Com. v. Kelly, A. ( 2017 )


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  • J. S01019/17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    :
    v.                      :
    :
    :
    ALLEN KELLY,                              :
    :
    Appellant               :      No. 928 MDA 2016
    Appeal from the PCRA Order May 13, 2016
    In the Court of Common Pleas of Lebanon County
    Criminal Division at No(s): CP-38-CR-0001436-2010
    BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
    JUDGMENT ORDER BY DUBOW, J.:                           FILED JUNE 08, 2017
    Appellant, Allen Kelly, appeals from the May 13, 2016 Order denying
    and dismissing his first Petition filed under the Post Conviction Relief Act
    (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely. During the pendency of
    the instant appeal, Appellant’s maximum sentence expired and he became
    ineligible for relief under the PCRA. We, therefore, affirm.
    On June 8, 2011, a jury convicted Appellant of numerous drug-related
    offenses.   On July 13, 2011, the trial court sentenced Appellant to an
    aggregate term of 40 to 80 months of imprisonment, with credit for 337
    days of imprisonment previously served.        See Order of Sentence, filed
    7/13/11; Court Commitment Form State or County Correctional Institution,
    filed 7/15/11, at 1.
    J. S01019/17
    Following a direct appeal, Appellant filed a PCRA Petition, which the
    PCRA court dismissed on May 13, 2016, finding the Petition untimely.
    Appellant filed a timely Notice of Appeal to this Court, challenging, inter alia,
    the PCRA court’s calculation of the date on which his Judgment of Sentence
    became final.
    Appellant’s maximum sentence of 80 months of imprisonment expired
    on April 11, 2017, while his appeal remained pending before this Court. On
    May 3, 2017, we issued an Order directing Appellant to show that he is still
    eligible for relief under the PCRA.     On May 25, 2017, Appellant’s PCRA
    counsel filed a response, stating that officials at State Correctional
    Institution Huntingdon had confirmed that Appellant’s maximum sentence
    expired on April 11, 2017.
    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. § 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); see also Commonwealth v. Turner, 
    80 A.3d 754
    , 765 (Pa. 2013) (“[D]ue process does not require the legislature to
    continue to provide collateral review when the offender is no longer serving
    a sentence.”). This is so even if the petitioner filed his PCRA petition during
    the pendency of his sentence.       Commonwealth v. Williams, 977 A.2d
    -2-
    J. S01019/17
    1174, 1176 (Pa. Super. 2009) (“As soon as his sentence is completed, the
    petitioner becomes ineligible for relief, regardless of whether he was serving
    his sentence when he filed the petition.”).   See also Commonwealth v.
    Plunkett, 
    151 A.3d 1108
    , 1112-13 (Pa. Super. 2016) (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).
    Appellant’s maximum sentence in the instant case expired on April 11,
    2017. Appellant has completed his sentence and is, therefore, ineligible for
    PCRA relief.   Accordingly, we affirm the PCRA court’s Order dismissing
    Appellant’s PCRA Petition.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/8/2017
    -3-
    

Document Info

Docket Number: Com. v. Kelly, A. No. 928 MDA 2016

Filed Date: 6/8/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024