J-S07044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN EUGENE SMITH

                            Appellant                  No. 806 MDA 2015


                       Appeal from the Order April 23, 2015
                 In the Court of Common Pleas of Juniata County
               Criminal Division at No(s): CP-34-CR-0000127-2007


BEFORE: BOWES, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED FEBRUARY 11, 2016

        Pro se Appellant, Kevin Eugene Smith, appeals from the order entered

in the Juniata County Court of Common Pleas denying his Post Conviction

Relief Act1 (“PCRA”) Petition and granting Appellant’s PCRA Counsel leave to

withdraw. We hold that Appellant is not entitled to PCRA relief because he is

not currently serving a sentence of imprisonment, probation, or parole for

the crimes challenged, and therefore affirm.

        The facts underlying Appellant’s convictions are not pertinent to our

disposition.    On October 9, 2007, following a jury trial, Appellant was

convicted of three counts of robbery, one count of theft by unlawful taking or

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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disposition and one count of receiving stolen property. On January 8, 2008,

the trial court sentenced Appellant to an aggregate term of twenty-seven to

fifty-four months’ incarceration. Appellant was given credit for time served

beginning April 16, 2007.           Accordingly, Appellant’s maximum sentence

expired in October 2011.2

       Appellant filed a timely appeal and this Court affirmed Appellant’s

judgment of sentence and granted counsel’s petition to withdraw on March

25, 2009.       Commonwealth v. Smith, 245 MDA 2008 (unpublished

memorandum) (Pa. Super. March 25, 2009). On July 10, 2009, Appellant,

acting pro se, filed a PCRA petition.            On January 6, 2014, the trial court

appointed PCRA counsel for Appellant and directed PCRA counsel to file a

supplemental petition on Appellant’s behalf.3 Appellant’s PCRA counsel filed

a motion to withdraw and the trial court issued an order, dated May 28,

2014, stating the court’s intention to grant PCRA counsel’s petition and

dismiss Appellant’s PCRA petition.             However, this order did not dispose of

the matter and thus did not constitute a final order for purposes of appeal.


____________________________________________
2
  Appellant was subsequently convicted of two counts each of robbery, theft
by unlawful taking, and receiving stolen property stemming from two
unrelated bank robberies in 2012. There, the trial court sentenced Appellant
to three and one-half to seven years’ incarceration. Commonwealth v.
Smith, 391 MDA 2014 (unpublished memorandum) (Pa. Super. August 13,
2014). Appellant’s subsequent sentence is unrelated to the instant appeal.
3
  We note that it is unclear from the record why over four years elapsed
prior to any action on Appellant’s PCRA petition.



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       Appellant, again acting pro se, filed a premature appeal to this Court

on June 23, 2014. This Court ultimately remanded the case to the trial court

for the issuance of a final order. Appellant did not file a response to the trial

court’s May 28, 2014 order. The trial court issued a final order, dated April

23, 2015, which granted PCRA counsel’s petition to withdraw and dismissed

Appellant’s PCRA petition. Pro se Appellant filed the instant appeal on May

15, 2015, which this Court dismissed for failure to file a brief on July 24,

2015. However, after a motion for reconsideration, this Court reinstated the

appeal on August 14, 2015, and p ro se Appellant filed a brief asserting

multiple issues for review.4

       As a prefatory matter, we determine whether Appellant is eligible for

relief under the PCRA.

          (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



____________________________________________
4
  The trial court did not require Appellant to file a Pa.R.A.P. 1925(b)
statement and the court did not file a Pa.R.A.P. 1925(a) opinion.



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                    (iii) serving a sentence which must expire before
                 the person may commence serving the disputed
                 sentence.

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 still 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.    It

reasoned the statutory phrase, “currently serving a sentence,” “clearly

contemplates that the petitioner will be serving a sentence at both the

pleading and proof stages of the proceeding.” Id. at 720. Further, in order

to be eligible for PCRA relief, an appellant must be currently serving a

sentence on the conviction he or she seeks to collaterally attack regardless

of any unrelated subsequent convictions. See Commonwealth v. Hayes,

596 A.2d 195, 199 (Pa. Super. 1991) (en banc) (holding that appellant was

not eligible for PCRA relief where his sentence of imprisonment, probation or

parole had expired for the conviction at issue, even though he was then


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serving   a    sentence   of   imprisonment   stemming   from   an   unrelated

conviction).

      In this case, although Appellant was still serving his relevant sentence

when he filed the instant PCRA petition in 2009, he is not “currently serving

a sentence of imprisonment, probation or parole for the crime.” See 42

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

Further, it is of no moment that Appellant is currently serving a sentence of

imprisonment for an unrelated conviction.      See Hayes, 596 A.2d at 199.

Accordingly, Appellant cannot fulfill the statutory requirements for PCRA

relief and we are constrained to affirm the order dismissing Appellant’s PCRA

petition and granting PCRA Counsel leave to withdraw.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2016




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