J-S62017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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