J-S32036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                         v.

LESTER HOWARD

                               Appellant                     No. 3233 EDA 2016


                  Appeal from the PCRA Order August 2, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0012993-2008

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                                  FILED JULY 17, 2017

        Appellant, Lester Howard, appeals from the order dismissing his first

Post Conviction Relief Act1 (“PCRA”) petition.             Appellant contends that he

was deprived of the right to meaningful PCRA counsel. We affirm.

        A   recitation    of    the   facts   underlying    Appellant’s   conviction   is

unnecessary. On November 23, 2009, the trial court sentenced Appellant to

an aggregate nineteen to forty-two months’ imprisonment followed by four

years’ probation for possession with intent to deliver a controlled substance.2

Appellant did not take a direct appeal.

        On May 2, 2014, the PCRA court received Appellant’s pro se PCRA

petition seeking relief based on newspaper articles regarding malfeasance in

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    35 P.S. § 780-113(a)(30).
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the Philadelphia Police Department’s Narcotics Unit.      Appellant thereafter

filed several pro se filings amending his petition. On October 19, 2014, the

PCRA court appointed counsel, Christopher J. Evarts, Esq., to represent

Appellant.   Attorney Evarts filed a Turner/Finley3 letter and motion to

withdraw on March 9, 2016, asserting that Appellant’s petition was, inter

alia, time-barred.    Appellant filed a pro se response to Attorney Evarts’

letter.   On April 4, 2016, the Commonwealth filed a motion to dismiss

Appellant’s petition because “the officers involved in [Appellant’s] arrest and

in the events leading up to [Appellant’s] arrest were not indicted” and no

relief was due. Commonwealth’s Mot. to Dismiss, 4/5/16, at 2. On April 8,

2016, the PCRA court permitted Attorney Evarts to withdraw and appointed

new counsel, J. Matthew Wolfe, Esq. Attorney Wolfe filed a Turner/Finley

letter and motion to withdraw asserting that Appellant was not eligible for

PCRA relief because he was no longer serving his sentence. Appellant filed a

pro se response alleging that he was on probation when he filed his PCRA

petition in 2014.    However, Appellant did not deny that his sentence had

since expired.

      The PCRA court issued a Pa.R.Crim.P. 907 notice on July 8, 2016. The

PCRA court dismissed Appellant’s petition and granted Attorney Wolfe’s

motion to withdraw on August 2, 2016. However, the case was listed for an


3
  See 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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additional hearing on August 5, 2016. On August 23, 2016, a second judge

entered a second order dismissing the petition, with a docket notation: “This

case listed in error. [The prior PCRA judge] dismissed this PCRA petition on

August 2, 2016.” Appellant filed a notice of appeal on September 6, 2016.

The PCRA court did not require the filing of a Pa.R.A.P. 1925(b) statement.

      Preliminarily, we must address the timeliness of this appeal.       See

Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007).

Appellant’s notice of appeal is technically untimely because it was filed

thirty-five days after the entry of the August 2, 2016 order dismissing his

PCRA petition. See Pa.R.A.P. 903(a) (requiring that an appeal be filed thirty

days after the entry of the order being appealed). Although this Court may

not enlarge the time for filing a notice of appeal, we may “grant relief in the

case of fraud or breakdown in the processes of the court.” Patterson, 940

A.2d at 498.

      This Court issued a rule to show cause why this appeal should not be

quashed. Appellant responded that he did not receive the August 2, 2016

order, but instead received information that an additional hearing had been

scheduled on his petition. According to Appellant he was not able to attend

the scheduled hearing because the Philadelphia Criminal Justice Center was

closed due to an elevator accident.

      The docket appears to support Appellant’s assertions a hearing was

scheduled following the August 2, 2016 dismissal of his petition.     Further,



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that hearing was continued. The docket entry on August 23, 2016, states,

inter alia: “Order dismissing petition. This case listed in error.” However,

the August 23rd order did not inform Appellant that he had eight days

remaining in which to file a timely appeal from the August 2, 2016 order.

Accordingly, we conclude that there was a breakdown in the operations of

the court that may have misled Appellant regarding the time for filing an

appeal. Therefore, out of an abundance of caution, we decline to quash this

appeal. Cf. Patterson, 940 A.2d at 498-99.

      Appellant claims that he was deprived of the right to counsel during

the underlying PCRA proceeding. Because Appellant has not established that

he is serving his sentence, we decline to address this issue.

      The PCRA provides:

         (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.




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42 Pa.C.S. § 9543(a)(1)(i)-(iii);    see Commonwealth v. Ahlborn, 699

A.2d 718, 719 (Pa. 1997).

      In Ahlborn, our Supreme Court considered “whether one who has

filed a PCRA petition while serving a sentence of imprisonment remains

eligible for relief in the event that, prior to any final adjudication of the

petition, he is released from custody.”      Id. at 719.    In that case, the

petitioner filed a PCRA petition while he was serving his sentence, but

completed his sentence before the PCRA court ruled on the petition.       Id.

The PCRA court dismissed the petition on the ground that “relief is available

only to persons still serving sentences of imprisonment, probation, or

parole.”   Id.   On appeal, our Supreme Court affirmed.     Id. at 721.   The

Ahlborn Court reasoned that the phrase “currently serving a sentence” in

Section 9543(a)(1)(i) “clearly contemplates that the petitioner will be

serving a sentence at both the pleading and proof stages of the proceeding.”

Id. at 720.      Thus, “the denial of relief for a petitioner who has finished

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

      Similarly, this Court has held that “the PCRA precludes relief for those

petitioners whose sentences have expired, regardless of the collateral

consequences of their sentence.” Commonwealth v. Hart, 911 A.2d 939,

942 (Pa. Super. 2006). The Hart Court reiterated that even “the failure to

appoint counsel for a petitioner under the PCRA who has served his sentence

is harmless error, and that a remand for appointment of counsel is not



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appropriate, as a remand would be futile under such a circumstance.” Id.

(citation omitted).

      Here, Appellant has not established that he was still serving his

sentence at the time the PCRA court dismissed his petition. Thus, the PCRA

court properly dismissed his petition, notwithstanding Appellant’s claim that

he was deprived of his right to counsel in the PCRA proceeding.      See 42

Pa.C.S. § 9543(a)(1)(i); Ahlborn, 699 A.2d at 720; Hart, 911 A.2d at 942.

Similarly, we have no basis to consider Appellant’s claim on appeal.    See

Hart, 911 A.2d at 942.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2017




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