Com. v. Ettison, W.

J-S53026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WILLIAM LEE ETTISON,

Appellant No. 254 WDA 2014

Appeal from the PCRA Order of January 17, 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000865-2010

BEFORE: DONOHUE, OLSON and PLATT,* JJ. MEMORANDUM BY OLSON, J.: FILED AUGUST 29, 2014

Appellant, William Lee Ettison, appeals from the order entered on January 17, 2014 dismissing his petition filed under the Post-Conviction

. §§ 9541-9546. We affirm.

We have previously summarized the factual background of this case as follows:

On February 18, 2010, Officer Michael Hertel of the Erie Bureau of Police was riding in a two-man patrol car operated by Corporal Jody Raeger when Officer Hertel observed Appellant drive past in a gray Cadillac. Officer Hertel immediately recognized Appellant from a previous encounter, and was aware that Appellant had an outstanding arrest warrant. The police officers proceeded to turn their car around, and followed Appellant. Officer Hertel

on roads that were partly snowcovered and wet. As a result of

to bring his vehicle to a complete stop at a stop sign and consequently his vehicle slid through the intersection. The police officers activated their vehicle lights and Appellant pulled his car

• • Retired Senior Judge assigned to the Superior Court.

J-S53026-14

over by the side of the road as close as he could to the curb given the large piles of snow lining the street. Appellant then exited his vehicle and closed the door behind him. Prior to Appellant exiting the vehicle, Officer Hertel observed Appellant moving around inside the vehicle. The police officers immediately exited their vehicle and Officer Hertel . . . ordered Appellant to the ground.

Appellant complied and Officer Hertel handcuffed him, and conducted a patdown search. Corporal Raeger then retrieved

in a marked patrol car and transported by another officer to the

vehicle was obstructing traffic and needed to be towed. Corporal

vehicle, and upon doing so, detected an odor of burnt marijuana. Corporal Raeger proceeded to conduct a search of the interior of

vehicle revealed no contraband. Officer Hertel then returned to

registration, which revealed that the registration did not belong to the Cadillac that Appellant was driving, but rather to a Ford

The Cadillac was subsequently impounded and towed to the Erie Police Department where it was subjected to a canine sniff, which resulted in a positive indication for illegal drugs. The police officers obtained a warrant for the vehicle and a subsequent search yielded a clear plastic bag of marijuana in the glove box, and a marijuana joint and a clear plastic bag of narcotic pills in the center console.

Commonwealth v. Ettison, 43 A.3d 525 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 51 A.3d 837 (Pa. 2012) (internal quotation marks and citations omitted; first paragraph break added).

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The relevant procedural history of this case is as follows. On January 18, 2011, a jury found Appellant guilty of fleeing or attempting to elude a police officer,1 reckless driving,2 failure to stop at a stop sign,3 altering, forging or counterfeiting a certificate of title, registration card or plate, inspection certificate or proof of financial responsibility, 4 possession of a controlled substance (pills);5 possession of a small amount of marijuana,6 and possession of drug paraphernalia.7 On March 9, 2011, Appellant was

mprisonment. We affirmed the judgment of sentence. Commonwealth v. Ettison, 43 A.3d 525 (Pa. Super. 2012) (unpublished memorandum).

On November 27, 2012, Appellant filed a pro se PCRA petition. On November 28, 2012, counsel was appointed. On December 20, 2012, counsel filed a no merit 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). On February 20, 2013, counsel withdrew his

1 75 Pa.C.S.A. § 3733(a). 2 75 Pa.C.S.A. § 3736(a). 3 75 Pa.C.S.A. § 3323(b). 4 75 Pa.C.S.A. § 7155(a). 5 35 P.S. § 780-113(a)(16). 6 35 P.S. § 780-113(a)(31). 7 35 P.S. § 780-113(a)(32).

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Turner/Finley letter. On October 4, 2013, an evidentiary hearing was dismiss on January 17, 2014. This timely appeal followed.8

Appellant raises one issue for our consideration:

contention that the Appel expired thereby vitiating any jurisdictional grounds?

legal conclusions de novo. See Commonwealth v. Charleston, 2014 WL 2557575, *4 (Pa. Super. June 6, review in determining whether a court has subject matter jurisdiction is de novo a Beneficial Consumer Disc. Co. v. Vukman, 77 A.3d 547, 550 (Pa. 2013) (citation omitted).

8 On February 13, 2014, the PCRA court ordered Appellant to file a concise See Pa.R.A.P. 1925(b). On February 25, 2014, Appellant filed his concise statement. On April 8, 2014, the PCRA court issued its Rule 1925(a)

statement.

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The PCRA court determined that it lacked jurisdiction to rule on

ing his sentence. The PCRA provides, in relevant part, that:

(a) General rule.--To be eligible for relief under [the PCRA], the petitioner must plead and prove 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

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

42 Pa.C.S.A. § 9543(a)(1).

does not challenge the fact that the maximum at 5. Our independent review of the record confirms that Appellant ceased to be on parole as of December 15, 2013.9

Appellant instead argues that the PCRA court had jurisdiction to decide the case because he was eligible for relief at the pleading and proof stage of the proceedings, i.e., when the matter was submitted to the PCRA court. Appellant avers that the trial court could have ruled on his petition sooner.

9 Appellant was granted bail while his direct appeal was pending.

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This argument is without merit. Our Supreme Court and this Court have consistently interpreted Section 9543(a) to require that a PCRA petitioner be serving a sentence while relief is being sought. Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997); Commonwealth v. Martin, 832 A.2d 1141, 1143 (Pa. Super. 2003), appeal denied, 843 A.2d 1237 (Pa. 2004); Commonwealth v. James, 771 A.2d 33 (Pa. Super. 2001); Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa. Super. 1997).

Our Supreme Court has previously rejected the distinction that Appellant is attempting to draw. See Commonwealth v. Turner, 80 A.3d 754, 769 (Pa. 2013) (holding that when a petiti his PCRA petition is pending before the PCRA court, the PCRA court loses jurisdiction to rule on the merits of the petition). As noted in Turner, Appellant had other options to expedite review of the claims raised in his PCRA petition. See id. Appellant could have sought expedited review of his PCRA petition. Instead, the record reflects that counsel delayed review of the PCRA petition by originally filing a Turner/Finley letter. Furthermore, at the PCRA hearing, counsel (incorrectly) implied that time was not of the would suffice for jurisdictional purposes. See N.T., 10/4/13, at 61. Appellant also could have proceeded under Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), which permitted defendants to raise claims of

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ineffective assistance of counsel on direct appeal in certain circumstnaces.10 Accordingly, it is irrelevant that Appellant was still on parole when the instant petition was filed or when the evidentiary hearing occurred before the PCRA court. It is well-settled under Pennsylvania law that the PCRA

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/29/2014

10 Although the Bomar exception was severely limited by our Supreme Court in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), Bomar was

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