Commonwealth v. Wenhold

1

COMMONWEALTH OF PENNSYLVANIA v. JORDAN DEAN WENHOLD Appellant

No. 2831 EDA 2022

No. J-S16045-23

Superior Court of Pennsylvania

November 3, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the PCRA Order Entered October 6, 2022 In the Court of Common Pleas of Lehigh County Criminal Division at No(s) CP-39-CR-0001732-2018, CP-39-CR-0003229-2019

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM

McCAFFERY, J.

Jordan Dean Wenhold (Appellant) appeals^[1] pro se from the order entered in the Lehigh County Court of Common Pleas dismissing his petition filed pursuant to the Post-Conviction Relief Act (PCRA).^[2] He seeks relief from the 2019 judgment of sentence after pleading guilty at two separate dockets to one count each of simple assault and harassment.^[3] For the following reasons, we affirm.

Due to our disposition of this case, a detailed recitation of the underlying facts is unnecessary. Briefly, Appellant was completing a term of five years' probation, imposed after he pled guilty to one count of statutory sexual assault,^[4] when he made death threats against his former probation officer, Daniel Gallagher, on February 28, 2018. See Affidavit of Probable Cause, 3/27/18 (unpaginated). As a result of the probation violation, the trial court held a Gagnon II hearing on March 21, 2018, where it sentenced Appellant to a period of incarceration for 24 months less one day.^[5] Related to the incident with Officer Gallagher, Appellant was originally charged with one count of terroristic threats at Criminal Docket CP-39-CR-0001732-2018 (Docket 1732).^[6] On July 31, 2018, he pleaded guilty to harassment at Docket 1732, and the trial court sentenced him to a term of 12 months' probation, which was to start on February 28, 2020, after completing his sentence at Docket 579.

On March 29, 2019, while still incarcerated at the Lehigh County Jail, Appellant was being "noncompliant" with correctional officers, acting out, and refusing to leave his cell. N.T., 9/23/19, at 8. During the incident, Lieutenant Brooke Loane was placing handcuffs on Appellant when he "bent forward . . . and bit down" on her left hand and "maintained the bite pressure . . . until she delivered a head stun to [Appellant] with her knee." Id. at 8-9. Lieutenant Loane's hand was bleeding and she sought medical attention. Id. at 9. Weeks later, the lieutenant still had a scar on her hand from the attack. Id.

As for the assault concerning Lieutenant Loane, Appellant was originally charged at Criminal Docket CP-39-CR-0003229-2019 (Docket 3229) with one count of aggravated assault.^[7] On September 23, 2019, the trial court held a guilty plea, sentencing, and Gagnon II hearing on the matter. At the hearing, Appellant disputed, inter alia, the date of the incident, but admitted he was guilty of biting Lieutenant Loane. See N.T., 9/23/19, at 9-10. He also acknowledged that his conduct was a violation of his probation at Docket 1732. Id. at 10-11. Appellant then pleaded guilty to the amended count of simple assault at Docket 3229. Id. at 2, 5, 10. At the conclusion of the hearing, the trial court sentenced Appellant at Docket 3229 to a term of three to 12 months' incarceration to be served consecutively to his sentence at Docket 579. Id. at 15. The court then revoked Appellant's probation at Docket 1732 and resentenced him to a term of one-year probation to run consecutive to the sentence at Docket 3229. Id. at 16. Appellant asked the court to clarify his sentence, to which it responded: "[Y]ou now have a minimum of one year and a maximum of about three years[' incarceration,] plus five years of probation supervision. So you won't go up for consideration for parole until you've served 12 months. [T]he time that you spent here in custody will go towards that 12 months." Id. at 17-18. Relevant to this appeal, the court did not state Appellant's maximum release date from incarceration or the date he would complete probation at the proceeding.

Appellant did not file post-sentence motions or a direct appeal. Instead, he filed two PCRA petitions on July 8, 2020, and August 3rd.^[8] On April 16, 2021, the PCRA court dismissed Appellant's August 3rd petition. He did not file an appeal.

