J-S74027-16

2016 PA Super 268

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHRIS PLUNKETT

Appellant No. 2271 EDA 2015

Appeal from the PCRA Order June 19, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0004704-2009

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

OPINION BY OTT, J.: FILED DECEMBER 02, 2016

Chris Plunkett appeals from the order entered June 19, 2015, in the 

Court of Common Pleas of Philadelphia County, denying him relief on his 

petition filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et 

seq. The PCRA court reviewed the substance of Plunkett’s claim and denied 

him relief based on lack of merit.1 However, because he is no longer serving 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

Plunkett had claimed ineffective assistance of counsel for failure to call 

character witnesses. The PCRA judge, who sat as the fact finder at trial, 

denied Plunkett’s claim after finding Plunkett suffered no prejudice. The 

PCRA court reviewed the affidavits of the proposed character witnesses and 

found the proposed testimony would not have overcome the otherwise 

overwhelming evidence of guilt. See Pa.R.A.P. 1925(a) Opinion, 3/22/2016, 

at 5-6.
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the sentence associated with this petition, Plunkett has lost his standing to 

seek relief. Accordingly, we affirm, albeit on different grounds.

Briefly, on September 21, 2010, Plunkett was found guilty of theft by 

deception, a third-degree felony, at a non-jury trial. On November 30, 

2010, he was sentenced to four years of probation and to pay restitution. 

His direct appeal afforded him no relief. The Pennsylvania Supreme Court 

denied allowance of appeal on August 29, 2013. Plunkett timely filed the 

instant PCRA petition on December 11, 2013. On November 12, 2014, 

Plunkett’s probation was terminated. However, on December 10, 2014, that 

order was vacated due to a then pending violation of probation. Specifically, 

he had failed to complete restitution payments. Also on December 10, 

2014, Plunkett received an additional one year of probation. A hearing on 

Plunkett’s PCRA petition was held on March 26, 2015, and the petition was 

denied on June 19, 2015. On July 7, 2015, Plunkett filed his notice of appeal 

regarding the denial of his PCRA petition. On January 21, 2016, having fully 

paid restitution, Plunkett’s probationary sentence was terminated by order of 

Judge Robert P. Coleman. See Docket. The certified record was then 

transmitted to our Court on March 22, 2016.

The statutory requirements for eligibility for post-conviction collateral 

relief are set forth at 42 Pa.C.S. § 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:
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(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. § 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. 

Here, the 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, 699 A.2d 718, 720 (Pa. 1997) (emphasis in 

original).2

____________________________________________

2 The procedural facts underlying Ahlborn are as follows:

On May 4, 1990, the appellant, Clarence A. Ahlborn, pled guilty 

to three counts of driving under the influence (DUI) and one 

count of accident resulting in death or injury. Appellant was 

sentenced to forty-eight hours to twenty-three months on the 

first DUI count, a concurrent term of thirty days to twenty-three 

months on the second DUI count, a consecutive term of four to 

twenty-three months on the third DUI count, and a concurrent 

term of thirty days to twenty-three months on the accident 

resulting in death or injury count. On May 24, 1990, appellant 

filed a pro se motion to withdraw his guilty plea. A hearing on 

the motion was scheduled, but, for reasons not apparent on the 

record, the motion was never adjudicated. On December 9, 

1993, appellant filed a pro se PCRA petition. Subsequently, 

counsel was appointed and an amended petition was filed on 

January 25, 1994. The petition alleged that appellant was misled 

(Footnote Continued Next Page)
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The general proposition that a petitioner must be currently serving the 

sentence for the crime has been applied in numerous PCRA cases. See 

Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013); Commonwealth v. 

Stultz, 114 A.3d 865 (Pa. Super. 2015); Commonwealth v. Williams, 977 

A.2d 1174 (Pa. Super. 2009); Commonwealth v. Pagan, 864 A.2d 1231 

(Pa. Super. 2004); and Commonwealth v. Hayes, 596 A.2d 195 (Pa. 

Super. 1991) (en banc). All of these cases differ from the instant case in 

that, similar to Ahlborn, the petitioner had served the sentence prior to any 

PCRA hearing or order disposing of the PCRA petition. Here, Plunkett 

completed his sentence after the PCRA hearing and order denying him relief, 

as well as after filing his notice of appeal, but prior to the transmittal of the 

certified record to this Court. Our review of case law leads us to conclude 

this difference does not negate the applicability of the statutory language of 

Section 9543(a)(1)(i) to this case.

(Footnote Continued) _______________________

as to the nature and consequences of his plea. It also alleged 

that he was never afforded a hearing on the motion to withdraw 

his plea.

A PCRA hearing was scheduled for February 17, 1994. On 

February 14, 1994, however, appellant finished serving his 

sentence. He was unconditionally released from prison. The 

scheduled hearing was then continued, and, on June 8, 1994, 

the PCRA petition was dismissed on the ground that appellant 

was no longer eligible for relief. The court reasoned that relief is 

available only to persons still serving sentences of imprisonment, 

probation, or parole.

