Com. v. O' Hara, D.

• Court: Superior Court of Pennsylvania
• Decided: February 14, 2017
• Docket: Com. v. O' Hara, D. No. 733 MDA 2016
• Status: Unpublished

Opinion

J-S91028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

DENNIS WILLIAM O’HARA

Appellant No. 733 MDA 2016

Appeal from the PCRA Order April 14, 2016 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005631-1999

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 14, 2017

Appellant, Dennis William O’Hara, appeals from the April 14, 2016

order, denying as untimely his petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On April 12, 2000, Appellant pleaded guilty in Cumberland County to

one count of burglary. On May 1, 2000, Appellant pleaded guilty in York

County to burglary, theft, and receiving stolen property.1 See Notes of

Testimony (N. T.), 5/1/00, at 1-3. On June 12, 2000, Appellant was

sentenced to one and one-half to three years of incarceration.2 See N. T.

6/12/00 at 2.

____________________________________________

1 18 Pa.C.S. §§ 3502, 3921, and 3925, respectively. 2 The record indicates that Appellant’s York County sentence was also imposed concurrent to a sentence imposed in Cumberland County, although (Footnote Continued Next Page)

* Former Justice specially assigned to the Superior Court. J-S91028-16

Following Appellant’s release, he was arrested and subsequently

pleaded guilty to three federal counts3 on April 3, 2014. See United States

v. O’Hara, 601 F. App’x 94, 95 (3d Cir. 2015) (unpublished memorandum).

On August 26, 2014, Appellant filed a petition in the York County Court

of Common Pleas, seeking to vacate his state sentences. See Notice of

Motion to Vacate Sentence, 8/26/14, at 1. Appellant claimed that the

sentences imposed after crimes committed in York and Cumberland counties

should have been “run together” and that the federal court had erred by

treating the sentences as separate convictions. Id. The lower court denied

this petition, treating it as an untimely post-sentence motion, and

subsequently denied Appellant’s motion for reconsideration on January 20,

2015.

On April 3, 2015, Appellant received an aggregate federal sentence of

180 months on the federal charges. On April 13, 2015, Appellant filed a

notice of appeal to this Court.

On January 13, 2016, by judgment order, a panel of this Court vacated

the trial court order and remanded for appointment of counsel, holding that

the trial court should have treated the August 26, 2014 petition as a first _______________________ (Footnote Continued)

the record does not indicate the length of the Cumberland County Sentence. See N. T. 6/12/00 at 2. 3 Distribution and possession with intent to distribute cocaine hydrochloride, Oxycontin, and Opana, 21 U.S.C. § 841; unlawful use of a communication facility to facilitate drug trafficking, 21 U.S.C. § 843(b); and conspiracy to distribute cocaine hydrochloride, Oxycontin, and Opana, 21 U.S.C. § 846.

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PCRA petition. See Commonwealth v. O’Hara, 136 A.3d 1031 (Pa. Super.

2016) (unpublished memorandum).

PCRA counsel was appointed and filed a Turner/Finley4 letter. The

PCRA court granted counsel’s petition and gave Appellant notice pursuant to

Pa.R.Crim.P. 907 that his petition would be dismissed within twenty days.

On April 14, 2016, the PCRA court formally dismissed Appellant’s petition.

Appellant timely appealed pro se. The court did not order him to file a

statement of errors pursuant to Pa.R.A.P. 1925(b), as he filed his statement

of errors simultaneously with his appeal. The court issued a responsive

opinion.

We initially note that Appellant’s brief does not comply with the Rules

of Appellate Procedure, in that it does not contain a statement of

jurisdiction, order in question, statement of questions involved, statement of

the case, or summary of the argument. See Pa.R.A.P. 2114-2119.

However, we discern the gist of his argument. Essentially, Appellant argues

that his cases in 2000 should have been consolidated, but because they

were not, a 2007 change in federal sentencing guidelines resulted in an

enhanced sentence. See Appellant’s Brief at 4-8. Appellant argues that this

amounted to governmental interference and ineffective assistance of

counsel. Id.

4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).

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We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

To be eligible for PCRA relief, an Appellant must, at the time relief is

granted, be currently serving a sentence of imprisonment, probation, or

parole for the crime. See 42 Pa.C.S. § 9543(a)(1)(i) (emphasis added);

see also Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997); see

also Commonwealth v. Turner, 80 A.3d 754 (2013). Although Appellant

is serving a federal sentence, he is no longer serving a state sentence, and

accordingly, he is not eligible for PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/14/2017

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