Com. v. Culbreath, S.

J-S51042-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. SHELDON BLAIR CULBREATH, Appellant No. 372 EDA 2016 Appeal from the PCRA Order December 30, 2015 in the Court of Common Pleas of Montgomery County Criminal Division at Nos.: CP-46-CR-0001996-1982 CP-46-CR-0002579-1976 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.* JUDGMENT ORDER BY PLATT, J.: FILED AUGUST 05, 2016 Appellant, Sheldon Blair Culbreath, appeals pro se from the order dismissing his serial petition filed at the above-referenced docket numbers pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541- 9546.1 Appellant is ineligible for PCRA relief. We affirm. This matter has a protracted history dating back to 1976. We set forth only the most salient facts necessary for disposition of this appeal. 2 On ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 The PCRA court’s order is dated December 29, 2015, but was filed on December 30, 2015. We have amended the caption accordingly. 2 We take some of the early dates from a prior memorandum of this Court and from the Commonwealth’s brief because our efforts to obtain a complete docket from the trial court were unsuccessful. (See Commonwealth v. (Footnote Continued Next Page) J-S51042-16 December 9, 1976, at Docket No. 2579-1976, Appellant pleaded guilty to various drug-related offenses. Following sentencing, he obtained collateral relief and withdrew his plea. On October 29, 1985, he entered a new negotiated plea, and the trial court sentenced him to a term of not less than one nor more than five years’ incarceration. He did not file a direct appeal, but filed multiple unsuccessful PCRA petitions. On October 13, 1982, at Docket No. 1996-1982, Appellant entered a negotiated guilty plea to various drug-related offenses. The court sentenced him to a term of not less than ten nor more than thirty years’ incarceration. He did not file a direct appeal, but filed multiple PCRA petitions. On October 21, 2015, Appellant filed the instant pro se petition, styled as a “petition for writ of habeas corpus ad subjiciendum.” In it, he alleged that his sentence at Docket No. 2579-1976 is illegal, and requested that the court “change the illegal sentence that he is currently serving to reflect time credit for the 30 months that [he] spent in custody and was not credited with.” (PCRA Petition, 10/21/15, at unnumbered page 2 ¶ 8). The court treated the filing as a PCRA petition, and dismissed it without a hearing on December 30, 2015, after issuing notice of its intent to do so. See Pa.R.Crim.P. 907(1). The court indicated that it was dismissing the petition because Appellant is no longer serving a sentence at Docket Nos. 2579-1976 _______________________ (Footnote Continued) Culbreath, No. 2352 EDA 2009, unpublished memorandum at *1-2 (Pa. Super. filed Mar. 17, 2010); Commonwealth’s Brief, at 2). -2- J-S51042-16 or 1996-1982. (See Rule 907 Notice, 12/03/15, at 1-2 ¶¶ 1-3). Appellant filed this timely appeal3 from the PCRA court’s order. However, he is no longer eligible for relief.4 Preliminarily, we address Appellant’s claim that the PCRA court erred in treating his filing as a PCRA petition. (See Appellant’s Brief, at 6). “[This Court has] repeatedly held that . . . any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition.” Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted). A claim challenging the legality of a sentence is cognizable under the PCRA. See id.; see also 42 Pa.C.S.A. § 9542. Thus, the court properly treated Appellant’s filing challenging the legality of his sentence as a PCRA petition. Section 9543 of the PCRA provides that, for a petitioner to be eligible for relief, he must prove that he “is at the time relief is granted . . . currently serving a sentence of imprisonment, probation or parole for the crime[.]” 42 Pa.C.S.A. § 9543(a)(1)(i) (emphasis added). “As soon as his ____________________________________________ 3 Appellant’s pro se notice of appeal, docketed after the applicable deadline of January 29, 2016, was timely pursuant to the prisoner mailbox rule. See Commonwealth v. Brandon, 51 A.3d 231, 234 n.5 (Pa. Super. 2012). The notice is dated January 25, 2016, and the associated envelope is postmarked January 29, 2016. (See Notice of Appeal, 1/25/16). 4 “On review of orders denying PCRA relief, our standard is to determine whether the PCRA court’s ruling is free of legal error and supported by the record.” Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa. Super. 2008) (citation omitted). -3- J-S51042-16 sentence is completed, the petitioner becomes ineligible for relief[.]” Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010) (citations omitted). Here, Appellant is no longer serving his sentence at the above- referenced docket numbers.5 Therefore, he is not eligible for PCRA relief. Accordingly, we affirm the order of the PCRA court. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/5/2016 ____________________________________________ 5 Appellant is serving a sentence in an unrelated case, at Docket No. 6474- 1996. (See Rule 907 Notice, at 2 ¶ 3). -4-