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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
GRANT EPPS ROYSTER, :
:
Appellee : No. 1853 EDA 2017
Appeal from the PCRA Order June 2, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0002198-2015
BEFORE: LAZARUS, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 01, 2018
The Commonwealth appeals from the June 2, 2017 Order entered in the
Montgomery County Court of Common Pleas purportedly dismissing Appellee
Grant Epps Royster’s first Petition filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546, but reinstating Appellee’s direct appeal
rights nunc pro tunc. Because Appellee’s maximum sentence has expired, he
is ineligible for relief under the PCRA. Accordingly, we reverse.
The PCRA court set forth the underlying facts and we need not repeat
them in detail. See PCRA Court Opinion, filed 10/20/17, at 1-5. After a bench
trial, the court found Appellee guilty of Driving While Operating Privilege is
Suspended or Revoked1 in connection with a hit-and-run car accident. On
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1 75 Pa.C.S. § 1543.
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* Retired Senior Judge assigned to the Superior Court.
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April 21, 2016, the trial court sentenced Appellee to an aggregate term of two
to six months’ incarceration. Appellee did not file a direct appeal.
On August 16, 2016, Appellee filed the instant pro se PCRA Petition, his
first, alleging ineffective assistance of counsel because counsel purportedly
failed to file a requested direct appeal. The PCRA court appointed counsel,
and counsel filed an Amended PCRA Petition on January 3, 2017, seeking the
reinstatement of Appellee’s appeal rights.
On May 26, 2017, the Commonwealth filed a Motion to Dismiss
Appellee’s PCRA Petition, asserting that, because Appellee’s sentence had
expired in October 2016,2 he was no longer eligible for PCRA relief.
Commonwealth’s Motion to Dismiss, 5/26/17, at 2-4.
On June 1, 2017, the PCRA court held an evidentiary hearing at which
the parties agreed that Appellee had requested a direct appeal, but counsel
had failed to file one “for reasons unknown[.]” N.T., 6/1/17, at 2. During the
evidentiary hearing, and in its Pa.R.A.P. 1925(a) Opinion, the PCRA court
acknowledged the expiration of Appellee’s sentence and specifically concluded
that Appellee “does not qualify for PCRA relief.” Trial Court Opinion, 10/17/17,
at 9. See also N.T., 6/1/17, at 4 (opining that the PCRA “no longer applies
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2 According to the docket sheet and the sentencing transcript, Appellee
received three days’ time credit because the trial court had revoked Appellee’s
parole before issuing its verdict several days later. Thus, the trial court stated
that April 19, 2016, was Appellee’s “[c]ommitment date[.]” N.T. Sentencing,
4/21/16, at 6.
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to [Appellee] because he has fully served his sentence.”). Nevertheless, the
PCRA court entered an Order that same day granting Appellee’s PCRA Petition
and reinstating Appellee’s direct appeal rights nunc pro tunc. The next day,
the PCRA court vacated the Order and entered a new Order that dismissed
Appellee’s Amended PCRA Petition, but still reinstated Appellee’s direct appeal
rights nunc pro tunc.3 See Order, dated 6/2/17.
The Commonwealth filed a timely Notice of Appeal from the PCRA court’s
June 2, 2017 Order. Both the Commonwealth and the PCRA court complied
with Pa.R.A.P. 1925.4
The Commonwealth presents one issue for our review:
Whether the [PCRA] court erred by reinstating [Appellee’s] direct
appeal rights based on an ineffectiveness claim where the court
did not have jurisdiction under the PCRA, and where there was no
other source of jurisdiction because more than thirty days had
elapsed since the court imposed [Appellee’s] judgment of
sentence?
Commonwealth’s Brief at 3.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
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3 The court noted in its Rule 1925(a) Opinion that “[i]n an effort to facilitate
the goals of fundamental fairness and justice, this [c]ourt felt constrained to
afford some avenue of relief to [Appellee].” Trial Court Opinion, 10/17/17, at
9.
4 Once the court reinstated his direct appeal rights nunc pro tunc, Appellee
filed (1) a Post-Sentence Motion, which the trial court denied; and (2) a Notice
of Appeal. Appellee’s pending appeal in this Court is at docket No. 2117 EDA
2017.
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legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
Once an individual’s time for taking an appeal has passed, the only way
to obtain the right to file a direct appeal is by requesting the reinstatement of
one’s right to appeal in a timely PCRA petition. Commonwealth v. Hall, 771
A.2d 1232, 1235-36 (Pa. 2001). Likewise, a challenge to counsel’s effective
assistance may only be raised in a timely filed PCRA petition.
Commonwealth v. Descardes, 136 A.3d 493, 499 (Pa. 2016).
To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that he is “currently serving a
sentence of imprisonment, probation[,] or parole for the crime[.]” 42 Pa.C.S.
§ 9543(a)(1)(i). A petitioner who has completed his sentence is no longer
eligible for post-conviction relief. Commonwealth v. Soto, 983 A.2d 212,
213 (Pa. Super. 2009); see also Commonwealth v. Turner, 80 A.3d 754,
765 (Pa. 2013) (“[D]ue process does not require the legislature to continue to
provide collateral review when the offender is no longer serving a sentence.”).
Thus, even where a PCRA petition is filed while a petitioner is serving his or
her sentence, once the sentence expires, a petitioner’s right to PCRA relief
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also expires. Commonwealth v. Plunkett, 151 A.3d 1108, 1109-10 (Pa.
Super. 2016).
The PCRA “confers no authority upon this Court to fashion ad hoc
equitable exceptions to the PCRA time-bar[.]” Commonwealth v. Watts, 23
A.3d 980, 983 (Pa. 2011) (quoting Commonwealth v. Robinson, 837 A.2d
1157, 1161 (Pa. 2003)). This is to “accord finality to the collateral review
process.” Id.
In the instant case, Appellee’s maximum sentence of six months’
incarceration expired on October 19, 2016, two months after he filed his PCRA
Petition. Because Appellee’s sentence had expired, he was ineligible for PCRA
relief when the trial court entered its June 2, 2017 Order. Pursuant to the
plain language of the PCRA and our case law interpreting the PCRA’s eligibility
requirements, the PCRA court’s attempt to afford Appellee a remedy was
improper. See Soto, supra at 213; Watts, supra at 983.5,6
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5Moreover, the court did not have any source of jurisdiction to grant relief.
See, e.g., 42 Pa.C.S. § 5505 (a court may modify or rescind any order within
30 days after its entry if no appeal has been taken).
6 We note that Appellee’s reliance on Commonwealth v. Stock, 679 A.2d
760 (Pa. 1996), is misplaced. See Appellee’s Brief at 13. Stock involved
unique circumstances where the trial court sentenced Stock to fines only for
summary convictions, which meant that Stock was never eligible for PCRA
relief. Here, the trial court imposed a sentence of incarceration for Appellee’s
summary conviction, which rendered him eligible to seek PCRA relief prior to
the completion of his sentence. Because Stock is factually and legally
distinguishable, it affords Appellee no relief.
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Accordingly, we reverse the PCRA court’s Order reinstating Appellee’s
direct appeal rights nunc pro tunc.7
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/18
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7 In light of our resolution of this appeal, we are constrained to quash
Appellee’s direct appeal at docket No. 2117 EDA 2017.
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