J-S21009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GERALD S. LEPRE, JR. : : Appellant : No. 543 WDA 2017
Appeal from the PCRA Order March 8, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015773-2015
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JULY 11, 2018
Appellant, Gerald S. Lepre, Jr., appeals from the March 8, 2017 order
dismissing his first petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant’s court-appointed counsel
filed both a petition to withdraw as counsel and an accompanying brief
pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and
its federal predecessor, Anders v. California, 386 U.S. 738 (1967).1 We
____________________________________________
1 Counsel seeking to withdraw from post-conviction representation must satisfy the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, “[b]ecause an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a [brief pursuant to Turner/Finley].” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted). Although counsel refers to the appellate brief submitted in this case as an “Anders” brief, we shall refer to her submission as a “Turner/Finley” brief, reflecting the correct line of authority under which it is filed. J-S21009-18
conclude that Appellant’s counsel complied with the procedural requirements
necessary to withdraw. Furthermore, we conclude that the appeal is without
merit; however, we also conclude that the PCRA court lacked authority to
enter the February 6, 2017 order granting Appellant relief. Hence, we vacate
the PCRA court’s February 6, 2017 order and affirm the PCRA court’s March 8,
2017 order.
The factual background and procedural history of this case are as
follows. On September 24, 2015, Appellant was pulled over by University of
Pittsburgh Police after he failed to stop at a red light. On February 1, 2016,
the Commonwealth charged Appellant via criminal information with two counts
of driving under the influence (“DUI”) – general impairment2 and failing to
stop at a red light.3 On August 1, 2016, Appellant pled guilty to one count of
DUI – general impairment. He was immediately sentenced to six months’
probation. On September 12, 2016, Appellant filed a pro se PCRA petition.
Counsel was appointed and filed an amended petition. On February 1, 2017,
Appellant’s probationary period expired. On February 6, 2017, the PCRA court
granted the amended petition in part and lowered Appellant’s fine. In that
same order, the PCRA court issued notice of its intent to dismiss the remainder
of the petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On
2 75 Pa.C.S.A. § 3802(a)(1).
3 75 Pa.C.S.A. § 3112(a)(3)(i).
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March 8, 2017, the PCRA court dismissed the remainder of Appellant’s PCRA
petition. This timely appeal followed.
Appellant’s counsel raises two issues in her Turner/Finley brief:
1. Did the [PCRA] court err in denying relief upon finding that it lacked jurisdiction over [Appellant’s] PCRA petition insofar as [Appellant] is no longer serving a sentence . . . ?
2. [Did the PCRA court err in dismissing Appellant’s ineffective assistance of counsel claim?]
Turner/Finley Brief at 5 (complete capitalization removed).4
Prior to addressing the merits of the issues raised in counsel’s
Turner/Finley brief, we must determine whether she met the procedural
requirements to withdraw as counsel. Counsel seeking to withdraw in PCRA
proceedings
must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the PCRA court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no- merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/Finley, the court — PCRA court ____________________________________________
4 Appellant filed a response to counsel’s Turner/Finley brief in which he argues that his PCRA counsel failed to meet the procedural requirements for withdrawing. This argument is without merit for the reasons set forth in note 1, supra. He also argues that his plea counsel was per se ineffective by not filing a direct appeal. As we conclude the PCRA court lacked the authority to grant him relief, we need not address this claim.
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or this Court — must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)
(cleaned up). In this case, counsel fulfilled the procedural requirements for
withdrawing as PCRA counsel.
The first issue raised in counsel’s Turner/Finley brief is whether the
PCRA court had jurisdiction over Appellant’s petition. “Whether a court has
subject matter jurisdiction presents a question of law, making our standard of
review de novo and the scope of our review plenary.” Hendricks v.
Hendricks, 175 A.3d 323, 328 (Pa. Super. 2017) (citation omitted). The
PCRA provides, in relevant part, that:
(a) General rule.--To be eligible for relief under [the PCRA], the petitioner must plead and prove by a preponderance of the evidence . . .
(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the crime; or
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.
42 Pa.C.S.A. § 9543.
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
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being sought.5 Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997);
Commonwealth v. Martin, 832 A.2d 1141, 1143 (Pa. Super. 2003), appeal
denied, 843 A.2d 1237 (Pa. 2004); Commonwealth v. James,
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J-S21009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GERALD S. LEPRE, JR. : : Appellant : No. 543 WDA 2017
Appeal from the PCRA Order March 8, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015773-2015
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JULY 11, 2018
Appellant, Gerald S. Lepre, Jr., appeals from the March 8, 2017 order
dismissing his first petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant’s court-appointed counsel
filed both a petition to withdraw as counsel and an accompanying brief
pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and
its federal predecessor, Anders v. California, 386 U.S. 738 (1967).1 We
____________________________________________
1 Counsel seeking to withdraw from post-conviction representation must satisfy the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, “[b]ecause an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a [brief pursuant to Turner/Finley].” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted). Although counsel refers to the appellate brief submitted in this case as an “Anders” brief, we shall refer to her submission as a “Turner/Finley” brief, reflecting the correct line of authority under which it is filed. J-S21009-18
conclude that Appellant’s counsel complied with the procedural requirements
necessary to withdraw. Furthermore, we conclude that the appeal is without
merit; however, we also conclude that the PCRA court lacked authority to
enter the February 6, 2017 order granting Appellant relief. Hence, we vacate
the PCRA court’s February 6, 2017 order and affirm the PCRA court’s March 8,
2017 order.
