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Commonwealth v. Descardes

Superior Court of Pennsylvania

September 23, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
CLAUDE DESCARDES, Appellee

Argued October 16, 2013

Appeal from the Order of the Court of Common Pleas, Montgomery County, Criminal Division at No(s): CP-46-CR-0000617-2006. Before SMYTH, J.

Kelly M. Sekula, Office of the Attorney General, Norristown, for Commonwealth, appellant.

William J. Honig, Norristown and Timothy P. Wile, Public Defender, Norristown, for appellee.

BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, J., PANELLA, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., OLSON, J., and WECHT, J. OPINION BY PANELLA, J. Judge Donohue concurs in the result. Judge Bowes files a concurring and dissenting opinion in which Judge Olson joins, and Judge Donohue concurs in the result.

OPINION

Page 106

PANELLA, J.

After pleading guilty to insurance fraud[1] and conspiracy to commit insurance fraud,[2] and serving a probationary sentence, Claude Descardes, a resident alien, left the country for personal business. United States immigration officials denied him re-entry due to his felony convictions. After unsuccessful attempts to withdraw his guilty plea, Descardes became aware that the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that a criminal defense attorney has an affirmative duty to inform a defendant that the offense for which he pleads guilty will result in his removal from the country. Descardes filed a petition for a writ of coram nobis relying on Padilla. In his petition, Descardes alleged that his guilty plea counsel was ineffective for failing to advise him of the adverse immigration consequences of his guilty plea. The trial court treated the coram nobis petition as a petition pursuant to the Post Conviction Relief Act (" PCRA" ), 42 Pa.Cons.Stat.Ann. § § 9541-9546, and granted him relief.

In this appeal, we consider whether the trial court properly granted Descardes relief. Initially, we find that the trial court erred procedurally, and that it should have adjudicated the petition as a coram nobis petition. Further, we hold that Descardes is not entitled to relief due to the decision of the United States Supreme Court in Chaidez v. United States, __ U.S. __, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), which held that Padilla does not apply retroactively.

A short discussion of the procedural background is necessary before we address the issues involved. As previously

Page 107

mentioned, Descardes, a Haitian national with resident alien status, pled guilty on August 9, 2006. On November 30, 2006, Descardes was sentenced to one year of probation and ordered to pay a $100.00 fine. Descardes did not pursue a direct appeal.

Subsequent thereto, Descardes left the United States but was denied re-entry due to his felony conviction.[3] On December 7, 2009, Descardes filed a Petition for Reconsideration and Review of Denial of Petition for Writ of Error Coram Nobis, which raised, among other things, allegations that plea counsel was ineffective for failing to advise Descardes of the mandatory collateral consequence of deportation. The trial court treated Descardes's petition as a petition for relief under the PCRA and dismissed the petition as untimely on March 12, 2010.

On April 6, 2010, Descardes filed a second petition for writ of coram nobis based on the United States Supreme Court's decision in Padilla, which held that a criminal defense attorney has an affirmative duty to inform a defendant that the offense for which he pleads guilty will result in his removal from the country. Treating the petition as a PCRA petition, the court vacated Descardes's judgment of sentence and ordered the August 9, 2006 guilty plea withdrawn. The Commonwealth then filed a timely appeal.

We must first consider whether the trial court properly treated Descardes's petition for a writ of coram nobis as a PCRA petition.

Preliminarily, we note that the PCRA contains a custodial requirement to be eligible for relief. See Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013) (noting eligibility for relief under the PCRA is limited to those serving a sentence). Under the PCRA, a petitioner must either be " currently serving a sentence of imprisonment, probation or parole for the crime" or " 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.Cons.Stat.Ann. § 9543(a)(1)(i)-(iii). Descardes does not meet any of the foregoing three eligibility requirements. He completed his sentence by serving a one-year probationary sentence that expired in 2007. He was obviously not sentenced to death for insurance fraud and was not serving any other sentence that would toll the commencement of the sentence under dispute. He is therefore ineligible for PCRA relief. See Turner, 80 A.3d at 767 (" [O]ur legislature chose not to create any statutory entitlement to collateral review for defendants who have completed their sentences." ).

