Com. v. Terrence, N. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NASIO TERRENCE :
:
Appellant : No. 1032 EDA 2021
Appeal from the PCRA Order Entered April 21, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001819-2018
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 28, 2022
Appellant, Nasio Terrence, appeals from an order entered in the Criminal
Division of the Court of Common Pleas of Monroe County on April 21, 2021,
which dismissed his petition filed pursuant to the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. In addition, counsel for Appellant,
Lauren E. Allu, Esquire, has applied to withdraw as counsel pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We affirm the PCRA
court's order dismissing Appellant's PCRA petition and grant counsel's
application to withdraw.
At the conclusion of trial in September 2019, a jury found Appellant
guilty of two counts of robbery, two counts of criminal conspiracy to commit
robbery, reckless endangerment, simple assault, and related offenses. On
November 21, 2019, the trial court imposed an aggregate sentence of nine to
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18 months of imprisonment and awarded Appellant 21 days credit for time
served in the Monroe County Correctional Facility between his arrest and the
time his bail was modified. Appellant did not appeal his conviction or sentence
to this Court.
Because we ultimately conclude that Appellant’s ineligibility for relief
under the PCRA is dispositive of the matters before us, we briefly detail the
facts surrounding Appellant’s service of his sentence. Appellant remained
incarcerated in the Monroe County Correctional Facility until he was paroled
on August 4, 2020. Appellant was not released at that time, however.
Instead, on August 5, 2020, Appellant was transferred to the Pike County
Correctional Facility where he remained incarcerated pursuant to a detainer
lodged by Immigration and Customs Enforcement (“ICE”), as Appellant is not
a United States citizen. Appellant remained incarcerated in Pike County even
after his sentence expired on May 1, 2021, due to the ICE Detainer.
Eventually, Appellant was relocated to York County Prison and, thereafter, to
the Glades County Detention Center in Moore Haven, Florida where he has
remained during the pendency of this appeal.
Appellant filed a pro se PCRA petition and accompanying legal
memorandum on February 18, 2021. The PCRA court convened a hearing on
Appellant’s petition on April 21, 2021. At the conclusion of that proceeding,
the PCRA court denied Appellant’s petition. On April 27, 2021, Appellant’s
counsel moved for reconsideration, which request was denied on April 28,
2021. A timely notice of appeal followed on May 7, 2021.
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Before this Court, in lieu of an advocate's brief, counsel filed a petition
to withdraw and no-merit letter pursuant to Turner and Finley. Before we
consider the merits of the issues raised on appeal, we must determine whether
counsel followed the required procedure, which we have summarized as
follows.
Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the nature
and extent of counsel's diligent review of the case, listing the
issues which the petitioner wants to have reviewed, explaining
why and how those issues lack merit, and requesting permission
to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel's petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel's request
to withdraw. Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley
request or an advocate's brief.
However, where counsel submits a petition and no-merit letter
that do satisfy the technical demands of Turner/Finley, the
court—trial court or this Court—must then conduct its own review
of the merits of the case. If the court agrees with counsel that
the claims are without merit, the court will permit counsel to
withdraw and deny relief. By contrast, if the claims appear to
have merit, the court will deny counsel's request and grant relief,
or at least instruct counsel to file an advocate's brief.
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Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (cleaned
up).
We are satisfied from our review of counsel's application and no-merit
letter that counsel has complied with the procedural requirements of Turner
and Finley. Counsel detailed her review of the case file, including potentially
meritorious issues to raise on appeal. In addition, counsel explained why
Appellant’s petition lacked a viable path toward relief. Counsel cited pertinent
authority, where appropriate, to support her conclusions and she included
proof of service for both her petition and the letter to Appellant. In her August
31, 2021 letter, counsel advised Appellant of his immediate right to proceed
pro se or with privately retained counsel. Appellant has not responded to the
substance of counsel’s application to withdraw and related materials.
Accordingly, we proceed to consider the merits of the appeal.
Our standard of review examines “whether the PCRA court's
determination is supported by the evidence of record and free of legal error.
We grant great deference to the PCRA court's findings, and we will not disturb
those findings unless they are unsupported by the certified record.”
Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa. Super. 2017) (citation
omitted).
To be eligible for collateral relief under the PCRA, a petitioner must be
“currently serving a sentence of imprisonment, probation or parole for the
crime” at issue. 42 Pa.C.S.A. § 9543(a)(1)(i). Once supervision ends, a
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petitioner is no longer eligible for PCRA relief. Commonwealth v. Ahlborn,
699 A.2d 718, 720 (Pa. 1997). This principle applies regardless of whether
collateral consequences persist because of a petitioner’s conviction.
Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006).
Appellant is no longer serving a sentence for his convictions in this case.
Accordingly, since Appellant is no longer eligible for collateral relief under the
PCRA, there is no meritorious claim that would justify disturbing the dismissal
of his petition.1 Hence, we agree with counsel that the appeal is devoid of
merit.
Order affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2022
____________________________________________
1 In view of our determination that Appellant is no longer serving a sentence
and, hence, is no longer eligible for relief under the PCRA, we need not
consider the PCRA court’s conclusion that Appellant’s petition was untimely
and not subject to a timeliness exception under the statute. Based upon our
review of the certified record, however, we note that we would be inclined to
agree with the PCRA court that the petition in this case was untimely and that
Appellant did not validly invoke one of the timeliness exceptions set forth at
42 Pa.C.S.A. § 9545(b).
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