COMMONWEALTH оf Pennsylvania, Appellant, v. Claude DESCARDES, Appellee.
No. 39 EM 2016
Supreme Court of Pennsylvania.
Decided March 29, 2016
Resubmitted Jan. 20, 2016
136 A.3d 493
Argued Sept. 10, 2015.
of the oil and gas rights to the Property. See Jordan; Bowen; Daley.
For the above reasons, we hold that the Superior Court properly affirmed the trial court‘s grant of summary judgment in favor of Anadarko based on the doctrine of estoppel by deed.
Order affirmed.
Chief Justice SAYLOR and Justices BAER, DOUGHERTY and WECHT join the opinion.
Justice DONOHUE did not participate in the consideration or decision of this case.
Bruce Richard Beemer, Esq., Kelly M. Sekula, Esq., Pennsylvania Office of Attorney General, for Commonwealth of Pennsylvania.
William J. Honig, Esq., Norristown, for Claude Descardes.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
OPINION
Justice TODD.
In this discretionary appeal by the Commonwealth, we consider whether Appellee Claude Descardes was entitled to seek review of his ineffectiveness of counsel claim, based on counsel‘s failure to advise him of the collateral consequences of his guilty plea, via a petition for writ of coram nobis.1 We conclude that he was not, and, accordingly, vacate the Superior Court‘s judgment to the contrary and dismiss Appellee‘s underlying petition for relief under the Post Conviction Relief Act (“PCRA“),
In August 2006, Appellee, a Haitian national who held resident alien status in the United States, pled guilty to insurance fraud,2 a felony, and conspiracy to commit insurance fraud.3 Appellee was not advised prior to entering his plea that deрortation was a collateral consequence of his plea pursuant to the Immigration and Naturalization Act,
On December 7, 2009, Appellee filed a counseled “Pеtition for Writ of Error Coram Nobis” asserting, inter alia, that his plea counsel was ineffective for failing to
On May 26, 2010, Appellee filed a second Petition for Writ of Error Coram Nobis based on the United States Supreme Court‘s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla, which was decided on March 31, 2010, the high Court held that criminal defense counsel has an affirmative duty to inform a defendant that the offense to which he is pleading guilty will result in deportation, effectively abrogating Pennsylvania‘s longstanding rule, expressed in Frometa, that counsel may not be held ineffective for failing to inform a client of the collateral consequence of deportation as a result of a guilty plea. The trial court treated Appellee‘s May 26 petition as a timely first PCRA petition, concluding that the petition fell within the exception to the one-year time requirement of the PCRA because Appellee was asserting a constitutional right recognized by the U.S. Supreme Court after the expiration of the one-year time requirement of the PCRA, and contending that the high Court had held that constitutional right applied retroactively.
The Commonwealth appealed to the Superior Court, and a divided en banc panel reversed in a published opinion authored by Judge Jack Panella. Commonwealth v. Descardes, 101 A.3d 105 (Pa.Super.2014). Initially, the majority determined that the trial court erred in treating Appellee‘s May 26 petition for relief as a PCRA petition because he had completed serving his sentence. Id. at 107-08. The majority concluded, however, that a writ of coram nobis “provides a way to collaterally attack a criminal conviction for a person . . . who is no longer ‘in custody’ and therefore cannot seek habeas relief.” Id. at 109 (quoting Chaidez v. United States, 568 U.S. 342, 133 S.Ct. 1103, 1106 n. 1, 185 L.Ed.2d 149 (2013)). Noting that Appellee‘s specific ineffectiveness claim did not exist until the high Court‘s 2010 decision in Padilla, by which time Appellee had completed serving his sentence and so the time period for filing a PCRA petition had expired, and that Appellee “continues to suffer the serious consequences of his deportation because of his state conviction,” the majority found that the PCRA “fails to provide remеdy for” Appellee‘s claim. Id. Thus, the majority held that the trial court should have treated Appellee‘s petition as a coram nobis petition.
Notwithstanding its determination that the trial court should have addressed Appellee‘s PCRA petition as a petition for coram nobis, the majority concluded that, under that writ, Appellee was not entitled to relief because, in Chaidez, the United States Supreme Court held that Padilla announced a new rule of constitutional law that does not apply retroactively and may not serve as the basis for a collateral attack on a conviction that became final before Padilla. Accordingly, the majority reversed the trial court‘s order granting
Judge Christine Donohue concurred in the result, and Judge Mary Jane Bowes authored a Concurring and Dissenting Opinion, which was joined by Judge Judith Olson. Judge Bowes agreed with the majority‘s determination that Appellee was not entitled to withdraw his guilty plea either under the PCRA or through a writ of coram nobis. However, she disagreed with the majority‘s conclusion that a coram nobis petition was a vehicle by which Appellee could seek review of his ineffectiveness of counsel claim. Relying on the Superior Court‘s decision in Commonwealth v. Pagan, 864 A.2d 1231 (Pa.Super.2004), Judge Bowes concluded that, because Appellee‘s claim was cognizable under the PCRA, the fact that he was ineligible for relief because he was no longer serving his sentence did not entitle him to seek relief through a writ of coram nobis.4 In Judge Bowes’ view, the mаjority neglected to recognize the distinction between cognizability and eligibility, and expanded the writ of coram nobis beyond its original purpose of remedying factual errors, in contravention of the intent and language of the PCRA.
