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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PETER J. BUTLER
Appellant No. 760 WDA 2015
Appeal from the PCRA Order April 21, 2015
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000617-2008;
CP-16-CR-0000625-2008
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 1, 2016
Appellant, Peter J. Butler, appeals pro se from the order entered in the
Clarion County Court of Common Pleas, which denied his first petition filed
under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. On January 21, 2009, Appellant pled guilty to two counts of
possession of a controlled substance with the intent to deliver (“PWID”).
The court sentenced him on February 25, 2009, to an aggregate term of 2½-
5 years’ imprisonment. Appellant did not pursue direct review. On March 5,
2015, Appellant filed the current PCRA petition pro se. The court appointed
counsel on March 10, 2015, who filed a petition to withdraw on March 25,
2015, along with a “no-merit” letter per Commonwealth v. Turner, 518
Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988) (en banc). The court issued appropriate notice per
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*Former Justice specially assigned to the Superior Court.
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Pa.R.Crim.P. 907 on March 27, 2015, and granted counsel’s petition to
withdraw. On April 16, 2015, Appellant responded pro se. The court denied
PCRA relief on April 21, 2015.1 Appellant timely filed a pro se notice of
appeal on May 7, 2015.2 That day, the court ordered Appellant to file a
concise statement per Pa.R.A.P. 1925(b). Appellant did not comply.
Preliminarily, a PCRA petitioner must be currently serving a sentence
of imprisonment, probation or parole for the conviction at issue to be
eligible for PCRA relief. 42 Pa.C.S.A. § 9543(a)(1)(i). See also
Commonwealth v. Williams, 977 A.2d 1174 (Pa.Super. 2009), appeal
denied, 605 Pa. 700, 990 A.2d 730 (2010) (explaining petitioner must be
serving sentence of imprisonment, probation, or parole for crime at issue to
be eligible for PCRA relief; when sentence is completed, petitioner becomes
ineligible for PCRA relief, regardless of whether he was serving his sentence
when he filed petition). Instantly, the court sentenced Appellant on
February 25, 2009, to an aggregate term of 2½-5 years’ imprisonment.
Appellant is still in prison, but the record suggests Appellant’s current
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1
The court initially denied PCRA relief on April 17, 2015, prior to receiving
Appellant’s pro se response to Rule 907 notice. The court entered a second
order denying PCRA relief on April 21, 2015, after receipt and review of
Appellant’s pro se filing.
2
Appellant’s notice of appeal inadvertently listed the order appealed from as
entered May 4, 2015. The docket does not reveal any court order of May 4,
2015, and it is clear from the record Appellant meant to appeal the court’s
April 21, 2015 denial of PCRA relief.
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incarceration is for unrelated crimes. Specifically, the record contains a
letter from the Board of Probation and Parole explaining Appellant had an
interview scheduled for May 2012, regarding eligibility for parole. The letter
further indicates that the Board’s practice is to schedule such interviews four
months before expiration of the inmate’s minimum sentence. Thus, in May
2012, Appellant would have already served approximately 2 years and 2
months of his sentence. By this calculation, Appellant would have maxed
out on his PWID sentences around March 2015. Therefore, Appellant is
arguably ineligible for PCRA relief. See 42 Pa.C.S.A. § 9543(a)(1)(i);
Williams, supra. Moreover, even if Appellant is still serving his sentence,
his claims on appeal are waived because Appellant failed to comply with the
court’s May 7, 2015 order, directing him to file a concise statement.3 See
Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (holding
appellants must comply whenever trial court orders them to file Rule
1925(b) statement; any issues not raised in concise statement will be
deemed waived). Thus, we affirm the court’s denial of PCRA relief.
Order affirmed.
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3
Appellant’s “brief” on appeal also fails to include the necessary statement
of jurisdiction, relevant scope and standard of review, statement of
questions involved, statement of the case, summary of the argument, and
omits citations to relevant authority to support his “argument” on appeal.
See Pa.R.A.P. 2111(a) (discussing required content of appellate briefs).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: March 1, 2016
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Com. v. Butler, P.
Combined Opinion