The trial court, however, found that Descardes is nonetheless eligible for PCRA relief because under Padilla " deportation is not a 'collateral consequence' of a guilty plea, but is in fact part and parcel of the punishment for the original

Page 108

crime, so that a person facing deportation as a result of criminal conviction is still eligible for [PCRA] relief ... despite his original criminal sentence having expired." Trial Court Opinion, 9/24/10, at 2.

We agree that " deportation is a drastic measure" as, " at times," it is the " equivalent of banishment o[r] exile[.]" Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948) (citation omitted). See also Bridges v. Wixon, 326 U.S. 135, 164, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) (Murphy, J., concurring) (" The impact of deportation upon the life of an alien is often as great if not greater than the imposition of a criminal sentence." ). However, although deportation " is a penalty," id., it " is not, in a strict sense, a criminal sanction," despite its intimate relation to the criminal process. Padilla, 559 U.S. at 365. See also United States v. Restrepo, 999 F.2d 640, 647 (2d Cir. 1993).

Deportation is not a sentence and Descardes is not in custody. Therefore, he is not eligible for PCRA relief. See, e.g., Turner. The PCRA court's reliance upon Padilla for the assertion that deportation constitutes a sentence for purposes of the PCRA eligibility provisions, although understandably sympathetic, is misplaced.

The question remains, however, whether the lower court properly treated Descardes's petition for a writ of coram nobis as a PCRA petition. The PCRA states that it " shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis," 42 Pa.Cons.Stat.Ann. § 9542. The key consideration is whether the underlying claim is cognizable under the PCRA; if so, a petitioner " may only obtain relief under the PCRA." Commonwealth v. Pagan, 2004 PA Super. 483, 864 A.2d 1231, 1233 (Pa. Super. 2004) (emphasis in original). See also Turner, 80 A.3d at 767 (" The PCRA provides eligibility for relief for cognizable claims, ... and is the sole means of obtaining collateral relief in Pennsylvania." ); Commonwealth v. West, 595 Pa. 483, 938 A.2d 1034, 1043 (Pa. 2007) (" [T]he PCRA subsumes all forms of collateral relief ... to the extent a remedy is available under such enactment." ) (emphasis omitted); Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 640 (Pa. 1998) (" The writ [of habeas corpus ] continues to exist only in cases in which there is no remedy under the PCRA." ).

It is rare for a claim to fall outside of the ambit of the PCRA. See Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978, 986 (Pa. 2008) (referring to claims that " fall outside the PCRA's statutory scheme" as " unique claims" ); Commonwealth v. Burkett, 2010 PA Super. 182, 5 A.3d 1260, 1274 (Pa. Super. 2010) (referring to claims that do " not fit within the statutory scheme of the PCRA" as " rare instances" ). For example, our Supreme Court found that a substantive due process challenge to the validity of recommitting the defendant to prison, after a nine-year delay in which he had mistakenly been free on appeal bond, did not fall within the ambit of the PCRA. See West. The Supreme Court has also held that an allegation that Canada violated the petitioner's rights under the International Covenant for Civil and Political Rights was not a cognizable PCRA claim. See Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511 (Pa. 2007).

In turning to Descardes's claim, it is, in broad terms, one of ineffective assistance of plea counsel, a claim that is explicitly within the purview of the PCRA. See 42 Pa.Cons.Stat.Ann. § 9543(a)(2)(ii). Descardes's exact claim, however, is predicated upon the Supreme Court's holding in Padilla--that the Sixth Amendment requires

Page 109

defense counsel to advise defendant about the risk of deportation arising from a guilty plea. This particular claim of ineffective assistance of counsel did not exist until 2010 when the Supreme Court decided Padilla, which was years after Descardes completed his sentence.[4] The time for pursuing a claim of ineffective assistance of counsel in a timely filed PCRA petition had long since expired.[5] Under the circumstances presented, we find that this is one of the rare instances where the PCRA fails to provide remedy for the claim.

As noted, Descardes sought relief not through the PCRA, but by filing a petition for writ of coram nobis. This writ " provides a way to collaterally attack a criminal conviction for a person ... who is no longer 'in custody' and therefore cannot seek habeas relief...." Chaidez, __ U.S. at __, 133 S.Ct. at 1106 n.1 (citation omitted). Indeed, in Chaidez, the petitioner sought to avoid deportation by filing a writ of coram nobis to overturn her conviction by arguing that her attorney provided ineffective assistance by failing to advise her of the immigration consequences of pleading guilty. See id., __ U.S. at ___, 133 S.Ct. at 1106.

