J-S49034-20
`
`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
`
`IN THE SUPERIOR COURT OF
`PENNSYLVANIA
`
`No. 1448 WDA 2019
`
`:::::::::
`
`COMMONWEALTH OF PENNSYLVANIA
`
`v.
`
`KEVIN ERNEST TAYLOR
`
`Appellant
`
`Appeal from the PCRA Order Entered September 13, 2019
`In the Court of Common Pleas of Allegheny County Criminal Division at
`No(s): CP-02-CR-0003820-2016
`
`BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
`
`MEMORANDUM BY STEVENS, P.J.E.:
`
`FILED NOVEMBER 13, 2020
`
`Appellant, Kevin Ernest Taylor, appeals pro se from the September 13,
`
`2019, Order entered in the Court of Common Pleas of Allegheny County
`
`denying his second petition filed under the Post Conviction Relief Act (“PCRA”),
`
`42 Pa.C.S.A. §§ 9541-9546, following an evidentiary hearing. After a careful
`
`review, we affirm.
`
`The relevant facts and procedural history are as follows: On November
`
`3, 2016, Appellant, who was represented by counsel, entered a guilty plea to
`
`the sole charge of driving while under the influence of a controlled substance-
`
`impaired ability-second offense, 75 Pa.C.S.A. § 3802(d)(2). On that same
`
`date, the trial court sentenced Appellant to ninety (90) days of house arrest,
`
`as well as a concurrent eighteen (18) months of probation. The trial court
`
`____________________________________________
`
`* Former Justice specially assigned to the Superior Court.
`
`
`
`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
`
`IN THE SUPERIOR COURT OF
`PENNSYLVANIA
`
`No. 1448 WDA 2019
`
`:::::::::
`
`COMMONWEALTH OF PENNSYLVANIA
`
`v.
`
`KEVIN ERNEST TAYLOR
`
`Appellant
`
`Appeal from the PCRA Order Entered September 13, 2019
`In the Court of Common Pleas of Allegheny County Criminal Division at
`No(s): CP-02-CR-0003820-2016
`
`BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
`
`MEMORANDUM BY STEVENS, P.J.E.:
`
`FILED NOVEMBER 13, 2020
`
`Appellant, Kevin Ernest Taylor, appeals pro se from the September 13,
`
`2019, Order entered in the Court of Common Pleas of Allegheny County
`
`denying his second petition filed under the Post Conviction Relief Act (“PCRA”),
`
`42 Pa.C.S.A. §§ 9541-9546, following an evidentiary hearing. After a careful
`
`review, we affirm.
`
`The relevant facts and procedural history are as follows: On November
`
`3, 2016, Appellant, who was represented by counsel, entered a guilty plea to
`
`the sole charge of driving while under the influence of a controlled substance-
`
`impaired ability-second offense, 75 Pa.C.S.A. § 3802(d)(2). On that same
`
`date, the trial court sentenced Appellant to ninety (90) days of house arrest,
`
`as well as a concurrent eighteen (18) months of probation. The trial court
`
`____________________________________________
`
`* Former Justice specially assigned to the Superior Court.
`
`
`
`J-S49034-20
`
`specifically indicated the period of probation would begin on “the date of
`
`sentence.” N.T., 11/3/16, at 9.
`
`On or about January 4, 2018, Appellant filed a pro se PCRA petition, and
`
`the PCRA court appointed counsel. The PCRA court gave notice of its intent
`
`to dismiss the petition, and by order entered on May 11, 2018, the PCRA court
`
`denied Appellant’s PCRA petition.
`
`On or about March 5, 2019, Appellant filed a second pro se PCRA
`
`petition, and the PCRA court appointed counsel. On July 19, 2019, counsel
`
`filed a motion seeking to withdraw his representation. On July 23, 2019, the
`
`PCRA court provided Appellant with notice of its intent to dismiss the PCRA
`
`petition and granted counsel’s motion to withdraw.
`
`On August 12, 2019, the PCRA court denied Appellant’s second PCRA
`
`petition; however, on August 14, 2019, the PCRA court received Appellant’s
`
`pro se response to the PCRA court’s notice of
`
`its intent to dismiss.1
`
`Accordingly, on August 22, 2019, the PCRA court vacated its August 12, 2019,
`
`dismissal order to consider Appellant’s pro se response.2
`
`____________________________________________
`
`1 The record reveals the pro se response was handed to prison officials on
`Monday, August 12, 2019. Thus, the pro se response is deemed to have been
`filed on August 12, 2019. See Commonwealth v. Crawford, 17 A.3d 1279,
`1281 (Pa.Super. 2011) (“Under the prisoner mailbox rule, we deem a pro se
`document filed on the date it is placed in the hands of prison authorities for
`mailing.”).
