J-S52032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellee             :
                                        :
             v.                         :
                                        :
COSME CESAR ESCUDERO AVILES             :
                                        :
                   Appellant            :         No. 120 MDA 2017

               Appeal from the PCRA Order December 19, 2016
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005772-2014

BEFORE:    GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.:              FILED SEPTEMBER 18, 2017

     Appellant, Cosme Cesar Escudero Aviles, appeals from the order

entered in the Berks County Court of Common Pleas, which denied his first

petition under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§

9541-9546.     On April 22, 2015, a jury convicted Appellant of indecent

exposure. At the conclusion of trial, the court sentenced Appellant to two

years’ probation to commence that day.       Appellant timely filed a post-

sentence motion on May 1, 2015, and an amended post-sentence motion on

August 31, 2015.       The court denied the post-sentence motions on

September 4, 2015. Appellant did not file a direct appeal.

     On June 17, 2016, Appellant timely filed a counseled first PCRA

petition; he filed an amended PCRA petition on August 24, 2016. Following

a PCRA hearing, the court denied relief on December 19, 2016. Appellant

timely filed a notice of appeal on January 13, 2017. On January 19, 2017,
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the court ordered Appellant to file a concise statement per Pa.R.A.P.

1925(b). Appellant filed an initial concise statement on February 9, 2017,

and an amended concise statement on March 10, 2017.

      Preliminarily, a PCRA petitioner must be currently serving a sentence

of imprisonment, probation or parole for the conviction at issue to be eligible

for PCRA relief. 42 Pa.C.S.A. § 9543(a)(1)(i). See also Commonwealth

v. Williams, 977 A.2d 1174 (Pa.Super. 2009), appeal denied, 605 Pa. 700,

990 A.2d 730 (2010) (explaining petitioner must be serving sentence of

imprisonment, probation, or parole for crime at issue to be eligible for PCRA

relief; once sentence is completed, petitioner is ineligible for PCRA relief,

regardless of whether he was serving his sentence when he filed petition).

      Instantly, the court sentenced Appellant on April 22, 2015, to two

years’ probation.   The sentencing order and the court’s remarks on the

record at sentencing confirm Appellant’s probationary sentence began that

day. Nothing in the record indicates that Appellant is still serving a sentence

for the crime at issue; to the contrary, the docket entries show Appellant’s

probationary sentence has expired. Therefore, Appellant is now ineligible for

PCRA relief. See 42 Pa.C.S.A. § 9543(a)(1)(i); Williams, supra.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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