J-S54005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
                 v.                         :
                                            :
                                            :
  PATRICK OKEY                              :
                                            :
                       Appellant            :   No. 1021 MDA 2018

            Appeal from the PCRA Order Entered May 23, 2018
  In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0004710-2008


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.:                            FILED OCTOBER 23, 2019

          Patrick Okey appeals from the order entered in the York County Court

of Common Pleas, which dismissed his serial PCRA petition as ineligible for

relief.    Also before us is Thomas W. Gregory, Jr., Esquire’s application to

withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)

(en banc). We affirm the PCRA court’s order dismissing Appellant’s second

PCRA petition and grant counsel’s application to withdraw.

          The pertinent facts are as follows. In May 2008, Appellant was charged

with two counts of luring a child into a motor vehicle, and one count of

stalking, after he approached a minor child on three occasions, and offered

her a ride on one of those occasions. A jury found Appellant guilty of one

count each of luring and stalking the child. Subsequently, he was sentenced

to one year less one day to two years less two days incarceration for luring
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the child, and a concurrent term of three to twelve months of incarceration for

stalking. Appellant also became subject to the reporting requirements of the

then-enacted Megan’s Law. Appellant appealed, challenging the sufficiency of

the evidence against him, and we affirmed. Commonwealth v. Okey, 4 A.3d

185 (Pa.Super. 2010) (unpublished memorandum).            Appellant sought no

further review.

      Thereafter, Appellant was released from custody. Appellant failed to

register with the Pennsylvania State Police in accordance with his Megan’s Law

reporting requirements. On January 27, 2011, Appellant was charged with a

violation of Megan’s Law, and after being found guilty of that offense, he

received a sentence of two to four years of incarceration.

      From 2013 to 2014, Appellant unsuccessfully litigated two petitions for

collateral relief at this case. In 2016, Appellant filed a third PCRA petition.

The PCRA court issued a Rule 907 notice of its intent to dismiss and Appellant

filed a response conceding that he was no longer serving a sentence for his

2009 convictions. See Appellant’s pro se response to Rule 907 notice at 2.

Nevertheless, Appellant argued he was entitled to relief because his 2009

convictions “enhanced” his current sentence for his conviction of failure to

comply with sex offender registration requirements.       Id.   The PCRA court

dismissed the petition. We affirmed the PCRA court’s dismissal of Appellant’s

petition, explaining that Appellant was not eligible for PCRA relief since he was

no longer serving a sentence.      Commonwealth v. Okey, 179 A.3d 547

(Pa.Super. 2017) (unpublished judgment order at 4). Appellant’s petition for

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allowance of appeal was also denied. Commonwealth v. Okey, 184 A.3d

148 (Pa. 2018).

      On May 11, 2018, Appellant filed the instant PCRA petition, his fourth.

In his petition, Appellant challenged his previous counsel’s effectiveness for

failing to file a petition or allowance of appeal. The PCRA court appointed

counsel and scheduled a hearing.        The Commonwealth responded with a

motion to dismiss, arguing that Appellant had finished serving his sentence

and therefore was no longer eligible for relief under the PCRA. After receiving

the Commonwealth’s motion, the PCRA court cancelled the hearing and denied

the petition, finding that Appellant was no longer serving a sentence of

imprisonment, probation or parole for the 2009 conviction. Appellant filed a

timely notice of appeal, and both Appellant and the PCRA court complied with

the mandates of Pa.R.A.P. 1925.

      In this Court, in lieu of an advocate’s brief, counsel filed a petition to

withdraw and no-merit letter pursuant to Turner and Finley.             Before we

consider the merits of the issues raised on appeal, we must determine whether

counsel followed the required procedure, which we have summarized as

follows.

      Turner/Finley counsel must review the case zealously.
      Turner/Finley counsel must then submit a “no-merit” letter to
      the trial court, or brief on appeal to this Court, detailing the nature
      and extent of counsel’s diligent review of the case, listing the
      issues which the petitioner wants to have reviewed, explaining
      why and how those issues lack merit, and requesting permission
      to withdraw.



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             Counsel must also send to the petitioner: (1) a copy of the
       “no-merit” letter/brief; (2) a copy of counsel’s petition to
       withdraw; and (3) a statement advising petitioner of the right to
       proceed pro se or by new counsel.

             If counsel fails to satisfy the foregoing technical
       prerequisites of Turner/Finley, the court will not reach the merits
       of the underlying claims but, rather, will merely deny counsel’s
       request to withdraw. Upon doing so, the court will then take
       appropriate steps, such as directing counsel to file a proper
       Turner/Finley request or an advocate’s brief.

              However, where counsel submits a petition and no-merit
       letter that do satisfy the technical demands of Turner/Finley, the
       court—trial court or this Court—must then conduct its own review
       of the merits of the case. If the court agrees with counsel that
       the claims are without merit, the court will permit counsel to
       withdraw and deny relief. By contrast, if the claims appear to
       have merit, the court will deny counsel’s request and grant relief,
       or at least instruct counsel to file an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (cleaned

up).

       We are satisfied from the review of counsel’s application and no-merit

letter that counsel has substantially complied with the technical requirements

of Turner and Finley. Counsel has detailed his review of the case and the

issue Appellant wishes to raise, and explained why that issue lacks a viable

avenue to success with citation to authority where appropriate. Counsel also

includes proof of service for both the petition and the letter. In his August 7,

2019 letter, counsel advises Appellant of his immediate right to proceed pro

se or with hired counsel.       Appellant has not responded to this filing.

Accordingly, we proceed to consider the substance of the appeal.




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      In his concise statement, Appellant attacked the PCRA court’s dismissal

of his appeal because of its finding that he was no longer serving a sentence.

Appellant argues that this finding was error because the penalties that flow

from this case have not ceased, since he still has registration requirements.

See Concise Statement, 7/5/18, at unnumbered 1. We disagree.

      Our   standard   of   review   examines    “whether    the   PCRA   court’s

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

We grant great deference to the PCRA court’s findings, and we will not disturb

those findings unless they are unsupported by the certified record.”

Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super. 2017) (citation

omitted). In order to be eligible for PCRA relief, a petitioner must be “currently

serving a sentence of imprisonment, probation or parole for the crime” at

issue. 42 Pa.C.S. § 9543(a)(1)(i). Once supervision ends, a petitioner is no

longer eligible for PCRA relief. Commonwealth v. Ahlborn, 699 A.2d 718,

720 (Pa. 1997).      This principle is true regardless of whether collateral

consequences still exist as a result of the conviction which the petitioner is no

longer serving a sentence on. Commonwealth v. Hart, 911 A.2d 939, 942

(Pa.Super. 2006).

      Appellant is no longer serving a sentence for his convictions at this case.

Accordingly, Appellant is ineligible for PCRA relief and the PCRA court did not

err when it dismissed Appellant’s petition for this reason.        We agree with

counsel that the appeal lacks merit.


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     Order affirmed. Petition to withdraw of Thomas W. Gregory, Jr., Esquire

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2019




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