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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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-25-CR-0000865-2010 

BEFORE: DONOHUE, OLSON and PLATT,* JJ. 

MEMORANDUM BY OLSON, J.: FILED AUGUST 29, 2014 

Appellant, William Lee Ettison, appeals from the order entered on 

January 17, 2014 dismissing his petition filed under the Post-Conviction 

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

 We have previously summarized the factual background of this case as 

follows: 

On February 18, 2010, Officer Michael Hertel of the Erie Bureau 

of Police was riding in a two-man patrol car operated by Corporal 

Jody Raeger when Officer Hertel observed Appellant drive past in 

a gray Cadillac. Officer Hertel immediately recognized Appellant 

from a previous encounter, and was aware that Appellant had an 

outstanding arrest warrant. The police officers proceeded to 

turn their car around, and followed Appellant. Officer Hertel 

observed Appellant’s vehicle accelerating at a high rate of speed 

on roads that were partly snowcovered and wet. As a result of 

Appellant’s speed and the road conditions, Appellant was unable 

to bring his vehicle to a complete stop at a stop sign and 

consequently his vehicle slid through the intersection. The police 

officers activated their vehicle lights and Appellant pulled his car 
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over by the side of the road as close as he could to the curb 

given the large piles of snow lining the street. Appellant then 

exited his vehicle and closed the door behind him. Prior 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 retrieved 

Appellant’s car keys from his person, and Appellant was placed 

in a marked patrol car and transported by another officer 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 Appellant’s

vehicle, and upon doing so, detected an odor of burnt marijuana. 

Corporal Raeger proceeded to conduct a search of the interior of 

Appellant’s vehicle as well as the trunk. The search of the 

vehicle revealed no contraband. Officer Hertel then returned to 

Appellant’s vehicle, and searched underneath and on top of the 

driver’s seat, but also found no contraband. During the 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 rather to a Ford 

truck registered in Appellant’s name. 

The Cadillac was subsequently impounded and towed to the Erie 

Police Department where it was subjected to a canine sniff, 

which resulted in a positive indication for illegal drugs. The 

police officers obtained a warrant for the vehicle and a 

subsequent search yielded a clear plastic bag of marijuana in the 

glove box, and a marijuana joint and a clear plastic bag 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 added). 
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 The relevant procedural history of this case is as follows. 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, registration card or plate, 

inspection certificate or proof of financial responsibility,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’ imprisonment. 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). 
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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 to dismiss Appellant’s 

PCRA petition. The PCRA court granted the Commonwealth’s motion to 

dismiss on January 17, 2014. This timely appeal followed.8

 

 Appellant raises one issue for our consideration: 

Whether the [PCRA] court erred in granting the Commonwealth’s 

motion to dismiss [Appellant’s] PCRA [petition] based upon the 

contention that the Appellant’s maximum sentence had then 

expired thereby vitiating any jurisdictional grounds? 

Appellant’s Brief at 2 (complete capitalization removed). 

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 matter jurisdiction is de 

novo and 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 Appellant to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). On February 25, 2014, Appellant filed his concise 

statement. On April 8, 2014, the PCRA court issued its Rule 1925(a) 

opinion. Appellant’s lone issue on appeal was included in his concise 

statement. 
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 The PCRA court determined that it lacked jurisdiction to rule on 

Appellant’s PCRA petition because Appellant was no longer serving 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 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 

(iii) serving a sentence which must expire before the person 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]etition[.]” Appellant’s Brief 

at 5. Our independent review of the record confirms that Appellant ceased 

to be on parole as of December 15, 2013.9

 

Appellant instead argues that the PCRA court had jurisdiction to decide 

the case because he was eligible for relief at the pleading 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 was pending. 
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This argument is without merit. Our Supreme Court and this Court 

have consistently interpreted Section 9543(a) to require 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 distinction that 

Appellant is attempting to draw. See Commonwealth v. Turner, 80 A.3d 

754, 769 (Pa. 2013) (holding that when a petitioner’s sentence expires while 

his PCRA petition is pending before the PCRA court, the PCRA court loses 

jurisdiction to rule on the merits of the petition). As noted in Turner, 

Appellant had other options to expedite review of the claims raised in his 

PCRA petition. See id. Appellant could have sought expedited review of his 

PCRA petition. Instead, the record reflects that counsel 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 convictions 

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 raise claims of 
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ineffective assistance of counsel on direct appeal in certain circumstnaces.10 

Accordingly, it is irrelevant that Appellant was still on parole when the 

instant petition was filed or when the evidentiary hearing occurred before 

the PCRA court. It is well-settled under Pennsylvania law that the PCRA 

court lost jurisdiction the moment Appellant’s term of parole 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 appeal.