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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HECTOR CASTELLANOS :
:
Appellant : No. 1095 WDA 2016
Appeal from the PCRA Order June 30, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012036-2015
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 2, 2017
Appellant, Hector Castellanos, appeals from the order entered in the
Allegheny County Court of Common Pleas, which dismissed his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”),1 which
Appellant styled as a “Petition for Post-Conviction Relief/Writ of Habeas
Corpus/Writ of Coram Nobis.” We affirm.
The relevant facts and procedural history of this case are as follows.
On September 21, 2015, police received a report of a possible intoxicated
male sleeping on a bench near the inbound platform of the Fallowfield train
station. Officers approached Appellant and roused him. Appellant awoke
upon verbal commands and exhibited several signs of intoxication.
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1
42 Pa.C.S.A. §§ 9541-9546.
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Appellant had slurred and repetitive speech, glassy, bloodshot eyes, and a
strong odor of alcohol on his breath. Appellant admitted he had been
drinking and said he was waiting for an inbound train. When the officers
asked for identification, Appellant stated: “I got nothing on me.” Appellant
then voluntarily emptied his pockets (presumably to show the officers he
had no identification), and a clear baggie containing a white powdery
substance fell out of his pocket. Suspecting the substance was cocaine, the
officers arrested Appellant for possession of a controlled substance and
public drunkenness.
The court scheduled Appellant’s preliminary hearing for October 1,
2015. On that date, Appellant waived his right to a preliminary hearing,
opting to plead guilty. Appellant executed a negotiated plea agreement, 2 in
which he would plead guilty to possession of a controlled substance
(cocaine) in exchange for a sentence of six (6) months’ probation.3
Appellant signed the written plea colloquy and initialed each page. Appellant
confirmed in the written plea colloquy that he could read, write, and
understand the English language. Additionally, question nineteen stated:
“Do you understand that if you are not a citizen of the United States, it is
possible you may be deported if you plead guilty to the charged offense(s)?”
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2
Appellant entered his guilty plea as part of an expedited plea disposition.
3
The Commonwealth withdrew the public drunkenness charge.
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(Negotiated Guilty Plea Colloquy/Explanation of Appellant’s Rights, 10/1/15,
at 5 ¶19). Appellant responded affirmatively. Appellant also completed a
waiver of counsel form and appeared before the court pro se to enter his
guilty plea. After conducting a full oral colloquy, the court accepted both
Appellant’s waiver of counsel and his guilty plea as knowing, intelligent, and
voluntary, and imposed the agreed-upon sentence of six (6) months’
probation to commence on that date, plus applicable fees and costs. The
court explained Appellant’s post-sentence and appellate rights; Appellant
said he had no questions. Appellant did not file post-sentence motions or a
direct appeal. As a result of his conviction, Immigration and Customs
Enforcement subsequently instituted removal proceedings against Appellant,
who was a foreign national illegally in the United States.
Appellant’s probationary sentence expired on April 1, 2016. On May
23, 2016, Appellant filed a counseled petition titled, “Petition for Post-
Conviction Relief/Writ of Habeas Corpus/Writ of Coram Nobis.” Appellant
challenged the validity of his guilty plea, claiming, inter alia, the court
violated his substantive due process rights by failing to inform him that he
had a right to an interpreter or advise him that he would face automatic
deportation as a result of his guilty plea. Appellant filed an amendment to
his PCRA petition the next day to fix a typographical error. The
Commonwealth filed an answer on May 26, 2016.
The court treated Appellant’s filings as a PCRA petition and, on June 1,
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2016, issued notice of intent to dismiss the petition without a hearing
pursuant to Pa.R.Crim.P. 907. The court decided Appellant was ineligible for
PCRA relief pursuant to 42 Pa.C.S.A. § 9543(a)(1)(i) because he was no
longer serving a sentence. Appellant filed a “response and motion to
reconsider” on June 20, 2016, arguing the court should have treated
Appellant’s prayer for relief as a petition for writ of habeas corpus. Appellant
also attacked the constitutionality of Section 9543(a)(1)(i) on various
grounds. Alternatively, Appellant claimed the court retained jurisdiction
because Appellant still owed fees and costs, so he was in “technical”
violation of his probation, such that the court could revoke his probation and
resentence him. The court denied Appellant’s request for reconsideration on
June 21, 2016. On June 30, 2016, the court entered a final order denying
PCRA relief. Appellant timely filed a notice of appeal on July 28, 2016. On
August 10, 2016, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);
Appellant timely complied on September 7, 2016.
