Com. v. Cherrington, O.
Com. v. Cherrington, O. No. 2035 MDA 2016
| Pa. Super. Ct. | Sep 1, 2017Background
- Appellant Oneil A. Cherrington pled guilty April 19, 2012 to carrying a firearm without a license and disorderly conduct; sentenced to time served to 6 months (firearm) with immediate parole and concurrent 6 months’ probation (disorderly conduct).
- On January 6, 2016, Cherrington filed a petition (treated as a first PCRA petition) seeking to set aside his conviction, alleging ineffective assistance of counsel and other defects; PCRA counsel filed a Turner/Finley no‑merit letter and moved to withdraw.
- The PCRA court issued a Rule 907 notice and ultimately dismissed Cherrington’s January 6, 2016 petition on January 4, 2017, concluding Cherrington was ineligible for PCRA relief because he was no longer serving a sentence.
- On December 12, 2016 Cherrington filed a pro se coram nobis petition while his first PCRA appeal was pending; the court treated that filing as a PCRA petition but should not have accepted it because a subsequent PCRA cannot be filed while an earlier PCRA appeal is pending.
- Cherrington’s judgment of sentence became final on May 21, 2012; his January 6, 2016 PCRA petition was therefore facially untimely and he did not plead any statutory timeliness exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PCRA court erred by dismissing petitions | Cherrington argued ineffective assistance of plea counsel and other defects justify relief | Commonwealth argued Cherrington was ineligible for PCRA relief and petition was untimely | Court held dismissal was proper: petitioner not serving sentence and petition untimely |
| Whether coram nobis petition should be treated/accepted as a PCRA petition | Cherrington filed coram nobis claiming ineffective assistance of plea counsel | Commonwealth: coram nobis claims are subsumed by PCRA and second petition improper while appeal pending | Court held coram nobis is cognizable under PCRA but trial court erred in accepting the December 12, 2016 petition because a subsequent PCRA may not be filed while earlier PCRA appeal is pending |
| Whether Padilla creates a retroactive timeliness exception | Cherrington argued Padilla v. Kentucky applies retroactively to his ineffective‑assistance claim | Commonwealth argued Padilla does not create a newly recognized retroactive constitutional right for PCRA exception purposes and Padilla predates his conviction | Court held Padilla does not supply a § 9545(b)(1)(iii) retroactivity basis; claim fails |
| Whether appeal should be quashed for briefing/docket defects | Cherrington’s brief lacked required appellate components and had procedural defects | Commonwealth urged compliance with appellate rules; court may quash defective appeals | Court declined to quash on procedural defects and addressed discernible arguments on the merits |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (ineffective assistance claim for failure to advise regarding collateral immigration consequences)
- Commonwealth v. Descardes, 136 A.3d 493 (Pa. 2016) (ineffective assistance re: collateral consequences is cognizable under PCRA)
- Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (bar on filing subsequent PCRA while prior PCRA appeal pending)
- Commonwealth v. Brown, 111 A.3d 171 (Pa. Super. 2015) (timeliness of PCRA petition is jurisdictional)
- Commonwealth v. Garcia, 23 A.3d 1059 (Pa. Super. 2011) (Padilla does not announce a new constitutional right for § 9545(b)(1)(iii))
- Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998) (prisoner mailbox rule applies to PCRA petitions)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (procedures governing counsel’s request to withdraw from PCRA representation)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (no‑merit letter / counsel withdrawal standards)
- Commonwealth v. Baumhammers, 92 A.3d 708 (Pa. 2014) (PCRA amendments require leave under Pa.R.Crim.P. 905)