J-S43043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE FRANCISCO GREGORIO

Appellant No. 595 EDA 2015

Appeal from the Order February 11, 2015

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0000792-1997

BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 15, 2015

Appellant, Jose Francisco Gregorio, appeals from the order entered in 

the Northampton County Court of Common Pleas, which denied his petition 

for writ of coram nobis. We affirm. 

The relevant facts and procedural history of this case are as follows. 

On September 9, 1997, Appellant pled guilty to one count of possession of a 

controlled substance with intent to deliver (“PWID”), after police 

apprehended Appellant in a bar during a drug surveillance operation. The 

trial court sentenced Appellant to a term of one (1) to two (2) years’ 

incarceration. Appellant did not file a direct appeal. Due to the conviction, 

the federal government deported Appellant to the Dominican Republic after 

he completed his sentence. After Appellant reentered the United States, he 

was convicted in federal court of illegal reentry and deported again. 
J-S43043-15

- 2 -

Appellant returned to the United States once more. In 2012, following a 

traffic stop, Appellant was convicted in Lehigh County of false identification 

to law enforcement authorities and DUI—highest rate of alcohol. The court 

imposed an aggregate sentence of three (3) days to (12) months’ 

incarceration and granted Appellant credit for time served and immediate 

parole. Appellant was subsequently convicted in federal court of another 

illegal reentry charge, for which he received a sentence of fifty-seven (57) 

months’ incarceration, followed by thirty-six (36) months of supervised 

release. 

On November 10, 2014, Appellant filed a pro se petition for writ of 

coram nobis. With the exception of one claim, the court treated the filing as 

a Post Conviction Relief Act (“PCRA”)1 petition and appointed counsel. On 

December 29, 2014, counsel filed a Turner/Finley2“no-merit” letter and a 

petition to withdraw, which the court granted on January 6, 2015. On 

January 14, 2015, the court issued notice of its intent to dismiss the entire 

petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed no 

response. The court dismissed the petition on February 11, 2015. On March 

2, 2015, Appellant filed a timely pro se notice of appeal along with a 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 
J-S43043-15

- 3 -

voluntary statement of errors complained of on appeal, pursuant to 

Pa.R.A.P. 1925(b). 

Appellant raises the following issues for our review:

WHETHER THE [PCRA] COURT ERRED IN LAW AND FACT 

FINDING THAT THE PETITION FOR CORAM NOBIS WAS 

UNTIMELY, WHEN THERE IS NO[] TIME LIMITATION 

UNDER THE COMMO[N] LAW WRIT[.]

WHETHER THE [PCRA] COURT[’]S DENIAL OF THE WRIT 

OF ERROR CORAM NOBIS VIOLATED SUBSTANTIVE AND 

PROCEDURAL DUE PROCESS, AND APPELLANT’S 

CONSTITUTIONAL LIBERTY INTEREST TO HAVE ACCESS 

TO THE COURT, IN THAT THE [PCRA] COURT FOUND THAT 

APPELLANT WAS UNABLE TO PROVE THE EXIST[E]NCE OF 

A FUNDAMENTAL ERROR OF FACT OR LAW JUSTIFYING 

THE WRIT, BUT YET, THE [PCRA] COURT WAS UNABLE TO 

PRODUCE COP[IES] OF THE PLEA AND SENTENCING[] 

TRANSCRIPTS AT APPELLANT’S OWN EXPEN[S]ES, WHICH 

WOULD HAVE ENABLED APPELLANT TO SUBSTANTIATE 

THE COMPLAINED FUNDAMENTAL ERRORS OF LAW AND 

FACT.

WHETHER A WRIT OF ERROR CORAM NOBIS IS AVAILABLE 

TO CORRECT AN ERROR IN THE JUDGMENT THAT WAS 

OBTAINED UNDER DURESS AND THAT DUE TO 

[APPELLANT’S] IMMEDIATE DEPORTATION AFTER 

RELEASED TO THE INS, APPELLANT WAS PREVENTED 

FROM UNDERGO[ING] A DIRECT APPEAL[] OR A POST 

CONVICTION CHALLENGE.