Appellant raises the following issues for our review:
WHETHER 42 PA.C.S. § 9543(A)(1)(I) VIOLATES THE
RIGHT TO COUNSEL, THE RIGHT TO SUBSTANTIVE DUE
PROCESS, THE RIGHT TO APPEAL AND/OR THE RIGHT TO
PROCEDURAL DUE PROCESS OR, IN THE ALTERNATIVE,
WHETHER SUCH VIOLATED APPELLANT’S RIGHT TO
SUBSTANTIVE AND PROCEDURAL DUE PROCESS?
WHETHER THE COURT ERRED IN DENYING [APPELLANT’S]
PETITION FOR POST CONVICTION RELIEF/WRIT OF
HABEAS CORPUS/WRIT OF CORAM NOBIS WITHOUT A
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HEARING BASED SOLELY ON THE COMMONWEALTH’S
ARGUMENT THAT APPELLANT’S PETITION WAS A PCRA
AND THUS THE COURT LACKED JURISDICTION TO REVIEW
THE WITHIN MATTER DESPITE BOTH THE
COMMONWEALTH AND COURT FAILING TO RESPOND TO
THE WRITS OF HABEAS CORPUS AND CORAM NOBIS.
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is
not entitled to a PCRA hearing as a matter of right; the PCRA court can
decline to hold a hearing if there is no genuine issue concerning any material
fact, the petitioner is not entitled to PCRA relief, and no purpose would be
served by any further proceedings. Commonwealth v. Hardcastle, 549
Pa. 450, 701 A.2d 541 (1997).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues the PCRA eligibility requirement at 42 Pa.C.S.A. § 9543(a)(1)(i),
requiring a petitioner be currently serving a sentence of imprisonment,
probation or parole to obtain relief, is not narrowly tailored to serve any
legitimate state interest because it provides no exceptions for those serving
short sentences. Appellant asserts the legislature ignored the real and
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substantial penalties offenders can face following expiration of their
sentences, such as deportation, sex offender registration, and employment
consequences. Appellant claims the eligibility requirement violates the right
to counsel because many individuals serving a short sentence would be
unable to litigate an ineffective assistance of counsel claim before their
sentences expired. For the same reason, Appellant insists the eligibility
requirement violates the right to appeal from the denial of PCRA relief.
Appellant submits this eligibility requirement also offends procedural
due process because it deprives individuals serving a short sentence, like
Appellant, an opportunity to be heard. Likewise, Appellant contends the
eligibility requirement violates substantive due process because the entire
post-sentence litigation scheme looks unfavorably upon any non-direct
appeal issue and does not allow exceptions when a PCRA petition is timely
filed but the person is no longer serving his sentence. Appellant maintains
he was denied substantive due process resulting from a systematic
breakdown of the criminal justice system because the court failed to advise
Appellant that he had a right to an interpreter and did not inform Appellant
that he would face automatic deportation as a result of his guilty plea.
Appellant protests Section 9543(a)(1)(i) is unconstitutional on its face
because it has no “plainly legitimate sweep,” and is also unconstitutional as
applied to him.
Even if the PCRA eligibility requirement at Section 9543(a)(1)(i) is
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constitutional, Appellant argues the PCRA court still had jurisdiction to
consider his petition because Appellant owed court costs and fees, so
technically he was in violation of his probation; and the court could have
revoked Appellant’s probation and resentenced him. Appellant further
contends the court erred by treating his petition as a PCRA petition when his
underlying claims are not cognizable under the PCRA, which offers no
remedy for his claims. Appellant suggests the court should have treated
Appellant’s petition as a writ of habeas corpus or coram nobis. Appellant
concludes the PCRA court erred by dismissing his first petition for collateral
relief, and this Court must vacate and remand for further proceedings. We
disagree.
Pennsylvania law makes clear that any petition for post-conviction
collateral relief will generally be considered a PCRA petition, even if
captioned as a request for habeas corpus relief, if the petition raises issues
for which the relief sought is available under the PCRA. See generally
Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999);
Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999);
Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42
Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for
same purpose, including habeas corpus and coram nobis). The writ of
habeas corpus continues to exist as a separate remedy only if the claim
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raised is not cognizable under the PCRA. Peterkin, supra at 552, 722 A.2d
at 640. See also Commonwealth v. Beck, 848 A.2d 987 (Pa.Super.
