Com. v. Rosado-Salgado, B. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
BENJAMIN ROSADO-SALGADO
Appellant No. 389 MDA 2017
Appeal from the PCRA Order February 13, 2017
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000506-2015
BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 18, 2017
Benjamin Rosado-Salgado appeals from the February 13, 2017 order of
the Lebanon County Court of Common Pleas denying his petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We
affirm.
On August 6, 2015, a jury convicted Rosado-Salgado of possession of a
controlled substance, tampering with or fabricating physical evidence, and
obstructing administration of law or other governmental function.1 On
September 23, 2015, the trial court sentenced Rosado-Salgado to three
concurrent sentences of 234 days to 23 months’ incarceration, time served.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 4910(1), and 18 Pa.C.S. §
1
5101, respectively.
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Rosado-Salgado filed a post-sentence motion, which the trial court denied on
January 14, 2016. On January 22, 2016, Rosado-Salgado filed a timely notice
of appeal. On June 1, 2016, this Court dismissed Rosado-Salgado’s appeal
for failure to file a brief. On December 13, 2016, Rosado-Salgado filed a
counseled PCRA petition. On February 13, 2017, the PCRA court dismissed
Rosado-Salgado’s petition without a hearing. Rosado-Salgado filed a timely
notice of appeal.
On appeal, Rosado-Salgado raises the following issue: “Whether the
PCRA Court erred in denying [his] PCRA petition without a hearing[.]” Rosado-
Salgado’s Br. at 4.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error.” Commonwealth
v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
To be eligible for PCRA relief, a petitioner must plead and prove by a
preponderance of the evidence:
(1) That the petitioner has been convicted of a crime under
the laws of this Commonwealth and is at the time relief is
granted:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the
crime; or
(iii) serving a sentence which must expire before the
person may commence serving the disputed sentence.
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42 Pa.C.S. § 9543(a)(1). Accordingly, a petitioner is ineligible for PCRA relief
if he has completed serving the sentence imposed for the crime. See
Commonwealth v. Matin, 832 A.2d 1141, 1143 (Pa.Super. 2003) (finding
appellant not entitled to relief where term of imprisonment for firearms
violation expired, even though appellant remained imprisoned for other crimes
at the same docket number).
Here, the PCRA court found that:
[Rosado-Salgado] was sentenced to time served (234
days) to twenty-three (23) months in this action on
September 23, 2015. His application for parole was granted
and he was released from incarceration by Order of October
15, 2015. The record of this matter reveals no parole
violations and [Rosado-Salgado]’s maximum sentence
expired on or about January 1, 2017. Our review of the
docket reveals that at the time we entered this Order,
[Rosado-Salgado] was incarcerated on other charges. (See
CP-38-CR-1885-2016)[.] Because [Rosado-Salgado] was
not currently serving a sentence for the crimes involved in
this action, we find no error in our dismissal of his PCRA
Petition without a hearing pursuant to 42 Pa.C.S.A. §
9543(a)(1)(i).
PCRA Ct. Op., 4/7/17, at 2 (unpaginated). We agree.
Because Rosado-Salgado is no longer serving the sentence imposed for
the aforementioned convictions, the PCRA court did not err in dismissing the
petition. See 42 Pa.C.S. § 9543(a)(1); Matin, 832 A.2d at 1143.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
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