J-S31007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JERROLD RICHARD GRAHAM                   :
                                          :
                    Appellant             :   No. 165 MDA 2020

           Appeal from the PCRA Order Entered January 3, 2020
    In the Court of Common Pleas of Centre County Criminal Division at
                      No(s): CP-14-CR-0001351-2015

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                           FILED AUGUST 25, 2020

      Jerrold Richard Graham appeals from the dismissal of his Post-

Conviction Relief Act (“PCRA”) petition. After careful review, we affirm.

      On August 27, 2015, members of the Pennsylvania State Police (“PSP”)

aviation unit conducted a flyover of Appellant’s property in Centre County,

Pennsylvania. The PSP identified what they believed were marijuana plants

growing in a greenhouse located on the property and deployed ground units

to Appellant’s residence. Appellant provided written consent to the search of

the premises, which yielded sixty-eight marijuana plants, fourteen bags of

heroin, thirty-seven OxyContin pills, and a bucket of numerous needles and

miscellaneous drug paraphernalia.

      Appellant was arrested and charged with possession with intent to

deliver or manufacture a controlled substance and related charges. Appellant

hired an attorney who filed a motion requesting an additional thirty days to
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file Appellant’s omnibus motion. The court granted the motion and ordered

that all pretrial motions be filed by November 30, 2015. After trial counsel

did not file an omnibus pretrial motion, Appellant retained new counsel. On

June 17, 2016, new trial counsel filed a motion to suppress nunc pro tunc,

which the court dismissed as untimely. Appellant proceeded to a non-jury

trial and was convicted on all counts. On August 18, 2016, Appellant was

sentenced to serve an aggregate sentence of two to four years of

imprisonment with credit for 169 days for time served. Appellant did not file

a post-sentence motion or direct appeal.

      On August 17, 2017, Appellant filed a timely PCRA petition through

privately retained counsel. The Commonwealth responded to Appellant’s filing

with a motion to dismiss, and the trial court issued a notice of its intent to

dismiss the PCRA petition without a hearing due to several deficiencies in the

amended petition. Counsel filed an amended PCRA petition, alleging that trial

counsel was ineffective for failing to file a timely suppression motion,

requesting an evidentiary hearing, and providing witness certifications for both

trial attorneys.   On January 2, 2020, the PCRA court issued an order and

opinion dismissing the PCRA petition without a hearing. This appeal followed.

Both Appellant and the PCRA court have complied with the mandates of

Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

      1.    Whether the trial court erred in dismissing the PCRA petition
            without a hearing on the issue regarding Attorney
            Manchester’s failure to file a motion to suppress.

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      2.    Whether the trial court erred in dismissing the PCRA without
            a hearing and accepting the Commonwealth’s assertion that
            the photographs were taken after consent was given.

Appellant’s brief at 5.

      We begin with a discussion of the pertinent legal principles. Our “review

is limited to the findings of the PCRA court and the evidence of record,” and

we do not “disturb a PCRA court’s ruling if it is supported by evidence of record

and is free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183

(Pa.Super. 2012). “Moreover, in general we may affirm the decision of the

[PCRA] court if there is any basis on the record to support the [PCRA] court's

action; this is so even if we rely on a different basis in our decision to affirm.”

Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.Super. 2009).

      As a prefatory matter, in order to be eligible for PCRA relief, a petitioner

must be “currently serving a sentence of imprisonment, probation or parole

for the crime” at issue “at the time relief is granted.”          42 Pa.C.S.A. §

9543(a)(1)(i).   Once supervision ends, a petitioner no longer qualifies for

PCRA relief, regardless of when he filed the petition. See Commonwealth

v. Descardes, 136 A.3d 493, 503 (Pa. 2016) (holding petitioner was no

longer serving sentence, so he was ineligible for PCRA relief; petitioner's

ineligibility deprived the court of jurisdiction to entertain the petition); see

also Commonwealth v. Turner, 80 A.3d 754, 762 (Pa. 2013) citing to

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




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the plain language of § 9543(a)(1)(i) requires the denial of PCRA relief to a

petitioner who has finished serving his sentence).

      Instantly, the court sentenced Appellant, on August 18, 2016, to serve

a term of two to four years with 169 days credit for time served. A review of

the record reveals no subsequent amendments or alterations were made to

Appellant’s sentence. Therefore, Appellant’s sentence expired on March 2,

2020, while this appeal was pending in our court. Since Appellant is no longer

serving the sentence for his convictions in this case, he is ineligible for PCRA

relief. See 42 Pa.C.S. § 9543(a)(1)(i); Descardes, supra; Ahlborn, supra.

Accordingly, we affirm the PCRA court’s dismissal of Appellant’s PCRA petition.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/25/2020




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