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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DONNA CAROL ARNDT,
Appellant No. 1410 MDA 2015
Appeal from the PCRA Order August 10, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s):
CP-36-CR-0001784-2014
BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 04, 2016
Donna Carol Arndt appeals from the order of the Lancaster County
Court of Common Pleas denying her PCRA petition. We affirm.
On June 19, 2014, Appellant, represented by counsel, pled guilty to
the criminal charge of driving under the influence of a controlled substance
pursuant to 75 Pa.C.S. § 3802(d)(2), and a summary offense for violating
duties at stop sign pursuant to 75 Pa.C.S. § 3323(b). The charges arose
from a traffic stop on November 26, 2013. Appellant, while driving her
white Ford truck, was observed by law enforcement drifting into the center
of the road before failing to stop properly at a stop sign. Following the stop,
the officer noticed Appellant had slurred speech, was unable to
*
Retired Senior Judge assigned to the Superior Court.
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communicate, and was confused as to what was happening. Appellant
admitted to taking Clonazepam and heroin prior to operating her vehicle. A
later test revealed Appellant had drugs in her system.
Concurrent with her plea, Appellant completed a written guilty plea
colloquy and the court conducted an oral plea colloquy.1 In the written
colloquy, Appellant acknowledged, inter alia, she understood her rights
regarding post-sentence motions and direct appeal. At that time, Appellant
was sentenced to seventy-two hours to six months incarceration, fines, and
costs. Appellant was released on parole the same day. Appellant did not file
a post-sentence motion or a direct appeal.
In December 2014, Appellant sought the aid of the public defender’s
office. On January 1, 2015 a counseled PCRA petition seeking reinstatement
of Appellant’s direct appeal rights was filed. A hearing on Appellant’s
petition was held on March 11, 2015. At the hearing, counsel testified that
Appellant contacted him after the ten-day period for filing a motion to
withdraw her guilty plea and expressed dissatisfaction with her guilty plea.
While the call was made within thirty days of the judgment of sentence, an
appeal would have been futile since no motion was filed, and any claim that
Appellant’s plea was invalid would not have been preserved for purposes of
appeal. The court denied Appellant PCRA relief.
____________________________________________
1
That colloquy was not transcribed.
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Appellant filed this timely notice of appeal on August 17, 2015. At the
time of her appeal, Appellant was incarcerated in Lancaster County prison
for violating the terms of her parole. She served the balance of her
maximum sentence and was released on September 1, 2015. Trial Court
Opinion, 10/9/15, at 2.
Appellant raises one issue for our consideration, contending: “The
PCRA Court erred by failing to find counsel was ineffective for failing to file a
direct appeal.” Appellant’s brief at 4.
Prior to addressing the issue raised, we must first determine whether
Appellant is eligible for relief under the PCRA. Eligibility for relief under the
PCRA is governed by 42 Pa.C.S. § 9543, which provides in pertinent part:
(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
(iii) Serving a sentence which must expire before the person
may commence serving the disputed sentence.
42 Pa.C.S. § 9543(a).
We observe, “[e]ligibility for relief under the PCRA is dependent upon
the petitioner currently serving a sentence of imprisonment, probation, or
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parole for a crime.” Commonwealth v. Turner, 80 A.3d 754, 761-62 (Pa.
2013). As such, “the denial of relief for a petitioner who has finished serving
his sentence is required by the plain language of the statute.”
Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997).
Here, the record indicates that Appellant completed serving her
sentence on September 1, 2015. Because Appellant is no longer serving a
sentence of imprisonment, probation, or parole for the crime, she is
ineligible for PCRA relief. 42 Pa.C.S. § 9543(a)(1)(i); Turner, supra;
Ahlborn, supra. As Appellant is ineligible for PCRA relief, we need not
reach the merits of her claim. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2016
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