Com. v. Garrett, K. ( 2016 )

J-S63042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KAREEM ALI GARRETT
Appellant No. 1684 EDA 2015
Appeal from the PCRA Order April 14, 2015
in the Court of Common Pleas of Delaware County Criminal Division
at No(s): CP-23-CR-0001998-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 26, 2016
Appellant, Kareem Ali Garrett, appeals pro se from the order entered
in the Delaware County Court of Common Pleas denying his first Post
Conviction Relief Act1 (“PCRA”) petition. We remand for a determination as
to whether Appellant is currently serving a sentence of imprisonment,
probation, or parole for the crimes he committed and retain panel
jurisdiction over this appeal.
The trial court summarized the relevant facts and procedural history as
follows:
On August 20, 2013, [Appellant] entered a negotiated
guilty plea to [d]efiant [t]respass and one count of
[h]arassment and was sentenced to a term of 6 to 12
months [imprisonment] followed by 1 year of probation.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S §§ 9541-9546.
J-S63042-16
On August 21, 2014 [Appellant] filed a timely [PCRA]
petition alleging (1) ineffective assistance of counsel, (2)
that his guilty plea was unlawfully induced, and (3) newly-
discovered evidence.[2]
The [PCRA court] appointed counsel, Stephen D.
Molineux, Esq., to review [Appellant’s] PCRA petition.
Pursuant to [Commonwealth v. Turner, 544 A.2d 927(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc)] , counsel submitted a “No
Merit” letter after determining [Appellant’s] PCRA petition
was meritless and filed a Motion to Withdraw As Counsel.
This Court dismissed [Appellant’s] PCRA petition without
holding an evidentiary hearing and granted Mr. Molineux’s
Withdrawal Motion. [Appellant] filed a timely Notice of
Appeal and Concise Statement of Matters complained of on
Appeal in compliance with Pa.R.A.P. 1925(b).[3]
Trial Ct. Op., 7/31/15, at 1-2.
The trial court issued a responsive Pa.R.A.P. 1925(a) opinion on July
31, 2015. Appellant raises the following issues on appeal:
1. Trial counsel rendered ineffective assistance, which
failure violated the Pennsylvania and/or United States
Constitution by undermining the truth determining
process, such that no reliable adjudication of guilt or
innocence could have taken place?
2. A plea of guilty was unlawfully induced for the crimes to
which he entered a guilty plea, where the circumstance
2
In his PCRA petition, Appellant indicated that his sentence was to
commence August 20, 2013, but he failed to answer the question of whether
he was still serving his sentence. Appellant’s Mot. for Post Conviction
Collateral Relief, 8/21/14, at 2.
3
We note that although the PCRA court states that Appellant filed a
Pa.R.A.P. 1925(b) statement, we can find no such document in the record or
indicated on the docket. Further, also not present in the record received by
this Court is Attorney Molineux’s “no merit” letter.
-2-
J-S63042-16
made it likely that the inducement caused [Appellant] to
plead guilty and [Appellant] is innocent?
3. Whether the unavailability at the time of exculpatory
evidence would have changed the outcome of the trial if it
had been introduced?
Appellant’s Brief at 3 (unpaginated).4
As a prefatory matter, we must determine whether Appellant is eligible
for relief under the PCRA. Pursuant to the PCRA, a petitioner must be
“currently serving a sentence of imprisonment, probation or parole for the
crime” or waiting to serve the disputed sentence in order to be granted
relief. 42 Pa.C.S. § 9543(a)(1)(i), (iii). Further, as soon as a petitioner’s
sentence is complete, he becomes ineligible for relief, regardless of whether
he was serving his sentence at the time he filed his PCRA petition.
Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006). Indeed,
our Supreme Court has held that to grant relief at a time when a petitioner
is not currently serving a sentence would ignore the plain language of the
statute. Commonwealth v. Ahlborn 699 A.2d 718, 720 (Pa. 1997).
Accordingly, if a petitioner is no longer serving or waiting to serve a
sentence for the crimes at issue, our Courts lack jurisdiction and the
petitioner’s PCRA petition must be dismissed. Id.In this case, Appellant was convicted in August 2013 and sentenced to
serve a term of six to twelve months’ imprisonment followed by one year of
4
Appellant’s brief was not mailed from a prison. See Certificate of Service,
3/11/16, to Appellant’s Brief (identifying address).
-3-
J-S63042-16
probation. We note that in his initial PCRA petition Appellant indicated that
his sentence was to commence on August 20, 2013, but did not designate
whether he was currently serving, or waiting to serve, his sentence.
Appellant’s Mot. for Post Conviction Collateral Relief, 8/21/14, at 2. Indeed,
even if Appellant served his maximum sentence, it is likely that currently,
over three years later, he may no longer be serving a sentence of
imprisonment, probation, or parole for the crimes here at issue. See also
Certificate of Service, 3/11/16, to Appellant’s Brief (identifying address).
Accordingly, within thirty days of the date this Memorandum is filed, we
direct the PCRA court to determine whether Appellant is currently serving or
waiting to serve a sentence of imprisonment, probation, or parole for the
crimes he committed. If the PCRA court determines that Appellant is serving
or waiting to serve his sentence, we request that the court forward
Appellant’s Pa.R.A.P. 1925(b) statement, Attorney Molineux’s “no merit”
letter, and any other documents missing from the certified record as a
supplemental record.
Case remanded for a determination by the PCRA court consistent with
this Memorandum. Panel jurisdiction retained.
-4-
J-S63042-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2016
-5-