J-S06018-21 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : I.O. : : Appellant : No. 712 EDA 2020 Appeal from the PCRA Order Entered January 23, 2020, In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014915-2012 BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.* MEMORANDUM BY NICHOLS, J.: FILED MAY 4, 2021 Appellant I.O.1 appeals from order dismissing, without a hearing, his timely first Post Conviction Relief Act2 (PCRA) petition. Appellant argues that the PCRA court erred by vacating house arrest and terminating his probation early, and by dismissing his petition on the grounds that he was no longer serving a sentence. Appellant also argues that his trial counsel was ineffective for not presenting expert witnesses. Because Appellant is no longer serving a sentence in this case, we affirm. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 Pursuant to Superior Court I.O.P. 424(A), we have altered the caption to reflect Appellant’s initials in order to protect the identity of the victim. We have also redacted the case name of Appellant’s prior direct appeal. 2 42 Pa.C.S. §§ 9541-9546. J-S06018-21 A previous panel of this Court summarized the factual history of this case, which we need not restate here. See Commonwealth v. I.O., 2644 EDA 2016, 2018 WL 4041652, at *1 (Pa. Super. filed Aug. 24, 2018) (unpublished mem.). Relevant to this appeal, on August 11, 2014, a jury found Appellant, a citizen of Nigeria, guilty of indecent assault of a child less than thirteen years of age.3 On April 10, 2015, the trial court sentenced Appellant to eleven-and-a-half to twenty-three months of incarceration with immediate parole to house arrest, followed by three years of probation. The sentencing order states the sentence would commence on May 1, 2015. Appellant did not file post-sentence motions or a direct appeal. Appellant thereafter filed a PCRA petition seeking the reinstatement of his direct appeal rights. During the PCRA hearing, Appellant and his trial counsel both testified that after sentence was imposed in this matter, U.S. Immigration and Customs Enforcement (ICE) detained Appellant with the intent to deport him to Nigeria. The PCRA court issued an order restoring Appellant’s direct appeal rights nunc pro tunc. Appellant then filed a motion with the trial court seeking to waive his right to seek future PCRA relief in order to raise claims of ineffective assistance of counsel on direct appeal pursuant to Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). The trial court denied the Holmes motion. Subsequently, Appellant filed a direct appeal. This Court affirmed Appellant’s judgment of ____________________________________________ 3 18 Pa.C.S. § 3126(a)(7). -2- J-S06018-21 sentence on August 24, 2018.4 See I.O., 2018 WL 4041652, at *13. Appellant did not file a petition for allowance of appeal in the Pennsylvania Supreme Court. While Appellant’s direct appeal was pending, however, the trial court convened a hearing on May 25, 2018, to consider the …
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