Com. v. Saunders, D.

• Court: Superior Court of Pennsylvania
• Decided: July 1, 2024
• Docket: 1732 MDA 2022
• Status: Unpublished

Opinion

J-S19015-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAJUAN SAUNDERS : : Appellant : No. 1732 MDA 2022

Appeal from the PCRA Order Entered November 21, 2022 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001453-2019

BEFORE: DUBOW, J., BECK, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED JULY 01, 2024

Appellant, Dajuan Saunders, appeals from the November 21, 2022

order1 dismissing his first Petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. During the pendency of his appeal,

Appellant’s maximum sentence expired, and thus, he became ineligible for

relief under the PCRA. We, therefore, affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 The PCRA court issued an order dated October 28, 2022, stating that Appellant’s PCRA petition was dismissed and “pursuant to [Pa.R.Crim.P.] 907,” Appellant had the right to “appeal” within 20 days. That Order dismissing the petition was served on November 21, 2022. Pa.R.A.P. 108(a)(1) provides that the “day of entry” of an order is “the day the clerk of the court . . . mails or delivers copies of the order to the parties.” We have changed the caption to reflect November 21, 2022, as the date of entry of the order from which this appeal pertains. J-S19015-24

A.

We glean the following relevant factual and procedural history from the

trial court opinion and the certified record. On December 18, 2018, the

Commonwealth filed charges against Appellant following a domestic violence

incident. On October 10, 2019, Appellant pled guilty to Simple Assault.2 On

January 7, 2020, the trial court sentenced Appellant to an aggregate term of

12-24 months’ incarceration.3 He began serving his sentence on January 14,

2020.4 Appellant did not file a direct appeal.

On July 28, 2020, Appellant filed pro se a PCRA Petition asserting that

incurring a parole violation based on this conviction implicated double

jeopardy and that the court improperly considered a vacated conviction as

part of his criminal history. The PCRA Court appointed Matthew Perry, Esq.

on November 6, 2020, who filed a Turner/Finley “no-merit” letter5 and an

Application to Withdraw as Counsel on March 2, 2021. Appellant filed a pro

2 18 Pa.C.S. § 2701(a)(1).

3 Appellant received 270 days of credit for time served. Sentencing Order, 1/7/20, at 1 (unpaginated).

4 Appellant committed this offense while he was serving parole on a prior unrelated conviction. After finding Appellant in violation of his parole, on February 28, 2020, the Parole Board directed him to serve 15 months of back time on that conviction, concurrent to the instant sentence of 12 to 24 months’ incarceration. See Notice of Parole Board Decision, 2/28/20, at 1-2.

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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se response on March 8, 2021, as well as supplemental pro se petitions on

March 3, 2022, and October 7, 2022, raising, inter alia, Brady6 claims. The

PCRA court dismissed the PCRA petition by order served November 21, 2022.

Appellant timely filed a pro se notice of appeal. The PCRA court

permitted PCRA counsel to withdraw on January 18, 2023, and appointed

appellate counsel.

Our review of the record indicated that Appellant’s maximum sentence

of 24 months’ incarceration may have expired during the pendency of this

appeal. Accordingly, on May 23, 2023, this Court issued a Rule to Show Cause

directing the parties to show cause within 21 days why this Court should not

affirm the Order because Appellant is no longer eligible for PCRA relief. Rule

to Show Cause, 5/23/23, at 1-2. The Commonwealth responded and asserted

that Appellant’s maximum sentence expired on March 8, 2023. Appellant

failed to respond by the June 13, 2023 deadline. Accordingly, this matter is

now ripe for decision.

B.

We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super. 2016). “This Court grants great deference to the findings of the PCRA

6 Brady v. Maryland, 373 U.S. 83 (1963).

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court if the record contains any support for those findings.” Commonwealth

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

To be eligible for relief under the PCRA, a petitioner must plead and

prove by a preponderance of the evidence that he has been convicted of a

crime and is “at the time relief is granted . . .currently serving a sentence of

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

9543(a)(1)(i). A petitioner who has completed his sentence is no longer

eligible for post-conviction relief. Commonwealth v. Soto, 983 A.2d 212,

213 (Pa. Super. 2009); see also Commonwealth v. Turner, 80 A.3d 754,

765 (Pa. 2013) (“[D]ue process does not require the legislature to continue to

provide collateral review when the offender is no longer serving a sentence.”).

This is so even if the petitioner filed his PCRA petition during the pendency of

his sentence. Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa.

Super. 2009) (“As soon as his sentence is completed, the petitioner becomes

ineligible for relief, regardless of whether he was serving his sentence when

he filed the petition.”); see also Commonwealth v. Plunkett, 151 A.3d

1108, 1112-13 (Pa. Super. 2016) (affirming the PCRA court’s order denying

relief where petitioner’s sentence expired while his appeal from the PCRA

denial was pending before this Court).

*

On January 7, 2020, the court sentenced Appellant to 12 to 24 months’

incarceration with no subsequent period of probation, which indicates that his

sentence has expired. Appellant has failed to respond to our Rule to Show

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Cause to establish that he is still serving his sentence. Accordingly, based on

our review and the Commonwealth’s representation, we conclude that

Appellant is not “currently serving a sentence of imprisonment, probation[,]

or parole[,]” as is required to remain eligible for PCRA relief. 42 Pa.C.S. §

9543(a)(1)(i). Therefore, Appellant is ineligible for PCRA relief.

We, thus, affirm the PCRA court’s Order dismissing Appellant’s PCRA

Petition.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 07/01/2024

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