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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LYDIA GRINE, No. 2028 EDA 2016
Appellant
Appeal from the PCRA Order, June 1, 2016,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0002739-2013
BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 04, 2017
Lydia Grine appeals from the June 1, 2016 order entered in the Court
of Common Pleas of Bucks County pursuant to the Post -Conviction Relief
Act' ("PCRA") that denied her "petition for writ of coram nobis" for lack of
jurisdiction. We affirm.
The PCRA court set forth the following:
On July 11, 2013, under information No. 2739-
2013, [a]ppellant pled guilty pursuant to a
negotiated plea to Retail Theft[Footnote 1] and
Conspiracy to Commit Retail Theft[Footnote 2] as a
result of an incident that occurred on March 6, 2013.
Both charges were graded as first degree
misdemeanors. Appellant was sentenced to
six months' probation and completed her sentence
without incident. Appellant did not appeal her
judgment of sentence.
1- 42 Pa.C.S.A. §§ 9541-9546.
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[Footnote 1] 18 Pa.C.S.A. § 3929(a)(1).
[Footnote 2] 18 Pa.C.S.A. § 903(c).
Appellant is not a United States citizen but was
admitted to the United States as a conditional
permanent resident through her marriage to a United
States citizen on June 5, 2011. Appellant alleges
that her conditions of permanent residence were
removed on December 11, 2013, however, the
[a]ppellant's arrest and conviction occurred while her
residence status was conditional.
On September 15, 2015, [a]ppellant filed a
Petition for Writ of Coram Nobis and a hearing was
scheduled for October 28, 2015. Both the
[a]ppellant and the Bucks County District Attorney's
Office requested a continuance and the hearing was
scheduled on June 1, 2016. Following the hearing on
June 1, 2016, this Court denied [a]ppellant's petition
for writ of Coran [sic] Nobis. On June 30, 2016,
[a]ppellant filed a timely Notice of Appeal to the
Superior Court. Appellant was directed to file a
Concise Statement of Error [sic] Complained of on
Appeal and has done so.
PCRA court opinion, 9/2/16 at 1-2 (emphasis added).
Appellant raises the following issues for our review:
[1.] Did the lower court err in denying appellant's
petition for writ of coram nobis for lack of
jurisdiction when the claim presented in
appellant's petition was not cognizable under
[the PCRA] and, therefore, properly pled as a
petition for writ of coram nobis?
[2.] Was appellant entitled to proceed with her
claim as a petition for writ of coram nobis
even if the lower court was correct in
concluding her claim was cognizable under the
[PCRA] because she never had an opportunity
to pursue her claim for relief under the PCRA?
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Appellant's brief at 2 (enumeration added; capitalization omitted).
In her "petition for writ of coram nobis," appellant sought permission
to withdraw her guilty plea because "it was induced by ineffectiveness of her
trial counsel" and because a recent change in the law subjected her to
deportation without an opportunity to apply for a waiver. (Appellant's
petition for writ of coram nobis, 9/15/15 at 1114.) Appellant alleged plea
counsel's ineffectiveness "for not correctly advising [appellant] of the
adverse immigration consequences of her guilty plea." (Id. at ¶ 8.)
In Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016), our
supreme court held that a claim of ineffective assistance of plea counsel,
which is based on counsel's failure to advise the defendant of the collateral
consequences of her plea, was cognizable under the PCRA. Furthermore,
our supreme court found that where a claim is cognizable under the PCRA,
the PCRA is the only method for obtaining collateral review. Id. Therefore,
the PCRA court properly considered appellant's petition as a petition for
PCRA relief.
As appellant's petition is cognizable under the PCRA, we must now
determine whether she is eligible for relief. Eligibility for relief under the
PCRA is governed by 42 Pa.C.S.A. § 9543, which provides in pertinent part:
(a) General Rule. --To be eligible for relief under
this subchapter, the petitioner must plead and
prove by a preponderance of the evidence all
of the following:
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(1) That the petitioner has been
convicted of a crime under the laws
of this Commonwealth and is at the
time relief is granted:
(i) Currently serving a
sentence of
imprisonment, probation
or parole for the crime;
(ii) Awaiting execution of a
sentence of death for a
crime; or
(iii) Serving a sentence
which must expire
before the person may
commence serving the
disputed sentence.
42 Pa.C.S.A. § 9543(a).
Of course, "[e]ligibility for relief under the PCRA is dependent upon the
petitioner currently serving a sentence of imprisonment, probation, or parole
for a crime." Commonwealth v. Turner, 80 A.3d 754, 761-762 (Pa.
2013). As such, "the denial of relief for a petitioner who has finished serving
his sentence is required by the plain language of the statute."
Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997).
Here, appellant was sentenced to six months of probation on July 7,
2013, and completed serving her sentence on January 7, 2014. Because
appellant is no longer serving a sentence of imprisonment, probation, or
parole for a crime, she is ineligible for PCRA relief. See 42 Pa.C.S.A.
§ 9543(a)(1)(i); see also Turner, 80 A.3d at 761-762; Ahlborn, 699 A.2d
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at 720. Therefore, the PCRA court properly denied appellant's petition for
lack of jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 4/4/2017
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