Com. v. Lawrence, L.

Opinion

J-S45022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LATISHA LAWRENCE

Appellant No. 1421 EDA 2013

Appeal from the PCRA Order of May 6, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0007701-2010

BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.: FILED NOVEMBER 07, 2014

Latisha Lawrence appeals the order entered on May 6, 2013,

dismissing without a hearing her petition for collateral relief under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Because the record

indicates that Lawrence has finished serving her sentence at this time, she is

ineligible for relief under the PCRA. Consequently, we affirm the PCRA

court’s order denying her PCRA petition.

On March 25, 2011, following a bench trial, Lawrence was found guilty

of aggravated assault, simple assault, and recklessly endangering another

person.1 After the trial court rendered its verdict, Lawrence waived the

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* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 2702, 2701, and 2705 (respectively). J-S45022-14

preparation of a pre-sentence investigation, a mental health evaluation, and

an investigation of her prior record score. See Notes of Testimony,

3/25/2011, at 68. Lawrence asserted, and the Commonwealth did not

dispute, that she had no prior offenses. Id. at 67, 69. Immediately after

rendering its verdict, the trial court imposed an aggregate sentence of three

years’ probation. See PCRA Court Opinion, 1/8/2014, at 1. The sentence

was set to commence as of March 25, 2011. See Order of Sentence, Waiver

Trial, 3/25/2011. Lawrence did not file a direct appeal of her judgment of

sentence. Consequently, her judgment of sentence became final thirty days

after its entry, on April 24, 2011. 42 Pa.C.S. § 9543(b)(3) (“[A] judgment

becomes final at the conclusion of direct review . . . or at the expiration of

time for seeking the review.”)

On May 24, 2011, Lawrence filed a timely pro se petition for relief

under the PCRA. On or about November 28, 2011, the PCRA court

appointed counsel to represent Lawrence. On January 27, 2012, counsel

filed an amended PCRA petition and filed a supplement to that petition on

September 14, 2012. On April 5, 2013, the Commonwealth filed a motion to

dismiss Lawrence’s petition. At a May 6, 2013 hearing, the PCRA court

dismissed the petition without taking evidence, apparently based upon the

court’s belief that Lawrence’s attorney, who was not present, intended to

seek to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988) (en banc). On May 15, 2013, Lawrence filed the instant

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notice of appeal.2 Counsel for Lawrence asserts that the PCRA court

misunderstood his intention, and that counsel intended to appear and seek

PCRA relief on Lawrence’s behalf. Thus, Lawrence seeks a remand for an

evidentiary hearing. See Brief for Lawrence at 6-9.

The PCRA provides for relief only when the petitioner “pleads and

proves by a preponderance of the evidence” that she is “currently serving a

sentence of imprisonment, probation or parole” for the underlying crime.

42 Pa.C.S. § 9543(a)(1)(i). On March 25, 2011, Lawrence was sentenced to

an aggregate term of three years’ probation. As of that date, Lawrence had

no prior offenses, and Lawrence’s probation began immediately.

Lawrence’s petition was filed when she had served only two months of

her three-year sentence. However, after numerous extensive delays, at

least some of them evidently occasioned by the PCRA court, the order

resolving her PCRA petition was entered on May 6, 2013, and she filed her

notice of appeal on May 15, 2013, well over one year ago. However, the

record indicates, and Lawrence does not dispute, that her probation

terminated on or about March 25, 2014. Consequently, this Court lacks

jurisdiction to review the instant appeal. See Commonwealth v. Turner,

2 On June 12, 2013, the PCRA court filed an order directing Lawrence to file a concise statement of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, Lawrence had already filed her Rule 1925(b) statement on June 7, 2013. The trial court did not file its Rule 1925(a) opinion until January 8, 2014, approximately six months later.

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80 A.3d 754, 765-66 (Pa. 2013) (holding that “individuals who are not

serving a state sentence have no liberty interest in and therefore no due

process right to collateral review of that sentence,” under the PCRA or in

state or federal habeas corpus proceedings). Consequently, as of this

writing Lawrence’s eligibility for relief under the PCRA has expired. See

Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (“[T]he denial

of relief for a petitioner who has finished serving his sentence is required by

[the PCRA]. To be eligible for relief a petition must be currently serving a

sentence of imprisonment, probation or parole.”).

This was not the case when the PCRA court dismissed Lawrence’s

petition, allegedly based upon an misunderstanding. But it is the case now,

and this precludes this Court from granting her the relief she seeks. “[T]his

Court may affirm a decision of the trial court if there is any basis on the

record to support the trial court’s actions, even if we rely on a different

basis.” Commonwealth v. Moser, 999 A.2d 602, 606 n.5

(Pa. Super. 2010). In this case, we must do exactly that.

Order affirmed.

Bowes, J. joins the memorandum.

Fitzgerald, J. did not participate in the consideration or decision of this

case.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/7/2014

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