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[U] Commonwealth v. Foy

Superior Court of Pennsylvania

January 21, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DUSTIN FOY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order March 8, 2013 In the Court of Common Pleas of Lebanon County Criminal Division No(s).: CP-38-CR-0000571-2011

BEFORE: ALLEN, LAZARUS, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Dustin Foy, appeals from the order entered in the Lebanon County Court of Common Pleas, dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), [1] for ineligibility for relief as he was no longer serving a sentence for the crime that underlies the petition and on the merits. Appellant contends the PCRA court erred in dismissing his petition because plea counsel was ineffective in unlawfully inducing him to plead guilty and failing to abide by the principles set forth under Lafler v. Cooper, 132 S.Ct. 1376 (2012). We affirm.

We state the facts and procedural history as set forth by the PCRA court:

On May 23, 2011, the Commonwealth filed a Criminal Information, charging [Appellant] with two counts of Simple Assault[2] stemming from a domestic dispute involving his girlfriend at the time, Stacey L. Werner, as well as one count of Disorderly Conduct[3] for behavior witnessed by and directed at the North Cornwall police, who were called to the scene of the domestic dispute. The Information also charged [Appellant] with a summary violation of North Cornwall Township Ordinance 70-3(b)(1), Disorderly Conduct Towards Police Officer.
On September 28, 2011, pursuant to a negotiated plea agreement with the Commonwealth, [Appellant] pleaded guilty to the misdemeanor and summary charges of Disorderly Conduct in exchange for the Commonwealth's nol pros of both simple assault charges and a sentence of six (6) to twelve (12) months. . . . On October 26, 2011, this Court granted the Commonwealth's motion to nol pros both counts of Simple Assault and sentenced [Appellant] to a term of six (6) months to one (1) year on the misdemeanor charge of Disorderly Conduct.
On July 5, 2012, [Appellant] filed a pro se [PCRA] Petition . . . . We appointed counsel to represent [Appellant] . . . .

PCRA Ct. Op., 3/8/13, at 1-3 (unpaginated) (footnotes omitted).

A hearing was held on December 10, 2012. On March 4, 2012, the PCRA court entered the underlying order denying Appellant's PCRA petition, along with an opinion. This timely appeal followed. Appellant filed a court- ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCRA court did not file a Pa.R.A.P. 1925(a) opinion.

Appellant raises the following issues for our review:

1. Whether [the PCRA] court when it denied [Appellant's] PCRA petition, as plea counsel was ineffective for unlawfully inducing [Appellant] to plead guilty?
2. Whether [the PCRA] court erred when it denied [Appellant's] PCRA petition, as plea counsel was ineffective for failing to abide by the principles set forth under Lafler [ ]?

Appellant's Brief at 4 (unpaginated).

In his first issue, Appellant argues that "Plea Counsel was ineffective for unlawfully inducing [him] to plead guilty." Id. at 7. He contends counsel only spoke with him twice, did not file any pretrial motions, and did not contact witnesses who would have testified on his behalf. Id. at 7-8. Further, Appellant avers he was prejudiced when counsel led him to believe that pleading guilty was his only option due to his prior convictions. Id. at 12. The PCRA court opined:

[W]e are without authority to grant [Appellant] relief under the PCRA. [Appellant] began serving the six to twelve month county sentence imposed by this Court at this action number on October 26, 2011. On April 26, 2012, the minimum date of his county sentence, [Appellant] was paroled, and the state Department of Corrections thereafter recommitted him within the state system. On October 26, 2012, the Lebanon County Adult Probation Department released [Appellant] from supervision on the instant action number, as he had reached the end of the maximum sentence imposed by this Court.
In light of the above time line and the express language of 42 Pa.C.S. § 9543(a)(1), we find that, on this date, March 4, 2013, [Appellant] is ineligible for relief under the PCRA, because at the time the relief would be granted he is no longer currently serving a sentence of imprisonment, probation, or parole for the crime that underlies his Petition. While [Appellant] is arguably, by virtue of his state parole violation and recommitment, serving a term of imprisonment collaterally related to his Lebanon County conviction and sentence, neither he nor his counsel has provided any authority suggesting that a collaterally related term of imprisonment falls within the express, specific parameters of the PCRA.

PCRA Ct. Op. at 5-6 (footnotes omitted). We agree Appellant is ineligible for relief.

The statute 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 at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or parole for the crime[.]

42 Pa.C.S. § 9543(a)(1)(i).

Our supreme court [sic] has held that, to be eligible for relief under the PCRA, the petitioner must be "currently serving a sentence of imprisonment, probation or parole for the crime." 42 Pa.C.S.A. § 9543(a)(1)(i). As soon as his sentence is completed, the petitioner becomes ineligible for relief, regardless of whether he was serving his sentence when he filed the petition. In addition, this court determined in Commonwealth v. Fisher, 703 A.2d 714 (Pa.Super. 1997), that the PCRA precludes relief for those petitioners whose sentences have expired, regardless of the collateral consequences of their sentence. Id. at 716[.]

Commonwealth v. Hart, 911 A.2d 939, 941-42 (Pa.Super. 2006) (some citations omitted).

In the instant case, Appellant's parole ended and his sentence was completed on October 26, 2012. Because he is no longer serving a sentence for the conviction he challenges, we agree with the PCRA court that he is ineligible for relief under the PCRA. See 42 Pa.C.S. § 9543(a)(1)(i); see also Hart, 911 A.2d at 942.

Order affirmed.

Judgment Entered.


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