Commonwealth v. Volk, 2016 PA Super 95
Volk was convicted and sentenced to 2-4 years’ imprisonment plus 3 years’ probation. After his direct appeal was denied, he filed a timely pro se PCRA petition. Counsel amended the petition shortly thereafter. A hearing was held, and briefs were subsequently filed. During the pendency of the PCRA, his probation was revoked and he was sentenced to 6-18 months’ incarceration with time credit. The time credit caused his sentence to expire five months after it was imposed. Well after that date passed, the lower court dismissed the PCRA due to lack to jurisdiction – Volk was not serving a sentence anymore. The PCRA was dismissed and Volk appealed.
Volk made a constitutional challenge to the eligibility requirement in 42 Pa.C.S. 9543(a) (a petitioner must be serving a sentence to be eligible for relief). The Superior Court affirmed. When a PCRA petitioner is at liberty, he has no due process right to collateral review.
Nor is that section unconstitutional as applied to him. While the delay between briefing and decision by the court — 21 months — was sufficient to trigger further inquiry, it was not intentional by the government or the court. It was the result of admitted negligence by the lower court’s chambers, which claimed that the case had “slipped through the cracks.” Volk, however, was not diligent in attempting to obtain relief prior to expiration of the sentence. He did not petition the court for a decision, nor did he make a request for a PCRA ruling at his probation violation sentencing, which was in front of the same judge. Finally, Volk was not prejudiced: his PCRA claim was newly-discovered evidence about the victim’s credibility. The victim’s credibility, however, was addressed both at trial and on direct appeal.
The panel did consider the length of delay to be unacceptable. But Volk’s failure to exercise due diligence of suffer prejudice doomed his claim.
Judge Strassburger’s opinion can be found here.