Both Appellee and the Commonwealth sought allowance of appeal. On April 7, 2015, this Court granted review of the Commonwealth‘s petition,5 limited to the issue of whether the Superior Court‘s decision conflicts with this Court‘s hold-
ings in Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (1997), and Commonwealth v. Hall, 565 Pa. 92, 771 A.2d 1232 (2001), as well as the Superior Court‘s own decision in Pagan.6 As this issue presents a question
By way of background, in 1966, the Pennsylvania General Assembly enacted the Post Conviction Hearing Act (“PCHA“), Act of Jan. 25, 1966, P.L. 1580 (1965), No. 554, as amended,
was not to abolish the common law remedies of habeas corpus and coram nobis, but rather to promulgate an exclusive, well-defined procedure for the presentation of those grievances set forth in the Act by an aggrieved person who is under the duress of punishment, whether in prison or on parole or probation.
285 A.2d at 467.7 We further stated that “[a]ll claims previously cognizable on a common law writ, in circumstances not covered by the terms of the Act, may still be litigated by means of the common law writ. Merely because one is not incarcerated, on parole or probation does not [p]er se preclude a collateral attack on his conviction.” Id.
In 1988, however, the legislature replaced the PCHA with the PCRA. In so doing, the legislature significantly altered the eligibility requirements for collateral relief. Under the PCRA, an individual must be “currently serving a sentence of imprisonment, probation or parole for the crime” in order to be eligible for relief.
This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter 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. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction. Except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases.
This Court has construed the above language as manifesting the legislature‘s intent that the PCRA be the sole means by which an appellant may collaterally challenge his conviction. In Ahlborn, for example, the appellant pled guilty to three counts of driving under the influence and one count of accident resulting in death or injury, and was sentenced to an aggregate term of 48 hours to 69 months imprisonment. While he was still serving his prison sentence, the appellant filed a pro se PCRA petition. Counsel was appointed and an amended petition was filed, wherein the appellant alleged, inter alia, that he was mislеd regarding the nature and consequences of his plea. A PCRA hearing was scheduled, but the appellant completed serving his sentence and was unconditionally released from prison three days before the scheduled hearing. The PCRA court dismissed the appellant‘s PCRA petition on the basis that he was no longer eligible for relief because he was not serving a sentence of imprisonment, probation, or parole. The Superior Court affirmed the PCRA court‘s dismissal.
On appeal to this Court, the appellant asserted that, although he was no longer incarcerated, he continued to suffer the consequences of his conviction because his driver‘s license was suspended and he faced the possibility of future sentencing and recidivist enhancements. He argued that, where convictions result in ongoing consequences beyond imprisonment, the legislature would not have intended that review under the PCRA would be unobtainable. In rejecting his argument, we acknowledged that, in Sheehan, supra, this Court held that petitioners who did not meet the custody requirement under the language of the prior PCHA, “but who faced direct collateral civil or criminal consequences of their convictions, could nevertheless obtain review” through “common law writs of error coram nobis.” Ahlborn, 699 A.2d at 721. However, we observed that
[u]nlike the PCHA, . . . the PCRA contains express language which prevents a petitiоn filed under the PCRA from being treated as a request for relief under the common law. The PCRA specifies that it is the sole means for obtaining collateral relief and that it supersedes common law remedies.
Id. at 721 (emphasis original).
In Hall, supra, we reiterated that the PCRA is the exclusive means for obtaining collateral relief. In that case, the appellee was convicted of various drug charges and, on May 30, 1995, was sentenced to 9 to 23 months incarceration. He did not file a direct appeal. On January 30, 1997, he filed a PCRA petition, asserting that trial counsel was ineffective for failing to file a direct appeal. The PCRA court properly dismissed the petition as untimely, but included in its order a sua sponte nоtation that the order was without prejudice to allow the appellee to file a petition for appeal nunc pro tunc outside of the PCRA. The appellee filed such petition, which the PCRA court granted, and, thereafter, the appellee appealed his judgment of sentence to the Superior Court, raising a claim of trial court error. The Commonwealth filed a cross appeal, asserting
Examining Section 9542 of the PCRA in its entirety, we noted:
The plain language of [Section 9542] demonstrates quite clearly that the General Assembly intended that claims that could be brought under the PCRA must be brought under that Act. No other statutory оr common law remedy “for the same purpose” is intended to be available; instead, such remedies are explicitly “encompassed” within the PCRA.
