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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
REGINALD TERREL FOSTER
Appellant No. 1506 EDA 2015
Appeal from the PCRA Order April 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009100-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
JUDGMENT ORDER BY JENKINS, J.: FILED MAY 20, 2016
Reginald Foster appeals from an order denying his petition under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. Because
Foster is no longer serving any sentence, we affirm.
On February 26, 2013, the trial court found Foster guilty of two counts
of driving under the influence, 75 Pa.C.S. § 3802, and sentenced him to 72
hours – 6 months’ imprisonment. The sentence began on March 22, 2013.
Foster filed a timely direct appeal, and this Court affirmed on April 15, 2014.
On May 13, 2014, Foster filed a PCRA petition alleging ineffective
assistance of counsel. The court appointed counsel to represent Foster. On
February 15, 2015, counsel moved to withdraw and filed a “no merit” letter
advising that Foster was not entitled to PCRA relief because he was no
longer serving any sentence. Counsel served Foster with a copy of the “no
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merit” letter and motion to withdraw. On April 2, 2015, the court filed a
notice of intent to dismiss Foster’s PCRA petition and served Foster with this
notice via certified mail. On April 22, 2015, the court granted counsel’s
motion to withdraw and dismissed Foster’s PCRA petition.1 Foster filed a
timely appeal to this Court. On July 31, 2015, the court filed a Pa.R.A.P.
1925 opinion recommending that this Court affirm on the ground that Foster
was no longer serving any sentence.
We agree that Foster is not entitled to relief. The PCRA provides that
“to be eligible for relief … the petitioner must plead and prove … [that] at the
time relief is granted, [he is] currently serving a sentence of imprisonment,
probation or parole for the crime.” 42 Pa.C.S. § 9543(a)(1)(i). Foster
began serving his sentence on March 22, 2013, and his sentence ended on
September 22, 2013. At the time the court reviewed his PCRA petition in
2015, he was no longer serving any sentence and could not obtain relief
under the PCRA. See Commonwealth v. Stultz, 114 A.3d 865, 872
(Pa.Super.2014) (defendant was no longer eligible for PCRA relief for his DUI
conviction where he had completed serving his sentence for this offense).
Order affirmed.
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1
Foster does not object to counsel’s motion to withdraw or “no merit” letter
in this appeal. Based on our Supreme Court’s instruction to avoid raising
these matters sua sponte, we will refrain from examining these issues. See
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.2009).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
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