2004) (explaining petition for writ of habeas corpus will be deemed PCRA
petition if it raises issues that are generally cognizable under PCRA). When
considering what types of claims fall within the ambit of the PCRA, “the
scope of the PCRA eligibility requirements should not be narrowly confined to
its specifically enumerated areas of review.” Commonwealth v. Hackett,
598 Pa. 350, 363, 956 A.2d 978, 986 (2008), cert. denied, 556 U.S. 1285,
129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). “Such narrow construction would
be inconsistent with the legislative intent to channel post-conviction claims
into the PCRA’s framework, and would instead create a bifurcated system of
post-conviction review where some post-conviction claims are cognizable
under the PCRA while others are not.” Id. (internal citation omitted).
The relevant statutory eligibility requirements for relief under the PCRA
are as follows:
§ 9543. Eligibility for relief
(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:
(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 the
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crime; or
(iii) serving a sentence which must expire before the
person may commence serving the disputed sentence.
(2) That the conviction or sentence resulted from one
or more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or laws of the
United States 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.
(ii) Ineffective 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.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement
caused the petitioner to plead guilty and the petitioner
is innocent.
(iv) The improper obstruction by government officials
of the petitioner’s right of appeal where a meritorious
appealable issue existed and was properly preserved in
the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of
exculpatory evidence that has subsequently become
available and would have changed the outcome of the
trial if it had been introduced.
(vii) The imposition of a sentence greater than the
lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
(3) That the allegation of error has not been
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previously litigated or waived.
(4) That the failure to litigate the issue prior to or
during trial, during unitary review or on direct appeal
could not have been the result of any rational, strategic
or tactical decision by counsel.
(b) Exception.—Even if the petitioner has met the
requirements of subsection (a), the petition shall be
dismissed if it appears at any time that, because of delay
in filing the petition, the Commonwealth has been
prejudiced either in its ability to respond to the petition or
in its ability to re-try the petitioner. A petition may be
dismissed due to delay in the filing by the petitioner only
after a hearing upon a motion to dismiss. This subsection
does not apply if the petitioner shows that the petition is
based on grounds of which the petitioner could not have
discovered by the exercise of reasonable diligence before
the delay became prejudicial to the Commonwealth.
42 Pa.C.S.A. § 9543(a), (b).
The statute plainly states, under Section 9543(a)(1)(i), that a PCRA
petitioner must be currently serving a sentence of imprisonment, probation
or parole for the conviction at issue to be eligible for PCRA relief. 42
Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v. Williams, 977 A.2d 1174
(Pa.Super. 2009), appeal denied, 605 Pa. 700, 990 A.2d 730 (2010). “As
soon as his sentence is completed, the petitioner becomes ineligible for
relief, regardless of whether he was serving his sentence when he filed the
petition.” Id. at 1176 (quoting Commonwealth v. Hart, 911 A.2d 939,
942 (Pa.Super. 2006)). “To grant relief at a time when [the petitioner] is
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not currently serving…a sentence would be to ignore the language of the
statute.” Commonwealth v. Ahlborn, 548 Pa. 544, 548, 699 A.2d 718,
720 (1997) (emphasis in original). See also Commonwealth v.
Descardes, ___ Pa. ___, 136 A.3d 493 (2016) (holding petitioner’s “petition
for writ of coram nobis” claiming counsel was ineffective for failing to advise
petitioner of automatic deportation consequences associated with his guilty
plea raised issues cognizable under PCRA; while petitioner’s ultimate goal
may be to obtain relief from deportation consequences of his conviction, to
advance his goal he must seek relief from his judgment of sentence, which
brings his claim within ambit of PCRA; pursuant to plain language of Section
9542, where claim is cognizable under PCRA, PCRA is sole method to obtain
collateral review; petitioner was no longer serving probationary sentence
when he filed petition, so he was ineligible for PCRA relief; both PCRA court
and Superior Court lacked jurisdiction to entertain petition).
States are under no constitutional mandate to provide for collateral
attacks on convictions; if a state does provide means, however, then the
procedures must comport with fundamental fairness required by the Due
Process Clause. Commonwealth v. Turner, 622 Pa. 318, 335, 80 A.3d
754, 764 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1771, 188 L.Ed.2d
602 (2014). “To deny due process, the complained-of aspect of the state
post-conviction procedures must be fundamentally inadequate to vindicate
the defendant’s liberty interest, and must offend some principle of justice so
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rooted in the traditions and conscience of our people as to be ranked as
fundamental or transgress any recognized principle of fundamental fairness
in operation.” Id. at 336, 80 A.3d at 764.
