Com. v. Hess, E.

• Court: Superior Court of Pennsylvania
• Decided: October 22, 2024
• Docket: 143 MDA 2024
• Status: Unpublished

Opinion

J-S36044-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ELLIS WAYNE HESS : : Appellant : No. 143 MDA 2024

Appeal from the PCRA Order Entered January 8, 2024 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0001652-2019

BEFORE: LAZARUS, P.J., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 22, 2024

Appellant, Ellis Wayne Hess, appeals from the post-conviction court’s

January 8, 2024 order denying his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. On appeal, Appellant

argues that his trial counsel was ineffective for failing to call a certain witness.

After careful review, we affirm.

The facts of Appellant’s underlying convictions are not germane to our

disposition of this appeal. In October of 2020, a jury convicted Appellant of

unlawful contact with a minor and endangering the welfare of a child. On

February 9, 2021, Appellant was sentenced to a term of incarceration of one

year less one day, to two years’ less one day, followed by one year of

probation. Appellant was also ordered to comply with the requirements of the

Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §

9799.10 et seq., for 25 years. See 42 Pa.C.S. § 9799.14(c)(5) (categorizing J-S36044-24

unlawful contact with a minor as a Tier II sexual offense); 42 Pa.C.S. §

9799.15(a)(2) (directing that an individual who committed a Tier II sexual

offense shall register for 25 years). Appellant filed a timely direct appeal, and

after this Court affirmed his judgment of sentence on June 7, 2022, our

Supreme Court denied his subsequent petition for allowance of appeal. See

Commonwealth v. Hess, 281 A.3d 1053 (Pa. Super. 2022) (unpublished

memorandum), appeal denied, 288 A.3d 73 (Pa. 2022).

On April 17, 2023, Appellant filed a timely, pro se PCRA petition.

Counsel was subsequently appointed and filed an amended petition on

Appellant’s behalf on June 29, 2023. The PCRA court conducted an evidentiary

hearing on August 2, 2023. On January 8, 2024, the PCRA court issued an

order and opinion denying Appellant’s petition. He filed a timely appeal, and

complied with the court’s order to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal. The court thereafter filed a Rule 1925(a)

opinion indicating it was relying on the rationale set forth in its opinion

accompanying the January 8, 2024 order denying Appellant’s petition.

Herein, Appellant states one issue for our review:

Whether [Appellant’s] trial counsel provided ineffective assistance of counsel by failing to call a witness at trial when that uncalled witness existed prior to trial, was available and willing to testify, was known to trial counsel, and the absence of his testimony was so prejudicial as to deny [Appellant] a fair trial because the uncalled witness heard the complainant laugh as she said she made up the accusations against [Appellant] because he kicked her out of his home?

Appellant’s Brief at 4.

-2- J-S36044-24

Initially, we recognize that, “[i]n reviewing the denial of PCRA relief, we

examine whether the PCRA court’s determination is supported by the record

and free of legal error.” Commonwealth v. Kirwan, 221 A.3d 196, 199 (Pa.

Super. 2019) (quoting Commonwealth v. Mitchell, 141 A.3d 1277, 1283–

1284 (Pa. 2016) (internal punctuation and citation omitted)).

Before addressing the merits of this issue, we assess the

Commonwealth’s claim that Appellant is ineligible for PCRA relief because he

“is not currently serving a sentence.” Commonwealth’s Brief at 15. The PCRA

mandates that, “[t]o be eligible for relief under this subchapter, the petitioner

must plead and prove by a preponderance of the evidence … [t]hat the

petitioner has been convicted of a crime under the laws of this Commonwealth

and is at the time relief is granted … currently serving a sentence of

imprisonment, probation or parole for the crime[.]” 42 Pa.C.S.

§ 9543(a)(1)(i). Here, Appellant’s maximum sentence of incarceration of two

years less one day, which was imposed on February 9, 2021, was fully served

on February 8, 2023. Additionally, his consecutive, one-year sentence of

probation would have commenced on February 9, 2023, and expired on

February 9, 2024. Consequently, the Commonwealth is correct that Appellant

is no longer serving a sentence of incarceration, probation, or parole.

Therefore, Appellant is now ineligible for post-conviction relief, and the PCRA

court did not err in denying his petition. See Kirwan, 221 A.3d at 200 (“[T]he

PCRA restricts relief to those petitioners ‘currently serving a sentence of

imprisonment, probation or parole for the crime[.]’ 42 Pa.C.S. §

-3- J-S36044-24

9543(a)(1)(i)…. Under a plain reading of the statute, Kirwan is not currently

imprisoned, on probation or on parole, and is, therefore, ineligible for PCRA

relief.”) (emphasis omitted).1

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 10/22/2024

____________________________________________

1 We also point out that Appellant’s 25-year registration requirement under

SORNA does not constitute a “sentence” under section 9543(a)(1). See Kirwan, 221 A.3d at 199-200 (rejecting Kirwan’s argument that his SORNA registration requirement is akin to a sentence of probation and, therefore, meets the eligibility requirements of section 9543(a)(1), as “[t]he language of the statute clearly states that only the sanctions of imprisonment, probation and parole are ‘sentences’ for eligibility purposes”).

-4-