Commonwealth v. Plunkett

151 A.3d 1108

COMMONWEALTH of Pennsylvania, Appellee

v.Chris PLUNKETT, Appellant

No. 2271 EDA 2015

Superior Court of Pennsylvania.

Submitted September 12, 2016

Filed December 02, 2016

Janis Smarro, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.^*

OPINION BY OTT, J.:

Chris Plunkett appeals from the order entered June 19, 2015, in the Court of Common Pleas of Philadelphia County, denying him relief on his petition filed pursuant to the Post–Conviction Relief Act, 42 Pa.C.S. § 9541 et seq . The PCRA court reviewed the substance of Plunkett's claim and denied him relief based on lack of merit.¹ However, because he is no longer serving the sentence associated with this petition, Plunkett has lost his standing to seek relief. Accordingly, we affirm, albeit on different grounds.

Briefly, on September 21, 2010, Plunkett was found guilty of theft by deception, a third-degree felony, at a non-jury trial. On November 30, 2010, he was sentenced to four years of probation and to pay restitution. His direct appeal afforded him no relief. The Pennsylvania Supreme Court denied allowance of appeal on August 29, 2013. Plunkett timely filed the instant PCRA petition on December 11, 2013. On November 12, 2014, Plunkett's probation was terminated. However, on December 10, 2014, that order was vacated due to a then pending violation of probation. Specifically, he had failed to complete restitution payments. Also on December 10, 2014, Plunkett received an additional one year of probation. A hearing on Plunkett's PCRA petition was held on March 26, 2015, and the petition was denied on June 19, 2015. On July 7, 2015, Plunkett filed his notice of appeal regarding the denial of his PCRA petition. On January 21, 2016, having fully paid restitution, Plunkett's probationary sentence was terminated by order of Judge Robert P. Coleman. See Docket. The certified record was then transmitted to our Court on March 22, 2016.

The statutory requirements for eligibility for post-conviction collateral relief are set forth at 42 Pa.C.S. § 9543, which states, in relevant part:

(a) General rule. 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 for the crime;

42 Pa.C.S. § 9543(a)(1)(i).

Case law has strictly interpreted the requirement that the petitioner be currently serving a sentence for the crime to be eligible for relief.

Here, the denial of relief for a petitioner who has finished serving his sentence is required by the plain language of the statute. To be eligible for relief a petitioner must be currently serving a sentence of imprisonment, probation or parole. To grant relief at a time when appellant is not currently serving such a sentence would be to ignore the language of the statute.

Commonwealth v. Ahlborn , 548 Pa. 544,699 A.2d 718, 720 (1997) (emphasis in original).²

The general proposition that a petitioner must be currently serving the sentence for the crime has been applied in numerous PCRA cases. See Commonwealth v. Turner , 622 Pa. 318, 80 A.3d 754 (2013) ; Commonwealth v. Stultz , 114 A.3d 865 (Pa. Super. 2015) ; Commonwealth v. Williams , 977 A.2d 1174 (Pa. Super. 2009) ; Commonwealth v. Pagan , 864 A.2d 1231 (Pa. Super. 2004) ; and Commonwealth v. Hayes , 408 Pa.Super. 68, 596 A.2d 195 (1991) (en banc ). All of these cases differ from the instant case in that, similar to Ahlborn , the petitioner had served the sentence prior to any PCRA hearing or order disposing of the PCRA petition. Here, Plunkett completed his sentence after the PCRA hearing and order denying him relief, as well as after filing his notice of appeal, but prior to the transmittal of the certified record to this Court. Our review of case law leads us to conclude this difference does not negate the applicability of the statutory language of Section 9543(a)(1)(i) to this case.

Additionally, we note that in Ahlborn , our Supreme Court framed the question before it as follows: "At issue is whether one who has filed a PCRA petition while serving a sentence of imprisonment remains eligible for relief in the event that, prior to any final adjudication of the petition, he is released from custody." Id . at 719. The term "final adjudication", although not defined in the opinion, implies the petitioner must be serving the relevant sentence throughout the PCRA process, including any appeals. We also note that had the Supreme Court intended to limit the scope of the question before it, it could have explicitly done so, but it did not.³ We therefore believe there is, at minimum, a strong inference in Ahlborn that the section 9543(a)(1)(i) requirement applies throughout the appellate process.