Because Descardes's specific ineffective assistance of counsel claim was not recognized until well after the time he had to file a timely PCRA petition, coram nobis review should be available to him. Descardes is no longer in custody, thus the PCRA provides no relief, but he continues to suffer the serious consequences of his deportation because of his state conviction. The trial court should have addressed his petition for a writ of coram nobis, not under the PCRA, but as a coram nobis petition.

Lastly, we must consider whether Descardes is entitled to relief when his claim is addressed as a petition for writ of coram nobis. In Chaidez, the United States Supreme Court held that Padilla announced a new rule of constitutional law that is inapplicable on collateral review to a petitioner seeking a writ of coram nobis whose conviction had become final before Padilla. See ___ U.S. at ___, 133 S.Ct. at 1107-113. Put simply, " Padilla does not have retroactive effect." Id., at, 133 S.Ct. at 1105.

Therefore, as Padilla does not apply retroactively it may not serve as the basis for the collateral attack of Descardes's conviction, which was final when Padilla was decided. See United States v. Amer, 681 F.3d 211, 214 (5th Cir. 2012).

Order reversed. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

President Judge Bender, President Judge Emeritus Ford Elliott, Judge Shogan, Judge Lazarus, and Judge Wecht join the opinion.

Judge Donohue concurs in the result.

Page 110

Judge Bowes files a concurring and dissenting opinion in which Judge Olson joins, and Judge Donohue concurs in the result.

Judgment Entered.

CONCURRING AND DISSENTING OPINION

BOWES, J.

Ultimately, I agree with the learned majority that Appellee is not entitled to withdraw his plea, whether it be under the PCRA statute or the ancient common law writ of error coram nobis. I dissent, however, from the majority's conclusion that Appellee properly invoked coram nobis to achieve review of his untimely ineffective assistance of counsel claim. In my view, the majority fails to appreciate the interplay between PCRA review and coram nobis under the unusual circumstances of this case, and confuses ineligibility for relief under the PCRA with a lack of cognizability in the claim raised. Since the majority's analysis will unnecessarily lead to bifurcated review, see Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697 (Pa. 2011), I am compelled to write further.

I begin by noting that although coram nobis still exists in Pennsylvania under extremely limited circumstances, it does not generally apply where a defendant is raising an allegation of ineffective assistance of counsel. While I do not disagree that coram nobis may be an available form of relief in a future case involving a new constitutional right declared retroactively applicable where a defendant is no longer serving a sentence, and the right involved is sufficiently important to justify overlooking finality concerns, neither this Court nor the Pennsylvania Supreme Court has confronted such a situation. Insofar as the majority opinion suggests that Pennsylvania's common law coram nobis jurisprudence is as extensive as federal coram nobis law, it ignores both the intent and the language of the PCRA statute, and expands the writ well beyond even our Supreme Court's most expansive pre-PCRA interpretation.[1]

Traditionally, a writ of error coram nobis would only lie " where facts exist extrinsic of the record, unknown and unknowable by the exercise of diligence at the time of its rendition, and which would, if known, have prevented the judgment either in its entirety or in the form in which it was rendered." Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688, 690 (Pa. 1945). Phrased differently, where a defendant alleged an error of fact and not law and no fault could be imputed to the court in pronouncing its judgment, coram nobis was available. Id. The Harris Court delineated several examples when coram nobis applied, stating,

In a criminal prosecution where the accused was forced through well founded fears of mob violence to plead guilty, it has been considered that he is entitled to relief through the writ, and the judgment of conviction may be set aside and a new trial granted. The writ has been held to lie to correct such an error of fact as the conviction of a slave as a free person.

Id.

Thus, at common law, coram nobis existed only to remedy errors of or in the facts. See Harris, supra; Commonwealth v. Morrison, 158 Pa.Super. 311, 44 A.2d 850, 851 (Pa.Super. 1945) (" The writ of error coram nobis is an ancient common law writ, the purpose of which is to bring before a court a judgment previously rendered by it for

Page 111

review or modification, on account of some error of fact and not of law affecting the validity and regularity of the proceedings, and which was not brought into the issue at the trial thereof." ) (italics in original); Commonwealth v. Fiore, 445 Pa.Super. 401, 665 A.2d 1185, 1189-1190 (Pa.Super. 1995).[2] Certainly, this case does not involve a factual mistake.

