J-S07044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KEVIN EUGENE SMITH

Appellant No. 806 MDA 2015

Appeal from the Order April 23, 2015

In the Court of Common Pleas of Juniata County

Criminal Division at No(s): CP-34-CR-0000127-2007

BEFORE: BOWES, OTT, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 11, 2016

Pro se Appellant, Kevin Eugene Smith, appeals from the order entered 

in the Juniata County Court of Common Pleas denying his Post Conviction 

Relief Act1(“PCRA”) Petition and granting Appellant’s PCRA Counsel leave to 

withdraw. We hold that Appellant is not entitled to PCRA relief because he is 

not currently serving a sentence of imprisonment, probation, or parole for 

the crimes challenged, and therefore affirm.

The facts underlying Appellant’s convictions are not pertinent to our 

disposition. On October 9, 2007, following a jury trial, Appellant was 

convicted of three counts of robbery, one count of theft by unlawful taking or 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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disposition and one count of receiving stolen property. On January 8, 2008, 

the trial court sentenced Appellant to an aggregate term of twenty-seven to 

fifty-four months’ incarceration. Appellant was given credit for time served 

beginning April 16, 2007. Accordingly, Appellant’s maximum sentence 

expired in October 2011.2

Appellant filed a timely appeal and this Court affirmed Appellant’s 

judgment of sentence and granted counsel’s petition to withdraw on March 

25, 2009. Commonwealth v. Smith, 245 MDA 2008 (unpublished 

memorandum) (Pa. Super. March 25, 2009). On July 10, 2009, Appellant, 

acting pro se, filed a PCRA petition. On January 6, 2014, the trial court 

appointed PCRA counsel for Appellant and directed PCRA counsel to file a 

supplemental petition on Appellant’s behalf.3 Appellant’s PCRA counsel filed 

a motion to withdraw and the trial court issued an order, dated May 28, 

2014, stating the court’s intention to grant PCRA counsel’s petition and 

dismiss Appellant’s PCRA petition. However, this order did not dispose of 

the matter and thus did not constitute a final order for purposes of appeal.

____________________________________________

2 Appellant was subsequently convicted of two counts each of robbery, theft 

by unlawful taking, and receiving stolen property stemming from two 

unrelated bank robberies in 2012. There, the trial court sentenced Appellant 

to three and one-half to seven years’ incarceration. Commonwealth v. 

Smith, 391 MDA 2014 (unpublished memorandum) (Pa. Super. August 13, 

2014). Appellant’s subsequent sentence is unrelated to the instant appeal.

3 We note that it is unclear from the record why over four years elapsed 

prior to any action on Appellant’s PCRA petition. 
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Appellant, again acting pro se, filed a premature appeal to this Court 

on June 23, 2014. This Court ultimately remanded the case to the trial court 

for the issuance of a final order. Appellant did not file a response to the trial 

court’s May 28, 2014 order. The trial court issued a final order, dated April 

23, 2015, which granted PCRA counsel’s petition to withdraw and dismissed 

Appellant’s PCRA petition. Pro se Appellant filed the instant appeal on May 

15, 2015, which this Court dismissed for failure to file a brief on July 24, 

2015. However, after a motion for reconsideration, this Court reinstated the 

appeal on August 14, 2015, and p ro se Appellant filed a brief asserting 

multiple issues for review.4

As a prefatory matter, we determine whether Appellant is eligible for 

relief under the PCRA. 

(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

(ii) awaiting execution of a sentence of death for 

the crime; or

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4 The trial court did not require Appellant to file a Pa.R.A.P. 1925(b) 

statement and the court did not file a Pa.R.A.P. 1925(a) opinion.
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(iii) serving a sentence which must expire before 

the person may commence serving the disputed 

sentence.

42 Pa.C.S. § 9543(a)(1)(i)-(iii); see Commonwealth v. Ahlborn, 699 

A.2d 718, 719 (Pa. 1997).

In Ahlborn, our Supreme Court considered “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. In that case, the 

petitioner filed a PCRA petition while he was still serving his sentence, but 

completed his sentence before the PCRA court ruled on the petition. Id. 

The PCRA court dismissed the petition on the ground that “relief is available 

only to persons still serving sentences of imprisonment, probation, or 

parole.” Id. On appeal, our Supreme Court affirmed. Id. at 721. It 

reasoned the statutory phrase, “currently serving a sentence,” “clearly 

contemplates that the petitioner will be serving a sentence at both the 

pleading and proof stages of the proceeding.” Id. at 720. Further, in order 

to be eligible for PCRA relief, an appellant must be currently serving a 

sentence on the conviction he or she seeks to collaterally attack regardless 

of any unrelated subsequent convictions. See Commonwealth v. Hayes, 

596 A.2d 195, 199 (Pa. Super. 1991) (en banc) (holding that appellant was 

not eligible for PCRA relief where his sentence of imprisonment, probation or 

parole had expired for the conviction at issue, even though he was then 
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serving a sentence of imprisonment stemming from an unrelated 

conviction). 

In this case, although Appellant was still serving his relevant sentence 

when he filed the instant PCRA petition in 2009, he is not “currently serving 

a sentence of imprisonment, probation or parole for the crime.” See 42 

Pa.C.S. § 9543(a)(1)(i) (emphasis added); Ahlborn, 699 A.2d at 720. 

Further, it is of no moment that Appellant is currently serving a sentence of 

imprisonment for an unrelated conviction. See Hayes, 596 A.2d at 199. 

Accordingly, Appellant cannot fulfill the statutory requirements for PCRA 

relief and we are constrained to affirm the order dismissing Appellant’s PCRA 

petition and granting PCRA Counsel leave to withdraw.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/2016