The factual background and procedural history of this case are as
follows. On September 24, 2015, Appellant was pulled over by University of
Pittsburgh Police after he failed to stop at a red light. On February 1, 2016,
the Commonwealth charged Appellant via criminal information with two counts
of driving under the influence (“DUI”) – general impairment2 and failing to
stop at a red light.3 On August 1, 2016, Appellant pled guilty to one count of
DUI – general impairment. He was immediately sentenced to six months’
probation. On September 12, 2016, Appellant filed a pro se PCRA petition.
Counsel was appointed and filed an amended petition. On February 1, 2017,
Appellant’s probationary period expired. On February 6, 2017, the PCRA court
granted the amended petition in part and lowered Appellant’s fine. In that
same order, the PCRA court issued notice of its intent to dismiss the remainder
of the petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On
2 75 Pa.C.S.A. § 3802(a)(1).
3 75 Pa.C.S.A. § 3112(a)(3)(i).
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March 8, 2017, the PCRA court dismissed the remainder of Appellant’s PCRA
petition. This timely appeal followed.
Appellant’s counsel raises two issues in her Turner/Finley brief:
1. Did the [PCRA] court err in denying relief upon finding that it lacked jurisdiction over [Appellant’s] PCRA petition insofar as [Appellant] is no longer serving a sentence . . . ?
2. [Did the PCRA court err in dismissing Appellant’s ineffective assistance of counsel claim?]
Turner/Finley Brief at 5 (complete capitalization removed).4
Prior to addressing the merits of the issues raised in counsel’s
Turner/Finley brief, we must determine whether she met the procedural
requirements to withdraw as counsel. Counsel seeking to withdraw in PCRA
proceedings
must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the PCRA court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no- merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/Finley, the court — PCRA court ____________________________________________
4 Appellant filed a response to counsel’s Turner/Finley brief in which he argues that his PCRA counsel failed to meet the procedural requirements for withdrawing. This argument is without merit for the reasons set forth in note 1, supra. He also argues that his plea counsel was per se ineffective by not filing a direct appeal. As we conclude the PCRA court lacked the authority to grant him relief, we need not address this claim.
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or this Court — must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)
(cleaned up). In this case, counsel fulfilled the procedural requirements for
withdrawing as PCRA counsel.
The first issue raised in counsel’s Turner/Finley brief is whether the
PCRA court had jurisdiction over Appellant’s petition. “Whether a court has
subject matter jurisdiction presents a question of law, making our standard of
review de novo and the scope of our review plenary.” Hendricks v.
Hendricks, 175 A.3d 323, 328 (Pa. Super. 2017) (citation omitted). The
PCRA provides, in relevant part, that:
(a) General rule.--To be eligible for relief under [the PCRA], the petitioner must plead and prove by a preponderance of the evidence . . .
(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the crime; or
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.
42 Pa.C.S.A. § 9543.
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
-4- J-S21009-18
being sought.5 Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997);
Commonwealth v. Martin, 832 A.2d 1141, 1143 (Pa. Super. 2003), appeal
denied, 843 A.2d 1237 (Pa. 2004); Commonwealth v. James, 771 A.2d 33
(Pa. Super. 2001); Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa.
Super. 1997). If a petitioner is not eligible for relief under section 9543, the
PCRA court lacks jurisdiction to consider the merits of the petition.
Commonwealth v. Ahlborn, 683 A.2d 632, 641 (Pa. Super. 1994) (en
banc), aff’d, 699 A.2d 718 (Pa. 1997). Although jurisdiction is determined at
the time a petition is filed, a case becomes moot if the petitioner finishes
serving his or her sentence while the petition is pending. See id.
Furthermore, “courts cannot decide moot or abstract questions[.]” Orfield v.
Weindel, 52 A.3d 275, 288 (Pa. Super. 2012). In other words, courts lack
authority to grant relief when a case is moot.
In this case, Appellant filed his PCRA petition while he was still on
probation. However, he ceased serving his probationary term on February 1,
2017. Hence, although the PCRA court had jurisdiction over the petition,
Appellant’s case became moot as of February 1, 2017, when his probationary
period expired. The PCRA court lacked the authority to grant Appellant relief
5Our Supreme Court’s recent decision in Commonwealth v. Delgros, 2018 WL 1959478 (Pa. Apr. 26, 2018) does not impact our analysis of this issue. That decision only addressed a trial court’s ability to consider ineffective assistance of counsel claims when raised in a post-sentence motion. See id. at *1. In this case, Appellant filed a PCRA petition and did not raise plea counsel’s alleged ineffectiveness in a post-sentence motion.
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after that date. Five days later, the PCRA court granted Appellant’s PCRA
petition in part despite lacking the authority to grant Appellant relief.
Therefore, we are constrained to vacate the February 6, 2017 order to the
extent that it granted Appellant relief. Moreover, as Appellant was not eligible
for relief after February 1, 2017, we also affirm the PCRA court’s March 8,
2017 order denying him relief with respect to his ineffective assistance of
counsel claim.
Order vacated in part and affirmed in part. Counsel’s petition to
withdraw granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/11/2018
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