Com. v. Smith, W.

• Court: Superior Court of Pennsylvania
• Decided: March 16, 2015
• Docket: 1447 WDA 2014
• Status: Unpublished

Opinion

J-S17033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WESLEY DANIEL SMITH

Appellant No. 1447 WDA 2014

Appeal from the Order Entered August 8, 2014 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000406-2010

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 16, 2015

Appellant, Wesley Daniel Smith, appeals from the order entered in the

Clearfield County Court of Common Pleas, dismissing his first petition filed

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

Appellant pled guilty to accidents involving death or personal injury

and related summary traffic offenses. On November 23, 2010, the court

sentenced Appellant to ninety (90) days to two (2) years less one (1) day

imprisonment, followed by a consecutive term of two (2) years’ probation.

The court denied Appellant’s request to delay reporting to prison and

ordered the sentence to take effect immediately. Appellant did not file post-

sentence motions or a notice of appeal.

___________________________

*Former Justice specially assigned to the Superior Court. J-S17033-15

On November 21, 2011, Appellant timely filed a counseled PCRA

petition. In it, Appellant argued that he wanted a jury trial, and plea counsel

was ineffective for failing to move to withdraw the guilty plea. The court

conducted an evidentiary hearing on July 3, 2014. On August 8, 2014, the

court denied PCRA relief. Appellant timely filed a notice of appeal on

September 3, 2014. The court did not order Appellant to file a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),

and Appellant did not file one.

To be eligible for PCRA relief, a petitioner must be “currently serving a

sentence of imprisonment, probation or parole for the crime[.]” 42

Pa.C.S.A. § 9543(a)(1)(i). A petitioner becomes ineligible for relief as soon

as he completes the sentence, regardless of whether he was still serving the

sentence when he filed the PCRA petition. Commonwealth v. Williams,

977 A.2d 1174, 1176 (Pa.Super. 2009), appeal denied, 605 Pa. 700, 990

A.2d 730 (2010). Instantly, absent evidence to the contrary, Appellant

completed serving the sentence for his underlying crimes in November 2014,

while the appeal was pending. Pursuant to Section 9543(a)(1)(i), Appellant

is now ineligible for relief under the PCRA. Accordingly, we affirm.

Order affirmed.

-2- J-S17033-15

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/16/2015

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