Com. v. Tinsley, R. ( 2018 )

J. S62032/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RUSSELL A. TINSLEY, : No. 1882 EDA 2017
:
Appellant :
Appeal from the PCRA Order, May 26, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0501081-2005
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 02, 2018
Russell A. Tinsley appeals pro se from the May 26, 2017 order entered
in the Court of Common Pleas of Philadelphia County that dismissed, without
a hearing, his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the following:
On September 25, 2007, [appellant] appeared before
the Honorable Gregory E. Smith Judge of the Court
of Common Pleas for the First Judicial District
Criminal Division and entered a negotiated plea of
Nolo Contendere to the charges of Involuntary
Deviate Sexual Intercourse and Simple Assault.[1]
At the time the plea was proffered, the evidence
adduced at the recorded hearing established that on
September 4, 2004, the complainant, [L.A.], had
met [appellant] on the 4200 block of Roosevelt
1 18 Pa.C.S.A. §§ 3123(a)(1) and 2701(a), respectively.
J. S62032/18
Boulevard in Philadelphia, PA. After spending the
day together shopping and “hanging out,” they
obtained a room at the Days Inn on Roosevelt
Boulevard. While in the room, [appellant] struck
[L.A.] in the face. [L.A.] fell on the bed and
[appellant] jumped on her, pushed her head into the
area of his penis, and forced her to perform oral sex
on him.
Immediately after the Honorable Gregory Smith
accepted the plea, he ordered that a Megan’s Law
assessment be conducted pursuant to 42 Pa.C.S.[A.]
§ 9795.4. Following the assessment, it was
determined that [appellant] met the definition of a
Sexually Violent Predator, as defined in
42 Pa.C.S.[A.] § 9792 and [appellant] had been
provided due Notice of his reporting requirements.
Consequently, on January 4, 2008 pursuant to the
negotiations, the Honorable Gregory Smith
sentenced [appellant] to a minimum county
supervised period of confinement of eleven and
one-half (11½) to a maximum period of
twenty-three (23) months followed by eight (8)
years of reporting probation. [Appellant] filed a
pro se Notice of Appeal to the Pennsylvania Superior
Court that same day. On April 29, 2008, that Appeal
was denied for failure to file a docketing statement.
On October 11, 2008, [appellant] filed a pro se
Petitioner [sic] seeking post-conviction collateral
relief. Sondra R. Rodrigues, Esquire, was appointed
counsel on behalf of [appellant]. On October 26,
2009, Ms. Rodrigues filed an Amended Petition
requesting [appellant’s] post-sentence and appellate
rights be reinstated. On January 11, 2010, Judge
Smith reinstated only [appellant’s] direct appellate
rights nunc pro tunc. Notice of Appeal to the
Superior Court was filed on February 9, 2010. On
July 25, 2011, following a Grazier[2] hearing,
[appellant] was permitted to represent himself. On
May 10, 2013, the Pennsylvania Superior Court
affirmed the judgment and Order of Sentence. On
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-2-
J. S62032/18
December 4, 2013, the Pennsylvania Supreme Court
denied Allocatur.
On October 8, 2014, [appellant] filed his first
substantive pro se Petition seeking relief pursuant to
the [PCRA] and claimed ineffective assistance of his
trial counsel. At the time of filing, [appellant] had no
longer been serving any sentence of imprisonment,
probation, or parole as a result of a conviction under
the laws of this Commonwealth. Peter A. Levin,
Esquire was appointed to represent [appellant]. On
July 8, 2016, Mr. Levin filed an Amended PCRA
Petition claiming counsel was ineffective for failing to
fully explain the consequences of his
nolo contendere plea. The instant matter was
transferred to the Honorable Anne Marie Coyle Judge
of the Court of Common Pleas First Judicial District
Criminal Division, hereinafter referred to as [PCRA
court]. After conducting a review of the record, this
Court dismissed the petitions on May 26,
2017.[Footnote 1] A timely Notice of Appeal was
filed.
[Footnote 1] The dismissal occurred
more than twenty days after [appellant]
was served with notice of the
forthcoming dismissal of his PCRA
petition. Pa.R.Crim.P. 907.
PCRA court opinion, 3/13/18 at 1-3 (record citation omitted).
