J-S58017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY L. DUFOUR,

                            Appellant                No. 1957 WDA 2013


                Appeal from the PCRA Order November 8, 2013
               In the Court of Common Pleas of Clearfield County
              Criminal Division at No(s): CP-17-CR-0000395-1999


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 29, 2014

        Appellant, Timothy L. Dufour, appeals pro se from the November 8,

2013 order denying his petition for relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On November 21, 2001, Appellant pled guilty to attempted statutory

sexual assault, obscene and sexual materials (OSM), corruption of minors

(COM), and indecent assault. That same day, Appellant was sentenced to

one to five




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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imposed to run concurrently with one another, but consecutive to his term of

incarceration.

            On September 10, 2007, [Appellant] was found to have
      violated the terms and conditions of his probation and was

                                              on that [Appellant] serve

      [c]ourt noted that all terms of the original sentencing order not
      inconsistent with the resentencing continued to be in effect.
      Therefore, the sentence on the [COM]

      [i]ndecent [a]ssault charge remained in effect.



      probation on
      concurrent to the first on the charge of [COM].

             On January 16, 2012, [Appellant] filed a Motion to Correct
      Illegal Sentence. A violation of probation report was filed as
      well. A hearing on the Motion and probation violation was
      scheduled for February 13, 2012. At the hearing, the [c]ourt
      entered an order which vacated its sentence that was entered on
      September 10, 2007, based on the precedent Commonwealth
      v. Basinger, 982 A.2d 121 (Pa. Super. Ct. 2009) (holding that a
      flat term of imprisonment as a condition of probation is an illegal


                                        1
                                            A Post-Sentence Motion was



      __________________________

      1

      charge of [OSM] and fi
      charge of [COM].

      __________________________

           Attorney Wayne Bradburn subsequently entered his
      appearance on February 22, 2012. At the same time that he


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      entered his appearance, [Attorney] Bradburn filed a Post-
      Sentence Motion and/or Motion to Vacate or Modify. A hearing
      on said Motion was held before the [c]ourt on March 7, 2012. At
      the hearing[,] the [c]ourt vacated its sentence of February 13,
      2012, and [Appellant] was detained pending a probation
      violation hearing that was to be scheduled. Said hearing was
      scheduled for April 9, 2012. At that time, the [c]ourt revoked


      The [c]ourt also corrected the illegal sentence on the charge of
      [OSM] by vacating and resentencing [Appellant] on that charge

      sentence essentially eliminated this charge from the case, as it
      then maxed out in September 2008.          During this hearing,
      defense counsel indicated that the [c]ourt had proceeded
      correctly in its resentencing; [Appellant] also admitted he
      violated his probation.

PCRA Court Opinion, 10/23/13, at 2-3.

      Appellant filed a counseled PCRA petition on May 1, 2013, claiming

that Attorney Bradburn rendered ineffective assistance of counsel (IAC) and

that his sentence was illegal. On October 23, 2013, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss, and an opinion in support

thereof. Appellant filed a pro se response, despite still being represented by

counsel. On November 8, 2013, the PCRA court issued an order dismissing



concise statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b).

                                                                     Praecipe

                                                                       pro se.

In response, this Court issued an order remanding the case for the PCRA



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court to conduct a hearing pursuant to Commonwealth v. Grazier, 713

A.2d 81 (Pa. 1998). After conducting that hearing, the PCRA court issued an

order on May 7, 2014, directing that Appellant be permitted to proceed pro

se. Appellant filed a pro se brief raising the following issue for our review:




      To begin, we note that our standard of review regarding an order

denying post-conviction relief under the PCRA is whether the determination

of the court is supported by the evidence of record and is free of legal error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court

grants great deference to the findings of the PCRA court, and we will not

disturb those findings merely because the record could support a contrary

holding.    Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super.

