Com. v. Petterson, E.

• Court: Superior Court of Pennsylvania
• Decided: December 17, 2024
• Docket: 1946 EDA 2023
• Status: Unpublished

Opinion

J-S44018-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC PETTERSON : : Appellant : No. 1946 EDA 2023

Appeal from the PCRA Order Entered June 23, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-1135991-1992

BEFORE: NICHOLS, J., MURRAY, J., and LANE, J.

MEMORANDUM BY MURRAY, J.: FILED DECEMBER 17, 2024

Eric Petterson (Appellant) appeals from the order dismissing his

untimely first petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Appellant’s appointed counsel, Todd M. Mosser,

Esquire (Counsel), has filed a petition to withdraw from representation and a

brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We

grant Counsel’s application to withdraw and affirm the PCRA court’s order.

A detailed factual history is unnecessary for disposition of this appeal.

At the instant docket, the Commonwealth charged Appellant with one count

each of firearms not to be carried without a license and carrying a firearm on J-S44018-24

public streets in Philadelphia.1 Criminal Complaint, 12/1/92, at 1. On April 6,

1994, a jury convicted Appellant of one count of carrying a firearm on public

streets in Philadelphia. That same date, at numerous related dockets,2 the

jury convicted Appellant of thirteen counts of robbery, four counts of criminal

conspiracy,3 and five additional counts of carrying a firearm on public streets

in Philadelphia.4

Although the certified record before this Court relates only to the instant

docket, our memorandum disposing of Appellant’s PCRA petitions at his

related dockets observed that the trial court5 sentenced Appellant to an

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1 18 Pa.C.S.A. §§ 6106, 6108.

2 CP-51-CR-0226901-1993, CP-51-CR-0227181-1993, CP-51-CR-0230231- 1993, CP-51-CR-0226811-1993 (collectively, related dockets). All counts were joined for trial, but, as discussed infra, Appellant only appealed his judgment of sentence from the related dockets.

3 18 Pa.C.S.A. §§ 3701, 903.

4 Another panel of this Court recently affirmed the dismissal of Appellant’s third, untimely PCRA petitions concerning the related dockets. Commonwealth v. Lewis, 3182, 3184, 3185, and 3186 EDA 2022 (Pa. Super. filed Oct. 10, 2024) (unpublished memorandum). Appellant, whose real name is Leon Lewis, gave the arresting officer the above-captioned alias, Eric Petterson. Id. (unpublished memorandum at 12 n.8). Like the Lewis Court, we observe the trial court “addressed [the instant] case as involving ‘Eric Peterson a/k/a Leon Lewis,’ a variant spelling of the alias that appears in the lower court’s caption” at the instant docket. Id. at 6 n.3; see also Sentencing Order, 6/3/94; Notice of Appeal, 7/18/23, at 1 (unpaginated) (Appellant’s handwritten caption identifying himself as “Leon Lewis AKA Eric Petterson”).

5 The Honorable John Chiovero presided over Appellant’s trial and sentencing.

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aggregate 60 to 240 years in prison on June 3, 1994. Commonwealth v.

Lewis, 3182, 3184, 3185, and 3186 EDA 2022 (Pa. Super. filed Oct. 10, 2024)

(unpublished memorandum at 6 n.4).

That same date, at the instant docket, the trial court sentenced

Appellant to two-and-one-half to five years in prison, “designated to be served

concurrent with the first link of the chain of consecutive robbery

sentences[.]” Id. (emphasis added); see also Sentencing Order, 6/3/94.

Additionally, the sentencing order contains a notation, signed by the

prosecutor and trial court, stating as follows: “AND NOW, [June 3], 1994, the

District Attorney, with leave of Court, enters a nolle pro[]sequi on the within

bill of indictment, 2nd & 3rd counts only.”6 Sentencing Order, 6/3/94 (some

punctuation modified). Appellant did not appeal the judgment of sentence at

the instant docket.

On August 9, 2018, Appellant filed, pro se, a PCRA petition at the instant

docket. In his petition, Appellant alleged his “conviction and sentence … is

6 The certified record does not contain a bill of indictment or criminal information. However, the criminal docket sheet reflects that Appellant was found guilty of carrying a firearm on public streets in Philadelphia, and that the Commonwealth withdrew one count of firearms not to be carried without a license. No additional offenses are listed in the criminal docket.

