J-S44041-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DEANTE DRAKE

Appellant No. 420 WDA 2014

Appeal from the PCRA Order January 14, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011923-1993

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 21, 2014

Deante Drake appeals, pro se, from the order entered January 14, 

2014, in the Allegheny County Court of Common Pleas dismissing his second 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 

9541 et seq. Drake seeks relief from the judgment of sentence of four and 

one-half to 10 years’ imprisonment, followed by four years’ probation, 

imposed on May 4, 1995, after Drake entered a guilty plea to charges of 

possession with intent to deliver (PWID) cocaine, possession of marijuana, 

and criminal conspiracy.1 On appeal, Drake contends plea counsel provided 

him with “improper information” concerning the sentencing range of crimes 

for which he pled guilty, in violation of Alleyne v. United States, 133 S.Ct. 

____________________________________________

1 35 P.S. §§ 780-113(a)(30) and (a)(16), and 18 Pa.C.S. § 903, 

respectively.
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2151 (U.S. 2013). Drake’s Brief at 4. For the reasons set forth below, we 

affirm.

On August 27, 1993, Drake was arrested and charged with PWID 

cocaine, possession of marijuana and criminal conspiracy. On May 4, 1995, 

he entered a negotiated guilty plea to all three charges. Pursuant to the 

terms of the plea agreement, the trial court sentenced him, that same day, 

to four and one-half to 10 years’ imprisonment for PWID and four years’ 

consecutive probation for criminal conspiracy. No further penalty was 

imposed on the possession charge. The trial court specifically directed that 

Drake’s sentence would run concurrently with a sentence he was then 

serving in Washington County. See N.T., 5/4/1995, at 11-12. Further, the 

court stated the effective date of sentencing would be the date of his arrest, 

August 27, 1993, so that he would receive credit for time-served since that 

time. See id. at 12. No direct appeal was filed.

Approximately 16 years later, on June 27, 2011, Drake filed a pro se

document entitled “Petition to Withdraw Sufficient Facts,” claiming his plea 

counsel did not properly inform him of his constitutional rights prior to the 

entry of his guilty plea.2 Affidavit in Support of Petition to Withdraw 

Sufficient Facts, 6/27/2011, at ¶ 9. The PCRA court treated the petition as a 

____________________________________________

2 As we will discuss infra, Drake’s sentence for the guilty plea charges 

expired in August of 2007. 
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first request for PCRA relief, and appointed counsel, who on January 5, 

2012, filed a petition to withdraw and accompanying Turner/Finley3“nomerit” letter. On January 9, 2012, the PCRA court granted counsel’s petition 

to withdraw. Thereafter, following proper Rule 9074 notice, the PCRA court 

dismissed Drake’s petition as untimely filed on March 30, 2012. No appeal 

was filed.

Nearly two years later, on January 14, 2014, Drake filed a pro se

motion seeking leave to supplement and/or reconsider his prior PCRA 

petition. Relying on the United States Supreme Court’s recent decision in 

Alleyne, supra,

5 Drake asserted that plea counsel “failed to provide him 

with the proper information concerning the sentencing range of the crime(s) 

that he actually pled guilty to[.]” Memorandum of Law, 1/14/2014, at 7. 

____________________________________________

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

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

4

Pa.R.Crim.P. 907.

5

In Alleyne, supra, the United States Supreme Court expanded upon its 

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that 

“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ 

that must be submitted to the jury and found beyond a reasonable doubt.” 

Alleyne, supra, 133 S.Ct. at 2155.
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On January 21, 2014, the trial court entered an order denying Drake’s 

motion.6 This appeal followed.7 

In his pro se brief, Drake argues plea counsel provided him with 

“misadvice” regarding the sentencing range of the crimes for which he was 

pleading guilty, and, specifically, did not inform him, pursuant to Alleyne, 

that he was entitled to have “a jury determine the identity of the controlled 

substance beyond a reasonable doubt.” Drake’s Brief at 8. Moreover, he 

argues that his improper sentence in the case sub judice “is currently being 

used in the United States District Court for the Northern District of West 

Virginia, to enhance [a federal] sentence.”8 Drake’s Brief at 5.

When reviewing an order dismissing a PCRA petition, we must 

determine whether the ruling of the PCRA court is supported by record 

evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d 

____________________________________________

6 We note that the trial court did not provide Drake with the requisite Rule 

907 notice before denying his most recent petition. Nevertheless, “our 

Supreme Court has held that where the PCRA petition is untimely, the failure 

to provide such notice is not reversible error.” Commonwealth v. Lawson, 

90 A.3d 1, 5 (Pa. Super. 2014). We conclude the same reasoning applies 

here, where the present petition is Drake’s second attempt at collateral 

relief, and he is no longer serving the sentence he is challenging. See infra. 

