Com. v. Ahlborn

• Court: Pennsylvania Superior Court
• Writing for the Court: Before McEWEN, President Judge, CAVANAUGH, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ., and CIRILLO; TAMILIA; DEL SOLE; CAVANAUGH, J., files a Dissenting Opinion in which JOHNSON, J., and CIRILLO; CIRILLO; DEL SOLE; CAVANAUGH; CIRILLO,
• Citation: Com. v. Ahlborn, 683 A.2d 632, 453 Pa.Super. 124 (Pa. Super. Ct. 1996)
• Decision Date: 31 July 1996
• Parties: COMMONWEALTH of Pennsylvania v. Clarence A. AHLBORN, Jr., Appellant. COMMONWEALTH of Pennsylvania v. Clement McGUIRE, Appellant.

Page 632

683 A.2d 632

453 Pa.Super. 124

COMMONWEALTH of Pennsylvania v. Clarence A. AHLBORN, Jr., Appellant.

COMMONWEALTH of Pennsylvania v. Clement McGUIRE, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 26, 1996.

Filed July 31, 1996.

John D. Ceraso, New Kensington, for Clarence A. Ahlborn, Jr.

Christian Scherer, Assistant District Attorney, Greensburg, and Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before McEWEN, President Judge, CAVANAUGH, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ., and CIRILLO, President Judge Emeritus.

TAMILIA, Judge.

The issue presented by these consolidated appeals is one of first impression in this Commonwealth, namely, whether relief is available under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 et seq., where a petitioner files a PCRA petition while still in custody but is fully discharged prior to final adjudication of the petition. We have certified this important issue for en banc consideration.

Clement McGuire, the appellant at No. 01946 Philadelphia, 1994, was arrested on April 1, 1988, two weeks after he fired a shot which narrowly missed a teenager on a Philadelphia street corner. Minutes prior to the gunshot, the teenager had engaged in a fist fight with a passenger in McGuire's car. On September 13, 1988, following a nonjury trial, McGuire was convicted of violating the Uniform Firearms Act (VUFA), ¹ reckless endangerment ² and possessing an instrument of crime (PIC). ³ McGuire's post-trial motions were denied and he was ultimately sentenced ⁴ to two (2) to five (5) years' imprisonment on the VUFA count, six (6) to twelve (12) months' consecutive on the reckless endangerment count and six (6) to twelve (12) months' concurrent on the PIC count. Thus, McGuire's sentence totalled two and one-half (2 1/2) to six (6) years' imprisonment, with credit for time served. A panel of this Court affirmed McGuire's judgment of sentence on September 15, 1989. Commonwealth v. McGuire, 394 Pa.Super. 631, 569 A.2d 1384 (1989) (unpublished Memorandum). On October 6, 1989, McGuire filed a pro se PCRA petition and present counsel was appointed to assist him. Thereafter, while McGuire was still imprisoned, two amended petitions were filed, both of which alleged ineffective assistance of counsel. McGuire was paroled on December 16, 1990 and on August 31, 1993, a PCRA hearing was held. On April 1, 1994, McGuire's parole expired and he was fully discharged. By Order dated May 18, 1994, McGuire's PCRA petition was denied on the merits. This appeal followed.

On May 4, 1990, Clarence A. Ahlborn, appellant at No. 00601 Pittsburgh, 1995, pled guilty to three counts of driving under the influence (DUI) ⁵ and one count of accident resulting in death or injury. ⁶ Appellant was sentenced to forty-eight (48) hours to twenty-three (23) months on the first DUI count, a concurrent term of thirty (30) days to twenty-three (23) months on the second DUI count, a consecutive term of four (4) to twenty-three (23) months on the third DUI count and a concurrent term of thirty (30) days to twenty-three (23) months on the accident resulting in death or injury count. On May 22, 1990, Ahlborn filed a pro se motion to withdraw his guilty plea but for reasons not apparent on the record, the motion was never adjudicated. On November 22, 1993, while still incarcerated, Ahlborn filed his PCRA petition. Counsel was appointed and an amended petition was filed on January 25, 1994 alleging Ahlborn was misled into entering his guilty plea, he believed he was only pleading guilty to two DUI counts, he was never afforded a hearing on the motion to withdraw his guilty plea and he was denied access to court records. A PCRA hearing was scheduled for February 17, 1994. However, on February 14, 1994, Ahlborn completed his sentence and was unconditionally released from prison. Subsequently, the February 17, 1994 hearing was continued and, by Order dated June 8, 1994, the PCRA court dismissed Ahlborn's petition on the basis that, having completed his sentence, he was no longer eligible for PCRA relief. This appeal followed.

By Orders dated October 10 and 11, 1995, respectively, we certified these appeals for en banc review.