However, Pennsylvania law, prior to the passage of the PCRA, expanded coram nobis to some limited matters of law. See Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (Pa. 1971); Commonwealth v. Fay, 294 Pa.Super. 332, 439 A.2d 1227 (Pa.Super. 1982). The Sheehan Court first determined that the Post-Conviction Hearing Act (" PCHA" ), the predecessor to the PCRA, did not abolish coram nobis. It then relied on the far broader federal applicability of coram nobis fashioned by United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), wherein the High Court held that the denial of counsel could be remedied via coram nobis following the expiration of the defendant's sentence. See id. at 468 (" the Court in Morgan noted that cora [ m ] nobis as applied in American jurisdictions had not been confined strictly to matters of fact." ) (italics added). In this respect, Sheehan extended coram nobis in Pennsylvania to matters of errors in process; specifically, where a defendant was entirely denied his right to counsel. But see Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013) (returning to the Harris standard). Sheehan, however, does not mean that non-retroactive " novel" ineffectiveness claims come within the ambit of coram nobis in Pennsylvania.

Importantly, the PCRA statute provides in pertinent part that it " shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis ." 42 Pa.C.S. § 9542 (emphases added). Of course, the very next sentence also expressly states that the PCRA is not intended " to provide relief from collateral consequences of a criminal conviction." Id. This latter portion of the statute is no longer constitutionally sound in at least the deportation context. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); see also Commonwealth v. Masker, 2011 PA Super. 271, 34 A.3d 841 (Pa.Super. 2011) (Bowes, J., concurring and dissenting).[3]

Our Supreme Court has interpreted the sole means language to explain that the PCRA is the only method of obtaining collateral review when the claim being raised is cognizable under the PCRA.

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Commonwealth v. Eller, 569 Pa. 622, 807 A.2d 838, 842-843 (Pa. 2002); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 569-70 (Pa. 1999). It is only " where the PCRA does not encompass a claim that other collateral procedures are available." Commonwealth v. Pagan, 2004 PA Super. 483, 864 A.2d 1231, 1233 (Pa.Super. 2004) (citation omitted). Thus, where a petitioner's claims " are cognizable under the PCRA, the common law and statutory remedies now subsumed by the PCRA are not separately available to the [petitioner]." Commonwealth v. Hall, 565 Pa. 92, 771 A.2d 1232, 1235 (Pa. 2001).[4]

When examining whether a claim is cognizable under the PCRA, our Supreme Court has looked only to three requirements. First, the petitioner must be convicted of a crime under the laws of this Commonwealth. See In the Interest of A.P., 421 Pa.Super. 141, 617 A.2d 764 (Pa.Super. 1992), affirmed 536 Pa. 450, 639 A.2d 1181 (Pa. 1994) (claim not cognizable under the PCRA because juvenile was not convicted of a crime but was rather adjudicated delinquent). Second, the claim attacks the petitioner's conviction or sentence for one of the seven enumerated reasons set forth in the PCRA. See Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511, 518 (Pa. 2007) (claim not cognizable under the PCRA because " the basis of the arguments [were] not contingent upon the presence of error in either the guilt or penalty phases of a trial." ). Finally, in certain circumstances, the petitioner must be serving a period of imprisonment, probation, and/or parole to permit the filing of a PCRA petition. See Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760, 761 (Pa. 1996) (claim not cognizable under the PCRA because the defendant was only sentenced to pay a fine).

If all three requirements are present, our Supreme Court has consistently concluded that the claim is cognizable under the PCRA and, therefore, common law remedies are not available to the petitioner. Our Supreme Court does not consider the underlying merit of a particular claim in determining whether a claim is cognizable under the PCRA. Thus, the scope of cognizable claims under the PCRA extends far beyond meritorious claims. See Commonwealth v. West, 595 Pa. 483, 938 A.2d 1034, 1044 (Pa. 2007) (" [T]he boundaries of cognizable claims under the PCRA can be extended so far as is consistent with the purposes of the statute[.]" ). It includes a broad range of claims for which a petitioner is no longer eligible for relief. Cf. Commonwealth v. Matin, 2003 PA Super. 342, 832 A.2d 1141, 1142-1143 (Pa.Super. 2003) (petitioner's claim was cognizable under PCRA and had arguable merit yet petitioner was ineligible for relief because he was no longer serving a sentence).[5]