The record also does not disclose why the Commonwealth’s nolle pros occurred after the jury’s verdict. We note, however, that the trial court’s April 6, 1994, order revoking Appellant’s bail indicates the jury returned a guilty verdict only as to carrying a firearm on public streets in Philadelphia. See Order, 4/6/94.

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impossible, [because] this case was nolle pros[sed].” PCRA Petition, 8/9/18,

at 3. Appellant claimed he did not become aware of the purported nolle pros

until he received his Department of Corrections commitment order, “which

stated this gun case [at the instant docket] had been nolle pros[sed].” Id.

The PCRA court did not appoint counsel.

On May 16, 2023, the PCRA court7 issued Pa.R.Crim.P. 907 notice of its

intent to dismiss the petition without a hearing. The PCRA court noted:

The following was already explained [relative to Appellant’s] duplicate [PCRA] petition filed under [Appellant’s related dockets]. … [Appellant is] mistaken in [his] belief that [he was] sentenced on a nolle prossed gun charge. … In this particular … docket (one of more than a dozen generated for [Appellant’s] multitude of robberies)[,] the Commonwealth withdrew all charges EXCEPT 18 [Pa.C.S.A.] § 6108 (carrying a firearm in public-Phila), which is one of the charges [Appellant] is well aware [he was] sentenced on. Thus, [Appellant’s] claim is meritless, and [he has] been aware of [his] various sentences since trial.

Rule 907 Notice, 5/16/23, at 1 n.1. On June 23, 2023, the PCRA court entered

a final order dismissing the petition. Appellant timely appealed.

On October 30, 2023, this Court issued an order directing the PCRA

court “to determine Appellant’s eligibility for court-appointed counsel ….”

Order, 10/30/23 (citing Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.

Super. 2011) (holding “[w]here an indigent, first-time PCRA petitioner was

denied his right to counsel—or failed to properly waive that right—this Court

is required to raise this error sua sponte and remand for the PCRA court to

7 The Honorable Scott DiClaudio adjudicated Appellant’s PCRA claim.

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correct that mistake.”)). The PCRA court responded on February 13, 2024,

confirming that the instant appeal lies from the dismissal of a first PCRA

petition, and requested that the matter be remanded for counseled review of

Appellant’s petition. See Response to Order, 2/13/24. That same date, the

PCRA court appointed Counsel to represent Appellant.

On February 23, 2024, this Court issued an order directing the parties

to show cause as to “why this Court should not vacate the June 23, 2023[,]

PCRA order that dismissed Appellant’s first PCRA petition, and remand to the

PCRA court for further proceedings.” Order, 2/23/24. We received no

response. Instead, on June 23, 2024, Counsel filed a Turner/Finley brief and

petition to withdraw as counsel, neither of which address the PCRA court’s

acknowledgement of error in failing to appoint Appellant counsel to litigate his

PCRA petition. On July 18, 2024, Appellant filed a pro se response.

Before addressing either the merits of Appellant’s claim or whether

remand is required for counseled review of Appellant’s first PCRA petition, we

must determine whether Counsel complied with the procedural requirements

of Turner/Finley in petitioning to withdraw. Commonwealth v. Knecht,

219 A.3d 689, 691 (Pa. Super. 2019) (“When presented with a brief pursuant

to Turner/Finley, we first determine whether the brief meets the procedural

requirements of Turner/Finley.”). This Court has explained:

A Turner/Finley brief must: (1) detail the nature and extent of counsel’s review of the case; (2) list each issue the petitioner wishes to have reviewed; and (3) explain counsel’s reasoning for concluding that the petitioner’s issues are meritless. Counsel

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must also send a copy of the brief to the petitioner, along with a copy of the petition to withdraw, and inform the petitioner of the right to proceed pro se or to retain new counsel. If the brief meets these requirements, we then conduct an independent review of the petitioner’s issues.

Knecht, 219 A.3d at 691 (citations omitted). Further, we have stated that

substantial compliance with the requirements to withdraw as counsel will

satisfy the Turner/Finley criteria. Commonwealth v. Karanicolas, 836

A.2d 940, 947 (Pa. Super. 2003).

Our review discloses that Counsel has complied with the above

requirements. In Counsel’s Turner/Finley brief, he: 1) detailed his review of

the record and law; 2) listed the issue Appellant wishes to have reviewed; and

3) explained why Appellant’s issue lacks merit. See Turner/Finley Brief at

1-9. Additionally, Counsel notified Appellant of Counsel’s request to withdraw,

advised Appellant of his right to retain new counsel and/or raise any issues he

deems worthy of consideration, and furnished Appellant with copies of the

petition to withdraw and Turner/Finley brief. See id. at 9; see also id.,

Exhibit C (correspondence to Appellant dated June 24, 2024); Petition to

Withdraw, 6/23/24, at 2. Under these circumstances, we conclude Counsel

has substantially complied with the Turner/Finley procedural requirements.

