Com. v. Hayes

• Decision Date: 21 August 1991
• Citation: 596 A.2d 195,408 Pa.Super. 68
• Parties: COMMONWEALTH of Pennsylvania v. Gregory HAYES aka Nasir S. Nassardeen, Appellant.
• Court: Pennsylvania Superior Court

Page 195

596 A.2d 195

408 Pa.Super. 68

COMMONWEALTH of Pennsylvania v. Gregory HAYES aka Nasir S. Nassardeen, Appellant.

Superior Court of Pennsylvania.

Argued April 9, 1991.

Filed Aug. 21, 1991.

Maryann F. Swift, Philadelphia, for appellant.

Sheilann P. Hewitt, Asst. Dist. Atty., Philadelphia, for Com.

Before ROWLEY, President Judge and CAVANAUGH, CIRILLO, OLSZEWSKI, MONTEMURO, BECK, TAMILIA, POPOVICH and HUDOCK, JJ.

BECK, Judge:

The issue before the en banc court is whether the interpretation of the Post Conviction Relief Act (PCRA) ¹ announced by this court in Commonwealth v. Pierce, 397 Pa.Super. 126, 579 A.2d 963 (1990), should be overruled. Upon a complete review of the PCRA, we hold that under section 9543(a) of the PCRA the Pennsylvania legislature clearly provided that individuals must be presently serving a sentence of imprisonment, probation or parole at the time they file a PCRA petition in order to be eligible for relief. We therefore conclude Pierce was correctly decided. In the instant case we find that the trial court properly dismissed appellant's petition because appellant had fully served his sentence of probation prior to filing for PCRA relief.

The factual background in this case is as follows. On July 18, 1982, appellant Gregory Hayes a/k/a Errol Vincent McIntosh a/k/a Nasir Nasserdeen, was arrested and charged with Theft by Receiving Stolen Property ² and Unauthorized Use of an Automobile. ³ Appellant was tried before a judge and found guilty on both charges. The judge thereafter sentenced appellant to concurrent probationary periods of three years and two years, for the two respective convictions. Appellant filed no direct appeal.

On October 6, 1989, while serving a sentence of imprisonment in New Jersey on an unrelated conviction, appellant filed a PCRA petition in Pennsylvania challenging the validity of his previous 1982 convictions. In his petition, appellant alleged that his counsel for the 1982 bench trial was ineffective. Appellant filed the PCRA petition more than six years after his conviction and more than three years after completing his sentence of probation. He asserted the PCRA challenge was proper because the New Jersey court took appellant's 1982 Pennsylvania conviction into consideration and as a result imposed an extended sentence.

The trial court dismissed appellant's PCRA petition noting that appellant was ineligible for post conviction relief pursuant to 42 Pa.C.S.A. § 9543(a)(1), because appellant was not "currently serving a sentence of imprisonment, probation or parole." Appellant appealed to this court and appellate counsel was appointed.

Appellant's appointed counsel thereafter filed a Turner/ Finley brief. ⁴ After a thorough review of the record and the applicable law, appellant's counsel concluded that appellant's petition for post conviction relief was without merit. She therefore requested leave to withdraw. As a result of counsel's Turner/ Finley brief, appellant filed a petition requesting the appointment of new appellate counsel. A three member panel of this court denied appellant's request for new counsel, but granted appellant thirty days in which to file a pro se brief. The Superior Court panel then referred this matter en banc for consideration of the continued validity of Commonwealth v. Pierce, 397 Pa.Super. 126, 579 A.2d 963. ⁵

Our analysis is as follows. We begin with a consideration of the statutory language, and stress that our interpretation and construction of the PCRA is directed towards determining and properly effectuating the intention of the legislature. 1 Pa.C.S.A. § 1921(a) (1972).

Section 9543(a) of the PCRA establishes the requirements for eligibility for post conviction relief. The relevant language provides:

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

(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.A. § 9543(a)(1).

In this case, we are required to determine whether the language, "currently serving a sentence," precludes relief for those persons who suffer collateral criminal consequences due to the prior conviction but who have completed their sentence for the prior conviction. The Pierce panel previously held that the words "currently serving" clearly express the legislature's intent to "limit [post-conviction] relief [under the PCRA] to those petitioners whose sentences have not expired and to preclude relief for those whose sentences have expired, regardless of collateral consequences." Pierce, 397 Pa.Super. at 131, 579 A.2d at 966 (emphasis added). Our research has revealed no other Pennsylvania appellate court decision that has addressed this issue.

