Com. v. Boichuk, V.

• Court: Superior Court of Pennsylvania
• Decided: May 24, 2022
• Docket: 608 MDA 2021
• Status: Published

Opinion

J-A10012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VOLODYMYR ROMANOVY BOICHUK : : Appellant : No. 608 MDA 2021

Appeal from the PCRA Order Entered April 19, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004473-2018

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY PANELLA, P.J.: FILED: MAY 24, 2022

Volodymyr Romanovy Boichuk appeals from the order entered in the

Lancaster County Court of Common Pleas on April 16, 2021, denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. The PCRA court denied Boichuk’s petition for lack of merit. As

Boichuk is no longer serving the sentence associated with this petition, we are

constrained to find Boichuk is due no relief. We therefore affirm the PCRA

court’s decision to dismiss the PCRA petition, albeit on different grounds.

The PCRA court accurately summarized the factual and procedural

history as follows.

On August 2, 2018, the police were dispatched to the Manheim Auto Auction in Penn Township, Lancaster County, PA. An employee of the Auction had observed Boichuk entering and exiting multiple luxury vehicles in the sales lot - an area not accessible by the general public and fenced in with attached "authorized access only" signs. Upon inspection of the vehicles, J-A10012-22

the employee found the navigation chips and key fobs missing. The employee confronted Boichuk and recovered multiple navigation chips and key fobs valued in excess of $10,000.00 for the vendor. Boichuk neither owned nor had authorized control over either the vehicles entered or the fobs and chips taken. As a result, Boichuk was arrested and charged with theft by unlawful taking - movable property, 18 Pa.C.S.A. §3921 (a).

Having been denied admittance to the A.R.D. Program, Boichuk tendered a negotiated guilty plea to the charge on February 27, 2019. After conducting a lengthy on-the-record colloquy, the Court accepted the guilty plea as knowingly and voluntarily given, and sentenced Boichuk in accordance with the plea agreement to three years' probation, a $100.00 fine, and the costs of prosecution. No post sentence motion or direct appeal was filed. Boichuk was represented at the guilty plea hearing by privately retained counsel[].

PCRA Court Opinion, 8/16/2021, at 1-2.

On February 21, 2020, Boichuk filed a timely PCRA petition challenging

the effectiveness of plea counsel. On October 14, 2020, an evidentiary hearing

was held on the limited issue of whether plea counsel sufficiently advised

Boichuk of the benefits and disadvantages of entering into a negotiated plea

agreement and his chances of success at trial. Plea counsel and Boichuk (using

a Ukrainian language interpreter) testified at the hearing. The PCRA court

subsequently denied the PCRA petition. This timely appeal followed.

We need not reach the substance of Boichuk’s issue on appeal, as he is

ineligible for PCRA relief. The PCRA states that an appellant not currently

incarcerated or on probation or parole with regard to the sentence for which

PCRA relief is requested cannot establish eligibility for PCRA relief. See 42

Pa.C.S.A § 9543(a)(1)(i). Our Supreme Court has upheld this requirement

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even where the PCRA petitioner initially filed the petition while still serving a

sentence. See Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997) (PCRA

petitioner who had completed his prison sentence prior to any final

adjudication of his PCRA petition, even though he initially filed the petition

while still incarcerated, was ineligible for PCRA relief).

Boichuk was sentenced to three years of probation on February 27,

2019. Boichuk’s probation therefore terminated three years later on February

27, 2022. Boichuk has accordingly completed serving the sentence on the

crime for which he seeks relief.

As Boichuk is no longer on probation during the pendency of the final

adjudication of his request for PCRA relief, we are constrained to find Boichuk

has failed to meet the requirements of eligibility for relief under the PCRA.

See 42 Pa.C.S.A § 9543(a)(1); see also Ahlborn, 699 A.2d at 720. The fact

that his sentence expired after the PCRA court entered the order denying him

relief does not change this outcome. See Commonwealth v. Plunkett, 151

A.3d 1108, 1110 (Pa. Super. 2016). Accordingly, because the trial court

ultimately dismissed the PCRA petition, we affirm the decision, albeit on

different grounds.1

Order affirmed. Jurisdiction relinquished.

____________________________________________

1 See Commonwealth v. Parker, 919 A.2d 943, 948 (Pa. 2007) (citations

omitted) (noting that “an appellate court has the ability to affirm a valid judgment or verdict for any reason appearing as of record.”).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/24/2022

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