth Court. See Trial Court

Opinion, 3/12/2018, at 4-8. Our review of the record, however, reveals Colon

is statutorily ineligible for relief because he is no longer serving a sentence on

this matter.

      It is well-established that to be eligible for PCRA relief, a petitioner must

prove that at the time relief is granted, he is “currently serving a sentence

of imprisonment, probation or parole for the crime[.]”              42 Pa.C.S. §

9543(a)(1)(i).   “Case law has strictly interpreted the requirement that the

petitioner be currently serving a sentence for the crime to be eligible for relief.”

Commonwealth v. Plunkett, 151 A.3d 1108, 1109 (Pa. Super. 2016),

appeal denied, 169 A.3d 524 (Pa. 2017).

      This Court’s decision in Plunkett is dispositive.         In that case, the

petitioner was still on probation at the time he filed his PCRA petition and

when the court denied relief. See id.      However, he subsequently completed

his probationary term while his appeal was pending before this Court. See

id. A panel of this Court held the petitioner was not eligible for PCRA relief,

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opining:    “[W]e find the statutory requirement that a PCRA petitioner be

currently serving a sentence is applicable to the instant circumstance where

the PCRA court’s order was issued while petitioner was still serving the

required sentence, but that sentence terminated prior to the resolution of his

appeal.” Id. at 1113.

        The same is true here. Colon was sentenced to a maximum term of two

years’ imprisonment on June 29, 2016. The court directed the sentence run

concurrently with any other sentence Colon was then serving. Therefore, his

two-year maximum sentence expired on June 29, 2018.

        Accordingly, because Colon is no longer serving a sentence for the

conviction that is the subject of this PCRA petition, he is not entitled to PCRA

relief, and we affirm the order on appeal.4

        Order affirmed. “Affidavit to Withdraw and Remove from Court Record

Any/All Counsel, to Include, Mr. Daniel Bardo, Esq., as Petitioner’s Counsel”

denied as moot.

        Judge Platt did not participate in the consideration or decision of this

case.




____________________________________________


4 We note Colon was still serving his sentence at the time the PCRA court
denied relief, and when it issued its opinion for this appeal. Nevertheless, it
is well-settled that “we may affirm a PCRA court's decision on any grounds if
the record supports it.” Commonwealth v. Benner, 147 A.3d 915, 919 (Pa.
Super. 2016) (quotation omitted).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/03/2019




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