As noted by the Pierce panel, the legislative history explaining the background and intent of the PCRA is very limited. Pierce, 397 Pa.Super. at 129, 579 A.2d at 964; see also Legislative Journal--House, (February 24, 1988) at 324. Therefore, to aid in our interpretation and construction of the PCRA and to determine the legislature's intent, we examine the prior statute and case law addressing this issue. 1 Pa.C.S.A. § 1921(c) (1972).

The PCRA, which became effective in 1988, is a complete amendment to the prior post conviction relief statute: the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. (1982), amended by 42 Pa.C.S.A. § 9541 et seq. (1988). A review of the modifications and amendments to the PCHA shows that almost the entire statutory language of the PCHA was stricken and replaced by new language in the PCRA. See 1988 Pa.Legis.Serv. 229-232, Act 47 (June 1988).

As compared to the PCRA, the PCHA eligibility subsection required the petitioner to prove "[t]hat he is incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation." 42 Pa.C.S.A. § 9543, amended by 42 Pa.C.S.A. § 9543 (1988). Our supreme court and this court interpreted this PCHA language as permitting a collateral attack upon a prior conviction where the prior criminal sentence may directly affect any subsequent criminal prosecution or conviction. Commonwealth v. Carter, 362 Pa.Super. 70, 73, 523 A.2d 779, 780 (1987) (citing Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979); Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976)); see also Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971); Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966); Commonwealth v. Markley, 348 Pa.Super. 194, 501 A.2d 1137 (1985).

The development of this "collateral criminal consequences" rule was based upon an interpretation of habeas corpus law, the language of the PCHA, see Ulmer, 421 Pa. at 43-44, 218 A.2d at 234; Sheehan, 446 Pa. at 38-41, 285 A.2d at 466-67, and upon a series of United States Supreme Court decisions addressing the issue of mootness. See Sheehan, 446 Pa. at 42-43 n. 8 & 9, 285 A.2d at 469 n. 8 & 9. It was, however, in Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465, that the Pennsylvania Supreme Court first enunciated the "collateral criminal consequences" rule. ⁶

In Sheehan, the court addressed a PCHA challenge to a prior, but expired, criminal conviction and sentence. 446 Pa. at 37, 285 A.2d at 466. As an analytic framework the court inquired into whether the petitioner who had served his sentence was raising a question that was moot. ⁷ The Sheehan court first noted that it had previously been held, in Ulmer, that a state habeas corpus challenge to a previously imposed and expired sentence was not moot, "where one could suffer the consequence of having sentences begin and end later than they normally would." Id. at 42, 285 A.2d at 468-69. In Ulmer, the defendant disputed the extension of his current incarceration because of a prior but expired criminal sentence. Ulmer, 421 Pa. at 42-43, 218 A.2d at 233-34. Stating that Ulmer was not to be limited to its facts, the Sheehan court held that a petitioner under the PCHA could "attack ... a satisfied sentence which is shown to affect directly any subsequent criminal prosecution or conviction." Sheehan, 446 Pa. at 42, 285 A.2d at 469.

In addition to relying on Ulmer, the Sheehan court also interpreted several United States Supreme Court decisions as instructing that "the possibility of either civil or criminal collateral consequences forecloses application of the mootness doctrine." Sheehan, 446 Pa. at 42-43 n. 9, 285 A.2d at 469 n. 9 (citing United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969)). Considering the court's prior holding in Ulmer, and the above cited United States Supreme Court decisions, the Sheehan court enunciated the collateral criminal consequences rule as an exception to the general rule of mootness. Sheehan, 446 Pa. at 42-43, 285 A.2d at 468-69.

In Sheehan the court also addressed the specific language of the PCHA. Acknowledging that the petitioner in Sheehan, whose sentence had already expired, could not facially meet the PCHA eligibility requirement that he "is incarcerated in this Commonwealth," the court nevertheless held that the petitioner was not per se precluded from other post conviction relief. Sheehan, 446 Pa. at 39, 285 A.2d at 467. The court reasoned that the legislature's intent in enacting the PCHA "was not to abolish the common law remedies of habeas corpus and coram nobis, but rather to promulgate an exclusive, well-defined procedure for the presentation of those grievances set forth in the Act by an aggrieved person who is under the duress of punishment." Id.

Referring to the PCHA subsection describing the intended scope of the PCHA, the court...