However, before proceeding to independently review Appellant’s claim, we

must determine whether he is eligible for PCRA relief.

To be eligible for relief, a petitioner must plead and prove, by a

preponderance of the evidence, that he is “currently serving a sentence of

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imprisonment, probation or parole for the crime[.]” 42 Pa.C.S.A. §

9543(a)(1)(i) (emphasis added). “Case law has strictly interpreted the

requirement that the petitioner be currently serving a sentence for the crime

to be eligible for relief.” Commonwealth v. Plunkett, 151 A.3d 1108, 1109

(Pa. Super. 2016). “As our Supreme Court has explained, as soon as his

sentence is completed, a PCRA petitioner becomes ineligible for relief.”

Commonwealth v. Gillins, 302 A.3d 154, 160 (Pa. Super. 2023) (citing

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

Commonwealth v. Stultz, 114 A.3d 865, 871-72 (Pa. Super. 2015) (holding

that where a defendant had completed the first of several consecutive

sentences, he was ineligible for PCRA relief concerning the expired sentence).

The PCRA also mandates the appointment of counsel to represent

indigent first-time PCRA petitioners. See Pa.R.Crim.P. 904(C) (“[W]hen an

unrepresented defendant satisfies the judge that the defendant is unable to

afford or otherwise procure counsel, the judge shall appoint counsel to

represent the defendant on the defendant's first petition for post-conviction

collateral relief.”). However, “the failure to appoint counsel for a

petitioner under the PCRA who has served his sentence is harmless

error, and … remand for appointment of counsel is not appropriate, as a

remand would be futile under such a circumstance.” Commonwealth v.

Hart, 911 A.2d 939, 942 (Pa. Super. 2006) (emphasis added). The Hart

Court continued:

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The purpose for appointing counsel for a first-time petitioner, even where the petition appears to be untimely filed, is for the petitioner to attempt to establish an exception to the one-year time limitation. Obviously, where the petitioner is no longer serving a sentence of imprisonment, probation or parole, establishing such an exception is a legal impossibility, as the statute no longer applies. The law does not require the performance of a futile act.

Id. (citation omitted).

Here, the record confirms the trial court sentenced Appellant on June 3,

1994, to two-and-one-half to five years in prison. See Sentencing Order,

6/3/94. Therefore, Appellant’s maximum sentence expired, at the latest, on

June 3, 1999. See Appellant’s Response to Turner/Finley Brief, Attachment

G (court commitment sheet reflecting the effective date of Appellant’s

sentence as June 3, 1994); see also Lewis, 3182, 3184, 3185, and 3186

EDA 2022 (unpublished memorandum at 6 n.4) (explaining Appellant’s

sentence was “to be served concurrent with the first link of the chain of

consecutive robbery sentences[.]”); id. (unpublished memorandum at 19)

(confirming that “the effective date for [the instant] sentence was June 3,

1994, with credit for time served starting on January 27, 1993.”). In

Appellant’s appeal at the related dockets, this Court concluded, “[i]ncluding

the credit for time served, Appellant [] finished serving any sentence at [the

instant docket] on January 27, 1998.” Lewis, 3182, 3184, 3185, and 3186

EDA 2022 (unpublished memorandum at 19).

Appellant does not allege in either his PCRA petition, or his response to

Counsel’s Turner/Finley brief, that he is currently serving a sentence at the

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instant docket. Because Appellant has not established that he was serving his

sentence at the instant docket at the time the PCRA court dismissed his

petition, he is not eligible for PCRA relief. See 42 Pa.C.S.A. § 9543(1)(i);

Stultz, 114 A.3d at 872. Accordingly, we affirm the PCRA court’s order,8 and

conclude its error in failing to appoint Appellant PCRA counsel was harmless.

See Hart, 911 A.2d at 942.

Counsel’s petition to withdraw granted. Order affirmed.

Date: 12/17/2024

8 Although the PCRA court dismissed Appellant’s PCRA petition as untimely filed, we may affirm on any proper basis. See Commonwealth v. Reese, 31 A.3d 708, 727 (Pa. Super. 2011) (en banc) (stating an appellate court may affirm on any basis, as long as the ultimate decision is correct).

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