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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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