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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THEODORE JAMES LUCIW
Appellant No. 1722 MDA 2016
Appeal from the PCRA Order Entered October 4, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0001606-2012
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 22, 2017
Appellant Theodore James Luciw appeals from the October 4, 2016
order entered in the Court of Common Pleas of Luzerne County (“PCRA
court”), which denied his request for collateral relief under the Post
Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. PCRA counsel
has filed a no-merit brief and petitioned to withdraw under Turner/Finley.1
Upon review, we grant the petition to withdraw and dismiss this appeal
because Appellant is ineligible for relief under the PCRA.
The facts and procedural history of this case are undisputed. Briefly,
on October 25, 2012, Appellant pleaded guilty to driving under the influence
(“DUI”) under Section 3802(a)(1), 75 Pa.C.S.A. § 3802(a)(1). On that same
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1
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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date, he was sentenced to 90 to 365 days’ imprisonment. Appellant did not
appeal the conviction.
On August 19, 2016, nearly four years after his judgment of sentence
became final and nearly three years after his one-year maximum sentence
expired, Appellant filed the instant PCRA petition. Appellant sought relief
based on the United States Supreme Court’s decision in Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016).2 On October 4, 2016, the PCRA court
denied Appellant relief, concluding that Birchfield could not be applied
retroactively. Appellant timely appealed to this Court.
On March 27, 2017, Appellant’s PCRA counsel filed in this Court an
application to withdraw as counsel and a no-merit letter, wherein counsel
raises a single issue for our review: “Whether Appellant’s constitutional
rights were violated pursuant to Birchfield?” Turner/Finley Brief at 1.
Before we may consider this issue, we must address whether PCRA
counsel has met the requirements of Turner/Finley. For PCRA counsel to
withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the
nature and extent of counsel’s review of the record; lists
the appellate issues; and explains why those issues are
meritless.
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2
Birchfield held that the Fourth Amendment to the United States
Constitution does not permit warrantless blood tests incident to arrests for
drunk driving and that a state may not criminalize a motorist’s refusal to
comply with a demand to submit to blood testing. Birchfield, 136 S. Ct. at
2185-86.
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(2) PCRA counsel must file an application to withdraw; serve
the PCRA petitioner with the application and the no-merit
letter; and advise the petitioner that if the Court grants
the motion to withdraw, the petitioner can proceed pro se
or hire his own lawyer.
(3) This Court must independently review the record and
agree that the appeal is meritless.
See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875
(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
2008), overruled in part by, Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has petitioned for leave to withdraw and filed an Anders brief,
which we accept in lieu of a Turner/Finley no-merit letter.3 Further, PCRA
counsel informed Appellant of his right to hire a new lawyer or file a pro se
response.
We now address whether this appeal is indeed meritless. “On appeal
from the denial of PCRA relief, our standard of review requires us to
determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Widgins, 29 A.3d at 819.
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3
Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to
withdraw on direct appeal, which are more stringent than the Turner/Finley
requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817
n.2. “Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.”
Id.
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At the outset, before we may review the issue raised by Appellant’s
counsel, we must consider whether Appellant is eligible for relief under the
PCRA. To be eligible for relief under the PCRA, a petitioner must either be
“currently serving a sentence of imprisonment, probation or parole for the
crime,” “awaiting execution of a sentence of death for the crime,” or “serving
a sentence which must expire before the person may commence serving the
disputed sentence.” 42 Pa.C.S.A. § 9543(a)(1)(i)-(iii).
Our Supreme Court and this Court have consistently interpreted
Section 9543(a) to require that a PCRA petitioner be serving a sentence
while relief is being sought. Commonwealth v. Ahlborn, 699 A.2d 718,
720 (Pa. 1997); Commonwealth v. Martin, 832 A.2d 1141, 1143 (Pa.
Super. 2003). As our Supreme Court explained in Ahlborn, the denial of
relief for a petitioner who has finished serving his sentence is required by
the plain language of the PCRA statute. Ahlborn, 699 A.2d at 720. Indeed,
to be eligible for relief, a petitioner must be currently serving a sentence of
imprisonment, probation, or parole. Id. To grant relief at a time when an
appellant is not currently serving such a sentence would be to ignore the
language of the PCRA. Id.
Moreover, we have explained that “the [PCRA] preclude[s] relief for
those petitioners whose sentences have expired, regardless of the collateral
consequences of their sentence.” Commonwealth v. Fisher, 703 A.2d
714, 716 (Pa. Super. 1997). It is well settled that the PCRA court loses
jurisdiction the moment an appellant’s sentence expires. See
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Commonwealth v. Turner, 80 A.3d 754, 769 (Pa. 2013) (holding that
when a petitioner’s sentence expires while his PCRA petition is pending
before the PCRA court, the PCRA court loses jurisdiction to rule on the merits
of the petition).
Here, based on our review of the record, it is undisputed that
Appellant does not meet any of the foregoing eligibility requirements as he
has completed his October 25, 2012 sentence of 90 to 365 days’
imprisonment. Thus, the appeal sub judice must be dismissed for want of
jurisdiction.
PCRA counsel has complied with Turner/Finley. We independently
have reviewed the record, and we are convinced that no meritorious
appellate issues exist.
Petition to withdraw granted. Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2017
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