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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LESTER HOWARD
Appellant No. 3233 EDA 2016
Appeal from the PCRA Order August 2, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0012993-2008
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 17, 2017
Appellant, Lester Howard, appeals from the order dismissing his first
Post Conviction Relief Act1 (“PCRA”) petition. Appellant contends that he
was deprived of the right to meaningful PCRA counsel. We affirm.
A recitation of the facts underlying Appellant’s conviction is
unnecessary. On November 23, 2009, the trial court sentenced Appellant to
an aggregate nineteen to forty-two months’ imprisonment followed by four
years’ probation for possession with intent to deliver a controlled substance.2
Appellant did not take a direct appeal.
On May 2, 2014, the PCRA court received Appellant’s pro se PCRA
petition seeking relief based on newspaper articles regarding malfeasance in
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
35 P.S. § 780-113(a)(30).
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the Philadelphia Police Department’s Narcotics Unit. Appellant thereafter
filed several pro se filings amending his petition. On October 19, 2014, the
PCRA court appointed counsel, Christopher J. Evarts, Esq., to represent
Appellant. Attorney Evarts filed a Turner/Finley3 letter and motion to
withdraw on March 9, 2016, asserting that Appellant’s petition was, inter
alia, time-barred. Appellant filed a pro se response to Attorney Evarts’
letter. On April 4, 2016, the Commonwealth filed a motion to dismiss
Appellant’s petition because “the officers involved in [Appellant’s] arrest and
in the events leading up to [Appellant’s] arrest were not indicted” and no
relief was due. Commonwealth’s Mot. to Dismiss, 4/5/16, at 2. On April 8,
2016, the PCRA court permitted Attorney Evarts to withdraw and appointed
new counsel, J. Matthew Wolfe, Esq. Attorney Wolfe filed a Turner/Finley
letter and motion to withdraw asserting that Appellant was not eligible for
PCRA relief because he was no longer serving his sentence. Appellant filed a
pro se response alleging that he was on probation when he filed his PCRA
petition in 2014. However, Appellant did not deny that his sentence had
since expired.
The PCRA court issued a Pa.R.Crim.P. 907 notice on July 8, 2016. The
PCRA court dismissed Appellant’s petition and granted Attorney Wolfe’s
motion to withdraw on August 2, 2016. However, the case was listed for an
3
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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additional hearing on August 5, 2016. On August 23, 2016, a second judge
entered a second order dismissing the petition, with a docket notation: “This
case listed in error. [The prior PCRA judge] dismissed this PCRA petition on
August 2, 2016.” Appellant filed a notice of appeal on September 6, 2016.
The PCRA court did not require the filing of a Pa.R.A.P. 1925(b) statement.
Preliminarily, we must address the timeliness of this appeal. See
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007).
Appellant’s notice of appeal is technically untimely because it was filed
thirty-five days after the entry of the August 2, 2016 order dismissing his
PCRA petition. See Pa.R.A.P. 903(a) (requiring that an appeal be filed thirty
days after the entry of the order being appealed). Although this Court may
not enlarge the time for filing a notice of appeal, we may “grant relief in the
case of fraud or breakdown in the processes of the court.” Patterson, 940
A.2d at 498.
This Court issued a rule to show cause why this appeal should not be
quashed. Appellant responded that he did not receive the August 2, 2016
order, but instead received information that an additional hearing had been
scheduled on his petition. According to Appellant he was not able to attend
the scheduled hearing because the Philadelphia Criminal Justice Center was
closed due to an elevator accident.
The docket appears to support Appellant’s assertions a hearing was
scheduled following the August 2, 2016 dismissal of his petition. Further,
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that hearing was continued. The docket entry on August 23, 2016, states,
inter alia: “Order dismissing petition. This case listed in error.” However,
the August 23rd order did not inform Appellant that he had eight days
remaining in which to file a timely appeal from the August 2, 2016 order.
Accordingly, we conclude that there was a breakdown in the operations of
the court that may have misled Appellant regarding the time for filing an
appeal. Therefore, out of an abundance of caution, we decline to quash this
appeal. Cf. Patterson, 940 A.2d at 498-99.
Appellant claims that he was deprived of the right to counsel during
the underlying PCRA proceeding. Because Appellant has not established that
he is serving his sentence, we decline to address this issue.
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 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.
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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 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. 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.
Similarly, this Court has held that “the PCRA precludes relief for those
petitioners whose sentences have expired, regardless of the collateral
consequences of their sentence.” Commonwealth v. Hart, 911 A.2d 939,
942 (Pa. Super. 2006). The Hart Court reiterated that even “the failure to
appoint counsel for a petitioner under the PCRA who has served his sentence
is harmless error, and that a remand for appointment of counsel is not
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appropriate, as a remand would be futile under such a circumstance.” Id.
(citation omitted).
Here, Appellant has not established that he was still serving his
sentence at the time the PCRA court dismissed his petition. Thus, the PCRA
court properly dismissed his petition, notwithstanding Appellant’s claim that
he was deprived of his right to counsel in the PCRA proceeding. See 42
Pa.C.S. § 9543(a)(1)(i); Ahlborn, 699 A.2d at 720; Hart, 911 A.2d at 942.
Similarly, we have no basis to consider Appellant’s claim on appeal. See
Hart, 911 A.2d at 942.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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Com. v. Howard, L.
Combined Opinion