WHETHER THE WRIT OF ERROR CORAM NOBIS IS 

AVAILABLE TO CORRECT THE JUDGMENT OF CONVICTION 

TO REFLECT THAT [APPELLANT PLED] GUILTY TO...SIMPLE 

POSSESSION AS HE IS ACTUAL[LY] INNOCEN[T] OF THE 

CHARGE OF POSSESSION WITH INTENT TO DISTRIBUTE 

COCAINE, BUT FOR THE LACK OF TRANSCRIPT HE IS NOT 

ABLE TO SUBSTANTIAT[E] HIS CONTENTION THAT HE 

[PLED] UNDER DURESS TO THE POSSESSION WITH 

INTENT TO DISTRIBUTE.

(Appellant’s Brief at 1-2). 
J-S43043-15

- 4 -

The timeliness of a PCRA petition is a jurisdictional requisite. 

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert. 

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). 

Pennsylvania law makes clear no court has jurisdiction to hear an untimely 

PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157

(2003). The PCRA requires a petition to be filed within one year of the date 

the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A 

judgment is deemed final at the conclusion of direct review or at the 

expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). 

Generally, to obtain merits review of a PCRA petition filed more than one 

year after a petitioner’s sentence became final, the petitioner must allege 

and prove at least one of the three timeliness exceptions. See 42 Pa.C.S.A. 

§ 9545(b)(1)(i)-(iii). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinions of the Honorable Craig A. 

Dally, we conclude Appellant’s issues merit no relief. The PCRA court 

opinions comprehensively discuss and properly dispose of the questions 

presented. (See Opinion in Support of Order, filed February 11, 2015, at 1; 

Opinion in Support of Rule 907 Notice, filed January 14, 2015, at 2-3) 

(finding: Appellant’s claims one through four in petition for writ of coram 

nobis concerned validity of Appellant’s 1997 guilty plea and alleged 

constitutional violations in connection with PWID conviction; those claims 
J-S43043-15

- 5 -

were cognizable under PCRA; Appellant failed to seek review of claims within 

PCRA prescribed time limits;3court had no jurisdiction over those claims; 

coram nobis review was available for Appellant’s fifth claim in petition, 

regarding plea counsel’s alleged failure to advise Appellant of mandatory 

deportation consequences of PWID conviction, as required by Padilla v. 

Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); 

nevertheless, Padilla has no retroactive effect, noting Chaidez v. U.S., ___ 

U.S. ___, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), where, U.S. Supreme 

Court expressly held that Padilla does not apply retroactively to collateral 

review cases; Appellant’s judgment of sentence became final and his PWID 

sentence concluded long before Padilla was decided in 2010; Padilla does 

not apply to Appellant’s case). Accordingly, we affirm on the basis of the 

PCRA court opinions.4 

Order affirmed. 

____________________________________________

3 Appellant failed to plead and prove any statutory exception to the PCRA’s 

timeliness requirements. Moreover, Appellant is ineligible for relief under 

the PCRA with respect to his PWID conviction because he is no longer 

serving a sentence for that offense. See 42 Pa.C.S.A. § 9543(a)(1)(i). 

4 On June 17, 2015, Appellant filed a motion in which he asserted the 

Commonwealth’s brief is deficient and asked this Court to compel the 

Commonwealth to “answer any and all of the issues Appellant presented to 

this Court.” Appellant further requested a thirty-day extension of time to file 

a reply brief. Due to our disposition, we deny Appellant’s open motion. 
J-S43043-15

- 6 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/15/2015
3 

1 

. See Com.row. v. Turner, 80 A.3d 754 (Pa".' 20t3) cert: ·a.eni.ed sub nom. Turner,/ Pennsylvania, i34 S. Ct. 

