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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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*
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 Commonwealth v. Smith, 245 MDA 2008 (unpublished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.
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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
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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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