Commonwealth v. Ahlborn

683 A.2d 632, 453 Pa. Super. 124, 1996 Pa. Super. LEXIS 2512
Superior Court of Pennsylvania·Decided July 31, 1996·No. 601; 1946·Published·Cited by 39 cases

Opinions

TAMILIA, Judge.

The issue presented by these consolidated appeals is one of first impression in this Commonwealth, namely, whether relief is available under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 et seq., where a petitioner files a PCRA petition while still in custody but is fully discharged prior to final adjudication of the petition. We have certified this important issue for en banc consideration.

Clement McGuire, the appellant at No. 01946 Philadelphia, 1994, was arrested on April 1, 1988, two weeks after he fired a shot which narrowly missed a teenager on a Philadelphia street corner. Minutes prior to the gunshot, the teenager had engaged in a fist fight with a passenger in McGuire’s car. On [127] September 13, 1988, following a nonjury trial, McGuire was convicted of violating the Uniform Firearms Act (VUFA),1 reckless endangerment2 and possessing an instrument of crime (PIC).3 McGuire’s post-trial motions were denied and he was ultimately sentenced4 to two (2) to five (5) years’ imprisonment on the VUFA count, six (6) to twelve (12) months consecutive on the reckless endangerment count and six (6) to twelve (12) months concurrent on the PIC count. Thus, McGuire’s sentence totalled two and one-half (2]/¿) to six (6) years’ imprisonment, with credit for time served. A panel of this Court affirmed McGuire’s judgment of sentence on September 15, 1989. Commonwealth v. McGuire, 394 Pa.Super. 631, 569 A.2d 1384 (1989) (unpublished Memorandum). On October 6, 1989, McGuire filed a pro se PCRA petition and present counsel was appointed to assist him. Thereafter, while McGuire was still imprisoned, two amended petitions were filed, both of which alleged ineffective assistance of counsel. McGuire was paroled on December 16, 1990 and on August 31, 1993, a PCRA hearing was held. On April 1, 1994, McGuire’s parole expired and he was fully discharged. By Order dated May 18, 1994, McGuire’s PCRA petition was denied on the merits. This appeal followed.

On May 4, 1990, Clarence A. Ahlborn, appellant at No. 00601 Pittsburgh, 1995, pled guilty to three counts of driving under the influence (DUI)5 and one count of accident resulting in death or injury.6 Appellant was sentenced to forty-eight (48) hours to twenty-three (23) months on the first DUI count, a concurrent term of thirty (30) days to twenty-three (23) months on the second DUI count, a consecutive term of four (4) to twenty-three (23) months on the third DUI count [128] and a concurrent term of thirty (30) days to twenty-three (23) months on the accident resulting in death or injury count. On May 22, 1990, Ahlborn filed a pro se motion to withdraw his guilty plea but for reasons not apparent on the record, the motion was never adjudicated. On November 22, 1993, while still incarcerated, Ahlborn filed his PCRA petition. Counsel was appointed and an amended petition was filed on January 25, 1994 alleging Ahlborn was misled into entering his guilty plea, he believed he was only pleading guilty to two DUI counts, he was never afforded a hearing on the motion to withdraw his guilty plea and he was denied access to court records. A PCRA hearing was scheduled for February 17, 1994. However, on February 14, 1994, Ahlborn completed his sentence and was unconditionally released from prison. Subsequently, the February 17, 1994 hearing was continued and, by Order dated June 8, 1994, the PCRA court dismissed Ahlborn’s petition on the basis that, having completed his sentence, he was no longer eligible for PCRA relief. This appeal followed.

By Orders dated October 10 and 11, 1995, respectively, we certified these appeals for en banc review.

Initially, section 9543(a)(1)(i) of the PCRA provides as follows:

§ 9543. Eligibility for relief
(a) General rule. — To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
(1) that the person has been convicted of a crime under the laws of this Commonwealth and is:
(i) currently serving a sentence of imprisonment, probation or parole for the crime[.]

42 Pa.C.S. § 9543(a)(l)(i).

The Commonwealth argues McGuire and Ahlborn are ineligible for PCRA relief since neither is currently serving a sentence of imprisonment, probation or parole. Thus, the Commonwealth concludes, the instant petitions are moot. To the contrary, Ahlborn claims PCRA eligibility on the basis [129] that he was currently serving a sentence at the time his petition was filed. These appeals therefore require us to determine whether “currently serving” within section 9543(a)(l)(i) refers to the time the petition is filed or the time the petition is ultimately adjudicated. This question is not answered by Pennsylvania case or statutory law.

In support of its claim that appellants have failed to satisfy the “currently serving” requirement of the PCRA, the Commonwealth relies principally on two cases. In the first, Commonwealth v. Pierce, 397 Pa.Super. 126, 579 A.2d 963 (1990), we considered “whether the doctrine of ‘collateral consequences’, which prevented a collateral attack on a criminal conviction from becoming moot after the sentence had been served, has been superseded by the provisions of the [PCRA].” Id. at 128, 579 A.2d at 964. Pierce completed the maximum term of a five (5) to fifteen (15) year sentence for second degree murder, then filed a PCRA petition alleging eligibility because of collateral criminal consequences flowing from his conviction.7

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Commonwealth v. Ahlborn, 683 A.2d 632, 453 Pa. Super. 124, 1996 Pa. Super. LEXIS 2512 (Pa. Ct. App. 1996).

683 A.2d 632 (Commonwealth v. Ahlborn) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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