J-S53026- 14

* Retired Senior Judge assigned to the Superior Court

. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. WILLIAM LEE ETTISON, Appellant No. 254 WDA 2014

Appeal from the PCRA Order of January 17 , 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

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- CR -0000865-2010 BEFORE: DONOHUE, OLSON and PLATT,* JJ. MEMORANDUM BY OLSON, J.: FILED AUGUST 29, 2014 Appellant, William Lee Ettison, appeals from the orde r entered on January 17, 2014 dismissing his petition filed under th e Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A . §§ 9541-9546. We affirm. We have previously summarized the factual background o f this case as

follows: On February 18, 2010, Officer Michael Hertel of the E rie Bureau of Police was riding in a two-man patrol car operated by Corporal Jody Raeger when Officer Hertel observed Appellant dr ive past in a gray Cadillac. Officer Hertel immediately recogniz ed Appellant from a previous encounter, and was aware that Appella nt had an outstanding arrest warrant. The police officers proceede d to turn their car around, and followed Appellant. Offi cer Hertel observed Appellant’s vehicle accelerating at a high rat e of speed on roads that were partly snowcovered and wet. As a re sult of Appellant’s speed and the road conditions, Appellant w as unable to bring his vehicle to a complete stop at a stop sign a nd consequently his vehicle slid through the intersection. T he police officers activated their vehicle lights and Appellant pu lled his carJ-S53026- 14

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over by the side of the road as close as he could to th e curb given the large piles of snow lining the street. Appe llant then exited his vehicle and closed the door behind him. P rior to Appellant exiting the vehicle, Officer Hertel observed Appellant moving around inside the vehicle. The police officers immediately exited their vehicle and Officer Hertel . . . ordered Appellant to the ground. Appellant complied and Officer Hertel handcuffed him, and conducted a patdown search. Corporal Raeger then retri eved Appellant’s car keys from his person, and Appellant was p laced in a marked patrol car and transported by another off icer to the Erie Police Department. Officer Hertel testified that Appellant’s vehicle was obstructing traffic and needed to be towed. Corporal Raeger proceeded to unlock the driver’s side door of Ap pellant’s vehicle, and upon doing so, detected an odor of burnt marijuana. Corporal Raeger proceeded to conduct a search of the int erior of Appellant’s vehicle as well as the trunk. The search of the vehicle revealed no contraband. Officer Hertel then returned t o Appellant’s vehicle, and searched underneath and on top of the driver’s seat, but also found no contraband. During th e course of the arrest, Officer Hertel checked Appellant’s vehicle registration, which revealed that the registration did not belong to the Cadillac that Appellant was driving, but rathe r to a Ford truck registered in Appellant’s name. The Cadillac was subsequently impounded and towed to th e Erie Police Department where it was subjected to a canine snif f, which resulted in a positive indication for illegal dru gs. The police officers obtained a warrant for the vehicle and a subsequent search yielded a clear plastic bag of marijuan a in the glove box, and a marijuana joint and a clear plastic b ag of narcotic pills in the center console.

Commonwealth v. Ettison , 43 A.3d 525 (Pa. Super. 2012) (unpublished memorandum), appeal denied , 51 A.3d 837 (Pa. 2012) (internal quotation marks and citations omitted; first paragraph break a dded).J-S53026- 14

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The relevant procedural history of this case is as foll ows. On January 18, 2011, a jury found Appellant guilty of fleeing or attempting to elude a police officer, 1 reckless driving, 2 failure to stop at a stop sign, 3 altering, forging or counterfeiting a certificate of title, re gistration card or plate, inspection certificate or proof of financial responsibilit y, 4 possession of a controlled substance (pills); 5 possession of a small amount of marijuana, 6 and possession of drug paraphernalia. 7 On March 9, 2011, Appellant was

sentenced to 91⁄2 to 19 months’ i mprisonment. We affirmed the judgment of

sentence. Commonwealth v. Ettison , 43 A.3d 525 (Pa. Super. 2012) (unpublished memorandum). On November 27, 2012, Appellant filed a pro se PCRA petition. On November 28, 2012, counsel was appointed. On December 20, 2012, counsel filed a no merit letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ). On February 20, 2013, counsel withdrew his

1 75 Pa.C.S.A. § 3733(a).

2 75 Pa.C.S.A. § 3736(a).

3 75 Pa.C.S.A. § 3323(b).

4 75 Pa.C.S.A. § 7155(a).

5 35 P.S. § 780-113(a)(16).

6 35 P.S. § 780-113(a)(31).