2001).     The

support for the findings in the certified record.   Commonwealth v. Carr,

768 A.2d 1164, 1166 (Pa. Super. 2001).



ascertain, he avers the following. First, he maintains that his 2007 sentence

was illegal in its entirety.   As such, his resentencing in 2008, which was

based upon a violation of his 2007 sentence, was also illegal under this

                   Commonwealth v. Milhomme, 35 A.3d 1219, 1222 (Pa.

Super. 2011) (holding that where the underlying sentence of probation is

illegal, a sentence based on a revocation of that probation sentence is also

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illegal).   Because both of these sentences were illegal, the only lawful

sentence in effect was his original sentence imposed in 2001. Pursuant to

                                          -year terms of probation for COM

and OSM expired in May of 2011. Thus, Appellant claims that he was not

lawfully serving a sentence of probation at the time of the probation

violation in late 2011 that led to his most recent resentencing on April 9,

2012. Consequently, he asserts that his instant sentence is illegal, as well.

Appellant also contends that his counsel, Attorney Bradburn, was ineffective

                                                                            -

sentence motion hearing on March 7, 2012.

                                                              at his current



       [Appellant] served and maxed out the sentence on the charge of
       Criminal Attempt    Statutory Assault on May 16, 2006. At this
       time, the probationary sentences began to run for both the
       [OSM] and [COM] charges. Since the sentence for both of these

       concurrently, the max date for both would have been May 16,
       2011.

             However, in September 2007 the [c]ourt only revoked the
       charge of [OSM], and the original sentence for the [COM] charge
       continued to run as initially sentenced in 2001. The [c]ourt did
       not vacate the original sentence on the [COM] charge when it
       resentenced [Appellant] in September 2007. Therefore, the

       to May 2011. In December 2008, while the original sentence on
       the [COM] charge was still running, the [c]ourt specifically
                                                                nced

       [COM] charge would not expire until December 2013.



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J-S58017-14


            The [c]ourt acknowledges that the sentence entered in
     2007, on the [OSM] charge, was later deemed an illegal
     sentence by the Superior Court.         See Basinger, supra.
     Nonetheless, this sentence was legal at the time it was imposed
     by the [c]ourt. Furthermore, the [c]ourt recognizes the fact that
     the 2008 sentence, also on the [OSM] charge, was also held to
     be illegal. [] Milhomme, 35 A.
     sentence was not considered illegal at the time of its imposition,


          However, the [c]ourt highlights that the sentence of 2008,
     on the [COM] charge was untouched by the illegal sentences
     imposed for the [OSM] charge. Thus, the [c]ourt was free to

     and the probationary period ran from that time until 2013. As
                                           iolation occurred in late
     2011 or early 2012. Either way, the violations occurred during

     resentencing [Appellant] on the charge of [COM] to serve thirty
                                                 12. As described
     earlier in this Opinion, the [c]ourt vacated and resentenced
     [Appellant] on the [OSM] charge and the [COM] charge was



PCRA Court Opinion at 4-6 (footnote omitted).      Because the PCRA court

conclud

Attorney Bradburn could not be deemed ineffective for failing to challenge

them. Id. at 6.



and COM were separate and distinct, and the illegality of the OSM

sentence(s) did not render the COM sentence(s) illegal.         Accordingly,

Attorney Bradburn had no basis upon which to challenge the legality of the

2008 COM sentence at the March 7, 2012 post-sentence motion hearing.

Because Appellant was serving a legal probationary sentence for his COM



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J-S58017-14



offense at the time of his current probation violation, the new sentence he

received for COM on April 4, 2012, is valid.    Accordingly, we ascertain no



and IAC claims regarding his COM sentence.



failure to challenge the legality of the 2008 sentence for this offense, we are

without jurisdiction to



Appellant is no longer serving a sentence for that offense, he is not eligible

for PCRA relief. See 42 Pa.C.S. § 9543(a)(1)(i) (stating that to be eligible



imprisonment, probation or parole for that crime


      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2014




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