J-A30030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ALONZO JOHNSON
Appellant No. 1381 WDA 2016
Appeal from the PCRA Order Entered August 22, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0013159-1991
BEFORE: BOWES, STABILE, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 27, 2018
Appellant Alonzo Johnson appeals from the August 22, 2016 order
entered in the Court of Common Pleas of Allegheny County (“PCRA court”),
which denied his petition for writ for coram nobis, treating it as a petition for
collateral relief under the Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A.
§§ 9541-46. PCRA counsel has filed a no-merit brief and petitioned to
withdraw under Turner/Finley.1 Upon review, we affirm and grant the
petition to withdraw.
The facts and procedural history of this case are undisputed. Briefly,
after having pleaded guilty, on April 21, 1994, Appellant was sentenced by the
trial court to 6 to 23 months’ imprisonment followed by a consecutive period
____________________________________________
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). J-A30030-17
of 5 years’ probation for possession with intent to deliver. Appellant did not
file a direct appeal.
Some years later, on July 30, 2013, Appellant was sentenced in federal
court to 24 years’ imprisonment followed by 10 years of supervised release
for his convictions for conspiracy and possession with intent to distribute 5
kilograms of cocaine. Appellant’s 1994 conviction was considered in
fashioning his federal sentence.
On November 24, 2014, Appellant pro se filed a petition for writ of coram
nobis. The PCRA court appointed counsel, who, on December 8, 2015, filed
an amended petition for writ of coram nobis, alleging claims for ineffective
assistance of counsel. Following the PCRA court’s issuance of a Pa.R.Crim.P.
907 notice of its intent to dismiss the petition without a hearing, the PCRA
court denied Appellant PCRA relief on August 22, 2016. In so doing, the PCRA
court concluded that Appellant was ineligible for relief under the PCRA because
he had finished serving his sentence. Appellant timely appealed to this Court.
On September 5, 2017, Appellant’s PCRA counsel filed in this Court an
application to withdraw as counsel and a no-merit letter, wherein counsel
raises a single issue for our review:
Did the lower court err in denying relief upon finding that a writ of coram nobis is not available as a remedy when a defendant is no longer serving a conviction that is being challenged on the grounds that a guilty plea was not knowingly, intelligently and voluntarily entered, where the post conviction relief act is not available under the circumstances?
-2- J-A30030-17
Turner/Finley Brief at 4 (unnecessary capitalization omitted and italicization
added).
Before we may consider this issue, we must address whether PCRA
counsel has met the requirements of Turner/Finley. For PCRA counsel to
withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the nature and extent of counsel’s review of the record; lists the appellate issues; and explains why those issues are meritless. (2) PCRA counsel must file an application to withdraw; serve the PCRA petitioner with the application and the no-merit letter; and advise the petitioner that if the Court grants the motion to withdraw, the petitioner can proceed pro se or hire his own lawyer.
(3) This Court must independently review the record and agree that the appeal is meritless.
See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875
(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),
overruled in part by, Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has petitioned for leave to withdraw and filed an Anders brief, which
we accept in lieu of a Turner/Finley no-merit letter.2 Finally, PCRA counsel
informed Appellant of his right to hire a new lawyer or file a pro se response. ____________________________________________
2 Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to withdraw on direct appeal, which are more stringent than the Turner/Finley requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817 n.2. “Because an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter.” Id.
-3- J-A30030-17
We now turn to this appeal to determine whether it is indeed meritless.
“On appeal from the denial of PCRA relief, our standard of review requires us
to determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Widgins, 29 A.3d at 819.
At the outset, we must determine whether the PCRA court erred in
treating Appellant’s petition for writ of coram nobis as a PCRA petition. It is
settled that the PCRA subsumes common law remedies where the relief sought
is available under the PCRA: “The action established in this subchapter shall
be the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus and coram nobis.” 42
Pa.C.S.A. § 9542 (emphasis added). Further, a “claim of ineffective
assistance of plea counsel, which is based on counsel’s failure to advise [a
defendant] of the collateral consequences of his plea, [is] cognizable under
the PCRA.” Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016).
