COMMONWEALTH of Pennsylvania, Appellant v. Claude DESCARDES, Appellee.
Superior Court of Pennsylvania.
Argued Oct. 16, 2013. Filed Sept. 23, 2014.
101 A.3d 105
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.
After pleading guilty to insurance fraud1 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“),
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
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, — Pa. —, 80 A.3d 754, 767 (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.”
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
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, 130 S.Ct. 1473. 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.”
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 (2008) (referring to claims that “fall outside the PCRA‘s statutory scheme” as “unique claims“); Commonwealth v. Burkett, 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 (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
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.
CONCURRING AND DISSENTING OPINION BY 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 (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 (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 (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
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 (1971); Commonwealth v. Fay, 294 Pa.Super. 332, 439 A.2d 1227 (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, — Pa. —, 80 A.3d 754 (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.”
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.
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 (1992), affirmed, 536 Pa. 450, 639 A.2d 1181 (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 (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 (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 (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, 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
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 (2001); see also Commonwealth v. Escobar, 70 A.3d 838 (Pa.Super.2013) (defendant sentenced post-Padilla and raising deportation ineffectiveness claim in PCRA); Commonwealth v. McDermitt, 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, 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, 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, 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 (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 (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
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.
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 (2002), and Commonwealth v. O‘Berg, 584 Pa. 11, 880 A.2d 597 (2005). While those concerns have subsequently been ameliorated by Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (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 count
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 (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 (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
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 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
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.
Judge OLSON joins the Concurring and Dissenting Opinion.
Judge DONOHUE Concurs in the Result in the Concurring and Dissenting Opinion.