J-S60031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RIGOBERTO HERNANDEZ                        :
                                               :
                       Appellant               :   No. 169 MDA 2019

            Appeal from the PCRA Order Entered December 28, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0001681-2009


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

JUDGMENT ORDER BY PELLEGRINI, J.:                   FILED NOVEMBER 26, 2019

        Rigoberto Hernandez (Hernandez) appeals pro se from the order

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. Hernandez is ineligible for PCRA relief. We affirm.

        On November 20, 2009, a jury found Hernandez guilty of one count of

delivery of a controlled substance1 for his delivery of 0.22 grams of heroin to

another person. On the same date, the trial court sentenced him to a term of

not less than two-and-one-half nor more than six years of incarceration and




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30).
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awarded him credit for approximately one month of time served. This Court

affirmed the judgment of sentence on December 16, 2010.

        Hernandez filed the instant pro se PCRA petition on May 14, 2018.

Appointed counsel filed a motion to withdraw and a Turner/Finley no merit

letter.2 The PCRA court issued notice of its intent to dismiss the PCRA petition

on December 3, 2018,3 and granted counsel’s motion to withdraw. The PCRA

court noted that Hernandez is currently serving a sentence in an unrelated

2017 Lebanon County case of seven-and-one-half to twenty years. (See Rule

907 Notice, 12/03/18, at 2 n.3; see also Motion to Withdraw as Counsel,

9/19/18, at 4).      The PCRA court entered its order dismissing Hernandez’s

petition on December 28, 2018, and Hernandez timely appealed.

        Section 9543 of the PCRA provides that for a petitioner to be eligible for

relief, he must prove that he “is at the time relief is granted . . . currently

serving a sentence of imprisonment, probation or parole for the crime[.]”

42 Pa.C.S. § 9543(a)(1)(i) (emphases added). “As soon as his sentence is

completed, the petitioner becomes ineligible for relief[.]” Commonwealth v.

Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009), appeal denied, 990 A.2d

730 (Pa. 2010) (citations omitted).

____________________________________________


2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3   See Pa.R.Crim.P. 907(1).




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       In the instant case, Hernandez is no longer serving his November 2009

Dauphin County sentence making him ineligible for PCRA relief.4 Accordingly,

we affirm the order of the PCRA court dismissing his petition.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




____________________________________________


4 In any event, Hernandez’s judgment of sentence became final in January
2011 when we affirmed and he did not file a petition for allowance of appeal
to the Supreme Court. Because 42 Pa.C.S § 9545 requires a PCRA petition to
be filed within one year of when the sentence is final, he was required to file
his PCRA petition by January 2012 for it to be timely. Because it was filed on
May 14, 2018, it was patently untimely. Hernandez also failed to plead or
prove any timeliness exception.

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