Differently, put, “[w]here a petitioner’s claim is cognizable under the PCRA,
the PCRA is the only method of obtaining collateral relief.” Id. at 503; see
Commonwealth v. Eller, 807 A.2d 838, 842 (Pa. 2002) (noting that, if relief
is available under the PCRA, the PCRA is the exclusive means of obtaining the
relief sought). Accordingly, the PCRA court did not err in treating Appellant’s
petition for writ of coram nobis as a PCRA petition.
Having concluded that the PCRA court properly treated Appellant’s
petition for writ of coram nobis as PCRA petition, we now must determine
-4- J-A30030-17
whether the PCRA court erred in concluding that Appellant is ineligible for relief
under the PCRA. To be eligible for relief under the PCRA, a petitioner must
either be “currently serving a sentence of imprisonment, probation or parole
for the crime,” “awaiting execution of a sentence of death for the crime,” or
“serving a sentence which must expire before the person may commence
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J-A30030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ALONZO JOHNSON
Appellant No. 1381 WDA 2016
Appeal from the PCRA Order Entered August 22, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0013159-1991
BEFORE: BOWES, STABILE, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 27, 2018
Appellant Alonzo Johnson appeals from the August 22, 2016 order
entered in the Court of Common Pleas of Allegheny County (“PCRA court”),
which denied his petition for writ for coram nobis, treating it as a petition for
collateral relief under the Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A.
§§ 9541-46. PCRA counsel has filed a no-merit brief and petitioned to
withdraw under Turner/Finley.1 Upon review, we affirm and grant the
petition to withdraw.
The facts and procedural history of this case are undisputed. Briefly,
after having pleaded guilty, on April 21, 1994, Appellant was sentenced by the
trial court to 6 to 23 months’ imprisonment followed by a consecutive period
____________________________________________
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). J-A30030-17
of 5 years’ probation for possession with intent to deliver. Appellant did not
file a direct appeal.
Some years later, on July 30, 2013, Appellant was sentenced in federal
court to 24 years’ imprisonment followed by 10 years of supervised release
for his convictions for conspiracy and possession with intent to distribute 5
kilograms of cocaine. Appellant’s 1994 conviction was considered in
fashioning his federal sentence.
On November 24, 2014, Appellant pro se filed a petition for writ of coram
nobis. The PCRA court appointed counsel, who, on December 8, 2015, filed
an amended petition for writ of coram nobis, alleging claims for ineffective
assistance of counsel. Following the PCRA court’s issuance of a Pa.R.Crim.P.
907 notice of its intent to dismiss the petition without a hearing, the PCRA
court denied Appellant PCRA relief on August 22, 2016. In so doing, the PCRA
court concluded that Appellant was ineligible for relief under the PCRA because
he had finished serving his sentence. Appellant timely appealed to this Court.
On September 5, 2017, Appellant’s PCRA counsel filed in this Court an
application to withdraw as counsel and a no-merit letter, wherein counsel
raises a single issue for our review:
Did the lower court err in denying relief upon finding that a writ of coram nobis is not available as a remedy when a defendant is no longer serving a conviction that is being challenged on the grounds that a guilty plea was not knowingly, intelligently and voluntarily entered, where the post conviction relief act is not available under the circumstances?
-2- J-A30030-17
Turner/Finley Brief at 4 (unnecessary capitalization omitted and italicization
added).
Before we may consider this issue, we must address whether PCRA
counsel has met the requirements of Turner/Finley. For PCRA counsel to
withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the nature and extent of counsel’s review of the record; lists the appellate issues; and explains why those issues are meritless. (2) PCRA counsel must file an application to withdraw; serve the PCRA petitioner with the application and the no-merit letter; and advise the petitioner that if the Court grants the motion to withdraw, the petitioner can proceed pro se or hire his own lawyer.
(3) This Court must independently review the record and agree that the appeal is meritless.