Initially, section 9543(a)(1)(i) of the PCRA provides as follows:

§ 9543. Eligibility for relief

(a) General rule.--To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:

(1) that the person has been convicted of a crime under the laws of this Commonwealth and is:

(i) currently serving a sentence of imprisonment, probation or parole for the crime[.]

42 Pa.C.S. § 9543(a)(1)(i).

The Commonwealth argues McGuire and Ahlborn are ineligible for PCRA relief since neither is currently serving a sentence of imprisonment, probation or parole. Thus, the Commonwealth concludes, the instant petitions are moot. To the contrary, Ahlborn claims PCRA eligibility on the basis that he was currently serving a sentence at the time his petition was filed. These appeals therefore require us to determine whether "currently serving" within section 9543(a)(1)(i) refers to the time the petition is filed or the time the petition is ultimately adjudicated. This question is not answered by Pennsylvania case or statutory law.

In support of its claim that appellants have failed to satisfy the "currently serving" requirement of the PCRA, the Commonwealth relies principally on two cases. In the first, Commonwealth v. Pierce, 397 Pa.Super. 126, 579 A.2d 963 (1990), we considered "whether the doctrine of 'collateral consequences', which prevented a collateral attack on a criminal conviction from becoming moot after the sentence had been served, has been superseded by the provisions of the [PCRA]." Id. at 128, 579 A.2d at 964. Pierce completed the maximum term of a five (5) to fifteen (15) year sentence for second degree murder, then filed a PCRA petition alleging eligibility because of collateral criminal consequences flowing from his conviction. ⁷

The Pierce Court began by discussing the "currently serving" provision of section 9543(a)(1)(i), which the trial court determined required dismissal of appellant's petition. Finding the legislative history of the PCRA scant, the Court turned to its predecessor statute, the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. § 9541 et seq. (1982), amended by 42 Pa.C.S. § 9541 et seq. (1988), which applied when the petitioner "is incarcerated". The Court then noted that "[b]ecause of the general nature of this requirement, the Supreme Court created an exception to the mootness doctrine, which was known as the 'collateral consequences' doctrine." Id. at 129, 579 A.2d at 964-965. This doctrine, as ultimately crafted by our Supreme Court, provided that a collateral attack upon a conviction for which a sentence has been fully served is not moot where the petitioner can demonstrate that the conviction will affect a subsequent criminal prosecution, Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), or will have either actual or potential civil consequences, Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976). However, according to the Pierce Court, since the PCRA limited eligibility to those "currently serving", it necessarily superseded the doctrine of collateral consequences which was derivative of the language of the PCHA, which had been modified as indicated above. The Court also noted, "[t]he provision under the PCRA that a petitioner be 'currently serving' or waiting to serve a sentence for the prior conviction in order to be eligible for relief is consistent with the federal habeas corpus provision requiring that a petitioner be 'in custody' in order to obtain relief." Pierce, supra at 131, 579 A.2d at 965-966. The Court concluded:

The Post Conviction Relief Act, when read as a whole and in conjunction with its predecessor, the Post Conviction Hearing Act and the law pertaining to federal habeas corpus relief, leads us to conclude that the language of the Post Conviction Relief Act pertaining to eligibility for relief was intended to limit relief to those petitioners whose sentences have not expired and to preclude relief for those whose sentences have expired, regardless of collateral consequences.

Id. at 131, 579 A.2d at 966.

The second case relied on by the Commonwealth is Commonwealth v. Hayes, 408 Pa.Super. 68, 596 A.2d 195 (1991), alloc. denied, 529 Pa. 646, 602 A.2d 856 (1992), in which our Court en banc considered "whether the interpretation of the [PCRA] announced by this court in [Pierce ] should be overruled." Id. As in Pierce, the PCRA petition in Hayes was both filed and adjudicated after petitioner's sentence had been fully served. The Hayes Court, tracking the Pierce analysis, engaged in an extensive review of federal habeas corpus law and also found relevant the legislature's alteration of the PCHA "is incarcerated" requirement to the "currently serving" mandate of the PCRA.

Since the legislature rewrote the eligibility requirements, our examination of the specific language, in particular the inclusion of the adverb "currently," leads to the conclusion that the legislature intended to limit post-conviction relief under the PCRA to individuals who at the time of filing for PCRA relief are serving a sentence of imprisonment, probation or parole for a conviction, regardless of the collateral criminal consequences from the conviction....

We conclude that the language changes in the PCRA were deliberately made to confront and alter the collateral criminal consequences rule. Therefore we decline to interject the collateral criminal consequences rule into the PCRA. To do so ignores the legislature's intent and the plain meaning of the word changes made in the PCRA.

In summary, we find that the legislature has clearly modified the eligibility requirements under the PCRA from those that previously...