Opinion
J-S52004-18 No. 1163 MDA 2017
10-10-2018
COMMONWEALTH OF PENNSYLVANIA, Appellee v. OMAR S. COOKE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 11, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001626-1999 BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Omar S. Cooke, appeals pro se from the post-conviction court's order dismissing his "Petition for Writ of Coram Nobis or in the Alternative Motion to Vacate" (hereinafter "writ of coram nobis"), which the court treated as a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On November 18, 1999, Appellant pled guilty to possession with intent to deliver a controlled substance, 35 P.S. § 780-113(a)(30). That same day, he was sentenced to 1 to 2 years' incarceration. The record does not indicate that Appellant filed a direct appeal.
On June 14, 2017, Appellant filed the pro se writ of coram nobis. Therein, he contended that he was a juvenile at the time of his crime, and his case had been improperly transferred to the Court of Common Pleas of Dauphin County; consequently, he claimed that the court of common pleas lacked jurisdiction over his case. On June 15, 2017, the PCRA court filed a Pa.R.Crim.P. 907 notice informing Appellant that it was treating his filing as a PCRA petition, and that it planned to dismiss the petition on the basis that Appellant "is ineligible for collateral relief on his drug[-]related charge since he has completed his sentence for that conviction." PCRA Court Order (PCO), 6/15/17, at 2. Appellant filed a timely, pro se response to the court's Rule 907 notice, conceding that he had completed his sentence in this case, but arguing that he could present his jurisdictional challenge even though he was no longer serving a sentence of incarceration. See Appellant's Response to Rule 907 Order, 7/6/17, at 1-2.
On July 11, 2017, the PCRA court dismissed Appellant's petition. Appellant filed a timely, pro se notice of appeal, and he also timely complied with the PCRA court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Herein, he presents one issue for our review: "Did [the PCRA court] err when [it] treated [Appellant's] motion solely as a request for relief under the [PCRA] and concluded that [it] was without jurisdiction to hear the petition?" Appellant's Brief at 1.
Our standard of review regarding an order denying post-conviction relief under the PCRA is whether the determination of the court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. Commonwealth v. Touw , 781 A.2d 1250, 1252 (Pa. Super. 2001).
Appellant initially argues that the PCRA court erred by treating his writ of coram nobis as a PCRA petition. He stresses that he was a juvenile at the time of his crime, and "the PCRA statute does not apply to juvenile matters." Appellant's Brief at 3-4 (citing In re A.J., 829 A.2d 312, 315 n.3 (Pa. Super. 2003) ("[T]he [PCRA], which is the remedy for adults seeking post-conviction relief, is unavailable to juveniles.")). Appellant further reasons that, "[h]ad [his case] not been transferred to Adult Court, as it should not have been, [Appellant] would not have been barred from review because he was no longer in custody as required by the PCRA." Id. at 4. Accordingly, he maintains that the writ of coram nobis is available to him, and the PCRA does not apply.
Appellant's argument is unconvincing. Appellant was convicted and sentenced as an adult in the Court of Common Pleas of Dauphin County. In his writ of coram nobis, he argued that the court of common pleas lacked jurisdiction over his case, which should have remained in juvenile court. A claim challenging the jurisdiction of the court in which a conviction and sentence occurred is clearly cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(viii) (stating a petitioner is eligible for PCRA relief if, inter alia, he demonstrates that his "conviction or sentence resulted from ... [a] proceeding in a tribunal without jurisdiction"). Thus, the PCRA court properly treated Appellant's writ of coram nobis as a PCRA petition. See Commonwealth v. Descardes , 136 A.3d 493, 501 (Pa. 2016) ("[P]ursuant to the plain language of [42 Pa.C.S. §] 9542, where a claim is cognizable under the PCRA, the PCRA is the only method of obtaining collateral review.").
Appellant next argues that he is entitled to post-conviction relief on equitable grounds. Specifically, he avers that he was "immature and uninformed" when he was incarcerated and eligible for relief under the PCRA. Thus, Appellant maintains that the interests of justice require that we now permit him to seek such relief, despite that "too much time has passed and conditions have changed while he was in the dark...." Appellant's Brief at 4.
Unfortunately for Appellant, there are no equitable exceptions to the eligibility requirements of the PCRA. Under section 9543, to be eligible for PCRA relief, a petitioner must demonstrate that he is "currently serving a sentence of imprisonment, probation or parole for the crime[.]" 42 Pa.C.S. § 9543(a)(1)(i); see also Commonwealth v. Matin , 832 A.2d 1141, 1143 (Pa. Super. 2003) ("A petitioner is ineligible for relief under the PCRA once the sentence for the challenged conviction is completed.") (citing Commonwealth v. Ahlborn , 699 A.2d 718 (1997)). Because here, Appellant completed his sentence years before he filed his PCRA petition, he is ineligible for relief. Therefore, the PCRA court did not err in denying his petition.
We recognize that Appellant was not appointed counsel. However,
[t]his [C]ourt has held that the failure to appoint counsel for a petitioner under the PCRA who has served his sentence is harmless error, and that a remand for appointment of counsel is not appropriate, as a remand would be futile under such a circumstance. See Commonwealth v. Auchmuty , 799 A.2d 823, 826-[]27 (Pa. Super. 2002). The purpose for appointing counsel for a first-time petitioner, even where the petition appears to be untimely filed, is for the petitioner to attempt to establish an exception to the one-year time limitation. Obviously, where the petitioner is no longer serving a sentence of imprisonment, probation or parole, establishing such an exception is a legal impossibility, as the statute no longer applies. The law does not require the performance of a futile act. Id. at 827, citing Commonwealth v. Myers , 485 Pa. 519, 524, 403 A.2d 85, 87 (1979).
Order affirmed.
Judge McLaughlin joins this memorandum.
Judge Strassburger files a dissenting memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018
Commonwealth v. Hart , 911 A.2d 939, 942 (Pa. Super. 2006).
The Dissent relies on Commonwealth v. Ramos, 14 A.3d 894 (Pa. Super. 2011), to contend that we must remand for the appointment of counsel in this case. Notably, the Ramos panel did not acknowledge Hart, and Ramos could not have overruled Hart's and Auchmuty's harmless-error holdings. See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (reiterating that one three-judge panel of this Court cannot overrule another three-judge panel). In any event, Ramos is also distinguishable from Appellant's case. Notably, the Dissent omits, from the portion of Ramos that it quotes, a footnote in which the Ramos panel recognized that "the record before us is not dispositive of the status of [Ramos's] sentence." Ramos, 14 A.3d at 896 n.1 (emphasis added). To the contrary, here, Appellant was sentenced to a term of 1 to 2 years' incarceration in 1999, and he conceded in his response to the PCRA court's Rule 907 notice that he "is no longer incarcerated for [the] offense [at] no CP-22-CR-1626-1999...." Appellant's Rule 907 Response, 7/6/17, at 1 ¶ 2. Additionally, in his brief to this Court, Appellant again admits that he is no longer incarcerated for the at-issue conviction. See Appellant's Brief at 4. Therefore, unlike in Ramos, the record in this case is dispositive of the fact that Appellant has completed his sentence. Consequently, remanding for the appointment of counsel would be a waste of time and judicial resources.