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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHAD BRADLEY DICKSON,
Appellant No. 1240 MDA 2014
Appeal from the PCRA Order entered July 3, 2014,
in the Court of Common Pleas of Luzerne County,
Criminal Division, at No(s): CP-40-CR-0000007-2010
BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.:
MEMORANDUM BY ALLEN, J.: FILED MAY 15, 2015
Chad Bradley Dickson (“Appellant”) appeals from the order denying his
second petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). 42 Pa.C.S.A. §§ 9541-9546. PCRA counsel has also filed a
motion to withdraw. We grant PCRA counsel’s petition to withdraw and
affirm the PCRA court’s order denying post-conviction relief.
The pertinent facts and procedural history have been summarized as
follows:
On March 30, 2011, Appellant appeared before the trial
court and entered a nolo contendere plea to one count of
[forgery]. Within that plea, Appellant did not contest the
charges that, sometime between November 2, 2007 and
November 16, 2007, while an inmate at the Pennsylvania
State Correctional Institution, Retreat (“SCI Retreat”), [he]
created a counterfeit check in the amount of $4,900.00.
Appellant was sentenced that same day.
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Additionally, during both his plea colloquy and
sentencing hearing, testimony was presented regarding
similar infractions perpetrated by Appellant, wherein [he]
apparently used the typewriter within his cell to counterfeit
materials. As a result, within discussions resulting in his
sentence and plea agreement, the Commonwealth
informed Appellant that, assuming that [he] would be
sentenced to incarceration, the Commonwealth intended to
request, either from the trial court or from the Department
of Corrections, that Appellant not be permitted to use a
typewriter within his cell. When the topic arose at
sentencing, Superintendent McGrady explained to the trial
court that, if Appellant were restricted to use of the
typewriter in the [prison] library, as opposed to one in his
cell, then department of corrections authorities would be
able to monitor his use of the typewriter to the best of
their ability. Authorities, however, would have no access
or means to monitor Appellant’s use of a typewriter within
his cell without having to do cell searches on a daily basis.
The trial court accepted Appellant’s plea as knowingly
and voluntarily entered and sentenced him to 10 to 20
months’ incarceration and [a consecutive twelve-month
probationary term. At the conclusion of Appellant’s
sentencing hearing, as a condition of his sentence, the trial
court restricted Appellant to use of only the prison library
typewriter].
Appellant then filed a counseled post-sentence motion
and a pro se motion to withdraw his guilty plea. The trial
court denied both motions.
Commonwealth v. Dickson, 60 A.3d 847 (Pa. Super. 2012), unpublished
memorandum at 2-3 (citations and footnote omitted).
Appellant filed a timely appeal to this Court. On September 10, 2012,
“[b]ecause we [held] that the portion of Appellant’s sentence restricting his
right to use a typewriter while incarcerated [was] illegal, we [vacated] that
portion of the sentence and [affirmed] the remaining aspects of the
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judgment of sentence.” Dickson, unpublished memorandum at 1. Neither
Appellant nor the Commonwealth filed a petition for allowance of appeal.
The PCRA court summarized the subsequent procedural history as
follows:
[Appellant] filed a PCRA Petition on January 14, 2013,
that was ultimately withdrawn by [Appellant] after
consultation with his counsel, John Hakim, on September
5, 2013. [Appellant also withdrew all ineffective assistance
claims he had raised against trial counsel.] [Appellant]
filed a second PCRA Petition on November 19, 2013. []
***
Thereafter, the Court issued [Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s petition] on May 29, 2014.
On July 2, 2014 the Court issued an Order, without hearing
and after review of [Appellant’s] PCRA Petition,
Memorandum of Law, and [Appellant’s] Response to the
[Pa.R.Crim.P.] 907 Notice, and denied and dismissed the
PCRA Petition.
Following the dismissal, [Appellant] filed a pro se
Appeal to the PCRA dismissal on July 18, 2014. Attorney
John Hakim was still counsel of record having previously
represented [Appellant] for PCRA purposes. When he was
advised of the Pro-Se appeal, he filed a Motion for
Appointment of Appellate Counsel. The Court, having full
knowledge of the Pro-Se Appeal and that the filing was
actually hybrid representation in that [Appellant] continued
to be represented by Attorney Hakim, issued an Order on
August 1, 2014 and appointed [present counsel] to
represent [Appellant] in all pending appellate matters. []
The Superior Court issued an Order dated August 22,
2014, directing the Trial Court to conduct a [Grazier]
Hearing and make a determination as to whether
[Appellant] is entitled to and desires counsel on appeal. At
the [Grazier] hearing, [present counsel] appeared and
indicated to the Court that he was in possession of all
materials and documents necessary to prepare and file the
brief for the appeal. The Court conducted a colloquy [with
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Appellant,] and reviewed the Remand Order with
[Appellant] and assured [him] that his appellate rights
remained intact and [Appellant] indicated he had the
opportunity to speak with [present counsel] and was
satisfied that he could adequately prepare the Appellate
Brief in this matter. The Trial Court issued an Order on
September 30, 2014, verifying that [Appellant] was
represented in appellate matters and Ordered that
[present counsel] file [] Appellant’s brief within twenty five
(25) days.
