J-S54016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM WRIGHT                             :
                                               :
                       Appellant               :   No. 1839 WDA 2017

                Appeal from the PCRA Order November 8, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0004530-2013


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:                           FILED NOVEMBER 09, 2018

        William Wright appeals from the order, entered in the Court of Common

Pleas of Allegheny County, dismissing his petition for collateral relief filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-

9546. After review, we affirm.

        On   November      14,   2013,    Wright   pleaded   guilty   to   obstructing

administration of law or other government function.1 The same day, the trial

court sentenced Wright to two years’ probation. On December 2, 2013, Wright

filed a pro se motion to arrest judgment and on December 10, 2013, he filed

an untimely pro se motion to amend/modify sentence. On March 17, 2014,

the trial court entered an order permitting Wright to file a motion to

amend/modify sentence nunc pro tunc, which he did. On May 7, 2014, the

____________________________________________


1   18 Pa.C.S.A. § 5101.
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trial court entered an order denying Wright’s post-sentence motion. On June

20, 2014, Wright filed a timely notice of appeal, in which he challenged the

discretionary aspects of his sentence.      However, on November 18, 2014,

Wright filed a notice of discontinuance of action. On May 19, 2015, Wright

filed his first PCRA petition; the PCRA court reinstated Wright’s appellate rights

and dismissed his remaining PCRA claims without prejudice. Wright filed a

motion to reconsider sentence on July 8, 2016, which the PCRA court denied

on August 31, 2016. On September 30, 2016, Wright filed a timely appeal.

Again, however, Wright filed a discontinuance of appeal with this Court on May

24, 2017.    On May 24, 2018, Wright filed the instant PCRA petition.          On

November 8, 2017, the trial court dismissed Wright’s PCRA petition. Wright

timely appealed. Both Wright and the trial court have complied with Pa.R.A.P.

1925. On appeal, Wright raises the following issues for our review:

      1. Did the trial court err in denying [Wright’s] [PCRA] petition
         without a hearing because trial counsel provided ineffective
         assistance of counsel for failing to make a motion to withdraw
         [Wright’s] plea of guilty, as [Wright] did not accept the facts as
         presented by the Commonwealth and therefore did not enter a
         knowing, voluntary, and intelligent entry of a plea of guilty?

      2. Did the trial court err in denying [Wright’s] [PCRA] petition
         without a hearing because trial counsel provided ineffective
         assistance of counsel for failing to raise the claim there was a
         legal impossibility as to the crimes charged in the criminal
         information, as there were no pending cases against [Wright]
         where the accuser was a witness or victim?

Brief of Appellant, at 4.




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      “Eligibility for relief under the PCRA is dependent upon the petitioner

[pleading and proving by a preponderance of the evidence that he is] currently

serving a sentence of imprisonment, probation, or parole for a crime.”

Commonwealth v. Turner, 80 A.3d 754, 761–62 (Pa. 2013).                   See 42

Pa.C.S.A. § 9543(a)(1)(i). As our Supreme Court has explained, as soon as

his sentence is completed, a PCRA petitioner becomes ineligible for relief.

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

plainly states, under section 9543(a)(1)(i), that a PCRA petitioner must be

currently serving a sentence of imprisonment, probation or parole for the

conviction at issue to be eligible for PCRA relief. 42 Pa.C.S.A. § 9543(a)(1)(i);

Commonwealth        v.   Williams,   977    A.2d   1174   (Pa.   Super.   2009).

Furthermore, “[a]s soon as [a petitioner’s] sentence is completed, [he]

becomes ineligible for relief, regardless of whether he was serving his

sentence when he filed the petition.” Id. at 1176, quoting Commonwealth

v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006). “To grant relief at a time when

[the petitioner] is not currently serving . . . a sentence would be to ignore the

language of the statute.” Ahlborn, 699 A.2d at 720 (emphasis in original).

      Here, the trial court sentenced Wright to two years’ probation on

November 14, 2013, to commence that same day.              The Commonwealth

contends that the record is ambiguous as to whether Wright is still on

probation and that it is possible Wright has completed his probationary

sentence. Furthermore, Wright did not address whether he was still serving

his sentence in his appellate brief. Likewise, the trial court did not address

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Wright’s custodial status in its Pa.R.Crim.P. 907 notice of intent to dismiss or

its 1925(a) opinion.

       It is the appellant’s burden to plead and prove that he is eligible for relief

under the PCRA. See 42 Pa.C.S.A. § 9543(a) (“To be eligible for relief under

[the PCRA], the petitioner must plead and prove by a preponderance of the

evidence all of the following . . .) (emphasis added).         After review of the

record, the parties’ briefs and the trial court opinion, it remains ambiguous

whether or not Wright is still serving his probationary sentence.          In other

words, Wright has not proven by a preponderance of the evidence that he is

eligible for PCRA relief.       Accordingly, we affirm the PCRA court’s order

dismissing Wright’s PCRA petition. See Commonwealth v. Schmohl, 975

A.2d 1144, 1149 (Pa. Super. 2009) (citation omitted) (if petitioner finishes

serving his sentence while appeal is pending, case is moot).2

       Order affirmed.




____________________________________________


2 We acknowledge that it is incumbent upon Wright to prove he is still serving
his probationary sentence, see 42 Pa.C.S.A. § 9543(a); however, based on
our independent review of the record, we are unable to determine with
necessary certainty whether Wright is still serving his probationary sentence.
We note, the Commonwealth also acknowledged the ambiguous nature of
Wright’s probationary sentence. See Brief of Appellee, at 14. In light of our
independent review of the record and Wright’s failure to prove by a
preponderance of the evidence that he is serving his probationary sentence,
Turner, supra, we, as stated above, affirm the PCRA court’s order dismissing
Wright’s PCRA petition.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2018




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