Com. v. Waltemyer, T. ( 2019 )

J-S30040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS EUGENE WALTEMYER, :
:
Appellant : No. 2038 EDA 2018
Appeal from the PCRA Order Entered June 4, 2018
in the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000953-2013
BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 30, 2019
Thomas Eugene Waltemyer (“Waltemyer”) appeals from the Order
denying his Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 During the pendency of the instant appeal, Waltemyer’s maximum
sentence expired, and he became ineligible for relief under the PCRA.
Consequently, we affirm.
On November 18, 2014, the trial court sentenced Waltemyer to one year
less one day, to two years, less a day, in the Monroe County Correctional
Facility. This Court ultimately affirmed Waltemyer’s judgment of sentence,
after which the Pennsylvania Supreme Court denied allowance of appeal. See
Commonwealth v. Waltemyer, 145 A.3d 775 (Pa. Super. 2016)
(unpublished memorandum), appeal denied, 145 A.3d 726 (Pa. 2016). On
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1 42 Pa.C.S.A. §§ 9541-9546.
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April 17, 2017, Waltemyer filed a counseled first PCRA Petition, and
subsequently filed an Amended PCRA Petition. After a hearing, the PCRA court
denied Waltemyer’s Petition. Thereafter, Waltemyer filed the instant timely
appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
Our review of the record discloses that Waltemyer began serving his
sentence on October 31, 2016, and was paroled on November 2, 2017. Thus,
Waltemyer’s maximum sentence expired in October 2018. Therefore, his
sentence has expired.
To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that he is “currently serving a
sentence of imprisonment, probation[,] or parole for the crime[.]” 42
Pa.C.S.A. § 9543(a)(1)(i). A petitioner who has completed his sentence is no
longer eligible for post-conviction relief. Commonwealth v. Soto, 983 A.2d
212, 213 (Pa. Super. 2009).2 As soon as a petitioner’s sentence is completed,
the petition is no longer eligible for relief, “regardless of whether he was
serving his sentence when he filed the petition.” Commonwealth v.
Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009); see also
Commonwealth v. Plunkett, 151 A.3d 1108, 1112-13 (Pa. Super. 2016)
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2 See also Commonwealth v. Turner, 880 A.3d 754, 765 (Pa. 2013)
(stating that “due process does not require the legislature to continue to
provide collateral review when the offender is no longer serving a sentence.”).
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(affirming the PCRA court’s order denying relief where the petitioner’s
sentence expired while his appeal from the PCRA court’s order was pending
before this Court).
Because Waltemyer’s maximum sentence has expired, he is not eligible
for relief under the PCRA. Accordingly, we affirm the PCRA court’s Order
denying Waltemyer’s PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/19
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