PCRA Court Opinion, 9/30/14, at 1-3 (footnote omitted).
In lieu of an advocate’s brief, Appellant’s counsel has filed a purported
“NO MERIT/TURNER FINLEY BRIEF” and a petition to withdraw pursuant
to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Thus, we will assess counsel’s assertion that Appellant’s appeal is frivolous
under a Turner/Finley analysis.
Our Supreme Court has explained:
These cases establish the procedure for withdrawal of
court-appointed counsel in collateral attacks on criminal
convictions. Independent review of the record by
competent counsel is required before withdrawal is
permitted. Such independent review requires proof of:
1) A “no-merit” letter by PCRA counsel detailing the
nature and extent of his [or her] review;
2) A “no-merit” letter by PCRA counsel listing each issue
the petitioner wished to have reviewed;
3) The PCRA counsel’s “explanation”, in the “no-merit”
letter, of why the petitioner’s issues were meritless;
4) The PCRA court conducting its own independent
review of the record; and
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5) The PCRA court agreeing with counsel that the
petition was meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1, (Pa. 2009) (citations
omitted). Here, counsel has complied with the mandates of Turner and
Finley, as summarized in Pitts, supra.1 We therefore must determine
whether we agree with counsel’s assessment of Appellant’s ineffectiveness
claim.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
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1
PCRA counsel attached a copy of his letter to Appellant to his petition to
withdraw. See generally, Commonwealth v. Liebensperger, 904 A.2d
40 (Pa. Super. 2006).
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PCRA counsel asserts that, because Appellant is no longer serving any
portion of his sentence at issue, he is ineligible for PCRA relief. See 42
Pa.C.S.A. § 9543 (a)(1)(i). Our review of the record supports counsel’s
conclusion. As stated by the PCRA court:
In reviewing the procedural history of the case at bar, it
is abundantly clear that [Appellant’s] sentence of
incarceration expired on November 30, 2012 and the
additional one year probation expired on November 30,
2013. [Appellant] filed the PCRA petition on November 19,
2013. [Appellant’s] probation sentence expired eleven
(11) days after he filed the PCRA. At the time that the
court issued the [Pa.R.Crim.P. 907 notice], the sentence to
the one (1) count of [forgery] had expired.
PCRA Court Opinion, 9/30/14, at 5. We agree.
As our Supreme Court has recently explained:
Eligibility for relief under the PCRA is dependent upon
the petitioner currently serving a sentence of
imprisonment, probation, or parole for the crime. 42
Pa.C.S. § 9543(a)(1)(i); [Commonwealth v. Ahlborn,
699 A.2d 718, 720, (Pa. 1997)] (holding that the plain
language of this section requires the denial of relief for a
petitioner who has finished serving his sentence).
Commonwealth v. Turner, 80 A.3d 754, 761-62. Moreover, “[t]he [PCRA]
statute clearly contemplates that the petitioner will be serving a sentence at
both the pleading and proof stages of the proceeding.” Ahlborn, 699 A.2d
at 720. Thus, as soon as a PCRA petitioner has completed his or her
sentence, he or she is no longer eligible for relief despite the pendency of his
or her petition. See, e.g., Turner, 80 A.3d at 769 (holding PCRA
petitioner’s eligibility for relief expired two days after she filed her PCRA
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petition); Ahlborn, 699 A.2d at 719-20 (holding that petitioner was
ineligible for PCRA relief when, following the filing of a PCRA petition and the
scheduling of an evidentiary hearing, he was unconditionally released from
prison).
Our review of the record supports the conclusion of both present
counsel and the PCRA court that Appellant is no longer eligible for post-
conviction relief because he completed his sentence eleven days after he
filed his PCRA petition. We therefore grant present counsel’s petition to
withdraw, and affirm the PCRA court’s order dismissing Appellant’s PCRA
petition.
Petition granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2015
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