`
`2 42 Pa.C.S.A. § 5505 relevantly provides the following:
`Except as otherwise provided or prescribed by law, a court upon
`notice to the parties may modify or rescind any order within 30
`
`- 2 -
`
`
`
`J-S49034-20
`
`On September 9, 2019, the PCRA court held an evidentiary hearing at
`
`which the Commonwealth averred Appellant was ineligible for PCRA relief in
`
`that his sentence expired on May 3, 2018. On September 13, 2019, the PCRA
`
`court entered an order denying Appellant’s second PCRA petition, and this
`
`timely pro se appeal followed.
`
`In its Pa.R.A.P. 1925(a) opinion, the PCRA court explained it denied
`
`Appellant’s second PCRA petition since Appellant is no longer serving a
`
`sentence of imprisonment, probation, or parole in the instant matter, and
`
`thus, he is not eligible for relief under the PCRA. After a careful review, we
`
`agree with the PCRA court.
`
`Initially, we note the following:
`
`On appeal from the denial of PCRA relief, our standard of
`review calls for us to determine whether the ruling of the PCRA
`court is supported by the record and free of legal error. The PCRA
`court’s findings will not be disturbed unless there is no support for
`the findings in the certified record. The PCRA court’s factual
`determinations are entitled
`to deference, but
`its
`legal
`determinations are subject to our plenary review.
`
`Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quotation
`
`marks and quotations omitted).
`
`____________________________________________
`
`days after its entry, notwithstanding the prior termination of any
`term of court, if no appeal from such order has been taken or
`allowed.
`42 Pa.C.S.A. § 5505. Here, the PCRA court vacated its August 12, 2019, order
`on August 22, 2019, and Appellant did not take an appeal from the August
`12, 2019, order. Accordingly, the PCRA court had jurisdiction to vacate the
`order in the instant case.
`
`- 3 -
`
`
`
`J-S49034-20
`
`The statutory requirements for eligibility for post-conviction collateral
`
`relief are set forth at 42 Pa.C.S.A. § 9543, which states, in relevant part:
`
`(a) General rule. To be eligible for relief under this subchapter,
`the petitioner must plead and prove by a preponderance of the
`evidence all of the following:
`(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[.]
`
`42 Pa.C.S.A. § 9543(a)(1)(i).
`
`Case law has strictly interpreted the requirement that the petitioner be
`
`currently serving a sentence for the crime to be eligible for relief under the
`
`PCRA.
`
`[T]he 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, 548 Pa. 544, 699 A.2d 718, 720 (1997)
`
`(emphasis omitted).
`
`Here, Appellant was sentenced on November 3, 2016, to ninety (90)
`
`days of house arrest and a concurrent eighteen (18) months of probation. As
`
`of May 3, 2018, prior to Appellant filing the instant PCRA petition, Appellant
`
`had served the entirety of his sentence.
`
`Since the PCRA requires that a petitioner be serving his or her sentence
`
`at the time relief is granted, we conclude the PCRA court properly held that
`
`- 4 -
`
`
`
`J-S49034-20
`
`Appellant is not eligible for PCRA relief on this basis. See Commonwealth
`
`v. Descardes, 635 Pa. 395, 136 A.3d 493 (2016) (holding the petitioner was
`
`no longer serving a sentence, so he was ineligible for PCRA relief; the
`
`petitioner’s ineligibility deprived the court of jurisdiction to entertain the
`
`petition).
`
`For all of the aforementioned reasons, we affirm the PCRA court’s denial
`
`of Appellant’s second PCRA petition.3
`
`Order affirmed.
`
`Judgment Entered.
`
`Joseph D. Seletyn, Esq.
`Prothonotary
`
`Date: 11/13/2020
`
`____________________________________________
`
`3 We note Appellant contends he was entitled to the assistance of counsel
`throughout the litigation of his second PCRA petition. However, this Court has
`held there is no automatic right to appointed counsel with regard to second
`PCRA petitions. Commonwealth v. Vega, 754 A.2d 714 (Pa.Super. 2000).
`
`- 5 -
`
`
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