Com. v. Agnello, D. (judgment order)
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J-S72026-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. DAVID AGNELLO, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 658 WDA 2014 Appeal from the PCRA Order Entered March 24, 2014, In the Court of Common Pleas of Jefferson County, Criminal Division, at No. CP-33-CR-0000085-2011. BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.* JUDGMENT ORDER BY SHOGAN, J.: FILED NOVEMBER 20, 2014 David Agnello (“Appellant”) appeals pro se from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546.1 We affirm. A jury convicted Appellant of simple assault on November 17, 2011. The trial court imposed a sentence of twelve to twenty-four months of incarceration on February 1, 2012. We affirmed the judgment of sentence on April 1, 2013. Appellant filed a pro se PCRA petition on January 31, 2014. The PCRA court dismissed Appellant’s petition for lack of jurisdiction *Retired Senior Judge assigned to the Superior Court. 1 The Commonwealth has not filed a responsive brief. J-S72026-14 because Appellant was no longer serving a sentence. PCRA Court Opinion, 2/3/14, at 1–2. To be eligible for collateral relief, a PCRA petitioner must plead and prove, inter alia, that he is serving a sentence of imprisonment, probation, or parole for the crime. 42 Pa.C.S. § 9543(a)(1)(i). In the case at hand, the PCRA court found—and our review of the record confirms—that Appellant’s sentence “maxed out even before the next business day following [the] filing” of his petition. PCRA Court Notice of Intention to Dismiss, 2/3/14, at 2; Sentencing Order, 2/1/12 (“Undergo incarceration in a state correctional facility for a minimum of one (1) year to a maximum of two (2) years”).2 Therefore, because Appellant is no longer serving a sentence as of February 1, 2014, he is not eligible for collateral relief. Accord Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013), cert. denied, 134 S.Ct. 1771 (2014) (“Eligibility for relief under the PCRA is dependent upon the petitioner currently serving a sentence of imprisonment, probation, or parole for the crime. 42 Pa.C.S. § 9543(a)(1)(i).”). Order affirmed. 2 We note that the sentencing order erroneously indicates Appellant entered a guilty plea to the simple assault charge. Sentencing Order, 2/1/12. -2- J-S72026-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/20/2014 -3-
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