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Commonwealth v. Nava

February 11, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ULISES LUNA NAVA, APPELLANT



Appeal from the Judgment of Sentence November 19, 2007, In the Court of Common Pleas of Chester County Criminal Division at No. CP-15-CR-0004017-2007.

The opinion of the court was delivered by: Cleland, J.

BEFORE: ORIE MELVIN, CLELAND AND POPOVICH, JJ.

OPINION

¶ 1 Ulises Luna Nava (Luna), an illegal alien, appeals the November 19, 2007 judgment of sentence and the December 26, 2007 partial denial of his post-sentence motion to modify sentence. His appeal raises the question whether a sentencing court, as a condition of parole, may require an illegal alien, convicted of driving under the influence, to remove himself from the Commonwealth of Pennsylvania within ten days of the beginning of his parole. For reasons that follow, we vacate that portion of his sentence which imposes the condition.

¶ 2 On June 16, 2007 Luna pled guilty to driving under the influence*fn1 and several Vehicle Code offenses, for which, on November 19, 2007, the Chester County trial court sentenced him to 48 hours to six months imprisonment and imposed costs of prosecution and various fines. In addition, the trial court ordered Luna to report his illegal alien status to the U.S. Department of Immigration and Naturalization Service (INS), to advise the Department of his conviction of driving under the influence, and to leave the United States within ten days of his parole.*fn2 Trial Court Resentencing, 12/26/2007, at 1 n. 1.

¶ 3 Luna filed a motion to modify his sentence with respect to the deportation feature. He argued the supremacy clause in Article IV of the U.S. Constitution and the Immigration and Nationality Act, 8 U.S.C.A. § § 1101-1524, preempt the immigration field in all relevant respects, including determination of illegal alien status and power to deport, thus depriving state courts of these powers. Accordingly, the trial court modified the sentence by substituting removal from the Commonwealth of Pennsylvania for removal from the United States, and further ordered Luna to make all necessary arrangements for a transfer of his supervision to another state or to make other arrangements so re-entry into Pennsylvania could be avoided. Trial Court Resentencing, 12/26/2007, at 1 n. 1.

¶ 4 On December 27, 2007 the INS deported Luna to Mexico. Trial Court Rule 1925 Opinion, 7/14/2007, at 2. On June 2, 2008, during the pendency of this appeal, and ostensibly because of Luna's deportation, the trial court entered an order purporting to close supervision in this case and deeming the fines and costs to be uncollectible, and in its view, thereby rendering moot any further proceedings. Id.

¶ 5 On appeal Luna defines the sole question as whether in its resentencing order the trial court erred in determining Luna's immigration status and relying on that determination to order him to leave Pennsylvania within ten days of parole. The Commonwealth adds as a second question whether the appeal is moot.

¶ 6 Luna's appeal challenges the legality of his sentence. As such our standard of review is plenary. If no statutory authority for the sentence exists, the sentence is illegal and will be vacated. Commonwealth v. Randall, 837 A.2d 1211, 1214 (Pa. Super. 2003).

¶ 7 We will address the issues in reverse order. The Commonwealth contends the trial court's June 2, 2008 closure order renders this appeal moot. We disagree. In view of Luna's deportation to Mexico, we address the mootness issue from the broader perspective that his indefinite absence from the United States may preclude judicial relief. "A case is 'moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy." In re T.J., 699 A.2d 1311, 1313 (Pa. Super. 1997). Stated differently, "[a]n issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect." Rivera v. Pennsylvania Department of Corrections,837 A.2d 525, 527 (Pa. Super. 2003). Moreover, Despite a determination that a case is moot, "[t]his Court will decide questions that otherwise have been rendered moot when one or more of the following exceptions to the mootness doctrine apply: 1) the case involves a question of great public importance, 2) the question presented is capable of repetition and apt to elude appellate review, or 3) a party to the controversy will suffer some detriment due to the decision of the trial court."

Id. at 528 (internal citations omitted).

¶ 8 We base our decision on the first and second exceptions.

¶ 9 Luna's case presents a case of great public importance. The current political and public controversy concerning immigration policies in the United States, particularly the enforcement of existing laws, has landed on our state capitol and courthouse steps.*fn3 The scope of state court authority over immigrants is of local, state and national importance. As Luna's case so vividly illustrates, some state courts, frustrated by what they view as lax enforcement of deportation laws, may search for state remedies that conflict with federal laws preempting the field.

ΒΆ 10 In addition, Luna's case implicates the power of state courts to fashion limited or full deportations in an arena occupied exclusively by the federal INS. The issue of state court jurisdiction can readily recur in settings, as here, where the issue may become moot before completion of the appellate review process. Whenever a minor criminal offense results in a short term incarceration and parole, any subsequent appellate review can prove meaningless when, as here, the sentence has been carried out. See Commonwealth v. Bernhardt, 519 A.2d 417, 420 (Pa. Super. 1986) (where, with respect to lengthy incarcerations before preliminary hearings, we held "[p]retrial detentions, such as those in the instant matter, are by their nature temporary. As such it is unlikely that any challenge to pretrial detentions would be afforded full appellate ...


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