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In short, a claim is cognizable under the PCRA if it contests the petitioner's conviction, which Appellee is clearly challenging, sentence, or the effectiveness of counsel during the plea process, trial, sentencing, appeal, or PCRA review. 42 Pa.C.S. § 9543. Concomitantly, a person who can no longer file a timely petition or who is no longer serving a sentence is ineligible for PCRA relief; if the claim relates to the petitioner's sentence, conviction, or the effectiveness of counsel, he cannot achieve a different form of collateral relief. See Turner, supra; Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (Pa. 1997); Commonwealth v. Williams, 2009 PA Super. 121, 977 A.2d 1174 (Pa.Super. 2009); Pagan, supra; Commonwealth v. Hayes, 408 Pa.Super. 68, 596 A.2d 195 (Pa.Super. 1991) ( en banc ).

An ineffectiveness claim pertaining to deportation can be pursued under the PCRA statute because all constitutional ineffectiveness claims are cognizable under the PCRA. Commonwealth ex rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126 (Pa. 2001); see also Commonwealth v. Escobar, 2013 PA Super. 175, 70 A.3d 838 (Pa.Super. 2013) (defendant sentenced post-Padilla and raising deportation ineffectiveness claim in PCRA); Commonwealth v. McDermitt, 2013 PA Super. 113, 66 A.3d 810 (Pa.Super. 2013) (addressing within PCRA a deportation ineffectiveness claim where defendant pled guilty and was sentenced pre-Padilla); Commonwealth v. Ghisoiu, 2013 PA Super. 63, 63 A.3d 1272 (Pa.Super. 2013) (deportation ineffectiveness claim cognizable under PCRA where defendant pled guilty pre-Padilla and sentenced post-Padilla); Commonwealth v. Wah, 2012 PA Super. 54, 42 A.3d 335 (Pa.Super. 2012) (deportation ineffectiveness claim addressed in PCRA context where defendant pled and was sentenced post-Padilla); Commonwealth v. Garcia, 2011 PA Super. 124, 23 A.3d 1059 (Pa.Super. 2011) (defendant sentenced pre-Padilla and raised deportation ineffectiveness claim in PCRA petition, which was considered untimely).[6]

Indeed, even in Commonwealth v. Frometa, 520 Pa. 552, 555 A.2d 92 (Pa. 1989), abrogated by Padilla, supra, our Supreme Court did not find that the deportation ineffectiveness claim therein was not cognizable. Rather, the court determined that the person was not entitled to relief because counsel could not be ineffective for not advising his client about a collateral consequence of his plea. See also Commonwealth v. Abraham, 619 Pa. 293, 62 A.3d 343 (Pa. 2012) (ruling that collateral consequence doctrine still applies outside of deportation and concluding that counsel was not ineffective for failing to advise his client about the loss of a pension as a result of his convictions, but not holding that ineffectiveness claim was non-cognizable).

Since all constitutional ineffectiveness claims relating to a conviction or the sentencing process can be entertained under the PCRA, see Goldberg, supra, Appellee's claim is cognizable. That Appellee is no longer serving a sentence and that he could not have achieved relief before his

Page 114

sentence expired does not result in a cognizable claim becoming non-cognizable, thereby allowing him to seek coram nobis relief. Such a finding is directly refuted by the PCRA statute.

The legislature was certainly aware at the time it passed the PCRA statute that coram nobis could apply to those not serving a sentence since this was established law. That it expressly provided that the PCRA subsumes coram nobis, and that one is ineligible for relief under the PCRA if no longer serving a sentence, unequivocally indicates that post-conviction challenges to a defendant's conviction or sentence via an ineffectiveness claim were to be reviewed under the PCRA.

In Pagan, supra, this Court expressly addressed the issue of whether coram nobis was available as a remedy outside the PCRA where the petitioner was no longer serving his sentence. We noted that the statute states that a person is ineligible for PCRA relief if he is not currently serving a sentence for the crime in question or serving a sentence that must expire before the petitioner begins serving his disputed sentence. 42 Pa.C.S. § 9543(a)(1)(i), (iii). We held that where the underlying substantive claim is encompassed by the PCRA, i.e., cognizable, coram nobis will not lie. Citing our Supreme Court's decision in Ahlborn, supra, we reasoned, " any collateral consequences flowing from a conviction will not provide the petitioner with an avenue for review outside of the PCRA." Pagan, supra at 1233. Here, Appellee was no longer serving his one-year probationary sentence at the time he filed his petition. Thus, by its plain terms, Appellee was not eligible for PCRA relief. Ahlborn, supra; Hayes, supra; Williams, supra; Matin, supra; Commonwealth v. Fisher, 703 A.2d 714 (Pa.Super. 1997).[7]

