J-S06017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL STEVENS

                            Appellant                   No. 66 EDA 2014


                 Appeal from the PCRA Order December 6, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0803221-2005


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 21, 2015

        Michael Stevens appeals from the trial court’s order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9564.        On appeal, Stevens claims that he was entitled to an

evidentiary hearing on his amended PCRA petition. After careful review, we

remand to the PCRA court to determine if Stevens was eligible for PCRA

relief at the time the PCRA court ruled on his petition.

        On December 15, 2004, Stevens was charged with various drug

offenses following controlled drug buys involving a confidential informant

working with authorities.         In January 2007, Stevens filed a motion to

suppress claiming that the police lacked probable cause to stop and search

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S06017-15



him; the trial court denied the motion. Following a bench trial, Stevens was

convicted of possession with intent to deliver (PWID), possession of a

controlled substance, and criminal conspiracy. On January 3, 2008, Stevens

was sentenced to 3-6 years of incarceration.1 Stevens filed a timely direct

appeal which was dismissed by this Court, on October 20, 2008, for failure

to file an appellate brief. On December 1, 2008, Stevens filed his first pro se

PCRA petition, seeking reinstatement of his direct appeal rights.      Counsel

was appointed and filed an amended brief on his behalf on June 30, 2009.

On September 1, 2009, the trial court reinstated Stevens’ appeal rights and,

on September 30, 2009, counsel filed an appeal nunc pro tunc. On May 6,

2011, our Court affirmed his judgment of sentence.

       On October 27, 2011, Stevens filed the instant pro se PCRA petition

alleging that counsel was ineffective for failing to challenge the denial of his

suppression motion on direct appeal. Counsel was subsequently appointed

and filed a Turner/Finley2 “no merit” letter.         Stevens filed a pro se

amended petition on November 15, 2013. On December 6, 2013, the court

granted counsel’s request to withdraw and dismissed Stevens’ petition

without a hearing. This appeal followed.


____________________________________________


1
 The possession count merged with the PWID count and no further sentence
was imposed on the conspiracy conviction.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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       Under the PCRA, a petitioner who has finished serving his sentence is

not entitled to any relief. Commonwealth v. Pagan, 864 A.2d 1231 (Pa.

Super. 2004). Section 9543 of the PCRA states:

       a) General rule. -To be eligible for relief under this subchapter,
       the petitioner must plead and prove by a preponderance of the
       evidence all of the following:

          (1) That the petitioner has been convicted of a crime under
          the laws of this Commonwealth and is:

              (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. § 9543. To grant relief at a time when appellant is not currently

serving such a sentence would be to ignore the language of the statute.

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

       Instantly, Stevens was sentenced on January 1, 2008, to a term of 3-6

years in prison.      The sentencing order, attached to his first pro se PCRA

petition, indicates that his “Controlling Maximum Date” is February 4, 2014.3

While it is apparent that Stevens is no longer serving his sentence of

imprisonment at this juncture, we do not know if at the time the PCRA court

ruled on his petition (i.e., “the proof stage”) he was still “currently serving a

sentence of imprisonment, [or was on] probation or parole” for his crime.

42 Pa.C.S. § 9543(a)(1)(i).
____________________________________________


3
  The effective date of Stevens’ sentence is noted as 2/4/08 on his
sentencing summary.



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      Accordingly, we remand this matter to the PCRA court to make the

following factual findings within 30 days: (1) the date upon which Stevens

completed serving his 3-6 year sentence for PWID; and (2) whether, at the

time the PCRA court rendered its decision, Stevens was still currently serving

a term of imprisonment, probation or parole, and, therefore, eligible for

relief under the PCRA.

      Case remanded. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2015




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