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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

February 18, 2014



Appeal from the Order entered on November 6, 2012 in the Court of Common Pleas of Luzerne County, Criminal Division, No. CP-40-CR-0002193-2010




Armoni Masud Johnson ("Johnson") appeals from the Order denying his "Post-Sentence Motion" to dismiss his charges pursuant to Pennsylvania Rule of Criminal Procedure 600. Additionally, Matthew P. Kelly, Esquire ("Kelly"), Johnson's counsel, has filed a Petition to Withdraw as counsel. We affirm, and grant Kelly's Petition to Withdraw.

On July 26, 2010, Johnson was charged with possession of a controlled substance (heroin). Johnson filed a pre-trial Rule 600 Motion, which the trial court denied. Thereafter, a jury found Johnson guilty of the above-mentioned crime. On January 17, 2012, the trial court sentenced Johnson to a minimum of 50 days and a maximum of 1 year at the Luzerne County Correctional Facility, and immediately paroled him. Johnson subsequently violated the terms of his parole and on June 12, 2012, a Petition to Revoke Parole was filed. At the parole revocation hearing on September 5, 2012, Johnson admitted to the violation. The trial court accepted the recommendation of the probation department that Johnson be remanded to the Luzerne County Correctional Facility to complete his sentence, which expired on December 8, 2012. The trial court also advised Johnson of his right to appeal. Johnson did not file a direct appeal.

Instead, on October 11, 2012, Johnson filed a "Post-Sentence Motion, " claiming that his pre-trial Rule 600 Motion should have been granted. The Motion was denied on November 6, 2012, as being untimely filed. Johnson filed a pro se Notice of Appeal from this denial. Thereafter, Kelly was appointed as Johnson's counsel.

Prior to addressing Kelly's Petition to Withdraw as counsel, we must ascertain whether Johnson's filing was a post-sentence motion or whether it should have been treated as a petition for relief under the Post Conviction Relief Act ("PCRA"). Based upon this determination, we can establish whether counsel's request to withdraw should be evaluated under Anders v. California, 386 U.S. 738, 744 (1967) or Turner/Finley.[1]

Here, Johnson's judgment of sentence became final on October 5, 2012, as he did not file a timely appeal from the revocation of his parole on September 5, 2012. See Pa.R.A.P. 903(a); see also Pa.R.Crim.P. 708(E) (stating that "[a] motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period."). Thus, Johnson's post-sentence Motion should have been treated as a PCRA Petition. See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013) (reiterating "that all motions filed after a judgment of sentence is final are to be construed as PCRA petitions."). Accordingly, we must address Kelly's Petition to Withdraw under Turner/Finley.[2]

Pursuant to Turner/Finley, independent review of the record by competent counsel is required before withdrawal on collateral appeal is permitted. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained that such independent review requires proof of

1)A "no-merit" letter by PCRA counsel detailing the nature and extent of his review;
2)The "no-merit" letter by PCRA counsel listing each issue the petitioner wished to have reviewed;
3)The PCRA counsel's "explanation, " in the "no-merit" letter, of why the petitioner's issues were meritless;
4)The PCRA court conducting its own independent review of the record; and
5) The PCRA court agreeing with counsel that the petition was meritless.

Id. (citation and brackets omitted). Further, our Court has held that the Supreme Court in Pitts did not expressly overrule the additional requirement imposed by this Court in Commonwealth v. Friend, 896 A.2d 607, 615 (Pa.Super. 2006), stating

that PCRA counsel seeking to withdraw contemporaneously forward to the petitioner a copy of the application to withdraw that includes (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel.

Widgins, 29 A.3d at 818.

Here, in the Turner/Finley brief, Kelly described the extent of his review, identified the issues that Johnson sought to raise, and explained why the issues lacked merit. In addition, Kelly provided Johnson notice of his intention to seek permission to withdraw from representation, a copy of the "no-merit" brief, and advised Johnson of his rights in lieu of representation. Thus, we conclude that Kelly has substantially complied with the requirements necessary to withdraw as counsel. We now independently review Johnson's claims to ascertain whether they entitle him to relief.

On appeal, Johnson raises the following question for our review: "Whether the trial court made an error of law by dismissing [Johnson's] Post Trial Motion[?]" Turner/Finley Brief at 1. Johnson filed a pro se response to Kelly's Petition to Withdraw, raising various claims regarding his sentence and ineffective assistance of counsel.

We note 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." Commonwealth v. Hart, 911 A.2d 939, 942 (Pa.Super. 2006).

Here, Johnson completed his sentence for the possession of heroin conviction on December 8, 2012. See Order, 9/5/12 (wherein the trial court revoked Johnson's parole and ordered him to serve the remainder of his sentence, which had an end date of December 8, 2012, in prison); see also Johnson's Pro Se Response, 9/11/13, at 1 (unnumbered) (wherein Johnson admitted that he had served his entire sentence). Thus, even though Johnson filed his "Motion" prior to the expiration of his sentence, he is not eligible for relief under the PCRA. See Hart, 911 A.2d at 942. Because Johnson is not eligible for relief, we conclude that Kelly is permitted to withdraw as counsel.

Order affirmed. Petition to Withdraw as counsel granted.

Judgment Entered.

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