See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875
(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),
overruled in part by, Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has petitioned for leave to withdraw and filed an Anders brief, which
we accept in lieu of a Turner/Finley no-merit letter.2 Finally, PCRA counsel
informed Appellant of his right to hire a new lawyer or file a pro se response. ____________________________________________
2 Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to withdraw on direct appeal, which are more stringent than the Turner/Finley requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817 n.2. “Because an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter.” Id.
-3- J-A30030-17
We now turn to this appeal to determine whether it is indeed meritless.
“On appeal from the denial of PCRA relief, our standard of review requires us
to determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Widgins, 29 A.3d at 819.
At the outset, we must determine whether the PCRA court erred in
treating Appellant’s petition for writ of coram nobis as a PCRA petition. It is
settled that the PCRA subsumes common law remedies where the relief sought
is available under the PCRA: “The action established in this subchapter shall
be the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus and coram nobis.” 42
Pa.C.S.A. § 9542 (emphasis added). Further, a “claim of ineffective
assistance of plea counsel, which is based on counsel’s failure to advise [a
defendant] of the collateral consequences of his plea, [is] cognizable under
the PCRA.” Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016).
Differently, put, “[w]here a petitioner’s claim is cognizable under the PCRA,
the PCRA is the only method of obtaining collateral relief.” Id. at 503; see
Commonwealth v. Eller, 807 A.2d 838, 842 (Pa. 2002) (noting that, if relief
is available under the PCRA, the PCRA is the exclusive means of obtaining the
relief sought). Accordingly, the PCRA court did not err in treating Appellant’s
petition for writ of coram nobis as a PCRA petition.
Having concluded that the PCRA court properly treated Appellant’s
petition for writ of coram nobis as PCRA petition, we now must determine
-4- J-A30030-17
whether the PCRA court erred in concluding that Appellant is ineligible for relief
under the PCRA. To be eligible for relief under the PCRA, a petitioner must
either be “currently serving a sentence of imprisonment, probation or parole
for the crime,” “awaiting execution of a sentence of death for the crime,” or
“serving a sentence which must expire before the person may commence
serving the disputed sentence.” 42 Pa.C.S.A. § 9543(a)(1)(i)-(iii).
Our Supreme Court and this Court have consistently interpreted Section
9543(a) to require that a PCRA petitioner be serving a sentence while relief is
being sought. Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997);
Commonwealth v. Martin, 832 A.2d 1141, 1143 (Pa. Super. 2003). As our
Supreme Court explained in Ahlborn, the denial of relief for a petitioner who
has finished serving his sentence is required by the plain language of the PCRA
statute. Ahlborn, 699 A.2d at 720. Indeed, to be eligible for relief, a
petitioner must be currently serving a sentence of imprisonment, probation,
or parole. Id. To grant relief at a time when an appellant is not currently
serving such a sentence would be to ignore the language of the PCRA. Id.
Moreover, we have explained that “the [PCRA] preclude[s] relief for
those petitioners whose sentences have expired, regardless of the collateral
consequences of their sentence.” Commonwealth v. Fisher, 703 A.2d 714,
716 (Pa. Super. 1997). It is well settled that the PCRA court loses jurisdiction
the moment an appellant’s sentence expires. See Commonwealth v.
Turner, 80 A.3d 754, 769 (Pa. 2013) (holding that when a petitioner’s
-5- J-A30030-17
sentence expires while his PCRA petition is pending before the PCRA court,
the PCRA court loses jurisdiction to rule on the merits of the petition).
Here, based on our review of the record, it is undisputed that Appellant
does not meet any of the foregoing eligibility requirements as he has
completed his April 21, 1994 sentence of 6 to 23 months’ imprisonment
followed by 5 years of probation. Thus, the PCRA court did not err in finding
Appellant ineligible for PCRA relief, as it was without jurisdiction.
PCRA counsel has complied with Turner/Finley. We independently
have reviewed the record to determine that the issue raised is in fact frivolous,
and we are convinced that there is no basis for collateral relief.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/27/2018
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