Hall, 771 A.2d at 1235 (emphasis original). We emphasized that we have “repeatedly and uniformly given effect to this plain language contained in the PCRA.” Id. (citing Ahlborn; Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641-42 (1998); Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581 (1999); Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999)).
The pivotal question in Hall, we noted, was whether Hall‘s particular claim—a request for permission to file a nunc pro tunc direct appeal based on counsel‘s alleged ineffectiveness in failing to file a direct appeal—was a claim that was cognizable under the PCRA. A claim is cognizable under the PCRA if the petitioner pleads and proves by a preponderance of the evidence that: (1) he has been convicted of a crime under the laws of this Commonwealth; (2) he is serving a sentence of imprisonment, probation, or parole for the crime; and (3) his conviction resulted from one of seven enumerated errors set forth in
With this background in mind, we turn our attention to the arguments of the parties in the instant case. The Commonwealth argues that the Supеrior Court‘s holding is in contravention of this Court‘s holdings in Ahlborn and Hall, as well as its own decision in Pagan, all of which provide that, where a claim is cognizable under the PCRA, the PCRA is the only avenue of review, even if the defendant is ineligible for relief because he is no longer serving a sentence. In this regard, the Commonwealth echoes Judge Bowes’ position that the majority conflated Appellee‘s eligibility for PCRA relief with the cognizability of his claim, and suggests that, in doing so, the majority “opened the door to a potential floodgate of impermissible bifurcated
Finally, the Commonwealth asserts that the majority‘s reliance on Chaidez for its determination that Appellee may challenge his conviction through a writ of coram nobis is misplaced. According to the Commonwealth, Chaidez is distinguishable because the defendant therein was convicted of federal charges and was able to collaterally attack her conviction through a petition for habeas corpus, the statute which, unlike the PCRA, does not expressly state that it is the sole means of obtaining collateral relief. The Commonwealth also notes that the United States Supreme Court has held that the federal habeas statute does not preclude a coram nobis petition. Commonwealth‘s Brief at 16 (citing United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954)).8
Appellee, conversely, contends that the right of coram nobis persists. Appellee asserts that the Commonwealth ignores the third sentence of Section 9542 of the PCRA, which provides:
This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction.
Even in the absence of this sentence, Appellee maintains that he is entitled to coram nobis review because he was never eligible to seek relief under the PCRA, as his ineffectiveness of counsel claim was not recognized by the United States Supreme Court until after the PCRA became effective and the time period in which he could have filed a PCRA petition had expired. In this respect, he asserts that the facts of Ahlborn and Hall are distinguishable, and he contends that the present case is more akin to Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760 (1996) (holding that defendant could seek permission to file a nunc pro tunc appeal of his convictions outside of the framework of PCRA because he was never eligible for relief under the PCRA as he was never under a sentence of death or imprisonment or on parole or probation).9
The Pennsylvania Innocence Project and the Pennsylvania Association of Criminal Defense Lawyers filed a joint amicus brief in support of Appellee suggesting, in the first instance, that this Court dismiss this matter for the reasons asserted by Appellee. Amicus further argues that, should this Court address the merits of this appeal, we should adopt a construction of the PCRA that “will provide at least one opportunity
Upon review, we reject Appellee‘s arguments and the analysis of the Superior Court below. First, although Appellee cursorily avers that the third sentence of Section 9542 quoted above suggests that the legislature did not intend that a defendant be precluded from seeking, outside of the PCRA, relief from the collateral consequences of a conviction, we note that this same language was in Section 9542 when this Court held in Ahlborn that, despite the fact that the appellant continued to suffer the collateral consequences of his conviction—including a driver‘s license suspension and the possibility of future sentencing and recidivist enhancements—the PCRA was the only method by which he could seek relief. Indeed, the language of Section 9542 has remained unchanged since that time. Furthermore, regardless of the legislature‘s view as to the method for obtaining relief from collateral consequences in the abstract, the language of the PCRA clearly requires that an individual seeking relief from the judgment of sentence itself, as in the case herein, pursue his request for relief through the PCRA.
