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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HENRY PRATT :
:
Appellant : No. 164 EDA 2023
Appeal from the PCRA Order Entered January 5, 2023
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0002336-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HENRY PRATT :
:
Appellant : No. 721 EDA 2023
Appeal from the PCRA Order Entered January 5, 2023
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0003331-2014
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 29, 2023
Appellant, Henry Pratt, appeals pro se from the January 5, 2023 orders
of the Court of Common Pleas of Chester County, which denied his third
petition for collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541-46. Upon review, we affirm.
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The PCRA court summarized the factual and procedural background as
follows.
On November 20, 2015, [Appellant], who has been a lawful
resident alien in the United States since 1997, tendered a
negotiated guilty plea at docket numbers 15-CR-0002336-2015
and 15-CR-0003331-2014. At docket number 15-CR-0002336-
2015, [Appellant] pled to one (1) count (Count 46) of access
device fraud, 18 Pa.C.S.A. § 4106(A)(1)(ii), graded as an M-1, for
using another person’s credit card without permission. In
accordance with the terms of his plea agreement, on November
20, 2015[,] the [trial] court sentenced [Appellant] to two (2) years
of probation. At docket number 15-CR-0003331-2014,
[Appellant] pled to one (1) count (Count 1) of forgery, 18
Pa.C.S.A. § 4101(A)(1), graded as an M-1, for passing to a
residential repair/contracting company a check made out in the
name of a third party on an account having insufficient funds to
pay for the service rendered. In accordance with the terms of his
plea agreement, on November 20, 2015[,] the [trial] court
sentenced [Appellant] to a term of two (2) years of probation, to
run consecutively to the probation imposed at docket number 15-
CR-0002336-2015. Thus, aggregating the sentences imposed on
both dockets, [Appellant]’s cumulative sentence is four (4) years
of probation.
[Appellant] did not file any post-sentence motions or take a direct
appeal. Thus, [Appellant]’s judgment of sentence was final, for
purposes of the PCRA, on December 20, 2015, thirty (30) days
following the entry of his judgment of sentence. . . .
....
Because of the crimes to which he tendered his plea, Immigration
and Custom Enforcement (“ICE”) arrested [Appellant] at some
point and initiated deportation proceedings against him on
February 13, 2017. [Appellant] claims he was not made aware of
the immigration consequences of his plea until he spoke with his
immigration attorney and received his sentencing transcript on
June 25, 2018, which showed that the immigration consequences
of his plea were not discussed.
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On June 11, 2018, [Appellant] filed his first PCRA petition [in] both
dockets. In his first PCRA petition, [Appellant] raised the issue of
whether the trial court and/or his plea counsel was ineffective for
failing to advise him of the immigration consequences of his plea.
. . . [After appointing counsel, on] October 17, 2018[,] the PCRA
Court dismissed [Appellant]’s first PCRA petition on the ground of
untimeliness and permitted PCRA counsel to withdraw from
representation.
[On appeal, we dismissed it for failure to comply with
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Appellant
filed a petition for allowance of appeal from our decision, which
our Supreme Court denied on March 16, 2020.]
On March 26, 2020, [Appellant] filed a second pro se PCRA
petition. In this second petition, among other items, [Appellant]
asserted that the newly-discovered fact exception to the PCRA’s
timeliness requirements applied to excuse the untimeliness of his
PCRA petition because, he asserted, he only discovered the facts
upon which his claim [for] relief was based when he spoke with
his immigration attorney and received a copy of his sentencing
transcript on June 25, 2018. [Upon retaining counsel, Appellant
filed an amended PCRA petition in which Appellant reiterated that
his second PCRA petition was timely under the newly-discovered
facts exception, based on the discovery of counsel’s
ineffectiveness. Appellant attached to his amended PCRA petition
a notice to appear before an immigration judge in York County,
Pennsylvania, for a deportation hearing. The notice is dated July
15, 2016, but it was not served until February 13, 2017].
PCRA Court Opinion, 3/21/23, at 1-6 (unnecessary capitalization and
footnotes omitted).
On August 26, 2020, the PCRA court dismissed Appellant’s second PCRA
petition, as amended by counsel, on two grounds: (i) the deportation claim
was not an unknown fact for purposes of the newly-discovered facts exception,
as Appellant could have discovered it as early as the date he received the
notice (i.e., February 13, 2017) and (ii) Appellant was not eligible for PCRA
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relief because Appellant was no longer serving a sentence on the underlying
convictions.
