J-S31025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY B. RHINES                             :
                                               :
                       Appellant               :   No. 2774 EDA 2017

                    Appeal from the PCRA Order July 31, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0714301-1993,
                             CP-51-CR-1210181-1991


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

JUDGMENT ORDER BY LAZARUS, J.:                            FILED JULY 13, 2018

        Gary B. Rhines appeals, pro se, from the order, entered in the Court of

Common Pleas of Philadelphia County, dismissing his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        On March 5, 1992, Rhines entered a plea of nolo contendere to one

count each of possession with intent to deliver, possession, and criminal

conspiracy (“1992 case”).          He was sentenced to two years of probation.

Subsequently, on March 19, 1994, Rhines was convicted, in a nonjury trial, of

simple assault and recklessly endangering another person and, on that same

date, was sentenced to 3 to 23 months’ incarceration (“1994 case”). On May

19, 1994, Rhines was resentenced to 6 to 23 months’ incarceration, followed


____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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by two years’ probation, for violating his probation in the 1992 case. Rhine

never appealed any of his judgments of sentence.

       On August 3, 2016, Rhines filed the instant, pro se, PCRA petition, his

first, which the PCRA court denied for lack of standing, as Rhine was no longer

serving a sentence as a result of his convictions in either the 1992 case or the

1994 case. Rhine filed this timely appeal, in which he claims that he is eligible

for PCRA relief under Lackawanna Dist. Atty. v. Coss, 532 U.S. 394 (2001),

as he is currently serving a sentence that was enhanced directly as a result of

his 1992 and 1994 cases. Rhine is entitled to no relief.2

       In Coss, the United States Supreme Court explored the “in custody”

eligibility parameters3 of federal habeas corpus relief. The Court concluded
____________________________________________


2 We note our well-settled scope and standard of review of the denial of PCRA
relief:

       On appeal from the denial of PCRA relief, our standard and scope
       of review is limited to determining whether the PCRA court’s
       findings are supported by the record and without legal error. Our
       scope of review is limited to the findings of the PCRA court and
       the evidence of record, viewed in the light most favorable to the
       prevailing party at the PCRA court level. The PCRA court’s
       credibility determinations, when supported by the record, are
       binding on this Court. However, this Court applies a de novo
       standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014)
(citations and quotations omitted).
3 Coss had sought relief in federal court under 28 U.S.C. § 2254. That
provision, a post-conviction remedy in federal court for state prisoners,
provides that a writ of habeas corpus is available to “a person in custody
pursuant to the judgment of a State court” if that person “is in custody in



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that, for federal habeas jurisdictional purposes, a petitioner satisfies the “in

custody” requirement where the state sentence he is currently serving was

enhanced by an allegedly unconstitutional prior conviction, even where the

sentence on the prior case had fully expired.4 However, Coss provides no

similar exception to state rules, such as section 9543 of the PCRA, that

circumscribe eligibility for post-conviction relief. Accordingly, because Rhine

is no longer serving a sentence for the challenged convictions, he is ineligible

for relief under the PCRA and the lower court property dismissed his petition.

       Order affirmed.




____________________________________________


violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a).

4 On the question for which certiorari was granted, i.e., whether the federal
habeas statute provides a remedy where a current sentence was enhanced on
the basis of an allegedly unconstitutional prior conviction for which the
sentence has fully expired, the court concluded that, subject to narrow
exceptions, it did not. Rather, the Court held that “once a state conviction is
no longer open to direct or collateral attack in its own right because the
defendant failed to pursue those remedies while they were available (or
because the defendant did so unsuccessfully), the conviction may be regarded
as conclusively valid.” Coss, 532 U.S. at 403. “If that conviction is later used
to enhance a criminal sentence, the defendant generally may not challenge
the enhanced sentence through a [federal habeas petition] on the ground that
the prior conviction was unconstitutionally obtained.” Id. at 403–04.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/18




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