Id. at 719.
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Additionally, we note that in Ahlborn, our Supreme Court framed the 

question before it as follows: “At issue is whether one who has filed a PCRA 

petition while serving a sentence of imprisonment remains eligible for relief 

in the event that, prior to any final adjudication of the petition, he is 

released from custody.” Id. at 719. The term “final adjudication”, although 

not defined in the opinion, implies the petitioner must be serving the 

relevant sentence throughout the PCRA process, including any appeals. We 

also note that had the Supreme Court intended to limit the scope of the 

question before it, it could have explicitly done so, but it did not.3 We 

therefore believe there is, at minimum, a strong inference in Ahlborn that 

the section 9543(a)(1)(i) requirement applies throughout the appellate 

process. 

We take additional guidance from Commonwealth v. Turner, supra, 

which provides a detailed analysis of the application of section 9543(a)(1)(i) 

and due process. Ultimately, Turner determined, because the petitioner’s 

liberty interest was no longer affected after his or her sentence was 

completed, there was no due process violation in denying relief when the 

PCRA petition had been filed in a timely manner, but the sentence expired 

____________________________________________

3

For example, the Supreme Court could have framed the question as: “At 

issue is whether one who has filed a PCRA petition while serving a sentence 

of imprisonment remains eligible for relief in the event that, prior to the 

PCRA court’s determination [rather than “final adjudication”], he is released 

from custody.”
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prior to any adjudication. The Turner decision begins its analysis 

acknowledging,

Eligibility for relief under the PCRA is dependent upon the 

petitioner currently serving a sentence of imprisonment, 

probation, or parole for the crime. 42 Pa.C.S. § 9543(a)(1)(i); 

Ahlborn, 699 A.2d at 720 (holding that the plain language of 

this section requires the denial of relief for a petitioner who has 

finished serving his sentence).

Turner, 80 A.3d at 761-62.

The Turner Court further reasoned,

In the collateral review context, the United States Supreme 

Court has held that although “states have no constitutional 

obligation to provide a means for collaterally attacking 

convictions,” Commonwealth v. Haag, 570 Pa. 289, 809 A.2d 

271, 283 (2002) (citing [Pennsylvania v.] Finley, 481 U.S. 

[551] at 557, 107 S.Ct. 1990 [95 L.Ed.2d 539 (1990)]), if they 

do, “then such procedures must comport with the fundamental 

fairness mandated by the Due Process Clause.” Id.; Finley, 481 

U.S. at 557, 107 S.Ct. 1990. In this regard, states have 

“substantial discretion to develop and implement programs to 

aid prisoners seeking to secure postconviction review.” Finley, 

481 U.S. at 559, 1078 S.Ct. 1990. When a state choses to offer 

help to those seeking relief from convictions and custody, due 

process does not “dictat[e] the exact form such assistance must 

assume.” [Dist. Attorney’s Office for the Third Judicial Dist. 

v.] Osborne, 557 U.S. [52] at 69, 129 S.Ct. 2308 [174 L.Ed.2d 

28 (1009)] (citing Finley, 481 U.S. at 559, 107 S.Ct. 1990). 

Moreover, states need not provide post-conviction petitioners 

with “the full panoply of procedural protections that the 

Constitution requires be given to defendants who are in a 

fundamentally different position-at trial and on first appeal as of 

right.” Finley, 481 U.S. at 552, 107 S.Ct. 1990. Indeed, the 

United States Supreme Court has stated that post-conviction 

petitioners “have only a limited interest in post-conviction relief.” 

Osborne, 557 U.S. at 69, 129 S.Ct. 2308. To deny due process, 

the complained-of aspect of the state post-conviction procedures 

must be “fundamentally inadequate to vindicate” the defendant's 

liberty interest, and must offend “some principle of justice so 

rooted in the traditions and conscience of our people as to be 
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ranked as fundamental” or transgress “any recognized principle 

of fundamental fairness in operation.” Osborne, 557 U.S. at 69, 

129 S.Ct. 2308 (internal citations omitted).

Turner, 80 A.3d at 764.