7 35 P.S. § 780-113(a)(32).J-S53026- 14

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Turner/Finley

letter. On October 4, 2013, an evidentiary hearing was conducted. On December 15, 2013, Appellant’s term of parole expired. On December 20, 2013, the Commonwealth filed a motion t o dismiss Appellant’s PCRA petition. The PCRA court granted the Commonwe alth’s motion to dismiss on January 17, 2014. This timely appeal follow ed. 8 Appellant raises one issue for our consideration: Whether the [PCRA] court erred in granting the Commo nwealth’s motion to dismiss [Appellant’s] PCRA [petition] based upon the contention that the Appel lant’s maximum sentence had then expired thereby vitiating any jurisdictional ground s? Appellant’s Brief at 2 (complete capitalization remov ed). We review a PCRA court’s findings of fact to determine if they are supported by the record and a PCRA court’s legal conclusions de novo

. See

Commonwealth v. Charleston , 2014 WL 2557575, *4 (Pa. Super. June 6, 2014) (citation omitted). “[A]s a pure question of law , the standard of review in determining whether a court has subject matte r jurisdiction is de

novo a nd the scope of review is plenary.” Beneficial Consumer Disc. Co.

v. Vukman , 77 A.3d 547, 550 (Pa. 2013) (citation omitted).

8 On February 13, 2014, the PCRA court ordered Appell ant to file a concise statement of errors complained of on appeal (“concise sta tement”). See Pa.R.A.P. 1925(b). On February 25, 2014, Appellant filed his concise statement. On April 8, 2014, the PCRA court issued it s Rule 1925(a) opinion. Appellant’s lone issue on appeal was included in his concise statement.J-S53026- 14

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The PCRA court determined that it lacked jurisdictio n to rule on Appellant’s PCRA petition because Appellant was no long er serv ing his sentence. The PCRA provides, in relevant part, that: (a) General rule

. -- To be eligible for relief under [the PCRA], the petitioner must plead and prove by a preponderance of the evidence . . . (1) That the petitioner has been convicted of a crime u nder the laws of this Commonwealth and is at the time relief i s granted: (i) currently serving a sentence of imprisonment, probat ion or parole for the crime; (ii) awaiting execution of a sentence of death for th e crime; or (iii) serving a sentence which must expire before the pe rson may commence serving the disputed sentence. 42 Pa.C.S.A. § 9543(a)(1). On appeal, “[A]ppellant does not challenge the fact that the maximum term of his sentence had expired at the time of the [ PCRA] court’s issuance of the order dismissing his then pending PCRA [p]etit ion[.]” Appellant’s Brief at 5. Our independent review of the record confirms t hat Appellant ceased to be on parole as of December 15, 2013. 9 Appellant instead argues that the PCRA court had juri sdiction to decide the case because he was eligible for relief at the plea ding and proof stage of the proceedings, i.e. , when the matter was submitted to the PCRA court. Appellant avers that the trial court could have ruled on his petition sooner.

9 Appellant was granted bail while his direct appeal w as pending.J-S53026- 14

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This argument is without merit. Our Supreme Court an d this Court have consistently interpreted Section 9543(a) to requir e that a PCRA petitioner be serving a sentence while relief is being sought.

Commonwealth v. Ahlborn , 699 A.2d 718, 720 (Pa. 1997);

Commonwealth v. Martin , 832 A.2d 1141, 1143 (Pa. Super. 2003), appeal

denied , 843 A.2d 1237 (Pa. 2004); Commonwealth v. James , 771 A.2d 33 (Pa. Super. 2001); Commonwealth v. Fisher , 703 A.2d 714, 716 (Pa. Super. 1997). Our Supreme Court has previously rejected the distinctio n that Appellant is attempting to draw. See Commonwealth v. Turner , 80 A.3d 754, 769 (Pa. 2013) (holding that when a petiti oner’s sentence expires while his PCRA petition is pending before the PCRA court, th e PCRA court loses jurisdiction to rule on the merits of the petition). As noted in Turner , Appellant had other options to expedite review of th e claims raised in his PCRA petition. See id. Appellant could have sought expedited review of his PCRA petition. Instead, the record reflects that counse l delayed review of the PCRA petition by originally filing a Turner/Finley letter. Furthermore, at the PCRA hearing, counsel (incorrectly) implied that time was not of the essence because the collateral consequences of Appellant’s conv ictions would suffice for jurisdictional purposes. See N.T., 10/4/13, at 61. Appellant also could have proceeded under Commonwealth v. Bomar , 826 A.2d 831 (Pa. 2003), which permitted defendants to ra ise claims ofJ-S53026- 14

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ineffective assistance of counsel on direct appeal in cert ain circumstnaces. 10 Accordingly, it is irrelevant that Appellant was still on parole when the instant petition was filed or when the evidentiary he aring occurred before the PCRA court. It is well-settled under Pennsylvania law that the PCRA court lost jurisdiction the moment Appellant’s term of p arole expired.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/29/2014

10 Although the Bomar exception was severely limited by our Supreme Court in Commonwealth v. Holmes , 79 A.3d 562 (Pa. 2013), Bomar was still good law at the time of Appellant’s direct appea l.