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Recently, the Pennsylvania Supreme Court in Turner, supra, rejected an as-applied due process challenge to the PCRA statutory requirement that the defendant be serving her sentence at the time relief is granted. It also rejected the PCRA court's alternate grant of coram nobis relief. In Turner, the defendant filed a timely petition. However, her two-year probationary sentence expired before the PCRA court awarded her a new trial. The PCRA court determined that to deny relief violated due process. The Supreme Court reversed, concluding that she could have sought relief on direct appeal via the Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003) exception. The Court declared that Turner's ineffectiveness claim was cognizable under the PCRA and that she could not seek relief outside the statute. The Turner Court noted that coram nobis was not available since ineffectiveness claims are cognizable under the PCRA and do not fit within the purview of coram nobis. Compare Commonwealth v. Brown, 596 Pa. 354, 943 A.2d 264, 277 (Pa. 2008) (Baer, J., dissenting).

Simply put, so long as the issue could have been leveled in a PCRA petition, i.e., an ineffectiveness claim, the person is foreclosed from seeking relief via a common law writ, even though PCRA relief is no longer available or the person was not entitled to a remedy under the statute. Cf. Pagan, supra at 1233. I recognize that this case does not present a typical ineffectiveness claim and implicates additional concerns involving Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002), and Commonwealth v. O'Berg, 584 Pa. 11, 880 A.2d 597 (Pa. 2005). While those concerns have subsequently been ameliorated by Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (Pa. 2013), that decision could not have benefited Appellee.

Notably, the facts of Appellee's case made it virtually impossible for him to be able to pursue PCRA relief in a timely fashion. First, as mentioned, Appellee's sentence was only one year of probation. As the court sentenced Appellee after our Supreme Court's decision in Grant, supra, any ineffectiveness claim likely had to be deferred until PCRA review. But see Bomar, supra; see also Turner, supra. Nevertheless, his short sentence virtually ensured that he would be ineligible for PCRA relief. Moreover, the Supreme Court in O'Berg, supra, expressly declined to allow a short sentence exception to Grant and permit defendants to raise ineffectiveness claims on direct appeal.

Further, while Appellee could have sought review under Bomar at the time of his conviction, the governing precedent in this Commonwealth was Frometa, supra. That decision precluded finding plea counsel ineffective based on failing to inform a client about potential deportation consequences. However, presenting a claim and being able to achieve relief are distinct. Instantly, the majority has conflated both Appellee's ineligibility for relief and the lack of entitlement to a remedy under the PCRA with the cognizability of his ineffectiveness issue. Obviously, the fact that a person wishing to challenge his conviction is no longer serving a sentence or cannot timely file a PCRA petition does not render his underlying claims non-cognizable. See Turner, supra; Ahlborn, supra; Pagan, supra; Hall, supra, at 1235. In addition, simply because the ineffectiveness claim would have been meritless at the time it was raised does not translate into the issue becoming non-cognizable. Indeed, if this were the case, then countless

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ineffectiveness claims that are raised in PCRA petitions would be able to be raised in a coram nobis petition.

Phrased differently, although Frometa would have precluded relief on Appellee's ineffectiveness claim on either direct appeal or in a timely PCRA petition, that does not mean he could not have advanced this claim under the PCRA. I provide an example to illustrate. Currently, counsel cannot be ineffective for failing to present a diminished capacity defense where the defendant asserts he is innocent. Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110 (Pa. 2008). That fact does not mean that a defendant can raise the issue outside the PCRA because it would not entitle him to a remedy. Since the issue herein is an ineffectiveness claim and relates to Appellee's conviction, post-conviction relief must be sought via the PCRA. Cf. Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242, 1251 (Pa. 1999), abrogated on other ground by Grant, supra(" as petitioner's penalty phase claims are cognizable under the PCRA they will be addressed solely within the context of the PCRA, and any remedy to be afforded petitioner must be within the scope of the PCRA." ).

