J-A03033-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATHEW LEE GEORGETTI : : Appellant : No. 361 WDA 2023 Appeal from the PCRA Order Entered February 28, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015301-2013

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: February 12, 2024 Mathew Lee Georgetti (Appellant) appeals from the order dismissing his Writ of Mandamus to Correct Petitioner’s Criminal Record (writ of mandamus), which we review as a petition filed pursuant to the Post Conviction Relief Act1 (PCRA). 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court summarized the relevant procedural history: [Appellant] was charged on November 5, 2013, with one [] count of Driving Under the Influence of Alcohol: High Rate of Alcohol— Third Offense (75 Pa.C.S.A. § 3802(b)); one count of Driving Under the Influence of Alcohol: General Impairment (75 Pa.C.S.A.

§ 3802(a)(1)); and one count of Maximum Speed Limits (75 Pa.C.S.A. § 3362). ____________________________________________

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On March 5, 2014, [Appellant] appeared before this court with counsel and entered into a negotiated guilty plea. In exchange for his guilty plea to one count of Driving Under the Influence of Alcohol: High Rate of Alcohol—Third Offense, graded as a misdemeanor of the first degree, the remaining two counts were withdrawn. [Appellant] was sentenced to serve ninety (90) days on electronic home monitoring with a concurrent term of eighteen months’ probation.

[Appellant] did not file a direct appeal ….

On November 1, 2022, [Appellant] filed a petition for writ of mandamus requesting that this court correct [Appellant’s] criminal record. In his petition, [Appellant] assert[ed] that the grading of the offense to which he pled guilty on March 5, 2014, was incorrect.

1925(a) Opinion, 4/19/23, 3-4 (unpaginated; formatting modified).

Appellant acknowledged that at the time of his conviction, he had one “prior offense” as defined by the Vehicle Code.2 See Writ of Mandamus, 11/1/22, ¶ 7; see also Appellant’s Brief at 32. However, he alleges the trial court erred when it considered his conviction under California Vehicle Code § 23152(b) (California offense) a second offense. Writ of Mandamus, 11/1/22, ¶ 6, 8. The trial court’s construction of Appellant’s California offense had the

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75 Pa.C.S.A. § 3806(b)(1), (3) (amended 12/25/14) (paragraph breaks omitted).

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effect of elevating the grading of his instant DUI to a misdemeanor of the first degree.3 On November 22, 2022, the PCRA court ordered the Commonwealth to answer Appellant’s writ.4 In its answer, the Commonwealth argued that Appellant’s writ must be treated as an untimely PCRA petition.

Commonwealth’s Answer to Petitioner’s Writ of Mandamus, 12/5/22, at 2.

Appellant filed a reply wherein he maintained he is only seeking correction of a “patent and obvious mistake” in the record, and “[t]here are no time constraints on a correction of the record for a patent mistake.” Reply to Commonwealth’s Answer to Writ of Mandamus, 12/28/22, at 5 (unpaginated).

He further claimed he only became aware of the purported error when he attempted to purchase a firearm, and was denied due to his first-degree misdemeanor conviction. See id. at 1-2 (unpaginated).

The PCRA court treated Appellant’s writ of mandamus as a PCRA petition, because Appellant sought recalculation of his offense grading rather

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§ 3803(b)(3) (amended 10/26/14).

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than correction of a scrivener’s error. Findings of Fact and Conclusions of Law, 2/28/23, at 2, 4. The PCRA court concluded Appellant’s petition was untimely, as it was filed over one year after expiration of the PCRA’s jurisdictional timeliness requirement, and Appellant did not invoke an exception under 42 Pa.C.S.A. § 9545(b)(2). Id. at 3-4. Accordingly, the PCRA court dismissed Appellant’s PCRA petition on February 28, 2023. Appellant filed a timely notice of appeal. The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal, but filed an opinion incorporating its findings of fact and conclusions of law.

Appellant presents the following issue: Whether the [PCRA] court abused its discretion and/or erred as a matter of law when it denied Appellant’s request to correct an obvious and patent mistake, regarding the incorrectly graded DUI conviction[,] from a misdemeanor of the first degree to an ungraded misdemeanor, when such an error can be corrected at any time?

Appellant’s Brief at 4.

Appellant’s claim that the trial court improperly graded his DUI conviction challenges the legality of his sentence.5 Commonwealth v. ____________________________________________

See N.T., 3/5/14, at 2-3 (“[PCRA Court]: I see you’re pleading guilty to one count of [DUI], [m]isdemeanor 1. … Why are you pleading guilty? [Appellant]: Because I am guilty, sir.” (paragraph breaks omitted)); see also id. at 6 (“[PCRA Court]: … This is your third [DUI] within 10 years, correct? [Appellant]: That is correct.” (paragraph breaks omitted, emphasis added)). (Footnote Continued Next Page)

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Hoffman, 198 A.3d 1112, 1123 (Pa. Super. 2018) (“A claim that the court improperly graded an offense for sentencing purposes implicates the legality of a sentence.” (quoting Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008)). His claim is therefore cognizable under the PCRA. See Jackson, 30 A.3d at 521 (addressing legality of sentence challenge under the PCRA framework).

To be eligible for relief under the PCRA, a petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime[.]” 42 Pa.C.S.A. § 9543(a)(1). “[T]he PCRA precludes relief for those petitioners whose sentences have expired, regardless of the collateral consequences of their sentence.” Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009) (citation omitted); see also Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (“To grant relief at a time when appellant is not currently serving [] a sentence would be to ignore the language of the statute.” (emphasis in original)).

Instantly, the record confirms Appellant completed his sentence nearly ten years ago. On March 5, 2014, Appellant was sentenced to serve ninety

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Regarding Appellant’s claim that the California offense was not “substantially similar” to Pennsylvania’s DUI statute, we conclude an assignment of error requiring substantive legal analysis does not comport with our Supreme Court’s definition of “patent and obvious” error. See Commonwealth v. Borrin, 80 A.3d 1219, 1228 (Pa. 2013) (“[I]t [is] the ‘obviousness’ of the illegal and erroneous nature of the sentences reflected in the trial courts’ orders rather than the illegality itself that triggered the courts’ authority [to correct a patent error].”).

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days on electronic home monitoring with a concurrent term of eighteen months’ probation. 1925(a) Opinion, 4/19/23, at 3 (unpaginated). On November 1, 2022, when Appellant filed his PCRA petition, he was not serving a sentence of imprisonment, probation, or parole. Accordingly, he was ineligible for PCRA relief. See 42 Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v. Descardes, 136 A.3d 493, 503 (Pa. 2016) (holding the petitioner’s “PCRA petition should have been dismissed because, as he was no longer incarcerated at the time it was filed, he was ineligible for PCRA relief”). For this reason, we affirm the PCRA court’s order. See Commonwealth v. Reese, 31 A.3d 708, 727 (Pa. Super. 2011) (en banc) (stating an appellate court may affirm on any basis, as long as the ultimate decision is correct).

Order affirmed.

DATE: 02/12/2024

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