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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LARRY L. WALTERS
Appellant No. 279 MDA 2016
Appeal from the PCRA Order January 15, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000104-2013
*
BEFORE: BOWES, DUBOW, and FITZGERALD JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 10, 2017
Appellant, Larry L. Walters, appeals from the order dismissing his first
Post Conviction Relief Act1 (“PCRA”) petition. Appellant alleges ineffective
assistance of counsel. Appellant’s counsel, Allen C. Welch, Esq., has filed a
motion to withdraw and a Turner/Finley2 “no merit” letter. We affirm and
grant counsel’s motion to withdraw.
The facts underlying Appellant’s conviction are not relevant to our
disposition. A jury convicted Appellant of harassment,3 and on February 11,
2014, the trial court sentenced him to two to twenty-three months’
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
18 Pa.C.S. § 2709(a)(7)
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imprisonment with credit for time served. Appellant timely appealed. While
his appeal was pending, however, the trial court attempted to amend
Appellant’s sentence on January 12, 2015, to two to twelve months’
imprisonment. Thereafter, this Court affirmed Appellant’s conviction, but
vacated his judgment of sentence and remanded for resentencing based on
an original illegal sentence. Thus, on February 24, 2015, the trial court
resentenced Appellant to two to twelve months’ imprisonment with credit for
time served in prison and on parole.4 Appellant thereafter remained on
parole until April 27, 2015, when his sentence expired.
Meanwhile, on March 30, 2015, Appellant filed a pro se PCRA petition,
in which he argued ineffective assistance of counsel. The PCRA court
appointed counsel and ordered him to file an amended petition. The
Commonwealth filed a motion to dismiss. The PCRA court conducted a
hearing on the motion and dismissed Appellant’s petition on January 15,
2016. Despite being represented by counsel, Appellant submitted a pro se
filing on Tuesday, February 16, 2016, which the PCRA court treated as a
notice of appeal.5 The PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant complied through counsel.
4
Appellant was on parole at the time of resentencing.
5
We note that Monday, February 15, 2016, was President’s Day. Thus,
Appellant’s notice of appeal was timely filed. See 1 Pa.C.S. § 1908.
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Thereafter, this Court remanded on two separate occasions for the
PCRA court to determine if counsel had abandoned Appellant on appeal. The
PCRA court concluded counsel still represented Appellant. Counsel
subsequently filed a Turner/Finley “no merit” letter and a motion to
withdraw with the PCRA court asserting that Appellant was ineligible for
relief because his sentence had expired. On December 8, 2016, the PCRA
court permitted counsel to withdraw and issued Pa.R.Crim.P. 907 notice to
reaffirm its January 15, 2016 dismissal of Appellant’s petition. However, this
Court entered an order on December 29, 2016, which vacated the PCRA
court’s order granting counsel’s motion to withdraw and stated that his
Turner/Finley letter would be accepted in this Court as Appellant’s brief.
On December 30, 2016, Appellant filed a pro se brief in response.
As a preliminary matter, we must address counsel’s motion to
withdraw. “Before an attorney can be permitted to withdraw from
representing a petitioner under the PCRA, Pennsylvania law requires
counsel to file and obtain approval of a ‘no-merit’ letter pursuant to the
mandates of Turner/Finley.” Commonwealth v. Karanicolas, 836 A.2d
940, 947 (Pa. Super. 2003) (citation omitted).
[C]ounsel must . . . submit a “no-merit” letter to the trial
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
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Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).
Counsel must also send the petitioner a copy of the “no-merit” letter and the
motion to withdraw, and advise the petitioner of his right to proceed pro se
or with new counsel. Id.
Instantly, counsel filed a Turner/Finley “no-merit” letter and a
separate motion to withdraw as counsel. Counsel’s letter indicated that he
intended to withdraw as Appellant’s counsel, that he was sending Appellant a
copy of his “no merit” letter and motion to withdraw, and that he was
sending Appellant a letter informing him that his appeal was frivolous but he
could retain counsel for further review.6 Counsel’s “no merit” letter also
discussed why Appellant’s ineffectiveness claims did not merit relief. Thus,
counsel has complied with the Turner/Finley requirements. See id.
Accordingly, we proceed to an independent evaluation. See
Commonwealth v. Widgins, 29 A.3d 816, 819-20 (Pa. Super. 2011)
(stating court must conduct an independent review and agree with counsel
that the issues raised were meritless).
In his pro se brief, Appellant baldly asserts that both trial and PCRA
counsel were ineffective. However, because Appellant has not established
6
Although counsel did not provide evidence of his letter and notification to
Appellant, this Court’s December 29, 2016 order stated that Appellant could
file a pro se response to counsel’s petition. Appellant subsequently
responded pro se on December 30, 2016.
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that he is still serving his sentence, we shall not address the merits of his
ineffectiveness claims.
The PCRA provides:
(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 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)(1)(i)-(iii); see Commonwealth v. Ahlborn, 699 A.2d
718, 720 (Pa. 1997); Commonwealth v. Fisher, 703 A.2d 714, 717 (Pa.
Super. 1997) (holding PCRA does not afford relief to petitioners whose only
outstanding sentence is payment of fines).
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 serving his sentence, but
completed his sentence before the PCRA court ruled on the petition. Id.
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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. The
Ahlborn Court reasoned that the phrase “currently serving a sentence” in
Section 9543(a)(1)(i) “clearly contemplates that the petitioner will be
serving a sentence at both the pleading and proof stages of the proceeding.”
Id. at 720. Thus, “the denial of relief for a petitioner who has finished
serving his sentence is required by the plain language of the statute.” Id.
Here, the record indicates that Appellant finished serving his sentence
on April 27, 2015. Therefore, Appellant has failed to establish that he was
still serving his sentence at the time the PCRA court dismissed his petition
on January 15, 2016. Thus, the PCRA court properly dismissed his petition.
See 42 Pa.C.S. § 9543(a)(1)(i); Ahlborn, 699 A.2d at 719-21; Fisher, 703
A.2d at 717. Accordingly, we affirm the PCRA court’s order dismissing
Appellant’s petition and grant counsel’s motion to withdraw.
Order affirmed. Counsel’s motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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