The record reflects that by correspondence to this court dated
February 22, 2018, appellant requested that his court-appointed counsel,
Attorney Peter Levin, file a motion to withdraw and that the case be
remanded to the PCRA court for a Grazier hearing because appellant wished
to proceed pro se. On February 28, 2018, appellant then filed with this
court a petition for counsel withdrawal and for a remand to the PCRA court
for a Grazier hearing. On March 28, 2018, this court entered an order
-3-
J. S62032/18
directing the PCRA court to conduct a Grazier hearing and to provide written
notice of its determination to this court within 60 days.
The PCRA court docket reflects that the PCRA court held a motions
hearing on May 10, 2018. Although a transcript of that hearing is not
contained in the certified record (and it is unclear as to whether the hearing
was stenographically recorded), at the conclusion of the hearing, the PCRA
court entered an order and memorandum that directed Attorney Levin to
remain as appellant’s counsel. (PCRA court order and memorandum,
5/10/18 at 1.) With respect to this court’s order directing the PCRA court to
conduct a Grazier hearing, the PCRA court informed this court that it was
unable to do so because appellant failed to appear. (Id. at 2.) The order
and memorandum further stated:
On May 10, 2018 it was represented to this Court, by
and through Peter Levin, Esquire as appearing
appointed counsel for [appellant], that his client
telephoned his office and claimed that he is in the
State of New Jersey pursuant to a civil commitment
for a separate matter.
[Appellant] is not serving a sentence within the
Commonwealth of Pennsylvania in the case docketed
under CP-XX-XXXXXXX-2005. Thus, this Court as a
duly elected Judge of the Court of Common Pleas for
the First Judicial District of Pennsylvania has zero
authority to direct the State of New Jersey to release
[appellant] for any court appearance even if he is
committed as claimed.
Id.
-4-
J. S62032/18
The record further reflects that on May 11, 2018, the PCRA court
entered an order that granted Attorney Levin leave to withdraw after
concluding that Attorney Levin provided credible information that appellant
threatened and harassed him in a telephone communication. (PCRA court
amended order and memorandum, 5/11/18.) The order further provided
that, “[a]bsent further direction from the Superior Court of Pennsylvania no
further action can or shall be taken.” (Id.)
In this appeal, appellant requests that we review three ineffective
assistance of counsel claims. The PCRA court and the Commonwealth,
however, contend that because appellant is no longer serving a sentence of
imprisonment, probation, or parole, he is not eligible for PCRA relief.
Indeed, the record reflects that appellant is no longer serving a sentence of
imprisonment, probation, or parole. Nevertheless, appellant contends that
because he has been civilly committed and is currently being involuntarily
held in a special treatment unit for sex offenders in New Jersey, he is still
serving a sentence. Appellant is mistaken.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the PCRA court’s
determination and whether its decision is free of legal error.
Commonwealth v. Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal
denied, 959 A.2d 319 (Pa. 2008). The PCRA statute plainly states that to
be eligible for PCRA relief, a PCRA petitioner must be “currently serving a
-5-
J. S62032/18
sentence of imprisonment, probation or parole for the crime” at issue.
42 Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v. Williams, 977 A.2d 1174
(Pa.Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010). “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.” Id. at 1176, quoting Commonwealth v. Hart, 911 A.2d 939,
942 (Pa.Super. 2006). “To grant relief at a time when [the petitioner]
is not currently serving . . . a sentence would be to ignore the language
of the statute. ” Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa.
1997) (emphasis in original).
Here, the record reflects that appellant filed his PCRA petition on
October 8, 2014, but that his sentence of imprisonment, probation, or parole
expired on February 9, 2015.3 Therefore, appellant became ineligible for
PCRA relief on February 9, 2015. Accordingly, the PCRA court properly
dismissed appellant’s PCRA petition.
Order affirmed.
3 The Commonwealth contends that appellant’s sentence expired on
February 9, 2015. (Commonwealth’s letter brief, 4/19/17 at 2.) We do,
however, note that the record contains a letter from appellant to the PCRA
court dated April 28, 2017, that enclosed an undated letter from
Christopher McFillin, supervisor of the sex offender unit of the Philadelphia
Adult Probation Department, stating that appellant’s supervised probation in
Philadelphia County is “due to expire February 8, 2015.” (Appellant’s
correspondence to PCRA court, 4/28/17 at enclosure.) We will give
appellant the benefit of the doubt and use the latter date.
-6-
J. S62032/18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/18
-7-