On April 20, 2022, Appellant filed the present, pro se PCRA petition. The PCRA court appointed counsel, but shortly thereafter, counsel filed a motion to withdraw from representation and letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). In counsel's Turner/Finley letter, he pointed out that Appellant was "not currently serving a sentence [at Dockets 1732 or 3229, and] therefore [he was] not eligible for [PCRA] relief." Turner/Finley Letter from Sean T. Poll, Esquire, to Appellant, 6/27/22, at 3 (unpaginated). On July 21, 2022, the PCRA court held a hearing on counsel's motion to withdraw, where counsel again stated Appellant was not serving a sentence. See N.T., 7/21/22, at 2. Appellant did not dispute that he completed his sentences at these dockets. Nonetheless, neither the court nor the parties stated when Appellant completed his incarceration, parole, and probation sentences. On August 29th, the court issued a Pa.R.Crim.P. 907 notice of dismissal and granted counsel's motion to withdraw. Appellant filed a document entitled, "Motion to Continu [sic] with Criminal Cases," which the court considered a Rule 907 response. On October 6, 2022, the court dismissed Appellant's petition.

Appellant filed this timely pro se appeal,^[9] and on November 7, 2022, the PCRA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). As of the date of this memorandum, Appellant has not filed a Rule 1925(b) statement.

Prior to conducting any substantive analysis, we must examine whether Appellant is eligible for relief under the PCRA. To be eligible, a petitioner must, inter alia, plead and prove one of the following by a preponderance of the evidence:

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;

(ii) awaiting execution of a sentence of death for the crime; [or is]

(iii) serving a sentence which must expire before the person may commence serving the disputed sentence . . .

42 Pa.C.S. § 9543(a)(1)(i)-(iii).

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, 699 A.2d 718, 720 (Pa. 1997) (emphasis in original).

Commonwealth v. Plunkett, 151 A.3d 1108, 1109 (Pa. Super. 2016) (emphasis in original). Consequently, courts lose jurisdiction over matters when a defendant's sentence expires. See Commonwealth v. Turner, 80 A.3d 754, 769 (Pa. 2013).

While the record is devoid of any explicit mention of Appellant's official release date from custody or the completion date of any terms of parole or probation, the PCRA court, the Commonwealth, and Appellant's PCRA counsel each agree he has completed his sentences at these dockets. See Order, 8/29/22, n.1; N.T., 7/21/22, at 2-3; Commonwealth Brief at 10-11. At the July 21, 2022, PCRA hearing, the parties discussed the fact that Appellant was no longer serving a sentence for these criminal matters, and Appellant did not dispute that information. N.T., 7/21/22, at 2-3. In Attorney Poll's letter to Appellant, counsel again reminded Appellant that he had finished serving both his sentences at Dockets 1732 and 3229, and therefore, he was not eligible for relief. See Turner/Finley Letter from Sean T. Poll, Esquire, to Appellant, at 3. In its brief, the Commonwealth agreed that Appellant completed his sentences at these dockets and Appellant has not disputed this averment. See Commonwealth Brief at 10-11. Thus, we conclude it is undisputed that he is no longer serving his sentence at the dockets sub judice. Accordingly, Appellant is not entitled to relief pursuant to Section 9543(a)(1)(i).

Additionally even if Appellant were serving his sentences at these dockets, he would still not be entitled to relief as his present petition is untimely. The trial court sentenced Appellant on September 23, 2019. He did not file any post-sentence motions or a direct appeal. Thus, his judgment of sentence became final on October 23rd - 30 days after the imposition of his sentence. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after entry of the order from which an appeal is taken); 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at the conclusion of direct review or at the expiration of time for seeking review). Appellant then generally had one year, or until October 23, 2020, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (PCRA petitions, including second or subsequent petitions, shall be filed within one year after a judgment of sentence becomes final unless petitioner pleads a timeliness exception). Appellant did not file the present petition until April 20, 2022 - approximately one and a half years after the deadline - and he did not invoke any of the PCRA's timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii) (if a petitioner can plead and prove their late filing was the product of governmental...