When an appellant challenges the constitutionality of a
statute, he…presents this Court with a pure question of
law, for which our standard of review is de novo and our
scope of review in plenary. As a threshold matter, a
statute is presumed to be constitutional and will only be
invalidated as unconstitutional if it clearly, palpably, and
plainly violates constitutional rights. Further[,] a
defendant may contest the constitutionality of a statute on
its face or as-applied.
A facial attack tests a law’s constitutionality based on
its text alone and does not consider the facts or
circumstances of a particular case. An as-applied
attack, in contrast, does not contend that a law is
unconstitutional as written but that its application to
a particular person under particular circumstances
deprived that person of a constitutional right. A
criminal defendant may seek to vacate his conviction
by demonstrating a law’s facial or as-applied
unconstitutionality.
Commonwealth v. Brown, 26 A.3d 485, 493 (Pa.Super. 2011) (internal
citations and quotation marks omitted). A statute is facially unconstitutional
only where no set of circumstances exist under which the statute would be
valid; in other words, “the law is unconstitutional in all of its applications.”
Commonwealth v. McKown, 79 A.3d 678, 687 (Pa.Super. 2013), appeal
denied, 625 Pa. 648, 91 A.3d 162 (2014).
In Turner, supra, the Pennsylvania Supreme Court confronted a
challenge to the constitutionality of the PCRA eligibility requirement of
“currently serving” a sentence of imprisonment, probation, or parole, to
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obtain PCRA relief. In rejecting the petitioner’s argument that this eligibility
requirement violated procedural due process rights, the Court explained:
We agree with the Commonwealth that due process does
not require the legislature to continue to provide collateral
review when the offender is no longer serving a sentence.
* * *
Because individuals who are not serving a state sentence
have no liberty interest in and therefore no due process
right to collateral review of that sentence, the statutory
limitation of collateral review to individuals serving a
sentence of imprisonment, probation, or parole is
consistent with the due process prerequisite of a protected
liberty interest. Of course, the legislature was free to
extend a statutory right of collateral review to individuals
like [p]etitioner who had completed their sentence and,
had [the legislature] done so, [it] would be constitutionally
obligated to ensure that those rights were impacted only in
accord with due process. However, the legislature did not
do so. Rather, the General Assembly, through the PCRA,
excluded from collateral review those individuals who were
no longer subject to a state sentence, thereby limiting the
statutory right of collateral review to those whose liberty
was constrained.
The legislature was aware that the result of the custody or
control requirement of Section 9543(a)(1)(i) would be that
defendants with short sentences would not be eligible for
collateral relief. Indeed, that was the apparent intent: to
restrict collateral review to those who seek relief from a
state sentence. …
The PCRA provides eligibility for relief for cognizable
claims, …and is the sole means of obtaining collateral relief
in Pennsylvania. Petitioners are required to satisfy, inter
alia, the criteria for eligibility for relief, and the timeliness
restrictions. By further limiting the eligibility for relief
under the PCRA to petitioners serving sentences, our
legislature chose not to create any statutory entitlement to
collateral review for defendants who have completed their
sentences.
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We therefore find no support for the PCRA court’s
conclusion or [p]etitioner’s argument that this legislative
enactment runs afoul of due process, as due process does
not afford relief absent a protected liberty interest.
… [T]he constitutional nature of the claims asserted by
[p]etitioner does not overcome the statutory restrictions
on her eligibility for relief, subject, of course, to due
process. Such due process, however, does not require
infinite opportunity to attack a conviction under any and all
circumstances; rather, it permits our legislature through
the PCRA statute to place limitations on claims of trial
error and strikes a reasonable balance between society’s
need for finality in criminal cases and the convicted
person’s need to demonstrate that there has been an error
in the proceedings that resulted in conviction. As noted
earlier, [p]etitioner had the ability to bring [her claims] on
direct appeal. Her failure to proceed in this regard does
not mean she is entitled to additional opportunities to
attack her conviction.
