J-A08040-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GUSTAVO M. HERNANDEZ, :
:
Appellant : No. 2145 EDA 2016
Appeal from the Order June 17, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0843401-2005
BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 21, 2018
Gustavo Hernandez (Appellant) appeals from the June 17, 2016 order
dismissing his petition filed pursuant to the Post-Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
On November 22, 2013, Appellant entered a negotiated guilty plea to
possession of a controlled substance, and was sentenced to six months of
probation. Appellant’s probationary term ended on May 28, 2014.
On June 3, 2014, Appellant filed a PCRA petition asserting
ineffective [assistance of] counsel. On December 22, 2014,
Appellant filed the instant amended PCRA petition and/or writ of
habeas corpus and/or writ of coram nobis. The amended PCRA
petition avers that trial counsel was ineffective for permitting
Appellant to plead guilty without an interpreter. Appellant further
avers that because he pled without an interpreter, he did not
voluntarily, knowingly, and intentionally waive his right to pretrial
motions and a trial. In addition, Appellant avers that he did not
waive his right to speak with an immigration attorney, since trial
*Retired Senior Judge assigned to the Superior Court.
J-A08040-18
counsel should have known that a plea to the possession offense
would ultimately result in deportation.
Specifically, Appellant avers that trial counsel was
ineffective: for failing to have Appellant apply for a diversionary
program[ ]; for failing to file a meritorious motion to suppress;
and, for inaccurately and materially misadvising Appellant that
accepting the plea would not result in his deportation and/or
removal from the United States pursuant to applicable
immigration laws. On July 16, 2013, Appellant received a notice
to appear in Immigration Court, whereby Appellant presently
faces deportation.
Trial Court Opinion, 5/9/2017, at 2 (footnote and unnecessary capitalization
omitted).
On June 17, 2016, the trial court dismissed Appellant’s petition, holding
that Appellant’s petition must be construed as a PCRA petition and, pursuant
to 42 Pa.C.S. § 9543, Appellant was not eligible for relief because he was no
longer serving a sentence. This timely-filed appeal followed.1 On appeal,
Appellant asks this Court to determine whether the PCRA court erred in
“denying Appellant’s petition for writ of coram nobis on the ground that the
only avenue for relief for Appellant’s claim of ineffective assistance [of
counsel] was by way of [a PCRA] petition[.]” Appellant’s Brief at 2.
In determining whether the PCRA court properly characterized
Appellant’s petition as a PCRA petition, we observe the following.
The current version of Pennsylvania’s [PCRA] explicitly states that
it shall be the sole means of obtaining collateral relief and that its
1The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal, but the PCRA court did file a Pa.R.A.P.
1925(a) opinion.
-2-
J-A08040-18
provisions encompass[ ] all other common law and statutory
remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis. Under the
plain words of the statute, if the underlying substantive claim is
one that could potentially be remedied under the PCRA, that claim
is exclusive to the PCRA. It is only where the PCRA does not
encompass a claim that other collateral procedures are available.
Commonwealth v. Pagan, 864 A.2d 1231, 1232–33 (Pa. Super. 2004)
(internal citations and quotation marks omitted).
Claims of ineffective assistance of counsel are cognizable under the
PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii) (stating that to be eligible for relief
under the PCRA, a petitioner must plead and prove that a conviction or
sentence resulted from “[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place”). Our Supreme Court recently decided a factually similar case, and
held that the PCRA was the sole means for collateral review.
[Descardes] 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, [Descardes’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.
-3-
J-A08040-18
Commonwealth v. Descardes, 136 A.3d 493, 503 (Pa. 2016).
We are bound by our Supreme Court’s ruling on this issue. Appellant
concedes as much in his brief.
Appellant concedes this Court is bound by the Supreme Court’s
ruling in [] Descardes, [] wherein the Court held that the Post
Conviction Relief Act is the only lawful method for obtaining
collateral review - thus reversing this Court’s holding in
Commonwealth v. Descardes, [] 101 A.3d 105 (Pa. Super.
2014) that a petition for writ of coram nobis is a lawful avenue for
challenging a conviction in appropriate circumstances in which a
PCRA petition is not an available avenue for relief. However, this
appeal is presented in good faith on the ground that it is the only
method by which Appellant can obtain possible reconsideration by
the Pennsylvania Supreme Court (by means of a petition for
allowance of appeal) of its holding that a petition for writ of coram
nobis is not a lawful means to obtain collateral review of a
conviction.
Appellant’s Brief at 9.
Accordingly, the PCRA court properly considered Appellant’s petition as
a PCRA petition; Appellant is not eligible for PCRA relief because he is no longer
serving his sentence; and thus the PCRA court did not err in denying
Appellant’s petition. See 42 Pa.C.S. § 9543(a)(1); Commonwealth v.
Turner, 80 A.3d 754, 766 (Pa. 2013) (“[T]he General Assembly, through the
PCRA, excluded from collateral review those individuals who were no longer
subject to a state sentence….”).
Order affirmed.
-4-
J-A08040-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/18
-5-
Com. v. Hernandez, G.
Combined Opinion