1771 (2014) ("[D]ue process does not require the legislature to continue to provide collateral review when the 

offencfir.:'i.s' no fonger sefvin{a sentence."). See a1so Chaidei' \t:- rns.;t133~ s;. C{ i 103 {2CH3)'~Tlie Court's· 201 o 

decision in Padilla v. Kentucky, which held that defense counsel must apprise a defendant as to the risk of 

deportation in connection with. the entry of a guilty plea, and upon which Defendant' s Petition for: C,..or:a_m· N,gbis is 

based, requiring defense counsel to advise defendant about the risk of deportation arising from a guilty plea, does 

not apply.retroactively.) . . a,· r • . ·,,·. ::,- 

J. 

~ { 

:!.::-.;lJ:11;> 

n r:11.l'".~ 

untimely': and (2) Petitioner, by his own admission, is unable to prove the existence of some fundamental 

WITIIOUT HEARING~'\vhile' a Writ ofCoramNobis isifr'appiopri~te nieans-by'which to correct· a 

r • ••. . '; ·.·. ' . '. . ! , .. · •.. .·.• . .· ;: .• .. ·- '·- .: .. - . __ ; ... : ,", ,: . . :· .. '.1 "'. ._. ·:: :.·· i"::·, :. ·.,w.':'. ~·._:: . . . -:· 

. . . . . . ' . 

fundamental error of fact of law, a review· of the rec~rd demonstrates (1)-i°hat· the instant petition is 

.... ::; .. ::· .s , 

• • • ~ • ',J • : ~.: '- '.: I ' ' '. .: I • 

ORDERED .and ~pl~CT_E.I>, that Defendant's P~tition for Writ of C01:am Nobis :is her~byJ)ISMJSSED 

. : '·"'·' r. '. ., ·~. . .•.. · . . ~ 

dated Januarylfi, 2015 and its full review and consideration of both pieces of correspondence, it is hereby 

Defendant dated January 6, 2015, and its receipt of a Motion for Reconsideration and/or Clarification 

without hearing in accordance with PA.R.CRIM.P. 907, this Court's receipt of correspondence from 

2015 to Defendant advising him of this Court's intention to dismiss his Petition for Writ of Coram Nobis 

AND NOW, this __ .,_f/_LJ.f day of February 2015, after sending notice dated January 14; 

Defendant. 

JOSE GREGORIO, 

v. 

COMMONWEALTH OF PENNSYLVANIA 

ORDER OF COURT 

CRIMINAL DIVISION 

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, 

PENNSYLVANIA 

Circulated 08/20/2015 11:40 AM
35 

the United States for a third time and in 2012, he was placed under arrest by the Allentown 

back into the United States and was deported once more. Defendant then gained illegal entry into 

from prison, the Defendant was deported. Sometime thereafter, the Defendant made illegal entry 

and received credit for time served. His sentence terminated in 1999. Subsequent to his release 

Intent to Deliver Cocaine. He received a sentence of one (1) to two (2) years of incarceration, 

before the Honorable William F. Moran (Ret.) to plead guilty to one count of Possession with 

On September 9, 1997, Defendant, a legal resident of the Dominican Republic, appeared 

Procedural History 

STATEMENT OF REASONS 

Court's intention to enter an Order dismissing Defendant's petition. 

notice within which to file a response to this notice. Absent receipt of a timely response, it is the 

petition is devoid of merit. The Defendant shall have twenty (20) days from the date of this 

to dismiss Defendant's Petition for Coram Nobis without hearing, based upon a finding that said 

correspondence from counsel for Defendant, the Court hereby notifies Defendant of its intention 

AND NOW, this 

:<~::1··:·1 

-n l.. c..n 

NOTICE OF INTENTION TO DISMISS PETITION WITHOUT HEARIN'G (,, C) 

/~day of January 2015, after receipt and review of 

_._ 

=o JOSE GREGORIO, 

Defendant. 