On October 5, 2021, [the Superior Court] affirmed the PCRA
Court’s August 26, 2020 order dismissing [Appellant]’s PCRA
petition on the grounds that [Appellant] was no longer serving a
sentence for the underlying crimes and because his
ineffectiveness claim did not satisfy the newly-discovered fact
exception[.] [Appellant] filed a Petition for Allowance of Appeal
with the Supreme Court of Pennsylvania on January 3, 2022,
which that Honorable tribunal denied on October 18, 2022.
[Appellant] did not seek certiorari with the United States Supreme
Court.
Id. at 8.
On November 17, 2022, Appellant filed the underlying PCRA petition,1
his third.2 On December 12, 2022, the PCRA court issued a Rule 907(1) Notice
advising Appellant of its intention to dismiss his third PCRA petition without a
hearing due to its untimeliness. “On December 30, 2022, [Appellant] filed a
response to [the Rule 907(1) Notice], basically reiterating his position that his
alleged inability to discover counsel’s deficiency with respect to his duty to
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1 Appellant titled this petition as petition for habeas corpus relief/PCRA
petition. The PCRA court treated it as a PCRA petition. Appellant does not
challenge the PCRA court’s characterization of his petition.
2 It is undisputed Appellant’s instant PCRA petition is facially untimely.
Appellant was sentenced on November 20, 2015. For purposes of the PCRA,
Appellant’s judgment became final upon the expiration of the thirty days to
appeal to our Court, namely, December 21, 2015. Appellant had one year to
file a timely PCRA petition (i.e., December 21, 2016). The underlying petition
was filed on November 17, 2022, which is more than 6 years after his
conviction became final. Thus, the underlying PCRA petition is facially
untimely.
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communicate [the] immigration consequences of a plea satisfie[d] the PCRA’s
timeliness exception at 42 Pa.C.S.A. § 9545b(b)(1)(ii).” Id. at 10. On
January 5, 2023, the PCRA court entered orders dismissing his petition in both
of the above-captioned cases.
Appellant raises the following issue for our review: whether the PCRA
court erred in finding Appellant’s current PCRA petition untimely under the
newly-discovered facts exception.3 Specifically, Appellant alleges that the
discovery of counsel’s ineffective assistance qualifies as a newly-discovered
fact, and that the PCRA court erred in not making such a finding.
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. See, e.g., Commonwealth v. Jarosz, 152 A.3d 344, 350
(Pa. Super. 2016). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.”
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
As described in detail below, a review of the record reveals that
Appellant is not entitled to PCRA relief because the underlying convictions
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3 Appellant raises additional claims, substantive in nature (i.e., legality of
sentence, problems with testimony, etc.), which cannot be addressed unless
Appellant pleads and proves by a preponderance of the evidence that the
underlying petition is timely. As explained below, Appellant failed to do so.
Accordingly, we will not address these additional claims. Our analysis,
therefore, will be limited to claims addressing the timeliness of the underlying
petition.
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expired, the claims were previously litigated, and the underlying petition is
untimely.
In order to be eligible for relief, a PCRA petitioner must establish by a
preponderance of the evidence that he meets the requirements set forth in 42
Pa.C.S.A. § 9543(a)(1), that his conviction or sentence resulted from one or
more of the enumerated defects found in 42 Pa.C.S.A. § 9543(a)(2), and that
the allegation of error has not been previously litigated or waived. 42
Pa.C.S.A. § 9543(a)(3).
Appellant alleges ineffective assistance of counsel, which is one the
defects listed in 42 Pa.C.S.A. § 9543(a)(2). As such, Appellant meets said
requirement. At issue here, therefore, is whether Appellant meets the
requirements set forth in 42 Pa.C.S.A. § 9543(a)(1) and 42 Pa.C.S.A.
§ 9543(a)(3).
Eligibility
Regarding 42 Pa.C.S.A. § 9543(a)(1), to be eligible for relief under the
PCRA, a petitioner must plead and prove by a preponderance of the evidence
that he is “currently serving a sentence of imprisonment, probation[,] or
parole for the crime[.]” 42 Pa.C.S.A. § 9543(a)(1)(i). A petitioner who has
completed his sentence is “no longer eligible for post[-]conviction relief.”
Commonwealth v. Soto, 983 A.2d 212, 213 (Pa. Super. 2009); see also
Commonwealth v. Turner, 80 A.3d 754, 765 (Pa. 2013) (“[D]ue process
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does not require the legislature to continue to provide collateral review when
the offender is no longer serving a sentence.”).
It is undisputed that Appellant’s probationary sentences expired on or
about November 20, 2019. Commonwealth v. Pratt, 2021 WL 4551595, at
*3, unpublished memorandum (Pa. Super. October 5, 2021); PCRA Court
Opinion, 3/21/23, at 22.
