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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HENRY PRATT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

v.

HENRY PRATT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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).

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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). 

5 Pursuant 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 newlydiscovered 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