More centrally, we conclude that the Superior Court‘s decision below is in conflict with Ahlborn, Hall, and our other PCRA jurisprudence, and, accordingly, we disapprove its analysis in that regard. As discussed above, this Court has consistently held that, pursuant to the plain language of Section 9542, where a claim is cognizable under the PCRA, the PCRA is the only method of obtaining collateral review. See Ahlborn; Peterkin; Hall; see also Commonwealth v. Turner, 622 Pa. 318, 80 A.3d 754, 770 (2013) (“The PCRA at Section 9542 subsumes the remedies of habeas corpus and coram nobis.“). It is equally well established that Appellee‘s claim of ineffective assistance of plea counsel, which is based on counsel‘s failure to advise him of the collateral consequences of his plea, was cognizable under the PCRA. See, e.g., Dadario, 773 A.2d at 131 (ineffective assistance of counsel during plea bargaining process cognizable under the PCRA); Turner, 80 A.3d at 770 (“Because Petitioner alleged claims of ineffective assistance of counsel, her claims were cognizable under the PCRA and the writ of habeas corpus was not available.“). Indeed,
Moreover, the fact that Appellee‘s claim, had he raised it while still serving his sentence, would likely have been held to be meritless under Frometa, the prevailing law аt the time, does not mean the claim was not cognizable under the PCRA. Indeed, as shown above, it clearly was. The fact that there was no legal support for Appellee‘s ineffectiveness claim until after the time period for filing a PCRA petition had expired does not remove the claim itself from the purview of the PCRA. As noted by Judge Bowes in her Concurring and Dissenting Opinion, the Superior Court‘s decision to the contrary allows for the “very type of bifurcated review” condemned by this Court and results in inconsistent treatment of petitioners seeking collateral relief:
Consider an example in which the 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. 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 Apрellee 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.
Descardes, 101 A.3d at 116-17. Thus, Appellee‘s only method of obtaining collateral review was the PCRA.
Our decision in Stock does not support a contrary holding. In Stock, this Court held that the defendant, who was convicted in absentia of three summary traffic offenses and sentenced to pay fines, and whose attorney failed to file an appeal as requested, could seek permission to file a nunc pro tunc appeаl of his convictions outside of the framework of PCRA because the defendant was never eligible for relief under the PCRA as he could not meet the PCRA‘s requirement that he be “under a sentence of death or imprisonment or on parole or probation.” 679 A.2d at 764. Thus, our decision in Stock was premised on a determination that the defendant‘s state constitutional right to appeal could only be vindicated outside of the PCRA:
Were we to decide that Appellant could not appeal nunc pro tunc despite the fact that his state constitutional right to appeal was denied him, Appellant would have no other recourse. His conviction would stand and he would be without remedy. Appellant is not able to vindicate his right to appeal via the Post Conviction Relief Act since he is not eligible to seek relief thereunder because he is not “incarcerated in this Commonwealth under a sentence of
death or imprisonment or on parole or probation.”
679 A.2d at 764. Conversely, and as discussed above, Appellee herein could have raised in a PCRA petition an ineffectiveness of counsel claim based on counsel‘s failure to advise him of the consequences, including deportation, of his guilty plea. The fact such claim likely would have been rejected on its merits does not change the fact that it could have been raised under the PCRA.
For all of the foregoing reasons, we conclude the Superior Court‘s decision in the instant case is contrary to the decisions of this Court which hold that, where a petitioner‘s claim is cognizable under the PCRA, the PCRA is the only method of obtaining collateral review. As a result, Appellee‘s PCRA petition should have been dismissed because, as he was no longer incarcerated at the time it was filed, he was ineligible for PCRA relief, and, thus, both the PCRA court and the Superior Court lacked jurisdiction to entertain the petition.
The judgment below is vacated and Appellee‘s underlying PCRA petition is dismissed.
Chief Justice SAYLOR and Justices BAER and DOUGHERTY join the opinion.
Chief Justice SAYLOR files a concurring opinion in which Justice DOUGHERTY joins.
Justices DONOHUE and WECHT did not participate in the consideration or decision of this case.
Chief Justice SAYLOR, concurring.
I join the majоrity opinion and write only to elaborate on my own position concerning a few points.
First, I have some difficulty with the use of the term “collateral consequence” in the deportation setting. In this regard, the Supreme Court of the United States has explained: “Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence,” and “the collateral versus direct distinction is thus ill suited to evaluating” claims of deficient attorney stewardship centered upon advice about deportаtion. Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010).
Secondly, while styled differently, in substance Appellee‘s claim embodies an entreaty for Padilla to be applied retroactively. See, e.g., Brief for Appellee at 8 (“Descardes was never eligible to file for PCRA relief as the right to legal advice regarding the collateral consequence of deportation . . . did not exist at the time the PCRA took effect.“). The PCRA, however, imposes express limitations on such claims, rendering relief available only where:
the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
Justice DOUGHERTY joins this concurring opinion.
Notes
PCHA, § 2.This act establishes a post conviction procedure for providing relief from convictions obtained and sentences imposed without due process of law. The procedure hereby established shall encompass all common law and statutory procedures for the same purpose that exist when this statute takes effect, including habeas corpus and coram nobis. However, nothing in this act limits the availability of remedies in the trial court or on direct appeal.