Turner, supra at 338-41, 80 A.3d at 766-68 (holding petitioner had no due
process right to be heard outside limits of Section 9543(a)(1)(i) of PCRA;
due process does not require perpetual opportunities for collateral review of
constitutional claims; state can impose rational limits in support of finality of
judgments; petitioner had opportunity to vindicate her claim on direct appeal
or within time frame permitted by PCRA; Section 9543(a)(1)(i) is
constitutional as applied to petitioner) (internal citations, quotation marks,
and footnotes omitted). See also Commonwealth v. Volk, 138 A.3d 659
(Pa.Super. 2016), appeal denied, 2016 WL 7105901 (Pa. Dec. 6, 2016)
(rejecting petitioner’s facial and “as applied” challenge to constitutionality of
Section 9543(a)(1)(i); relying on Turner’s holding that statutory eligibility
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requirement of Section 9543(a)(1)(i) is consistent with due process
prerequisite of protected liberty interest; absent valid liberty interest,
challenge to both procedural and substantive due process must fail).
Instantly, Appellant entered a negotiated guilty plea on October 1,
2015, to one count of possession of a controlled substance. The trial court
sentenced Appellant that day to six months’ probation to commence
immediately, plus applicable fees and costs associated with his prosecution.
Appellant did not file a direct appeal. After the expiration of his sentence on
April 1, 2016, Appellant filed, on May 23, 2016, a petition titled, “Petition for
Post-Conviction Relief/Writ of Habeas Corpus/Writ of Coram Nobis.” In his
petition, Appellant challenged the validity of his guilty plea, claiming the
court violated his substantive due process rights by failing to inform him that
he had a right to an interpreter or advise him of the possibility of deportation
resulting from Appellant’s guilty plea. Notwithstanding the title of his
petition and his attempt to distance his claims from the ambit of the PCRA,
Appellant’s claims are cognizable under the PCRA. See 42 Pa.C.S.A. §
9543(a)(2)(i) (stating claim that conviction or sentence resulted from
violation of constitution is cognizable under PCRA); 42 Pa.C.S.A. §
9543(a)(2)(iii) (stating claim that conviction or sentence resulted from
unlawfully induced guilty plea is cognizable under PCRA). See also
Hackett, supra; Beck, supra. Therefore, the PCRA court properly treated
Appellant’s prayer for relief as a PCRA petition.
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As Appellant’s sentence had already expired when he filed the current
petition, the PCRA court properly decided Appellant was statutorily ineligible
for relief.4 See 42 Pa.C.S.A. 9543(a)(1)(i); Descardes, supra; Ahlborn,
supra; Williams, supra. Our Supreme Court has rejected the claim that
Section 9543 is facially unconstitutional, holding individuals who are not
currently serving a sentence have no liberty interest to protect and therefore
no due process right to collateral review. See Turner, supra. See also
Volk, supra. Because the PCRA is consistent with the due process
prerequisite of a protected liberty interest and has been declared facially
valid, Appellant’s companion claims that Section 9543 violates substantive
due process, the right to counsel, and the right to appeal, also fail. Id.;
McKown, supra.
Further, Appellant had the opportunity to file a direct appeal raising
any trial court error and/or deficiencies with the guilty plea colloquy.
Likewise, Appellant did not pursue PCRA relief until after his sentence had
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4
We reject Appellant’s assertion that he is eligible for PCRA relief because
the court retained jurisdiction to revoke Appellant’s probationary sentence
and re-sentence him for non-payment of all fees and costs. The court
imposed applicable fees and costs associated with Appellant’s prosecution as
part of Appellant’s sentence, not as a condition of his probation. Whether
the court could have revoked Appellant’s probation and resentenced him on
this basis is irrelevant; Appellant was not serving a sentence of probation
when he filed his petition for relief, so he is ineligible for relief under the
PCRA. See 42 Pa.C.S.A. § 9543(a)(1)(i). Appellant’s reliance on
Commonwealth v. Ortega, 995 A.2d 879 (Pa.Super. 2010), appeal denied,
610 Pa. 607, 20 A.3d 1211 (2011), is misplaced because the facts and
circumstances of Ortega are wholly inapposite.
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expired. See Turner, supra (holding Section 9543(a)(1)(i) was not
unconstitutional as applied to petitioner; petitioner has burden to prove
unconstitutionality of state-law post-conviction procedures as applied and
cannot complain of insufficient time to obtain relief when petitioner made no
attempt to obtain direct review or collateral review within statutorily
authorized time). Therefore, the court properly denied PCRA relief.
Accordingly, we affirm.
Order affirmed.
President Judge Emeritus Ford Elliott joins this memorandum.
Judge Solano concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2017
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