Com. v. Voit, J.

• Court: Superior Court of Pennsylvania
• Decided: November 1, 2021
• Docket: 794 WDA 2021
• Status: Unpublished

Opinion

J-S32010-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN J. VOIT : : Appellant : No. 794 WDA 2021

Appeal from the PCRA Order Entered July 7, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005607-2018

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED: NOVEMBER 1, 2021

John J. Voit appeals pro se from the order, entered in the Court of

Common Pleas of Allegheny County, dismissing his petition filed pursuant to

the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. Voit is

ineligible for relief. We, therefore, affirm.

On January 31, 2019, a jury convicted Voit of one count of simple

assault1 for his role in a domestic incident involving his sister and brother-in-

law. The court, sitting as a separate finder of fact, convicted Voit of one count

of summary harassment.2 On June 13, 2019, the court sentenced Voit to two

years’ probation. On direct appeal, this Court affirmed Voit’s judgment of

sentence. Commonwealth v. Voit, 1248 WDA 2019 (Pa. Super. filed Sept.

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1 18 Pa.C.S.A. § 2701(a)(1).

2 18 Pa.C.S.A. § 2709(a)(1). J-S32010-21

11, 2020) (unpublished memorandum decision). Voit did not file a petition

for allowance of appeal in the Pennsylvania Supreme Court. Accordingly, his

judgment of sentence became final on October 12, 2020, when the 30-day

window for seeking appellate review expired. See 42 Pa.C.S.A. § 9545(b)(3)

(“For purposes of the PCRA, a judgment of sentence “becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.”). As such, Voit had until October

12, 2021 to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1) (“Any

petition under this subchapter, including a second or subsequent petition, shall

be filed within one year of the date the judgment becomes final[.]”). Voit

filed a timely pro se PCRA petition on December 30, 2020.

The court appointed PCRA counsel, who filed an amended petition

raising four claims of trial counsel’s ineffectiveness. On June 11, 2021, the

PCRA court denied relief. Voit filed this pro se appeal on July 7, 2021.

Voit’s two-year probationary sentence, imposed on June 13, 2019,

expired on June 13, 2021. Since Voit is not currently serving a sentence “of

imprisonment, probation or parole for the crime[,]” he is not eligible for PCRA

relief. See 42 Pa.C.S.A. § 9543(a)(1)(i) (“To be eligible for relief under this

subchapter, the petitioner must plead and prove by a preponderance of the

evidence all of the following: (1) That the petitioner has been convicted of a

crime under the laws of this Commonwealth and is at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation or parole

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for the crime.”) (emphasis added); Commonwealth v. Alhborn, 699 A.2d

718 (Pa. 1997). See also Commonwealth v. Plunkett, 151 A.3d 1108,

1113 (Pa. Super. 2016) (statutory requirement that petitioner for

postconviction relief be currently serving sentence is applicable where

postconviction relief court’s order was issued while petitioner was still serving

required sentence, but sentence terminated prior the resolution of appeal);

Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009) (citing

Ahlborn, 699 A.2d at 720) (“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.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/01/2021

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