COMMONWEALTH OF PENNSYLVANIA 

CRIMINAL DIVISION 

'111-;~ 

~ d 

-·- ·~ ...... v. C-0048-CR- 792-1997 

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, 

PENNSYLVANIA 

Circulated 08/20/2015 11:40 AM
2 

"The writ of coram nobis is a procedural tool, the purpose of which is to correct errors of fact only. Its 

function is to bring before the court rendering the judgment matters of fact which, if they had been known at the 

time judgment was rendered, would have prevented its rendition." 16C WEST'S PA. PRAC., CRIMINAL PRACTICE § 

34:2. 

forth above at (a) and (b) fall under the purview of the PCRA at 42 PA.C.S.A. § 9543(a)(2)(iii); 

108 (Pa. Super. 2014). As defense counsel has ably noted, the issues raised by Defendant as set 

PCRA does not provide a remedy. 42 PA.C.S.A. § 9542; Commw. v. Descardes, 101 A.3d 105, 

A petition for writ of coram nobus shall be treated as a PCRA except in cases where the 

Letter from Defense Counsel dated December 29, 2014 at 3. 

his 1997 guilty plea was not knowing, intelligent and voluntary because (a) he 

pled guilty under duress simply to [gain] release from confinement; (b) [he] was . 

. . innocent of the crime charged; (c) the Commonwealth obtained information 

from [him] in violation of his Fifth-Amendment right 'against compelled selfincrimination; ( d) the Commonwealth violated his Sixth Amendment Right to 

confront witnesses against him; and ( e) he was not informed of the potential 

immigration consequences of his [guilty plea]. 

By his petition for writ of coram no bis, 1 the Defendant contends that: 

Discussion 

sentence. 

(36) months of supervision. The Defendant is currently serving the incarceration portion of that 

which he received a sentence of fifty-seven (57) months in federal prison, followed by thirty-six 

detainer, the Defendant was charged and convicted of illegal entry into the United States, for 

immediate parole to a U.S. Immigration & Customs Enforcement detainer. Attendant with that 

(concurrent) on the False ID charge. The Defendant was given credit for time served and granted 

sentence of three (3) days to six (6) months on the DUI, and three (3) days to twelve (12) months 

Defendant entered a plea to the DUI and the False ID on June 4, 2012, receiving a 

including False Identification to Law Enforcement ("False ID"). 

Police Department on charges of DUI under 75 Pa.C.S.A. § 3802(c) and other offenses, 

Circulated 08/20/2015 11:40 AM
3 

J. 

BY THE COURT: 

and his issues at (c) and (d) fall under the purview of the PCRA at 42 PA.C.S.A. § 9543(a)(2)(i). 

Thus, the Court finds Defendant's failure to seek timely review within the jurisdictional 

limitations of the PCRA is fatal to these claims. See Commw. v. Turner, 80 A.3d 754 (Pa. 2013) 

cert. denied sub nom. Turner v. Pennsylvania, 134 S. Ct. 1771 (2014) ("[D]ue process does not 

require the legislature to continue to provide collateral review when the offender is no longer 

serving a sentence.") 

At first blush, it would also appear that Defendant's claim at (e) would fall squarely 

under the purview of the PCRA at 42 PA.C.S.A. § 9543(a)(2)(ii). However, case law is 

instructive on this point. Commw. v. Descardes, 101 A.3d 105 (Pa. Super. 2014). Defendant's 

claim is based on jurisprudential developments arising from the United States Supreme Court's 

decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Padilla, which was decided well after the 

disposition of Defendant's case, established that the failure to advise a defendant of the 

deportation consequences of entering a plea constitutes ineffective assistance of counsel, as 

alleged in the instant case. However, the law is clear that Padilla does not apply retroactively. 

Chaidez v. U.S., 133 S. Ct. 1103 (2013). Accordingly, the Court concurs with defense counsel's 

contention that Defendant's claims for relief are meritless. In light of the foregoing, the Court 

enters the attached Notice of Intention to Dismiss Defendant's Petition for Writ of Coram Nobis 

without hearing. 

Circulated 08/20/2015 11:40 AM