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08/19/97 COMMONWEALTH PENNSYLVANIA v. CLARENCE A.

August 19, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
CLARENCE A. AHLBORN, APPELLANT



Appeal from an order of the Superior Court, dated July 31, 1996, at No. 601 PGH 1995, affirming an order of the Court of Common Pleas, of Westmoreland County, Civil Division, dated June 8, 1994, at Nos. 1148, 1003, 942 and 943 C 1993. Composition OF The Court: Mr. Chief Justice John P. Flaherty, Zappala, Cappy, Castille, Nigro, Newman, JJ.

The opinion of the court was delivered by: Flaherty

OPINION OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: AUGUST 19, 1997

This is an appeal by allowance from an order of the Superior Court which affirmed an order of the Court of Common Pleas of Westmoreland County denying relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. At issue is 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.

On May 4, 1990, the appellant, Clarence A. Ahlborn, pled guilty to three counts of driving under the influence (DUI) and one count of accident resulting in death or injury. Appellant was sentenced to forty-eight hours to twenty-three months on the first DUI count, a concurrent term of thirty days to twenty-three months on the second DUI count, a consecutive term of four to twenty-three months on the third DUI count, and a concurrent term of thirty days to twenty-three months on the accident resulting in death or injury count. On May 24, 1990, appellant filed a pro se motion to withdraw his guilty plea. A hearing on the motion was scheduled, but, for reasons not apparent on the record, the motion was never adjudicated. On December 9, 1993, appellant filed a pro se PCRA petition. Subsequently, counsel was appointed and an amended petition was filed on January 25, 1994. The petition alleged that appellant was misled as to the nature and consequences of his plea. It also alleged that he was never afforded a hearing on the motion to withdraw his plea.

A PCRA hearing was scheduled for February 17, 1994. On February 14, 1994, however, appellant finished serving his sentence. He was unconditionally released from prison. The scheduled hearing was then continued, and, on June 8, 1994, the PCRA petition was dismissed on the ground that appellant was no longer eligible for relief. The court reasoned that relief is available only to persons still serving sentences of imprisonment, probation, or parole. On appeal, the Superior Court affirmed en banc. We too affirm.

Eligibility for relief under the PCRA is governed by 42 Pa.C.S. § 9543, which provides in pertinent part:

(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:

(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 ...


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