Accordingly, the denial of relief to a petitioner who was no longer 

serving a sentence, even when the PCRA process had begun in a timely 

manner, was not constitutionally infirm. Turner stated:

We agree with the Commonwealth that due process does not 

require the legislature to continue to provide collateral review 

when the offender is no longer serving a sentence. Analogously, 

because the common law and statutory writ of habeas corpus in 

federal court challenges the basis of criminal conviction and 

custody, it requires that a petitioner be in custody before habeas

jurisdiction can attach. Preiser v. Rodriguez, 411 U.S. 475, 

484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (providing that the 

essence of the common law writ of habeas corpus is an attack by 

a person in custody upon the legality of that custody, and that

the traditional function of the writ is to secure release from 

illegal custody); U.S. ex rel. Dessus v. Com. of Pa., 452 F.2d 

557, 559-60 (3d Cir. 1971) (“the sine qua non of federal habeas 

corpus jurisdiction is that petitioner be ‘in custody’ ...” even as 

to claims of constitutional dimension: “Thus, custody is the 

passport to federal habeas corpus jurisdiction. Without custody, 

there is no detention. Without detention, or the possibility 

thereof, there is no federal habeas jurisdiction.” (emphasis 

added)). See also 28 U.S.C. § 2255(a) (extending the right to 

seek habeas corpus relief to “[a] prisoner in custody under 

sentence” of a federal court); 28 U.S.C. § 2254(b) (extending 

the right to “a person in custody pursuant to the judgment of a 

State court”). Accordingly, because Petitioner's liberty is no 

longer burdened by a state sentence, she has no due process 

right to collateral review of that sentence.

Because individuals who are not serving a state sentence have 

no liberty interest in and therefore no due process right to 

collateral review of that sentence, the statutory limitation of 

collateral review to individuals serving a sentence of 

imprisonment, probation, or parole is consistent with the due 

process prerequisite of a protected liberty interest. 42 Pa.C.S. § 
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9543(a)(1)(i). Of course, the legislature was free to extend a 

statutory right of collateral review to individuals like Petitioner 

who had completed their sentence and, had they done so, they 

would be constitutionally obligated to ensure that those rights 

were impacted only in accord with due process. See Evitts v. 

Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 83 L.Ed.2d 821 

(1985) (“when a State opts to act in a field where its action has 

significant discretionary elements, it must nonetheless act in 

accord with the dictates of the Constitution—and, in particular, in 

accord with the Due Process Clause”)[.]

Turner, 80 A.3d at 765-66.

Turner determined that a PCRA petitioner is not entitled to even a 

hearing on the PCRA petition once the petitioner’s sentence has terminated. 

Logically, if due process does not require a petitioner be given a hearing or 

to have the petition ruled on once the sentence expires, then there would be 

no due process violation in the instant circumstance. 

Further, in Commonwealth v. Stultz, 114 A.3d 865 (Pa. Super. 

2015), Stultz, on July 27, 2011, was given a 48 hour to six month sentence 

for DUI, concurrent with a one to five year sentence of incarceration for 

fleeing or attempting to elude a police officer. On January 28, 2013, 

approximately one year after the expiration of his DUI sentence, Stultz filed 

his PCRA petition. In reviewing the matter, our Court stated:

We begin by noting that Appellant is no longer eligible for relief 

with respect to his DUI convictions, having completed serving his 

sentence for the DUI count for which he was incarcerated. 42 

Pa.C.S. § 9543(a)(1)(i); Commonwealth v. Turner, 622 Pa. 

318, 80 A.3d 754 (2013); Commonwealth v. Ahlborn, 548 Pa. 

544, 699 A.2d 718 (1997); Commonwealth v. Williams, 977 

A.2d 1174 (Pa. Super. 2009); Commonwealth v. Pagan, 864 

A.2d 1231 (Pa. Super. 2004); Commonwealth v. Hayes, 408 

Pa.Super. 68, 596 A.2d 195 (1981) (en banc). Thus, to the 
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extent his claims relate solely to the DUI charges, he is not 

entitled to relief.

Stultz, 114 A.3d at 872.

Even though Stultz was still serving the sentence associated with the 

petition, he was no longer eligible for relief for the convictions associated 

with the expired portion of the total sentence.

Finally, our Court’s recent decision in Commonwealth v. Volk, 138 

A.3d 659 (Pa. Super. 2016), is of particular note. In Volk, there was an 

unexplained 21-month delay in the PCRA court that allowed Volk’s sentence 

to expire prior to the PCRA court addressing the substance of the petition. 

Even though the delay was not attributable to Volk, pursuant to the strict 

application of section 9534(a)(1)(i), he was not entitled to relief. Instantly, 

Plunkett’s sentence expired before the certified record was transmitted to 

our Court. Our review of the certified record finds no improper procedural 

delay in the transmittal of the record to our Court. Nonetheless, we could 

not have reviewed this case prior to the expiration of Plunkett’s sentence.

In light of reasoning found in Ahlborn, Turner, Stultz, and Volk, we 

find the statutory requirement that a PCRA petitioner be currently serving 

the sentence is applicable to the instant circumstance where the PCRA 

court’s order was issued while petitioner was still serving the required 

sentence, but that sentence terminated prior to the resolution of his appeal.

Because Plunkett’s sentence has expired, he is no longer entitled to 

PCRA relief. Accordingly, we affirm the PCRA court’s order of June 19, 2015.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016