Our Supreme Court has never permitted extra-PCRA review of claims that were non-meritorious when the petitioner was eligible for PCRA relief but which became meritorious at a later date. Instead, such claims must be reviewed under the PCRA framework. Accordingly, the fact that Appellee could not present a meritorious claim when he was eligible for relief does not mean that his claim falls outside of the PCRA. In this case, Appellee was convicted of crimes under the laws of this Commonwealth. His claim - then and now - has always been one of the seven enumerated claims set forth in the PCRA, i.e., ineffective assistance of counsel. See 42 Pa.C.S. § 9543(a)(2)(ii); see also Escobar, supra; McDermitt, supra; Ghisoiu, supra; Wah, supra. As such, Appellee's claim is cognizable under the PCRA. Unfortunately for Appellee, he is not " (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." 42 Pa.C.S. § 9543(a)(1)(i-iii). Accordingly, he is no longer eligible for relief under the PCRA.[8] Id.

This construction is consistent with both our Supreme Court and the General Assembly's strong preference " to channel all claims requiring review through the framework of the PCRA." Hall, supra at 1235 (internal quotation marks and citation omitted). " A contrary interpretation would lead to a bifurcated system of post-conviction review, in which certain claims for relief are considered under the PCRA, while other claims for relief are considered outside its framework." Id. at 1235-1236 (internal quotation marks and citation omitted). Our Supreme Court has rebuked attempts by this Court to permit such bifurcated review. See id.

The underlying premise of the majority's conclusion, that Appellee is entitled to seek collateral relief outside the PCRA because a subsequent change in the law recognized the validity of his ineffective assistance claim, is flawed when examined under the guise of the PCRA and erects the very type of bifurcated review which our Supreme Court has previously forbidden. Consider an example in which the

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Supreme Court of the United States or Pennsylvania adopts a new rule of constitutional law that is deemed worthy of retroactive application. A petitioner benefitting from the new decision comes forward with a claim for collateral relief. In such a case, the ensuing change in the legal landscape would permit an otherwise time-barred PCRA claim so long as the petitioner requests relief within 60 days of the new opinion. See 42 Pa.C.S. § § 9545(b)(1)(iii), 9545(b)(2). Nevertheless, the petitioner would be ineligible for PCRA relief if he were no longer serving a sentence. See 42 Pa.C.S. § 9543(a)(1)(i-iii). In these circumstances, the petitioner's right to collateral relief under the PCRA would end, notwithstanding the recently bolstered merit of his contentions.

By allowing Appellee to pursue coram nobis relief outside of the PCRA, the majority's decision gives Appellee greater post-conviction options in a situation where his ineffective assistance claim is untimely and he is ineligible for PCRA relief because he is no longer serving a sentence. In these circumstances, the majority's decision serves as a judicial veto of the eligibility requirements of the PCRA and thus represents an unwarranted departure from the legislature's clear statutory directives.[9]

In light of both the PCRA statute and our Supreme Court's consistent pronouncements, the PCRA process is the sole means of collaterally contesting a conviction by raising ineffectiveness issues, including matters relating to deportation. Turner, supra; Hall, supra at 1235 (" the General Assembly intended that claims that could be brought under the PCRA must be brought under that Act." ) (emphases in original); Ahlborn, supra at 720-721; Haun, supra at 699 (" the PCRA was intended to be the sole vehicle for litigating claims for collateral relief in state court." (emphasis in original)); see also Pagan, supra at 1233 ( coram nobis relief does not become available merely because the PCRA refuses to remedy a petitioner's grievance; rather, we look at the claims a petitioner is raising." ) (italics in original); cf. Hayes, supra at 199 (" the legislature intended to limit post conviction relief under the PCRA to individuals who at the time of filing for PCRA relief are serving a sentence of imprisonment, probation or parole for a conviction, regardless of the collateral criminal consequences from the conviction." ).

In sum, the majority decision creates bifurcated review, and, by conflating a lack of entitlement to relief with cognizability, unnecessarily expands coram nobis to ineffectiveness claims. Nonetheless, as Appellee's case does not fit within the narrow parameters of coram nobis, and since he was not entitled to PCRA relief because he was no longer serving his sentence and his petition was untimely, I agree that the court below erred.

Olson, Judge joins the Concurring and Dissenting Opinion.

Donohue, Judge Concurs in the Result in the Concurring and Dissenting Opinion.


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