We take additional guidance from Commonwealth v. Turner , supra , which provides a detailed analysis of the application of section 9543(a)(1)(i) and due process. Ultimately, Turner determined, because the petitioner's liberty interest was no longer affected after his or her sentence was completed, there was no due process violation in denying relief when the PCRA petition had been filed in a timely manner, but the sentence expired prior to any adjudication. The Turner decision begins its analysis acknowledging,

Eligibility for relief under the PCRA is dependent upon the petitioner currently serving a sentence of imprisonment, probation, or parole for the crime. 42 Pa.C.S. § 9543(a)(1)(i) ; Ahlborn , 699 A.2d at 720 (holding that the plain language of this section requires the denial of relief for a petitioner who has finished serving his sentence).

Turner , 80 A.3d at 761–62.

The Turner Court further reasoned,

In the collateral review context, the United States Supreme Court has held that although "states have no constitutional obligation to provide a means for collaterally attacking convictions," Commonwealth v. Haag , 570 Pa. 289, 809 A.2d 271, 283 (2002) (citing [Pennsylvania v. ] Finley , 481 U.S. [551] at 557, 107 S.Ct. 1990, [95 L.Ed.2d 539 (1987) ] ), if they do, "then such procedures must comport with the fundamental fairness mandated by the Due Process Clause." Id . ; Finley , 481 U.S. at 557, 107 S.Ct. 1990. In this regard, states have "substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review." Finley , 481 U.S. at 559, 107 S.Ct. 1990. When a state choses to offer help to those seeking relief from convictions and custody, due process does not "dictat[e] the exact form such assistance must assume." [Dist. Attorney's Office for the Third Judicial Dist. v. ] Osborne , 557 U.S. [52] at 69, 129 S.Ct. 2308, [174 L.Ed.2d 38 (1009) ] (citing Finley , 481 U.S. at 559, 107 S.Ct. 1990 ). Moreover, states need not provide post-conviction petitioners with "the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position-at trial and on first appeal as of right." Finley , 481 U.S. at 552, 107 S.Ct. 1990. Indeed, the United States Supreme Court has stated that post-conviction petitioners "have only a limited interest in post-conviction relief." Osborne , 557 U.S. at 69, 129 S.Ct. 2308. To deny due process, the complained-of aspect of the state post-conviction procedures must be "fundamentally inadequate to vindicate" the defendant's liberty interest, and must offend "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" or transgress "any recognized principle of fundamental fairness in operation." Osborne , 557 U.S. at 69, 129 S.Ct. 2308 (internal citations omitted).

Turner , 80 A.3d at 764.

Accordingly, the denial of relief to a petitioner who was no longer serving a sentence, even when the PCRA process had begun in a timely manner, was not constitutionally infirm. Turner stated:

We agree with the Commonwealth that due process does not require the legislature to continue to provide collateral review when the offender is no longer serving a sentence. Analogously, because the common law and statutory writ of habeas corpus in federal court challenges the basis of criminal conviction and custody, it requires that a petitioner be in custody before habeas jurisdiction can attach. Preiser v. Rodriguez , 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (providing that the essence of the common law writ of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody); U.S. ex rel. Dessus v. Com. of Pa. , 452 F.2d 557, 559–60 (3d Cir. 1971) ("the sine qua non of federal habeas corpus jurisdiction is that petitioner be ‘in custody’ ..." even as to claims of constitutional dimension: "Thus, custody is the passport to federal habeas corpus jurisdiction. Without custody, there is no detention. Without detention, or the possibility thereof, there is no federal habeas jurisdiction." (emphasis added)). See also 28 U.S.C. § 2255(a) (extending the right to seek habeas corpus relief to "[a] prisoner in custody under sentence" of a federal court); 28 U.S.C. § 2254(b) (extending the right to "a person in custody pursuant to the judgment of a State court"). Accordingly, because Petitioner's liberty is no longer burdened by a state sentence, she has no due process right to collateral review of that sentence.

Because individuals who are not serving a state sentence have no liberty interest in and therefore no due process right to collateral review of that sentence, the statutory limitation of collateral review to individuals serving a sentence of imprisonment, probation, or parole is consistent with the due process

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