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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                   v.                     :
                                          :
ROBERT MICHAEL McGARRY,                   :          No. 1510 WDA 2017
                                          :
                        Appellant         :


             Appeal from the PCRA Order, September 13, 2017,
                in the Court of Common Pleas of Erie County
              Criminal Division at No. CP-25-CR-0000990-1994


BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 21, 2018

      Appellant,   Robert    Michael   McGarry,    appeals   pro   se   from    the

September 13, 2017 order dismissing his third petition1 filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.                After

careful review, we affirm.

      A jury convicted appellant of burglary and criminal attempt (rape) on

March 14, 1995.     The trial court sentenced appellant to 7½ to 15 years’

imprisonment on April 4, 1995.         Appellant was released from prison on




1 Appellant entitles his petition, “Cease and Dismiss Retroactive Application
of Registration Requirements Pursuant to [Sexual Offenders Registration and
Notification Act (“SORNA”)].” We shall treat his application as a PCRA
petition. See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super.
2013), citing Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.Super.
2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
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September 28, 2008. Appellant was not on probation or parole at the time

of his release.

      Appellant filed the instant petition on August 21, 2017, and the trial

court dismissed appellant’s petition on September 13, 2017. Appellant filed

a notice of appeal to this court on October 12, 2017.        Despite not being

ordered by the PCRA court to do so, appellant filed a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).        The PCRA

court then filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue on appeal:

            Whether the PCRA court committed legal error by
            arbitrarily denying the appellant’s cease and dismiss
            retroactive application of registration requirements
            pursuant to SORNA, in violation of the State and
            Federal Constitution(s) and Pennsylvania Supreme
            Court precedent?

Appellant’s brief at 3 (full capitalization omitted).

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong prima
            facie showing is offered to demonstrate that a
            miscarriage     of  justice   may     have   occurred.
            Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
            1999). A prima facie showing of entitlement to
            relief is made only by demonstrating either that the
            proceedings which resulted in conviction were so
            unfair that a miscarriage of justice occurred which no
            civilized society could tolerate, or the defendant’s
            innocence of the crimes for which he was charged.
            Id. at 586. Our standard of review for an order
            denying post-conviction relief is limited to whether


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            the trial court’s determination is supported by
            evidence of record and whether it is free of legal
            error. Commonwealth v. Jermyn, 709 A.2d 849,
            856 (Pa. 1998).

Commonwealth v. Ali, 86 A.3d 176-177 (Pa. 2014), cert. denied, 135

S.Ct. 707 (2014).

      Before we can consider appellant’s claim on the merits, we must first

determine whether appellant is eligible for relief under the PCRA. The PCRA

limits eligibility for relief, inter alia, to petitioners “currently serving a

sentence of imprisonment, probation or parole for the crime” at the time

relief is granted. 42 Pa.C.S.A. § 9543(a)(1). See also Commonwealth v.

Stultz, 114 A.3d 865, 872 (Pa.Super. 2015), appeal denied, 125 A.3d

1201 (Pa. 2015); Commonwealth v. Turner, 80 A.3d 754, 765-766 (Pa.

2013), cert. denied, 134 S.Ct. 1771 (2014); Commonwealth v. Ahiborn,

699 A.2d 718, 720 (Pa. 1997); Commonwealth v. Williams, 977 A.2d

1174, 1176 (Pa.Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010);

Commonwealth v. Pagan, 864 A.2d 1231, 1234 (Pa.Super. 2004), cert.

denied, 546 U.S. 909 (2005); Commonwealth v. Hayes, 596 A.2d 195,

200 (Pa.Super. 1991) (en banc), appeal denied, 602 A.2d 856 (Pa. 1992).

      As noted above, appellant was released from prison on September 28,

2008, following the completion of his April 4, 1995 judgment of sentence

related to his convictions of burglary and criminal attempt and appellant has




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not provided any evidence that he is still on probation or parole.

Accordingly, appellant is not eligible for relief under the PCRA.2

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 5/21/2018




2 We note that appellant is currently incarcerated at SCI Mercer; however,
appellant’s current incarceration is due to unrelated convictions.


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