Com. v. Mohylsky, G.

• Court: Superior Court of Pennsylvania
• Decided: March 18, 2015
• Docket: 1333 EDA 2014
• Status: Unpublished

Opinion

J-S18020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

GARY MOHYLSKY,

Appellant No. 1333 EDA 2014

Appeal from the PCRA Order entered March 21, 2014, in the Court of Common Pleas of Northampton County, Criminal Division, at No(s): CP-48-SA-0000171-2011

BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.: FILED MARCH 18, 2015

Gary Mohylsky (“Appellant”) appeals pro se from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court summarized the pertinent facts and procedural history

as follows:

On December 20, 2011, after a trial on his summary appeal, [Appellant] was found guilty of one count of driving while operating privilege is suspended or revoked [(DUI-related)], 75 Pa.C.S.A. § 1543(b). [He] was sentenced to ninety days in the Northampton County prison and fined $1000.00 plus court costs. [Appellant] was represented by Christopher Spadoni, Esquire.

[Appellant] filed a direct appeal of his sentence, which was affirmed by the Superior Court in a memorandum opinion dated October 25, 2012. [Commonwealth v. Mohylsky, 62 A.3d 464 (Pa. Super. 2012).] On October 16, 2013, the Supreme Court of Pennsylvania denied [Appellant’s] Petition for Allowance of Appeal. J-S18020-15

[Commonwealth v. Mohylsky, 79 A.3d 1097 (Pa. 2103).] [Appellant’s] Application for Reconsideration was denied on November 22, 2013.

On December 9, 2013, [Appellant] filed the instant PCRA Petition. [Appellant] was represented by James Connell, Esquire. A PCRA hearing was held before the Honorable F.P. Kimberley McFadden on January 24, 2014, during which [Appellant] asserted that trial counsel was ineffective. Mr. Connell filed a brief in support of [Appellant’s] request for relief on January 31, 2014. The Commonwealth filed a brief in opposition on February 10, 2014.

PCRA Court Opinion, 3/21/14, at 1-2.

By order and opinion entered on March 21, 2014, the PCRA court

denied Appellant’s PCRA petition. Appellant filed a notice of appeal to this

Court. Thereafter, the PCRA court entered an order directing Appellant to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Appellant never complied; therefore, in its Pa.R.A.P. 1925(a)

statement, the PCRA court found waiver. See PCRA Court Pa.R.A.P. 1925(a)

Statement, 5/29/14, at 1.

On July 22, 2014, this Court entered an order permitting counsel to

withdraw, denying Appellant’s request for appointed counsel, and remanding

the matter for twenty-one days for the filing of a Pa.R.A.P. 1925(b)

statement. Appellant filed his concise statement on August 11, 2014, and

the PCRA court filed a Pa.R.A.P. 1925(a) opinion on August 27, 2014.

Before considering Appellant’s issues, we must first determine if they

are properly before us. The Commonwealth contends that Appellant filed his

appeal in an untimely manner. See Commonwealth Brief at 8-9. Our

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review of the certified record refutes this contention. The docket reveals

that, although the order denying Appellant’s PCRA petition was filed on

March 21, 2014, the clerk of courts did not send the order to PCRA counsel

until March 26, 2014. See Pa.R.A.P. 108(a)(1) (providing that day of entry

of an order shall be the day the clerk of court mails or delivers copies of the

order to the parties). Because PCRA counsel filed Appellant’s notice of

appeal on April 23, 2014, it is timely. See Pa.R.A.P. 903(a) (providing that

a notice of appeal shall be filed within 30 days after the entry of the order

from which the appeal is taken).

Although we disagree with the Commonwealth regarding the

timeliness of Appellant’s appeal, we agree with its assertion that Appellant is

no longer eligible for relief under the PCRA because Appellant has served his

ninety (90) day prison sentence. See Commonwealth Brief at 9-10; see

also Commonwealth v. Soto, 983 A.2d 212, 213-14 (Pa. Super. 2009)

(explaining that once a PCRA petitioner has completed the terms of his

sentence, he or she is no longer eligible for PCRA relief; “the burden of

proving a PCRA petitioner is currently serving a sentence of imprisonment,

probation or parole rests on the petitioner”).

In his reply brief, Appellant concedes that he has completed his ninety

(90) day prison sentence. Appellant’s Reply Brief at 8. Appellant

nevertheless contends that “the fact remains in order to complete his

sentence [he] must pay well over $1,000.00” in fines and costs. Id.

According to Appellant, he “has lost employment and earning power because

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of this incident and has not paid the fines and costs. Therefore, [he] is on

probation and at the mercy of the court until the sentence is complete.

[Appellant] is facing additional incarceration and needs PCRA relief.”

Appellant’s Reply Brief at 8. We disagree. See, e.g., Commonwealth v.

Viglione, 842 A.2d 454, 460 (Pa. Super. 2004) (en banc) (holding that the

PCRA petitioner was ineligible for relief under the PCRA because he was only

sentenced to pay a fine).

In sum, because Appellant is not eligible for post-conviction relief, we

affirm the PCRA court’s order denying Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/18/2015

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