J-E04005-13
2014 PA Super 210
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CLAUDE DESCARDES
Appellee No. 2836 EDA 2010
Appeal from the Order of September 24, 2010
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000617-2006
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. FILED SEPTEMBER 23, 2014
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 (2010), which held that a criminal defense attorney has an
affirmative duty to inform a defendant that the offense for which he pleads
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1
18 PA.CONS.STAT.ANN. § 4117(a)(5).
2
18 PA.CONS.STAT.ANN. § 903.
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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
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 (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 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.
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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
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 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
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3
Under the Immigration and Naturalization Act, deportation is automatic
2)(A)(iii).
The trial court and the parties contend that Descardes was deported.
BLACK S LAW DICTIONARY, 471 (8th ed. 2004). The United States did not
deport Descardes. Rather, he was denied reentry to the United States due
to his felony convictions. For our purposes here, it is a distinction without a
difference; in either event, Descardes is not permitted in the United States.
Therefore, we utilize the term and concept of deportation in this Opinion.
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2006 guilty plea withdrawn. The Commonwealth then filed a timely appeal.
We must first consider whether the trial court properly treated
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
currently
serving a sentence
serving a
sentence which must expire before the person may commence serving the
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 [O]ur legislature chose not to
create any statutory entitlement to collateral review for defendants who
The trial court, however, found that Descardes is nonetheless eligible
for PCRA relief because under Padilla
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of the
punishment for the original crime, so that a person facing deportation as a
2.
We agree t
Fong Haw Tan v. Phelan, 333
U.S. 6, 10 (1948) (citation omitted). See also Bridges v. Wixon, 326 U.S.
impact of deportation upon
the life of an alien is often as great if not greater than the imposition of a
id
elation 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
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
coram nobis as a PCRA petition.
The PCRA states that it shall be the sole means of obtaining collateral relief
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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;
only obtain relief Commonwealth
v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) (emphasis in original).
See also Turner The PCRA provides eligibility for relief for
f in
Commonwealth v. West, 938 A.2d 1034, 1043 (Pa.
to the extent a
Commonwealth v. Peterkin
habeas corpus] continues to exist only in cases in which there is no remedy
It is rare for a claim to fall outside of the ambit of the PCRA. See
Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008) (referring to
Commonwealth v. Burkett, 5 A.3d 1260, 1274 (Pa. Super. 2010)
substantive due process challenge to the validity of recommitting the
defendant to prison, after a nine-year delay in which he had mistakenly been
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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
Rights was not a cognizable PCRA claim. See Commonwealth v. Judge,
916 A.2d 511 (Pa. 2007).
n 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. exact claim,
however, i Padilla that
the Sixth Amendment requires 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
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4
Prior to Padilla
pleading guilty, including the immigration consequences which may result
Commonwealth v. Garcia, 23 A.3d 1059, 1064 (Pa.
Super. 2011) (citing Commonwealth v. Frometa, 555 A.2d 92 (Pa.
1989)).
5
As explained in Garcia, this is a claim that is not subject to the timeliness
exception of 42 PA.CONS.STAT.ANN. § 9545(b)(1)(iii), as Padilla did not
(Footnote Continued Next Page)
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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 provides a way to collaterally
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.
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
_______________________
(Footnote Continued)
discuss below, in Chaidez the Supreme Court ruled that Padilla has no
retroactive effect.
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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- Padilla
Id., at ___, 133 S.Ct. at 1105.
Therefore, as Padilla does not apply retroactively it may not serve as
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.
Judge Bowes files a concurring and dissenting opinion in which Judge
Olson joins, and Judge Donohue concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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