Com. v. Mercado, M.

• Court: Superior Court of Pennsylvania
• Decided: November 18, 2019
• Docket: 2454 EDA 2018
• Status: Unpublished

Opinion

J-S49019-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MALIK J. MERCADO

Appellant No. 2454 EDA 2018

Appeal from the PCRA Order entered July 20, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-1002571-2005

BEFORE: BENDER, P.J.E., STABILE, J. and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 18, 2019

Appellant, Malik J. Mercado, appeals from the July 20, 2018 order of the

Court of Common Pleas of Philadelphia County, which dismissed his request

for collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

46. Upon review, we affirm.

The relevant background of the instant appeal can be summarized as

follows.1 Following a non-jury trial before Judge Willis W. Berry,2 on October

3, 2007, Appellant was sentenced to an aggregate sentence of 6 to 12 months’

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* Former Justice specially assigned to the Superior Court.

1Unless otherwise specified, these facts come from the PCRA court’s February 26, 2019 opinion filed pursuant to Pa.R.A.P. 1925(a).

2 On July 10, 2007, the trial court found Appellant guilty of robbery, theft (unlawful taking), theft (receiving stolen property), possession of an instrument of crime, terroristic threats, and simple assault. J-S49019-19

county incarceration plus 6 years’ reporting probation, with immediate parole

and credit for time served.

On August 7, 2008, Appellant appeared before Judge Berry for a parole

violation hearing. After finding Appellant in direct and technical violation,

Judge Berry sentenced Appellant to 2 to 4 years’ state incarceration plus

3 years’ reporting probation.

On June 23, 2009, Appellant filed pro se the instant PCRA petition, which

was amended by appointed counsel on June 10, 2011, alleging ineffective

assistance of counsel at trial.

Inexplicably, the PCRA court did not take any action on Appellant’s PCRA

petition until 2018, when the petition was assigned to Judge Genece E.

Brinkley.3

On May 22, 2018, the PCRA court sent Appellant a notice of its intention

of dismissing Appellant’s petition due to lack of eligibility under the PCRA. The

notice was returned to the PCRA court marked as “attempted/unknown.” On

June 21, 2018, the notice was sent to an updated address.

On July 21, 2018, the PCRA court dismissed Appellant’s PCRA petition,

without holding a hearing. This appeal followed.

At the outset, before we can address the merits of the petition,4 we must

consider whether Appellant is eligible for relief under the PCRA. To be eligible ____________________________________________

3 Judge Berry retired from the bench on August 31, 2012.

4Appellant argues that trial counsel was ineffective for failure to file a direct appeal.

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for relief under the PCRA, a petitioner must be either “currently serving a

sentence of imprisonment, probation or parole for the crime,” “awaiting

execution of a sentence of death for the crime,” or “serving a sentence which

must expire before the person may commence serving the disputed sentence.”

42 Pa.C.S.A. § 9543(a)(1)(i)-(iii).

Our Supreme Court and this Court have consistently interpreted Section

9543(a) to require that a PCRA petitioner be serving a sentence while relief is

being sought. Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997);

see also Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011), and

Commonwealth v. Matin, 832 A.2d 1141 (Pa. Super. 2003). As our

Supreme Court explained in Ahlborn, the denial of relief for a petitioner who

has finished serving his sentence is required by the plain language of the PCRA

statute. Ahlborn, 699 A.2d at 720. Indeed, to be eligible for relief, a

petitioner must be currently serving a sentence of imprisonment, probation,

or parole. Id. To grant relief at a time when an appellant is not currently

serving such a sentence would be to ignore the language of the PCRA. Id. As

a result, courts lose jurisdiction to entertain the matter the moment an

appellant’s sentence expires. See Commonwealth v. Turner, 80 A.3d 754,

769 (Pa. 2013) (holding that when a petitioner’s sentence expires while his

PCRA petition is pending before the PCRA court, the PCRA court loses

jurisdiction to rule on the merits of the petition).

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Here, based on our review of the record, Appellant does not meet the

foregoing eligibility requirements as he had completed his sentence in 2015,

while his PCRA petition was still pending. Indeed,

[t]he record shows that on August 7, 2008, [Appellant] appeared before Judge Berry for a violation hearing and was sentenced to 2 to 4 years state incarceration plus 3 years reporting probation. He filed his pro se PCRA petition on June 23, 2009. [Appellant] completed his sentence in 2015 while his PCRA petition was still pending.

PCRA Court Opinion, 2/26/19, at 3-4.

In light of the foregoing, we conclude Appellant is not eligible for PCRA

relief.5 See Ahlborn, supra; Turner, supra. Accordingly, we affirm the

order of the PCRA Court of July 20, 2018.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/18/19

5 Notably, Appellant, in his appellate brief, does not address the PCRA court’s conclusions regarding his eligibility for PCRA relief, nor did he address the timeliness of the instant petition. Thus, even if eligible, Appellant would not be entitled to relief for failure to plead and prove the timeliness of the underlying PCRA petition.

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