Appellant, however, argues that he is “serving” a sentence for purposes
of the PCRA because he is under the supervision of the Department of
Homeland Security as a result of the expired convictions. Appellant’s Brief at
19. We disagree. The fact that Appellant is in the custody or under
supervision of DHS pending deportation does not make him eligible for PCRA
relief after his sentence in this matter has expired. See Commonwealth v.
Descardes, 136 A.3d 493, 503 (Pa. 2016); see also Commonwealth v.
I.O., 2021 WL 1753184 (Pa. Super. May 4, 2021) (no relief due because
sentence expired after the filing of PCRA petition, although he was still in ICE4
custody).5
Allegation of error previously litigated
Regarding 42 Pa.C.S.A. § 9543(a)(3), a claim is previously litigated
under the PCRA if the highest appellate court in which the petitioner could
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4 U.S. Immigration and Customs Enforcement (ICE).
5Pursuant to Pa.R.A.P. 126(b), we may cite unpublished non-precedential
memoranda filed after May 1, 2019 for their persuasive value.
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have had review as a matter of right has ruled on the merits of the issue. See
42 Pa.C.S.A. § 9544(a)(2).
In connection with the unsuccessful appeal from the denial of his second
PCRA petition, we held:
[B]ased on our review of the record, Appellant does not meet the
foregoing eligibility requirements as he completed his sentences
prior to the filing of the [second] PCRA petition. Indeed,
it is unassailable that [Appellant] was sentenced on
November 20, 2015 to four (4) years[’] probation.
[Appellant]’s probation has not been violated or
extended. Consequently, [Appellant]’s probation
expired on or about November 20, 2017 [at docket
number CP-15-CR-2336-2015] and on November 13,
2019 [at docket number CP-15-CR-3331-2014], and
[Appellant] is no longer serving a sentence for the
sentences which are the subject of his PCRA petition.
[Appellant] did not file his second PCRA petition until
March 26, 2020, which was approximately four (4)
months after his probationary sentence expired.
Accordingly, [Appellant] is no longer eligible for PCRA
relief because the sentence for the challenged
conviction is complete. Although [the PCRA court]
recognizes [Appellant]’s current immigration status,
unfortunately this fact alone does not excuse the
untimeliness of his PCRA petition or otherwise confer
jurisdiction upon the court.
PCRA Court Opinion, 1/27/21, at 13-14 (footnote, internal
citations, and some capitalization omitted) (emphasis added).
Commonwealth v. Pratt, 2021 WL 4551595, at *3 (Pa. Super. October 5,
2021) (unpublished memorandum).
Thus, the record confirms that very same claim was raised before and
addressed by this Court. Id. The record also shows that our Supreme Court
denied Appellant’s petition for allowance of appeal on October 18, 2022. See
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Commonwealth v. Pratt, 286 A.3d 707 (Pa. 2022). Thus, the claim qualifies
as previously litigated for purposes of 42 Pa.C.S.A. § 9543(a)(3).
Timeliness
Even if Appellant were eligible for PCRA relief, and the claim had not
been previously litigated, Appellant would not be entitled to relief because he
failed to prove that the underlying petition is timely under the newly-
discovered fact exception.
The newly-discovered fact exception requires a petitioner to plead and
prove two components: (1) the facts upon which the claim was predicated
were unknown, and (2) these unknown facts could not have been ascertained
by the exercise of due diligence. See Commonwealth v. Burton, 158 A.3d
618, 638 (Pa. 2017).
Generally, discovery of counsel’s ineffectiveness does not qualify as a
newly-discovered fact. See Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 785 (Pa. 2000)). Assuming, however, for sake of argument, discovery
of counsel’s ineffectiveness does qualify as a newly-discovered fact, the record
shows that Appellant was in fact aware of counsel’s ineffectiveness for quite
some time before the filing of the instant petition (i.e., as of June 25, 2018).
Additionally, Appellant failed to plead and prove why he could not have
obtained the new facts earlier with the exercise of due diligence. Appellant,
therefore, fails to meet the exception set forth in 42 Pa.C.S.A. 9545(b)(1)(ii).
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We also note that, even under Appellant’s own recitation of the facts,
the discovery of the alleged ineffectiveness occurred in 2018, whereas he filed
the instant PCRA petition in 2022, approximately 4 years later, which makes
the instant petition untimely also under 42 Pa.C.S.A. § 9545(b)(2).
In light of the foregoing, we affirm the January 5, 2023 orders of the
PCRA court dismissing Appellant’s third PCRA petition.
Orders affirmed.
Date: 11/29/2023
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