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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
THOMASINE TYNES, : No. 2772 EDA 2017
:
Appellant :
Appeal from the PCRA Order, July 31, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0012304-2014,
MC-51-CR-0036312-2014
BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 17, 2018
Thomasine Tynes appeals from the order filed in the Court of Common
Pleas of Philadelphia County that dismissed her petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we affirm.
The facts and procedural history, as recounted by the trial court, are
as follows:
[Appellant], at all times material, was the President
Judge of the Philadelphia Traffic Court.
[Appellant] took a gift of jewelry under
circumstances that brought her to the attention of
the Office of Attorney General for the Commonwealth
of Pennsylvania, hereinafter, OAG. Following an
investigation, the then Attorney General, Kathleen
Kane, declined to prosecute [appellant] for reasons
not relevant to the disposition of this PCRA.
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[Appellant] was concurrently investigated by the
United States Attorney’s Office for the Eastern
District of Pennsylvania and ultimately charged and
prosecuted by that agency.
Once the OAG declined to prosecute [appellant], the
then District Attorney of Philadelphia County, Seth
Williams, had his office undertake the prosecution.
When [appellant] was charged[,] the entire
Philadelphia County bench recused and I was
assigned to handle the case against [appellant].
[Appellant] was represented by privately retained
counsel who had entered into a plea agreement with
the District Attorney’s Office which called for a
sentence that would run concurrently with
[appellant’s] federal sentence, an agreement I
approved on December 17, 2014 when I accepted
her guilty plea.[1]
[Appellant] was aware that her plea put her
entitlement to receive a pension from the
Commonwealth of Pennsylvania at risk.
By agreement, [appellant] surrendered to the federal
authorities on February 6, 2015 to begin her federal
and state sentences.
Inexplicably, she was released to the street by the
federal authorities on or about August 28, 2016,
instead of being returned to the State court system
for supervision. In fact, she was never paroled and
should have been returned to Pennsylvania to serve
the balance of her maximum sentence.
[Appellant] did not seek to withdraw her plea before
me, nor did she file a direct appeal from the
sentence I imposed.
On December 6, 2015, current counsel filed a PCRA
Petition which did not raise any issues. Rather, it
1 Appellant pled guilty to restricted activities – accept improper influence
under Section 1103(c) of the Public Officers Code, 65 Pa.C.S.A. § 1103(c).
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sought 90 days within which to evaluate the matter.
The petition was never forwarded to me for
consideration as required by Pa.R.C[rim].P., Rule
903(A).
[Appellant’s] maximum sentence expired on
January 6, 2017.
On January 18, 2017, counsel filed his “First
Amended PCRA Petition.” He noted therein the
failure of the court to act on his filing of
December 16, 2015. As of January 18, 2017, I was
still unaware that the Petition of December 16, 2015
had been filed. The Petition of January 18, 2017 was
NOT forwarded to me as required by Pa.R.C[rim].P.,
Rule 903(A). Accordingly, I had no knowledge of
either filing.
Trial court opinion, 12/7/17 at 1-3.
On June 16, 2017, the PCRA court issued a notice of intent to dismiss
the petition without a hearing, pursuant to Pa.R.Crim.P. 907(1). The PCRA
court intended to dismiss because appellant did not have standing to receive
relief under the PCRA because she was not serving a sentence. On July 18,
2017, appellant responded and asserted that the PCRA court did not
acknowledge her petition for many months in bad faith because the court
wanted the petition to “die on the vine” so that the PCRA court would not be
called upon to explain its role in the collusion that produced the unjust result
of this case. (Defendant’s response to Rule 907 notice of intention to
dismiss, 7/18/17 at 2.) On July 31, 2017, the PCRA court dismissed
appellant’s petition because she was no longer subject to incarceration
and/or supervision. On August 28, 2017, appellant filed a notice of appeal.
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On September 12, 2017, the PCRA court ordered appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
Appellant complied with the order on October 3, 2017. On December 7,
2017, the PCRA court then filed its opinion, pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for this court’s review:
1. Was the sentenced [sic] imposed on 12/17/14
Illegal [sic] and therefore “void ab initio”,
causing [appellant] to remain in a
pre-sentence posture and accrue ZERO time
served toward the Philadelphia sentence while
in Federal Custody; and/or
2. Is the sentence imposed on 12/17/14
“incomplete” because [appellant] only served
17 months of a 23-month sentence and was
never paroled by The Court; and/or
3. Did The Honorable Judge Gavin “interfere” with
the presentation of issues by [appellant][?]
Appellant’s brief at 4.
Before we can consider appellant’s claim on the merits, we must first
determine whether appellant is eligible for relief under the PCRA. The PCRA
limits eligibility for relief, inter alia, to petitioners “currently serving a
sentence of imprisonment, probation or parole for the crime” at the time
relief is granted. 42 Pa.C.S.A. § 9543(a)(1). See also Commonwealth v.
Stultz, 114 A.3d 865, 872 (Pa.Super. 2015), appeal denied, 125 A.3d
1201 (Pa. 2015); Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa.
1997); Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa.Super.
2009), appeal denied, 990 A.2d 730 (Pa. 2010).
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Here, appellant was sentenced on December 17, 2014, to a term of
11½ to 23 months’ imprisonment to run concurrent with appellant’s federal
sentence. The trial court stayed the sentence until appellant began her
federal sentence on February 6, 2015. On December 16, 2015, appellant
filed a counseled PCRA petition in which she alleged that she had meritorious
issues concerning ineffective assistance of counsel, illegal sentence,
non-knowing/intentional/voluntary guilty plea, and after discovered
evidence. (Petition for post-conviction collateral relief, 12/16/15 at 2.)
On August 28, 2016, appellant was released from her federal
sentence. For reasons that are not apparent from the record, appellant was
released to the “street” and was not returned to Pennsylvania to serve the
balance of her Pennsylvania sentence or to be paroled from it as the
minimum sentence had expired and the maximum had more than four
months to run. On January 6, 2017, appellant’s Pennsylvania sentence
expired.
On January 18, 2017, appellant filed a first amended PCRA petition
and request for an evidentiary hearing. Appellant and her counsel expanded
upon the original grounds alleged for collateral relief. As appellant’s
sentence has expired, she is not eligible for relief. Ahlborn. Further, even
though, appellant asserts in her petition that her ability to receive a pension
from the Commonwealth of Pennsylvania is jeopardized due to her
conviction, there is no relief available under the PCRA for a petitioner whose
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sentence has expired, even if there are collateral consequences of his
conviction. Williams, 977 A.2d at 1176. Accordingly, appellant is not
eligible for relief under the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/18
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