7 The PCRA court did not order Drake to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

8 Drake does not specify how his sentence in the case sub judice is being 

used to “enhance his sentence” in the federal case. See Drake’s Brief at 5.
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1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings 

of the PCRA court, and these findings will not be disturbed unless they have 

no support in the certified record.” Commonwealth v. Carter, 21 A.3d 

680, 682 (Pa. Super. 2011) (citation omitted).

Here, the PCRA court dismissed Drake’s petition as untimely filed. 

While we agree the petition was untimely filed pursuant to 42 Pa.C.S. § 

9545(b)(1), we conclude that Drake has, initially, failed to plead and prove 

that he is eligible for relief pursuant to 42 Pa.C.S. 9543(a)(1), which 

provides, in pertinent part, as follows:

(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 crime; or

(iii) serving a sentence which must expire before 

the person may commence serving the disputed 

sentence.

42 Pa.C.S. § 9543(a)(1)(i)-(iii) (emphasis supplied). In the present case, 

Drake has failed to demonstrate that he is still serving a sentence for the 

conviction which he is appealing. 
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As previously stated, on May 4, 1995, Drake was sentenced to a term 

of four and one-half to 10 years’ imprisonment, followed by a consecutive 

four years’ probation. The trial court directed the sentence run concurrently 

with another sentence Drake was then serving, and that the sentence would 

be effective as of the date of his arrest, August 27, 1993. Accordingly, his 

sentence in the present matter would have expired in August of 2007, six 

and one-half years before the instant petition was filed. Therefore, Drake is 

not entitled to PCRA relief. See Commonwealth v. Price, 876 A.2d 988, 

994 (Pa. Super. 2005) (“[I]f the court’s decision is correct, we can affirm on 

any ground.”) (quotation omitted), appeal denied, 897 A.2d 1184 (Pa. 

2006), and cert. denied, 549 U.S. 902 (2006).

In his reply brief, however, Drake argues that, even if we find he is not 

entitled to relief under the PCRA, we should consider his petition a writ of 

coram nobis. While Drake acknowledges that the PCRA encompasses all 

common law remedies such as habeas corpus and coram nobis,

9 he asserts 

the PCRA did not completely abrogate the common law writ of coram nobis. 

Therefore, he argues, the trial court should have evaluated “whether or not 

Alleyne ... is retroactively applicable.” Drake’s Reply Brief at 3. 

____________________________________________

9 42 Pa.C.S. § 9542.
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The writ of coram nobis “provides a way to collaterally attack a 

criminal conviction for a person ... who is no longer ‘in custody’ and 

therefore cannot seek habeas relief....” Commonwealth v. Descardes, 

___ A.3d ___, 2014 PA Super 210, *3 (Sept. 23, 2014) (en banc), quoting

Chaidez v. United States, 133 S.Ct. 1103, 1106 n.1 (U.S. 2013). In 

Descardes, the petitioner, a Haitian national with resident alien status, pled 

guilty to insurance fraud and served a probationary sentence. After his 

sentence was complete, the petitioner left the United States, and was later 

denied re-entry based upon his felony conviction. Id. at *1. He filed a 

petition for writ of coram nobis, arguing that, pursuant to Padilla v. 

Kentucky, 559 U.S. 356 (U.S. 2010),10 his plea counsel was ineffective for 

failing to advise him of “the mandatory collateral consequence of 

deportation.” Id. The trial court treated the filing as a PCRA petition, and 

granted him relief. On appeal, the en banc court reversed, concluding the 

petitioner could seek relief through a writ of coram nobis when he was 

denied re-entry into the United States due to his felony conviction. 

First, the Court determined that coram nobis review should be 

available to the petitioner because he was “no longer in custody,” and, 

____________________________________________

10 In Padilla, the United States Supreme Court held that plea counsel has an 

affirmative duty to inform his or her client whether the “plea carries a risk of 

deportation.” Padilla, supra, 559 U.S. at 374.
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therefore, not eligible for PCRA relief, “but he [still] continue[d] to suffer the 

serious consequences of his deportation because of his state conviction.” 

Id. at *3. However, the Court held that the petitioner was ultimately not 

entitled to relief since the decision in Padilla was determined to have no 

retroactive effect. Id. at *4, citing Chaidez, supra. 

In the present case, we need not decide whether the writ of coram 

nobis is available as an avenue of relief for Drake since the United States 

Supreme Court has not held that Alleyne has retroactive effect. See 

United States v. Reyes, 755 F.3d 210, 213 (3d Cir. 2014) (“[T]he decision 

to make Alleyne retroactive rests exclusively with the Supreme Court, 

which has not chosen to do so.”). See also Commonwealth v. Miller, ___ 

A.3d ___, 2014 PA Super 214, *5 (Pa. Super. 2014) (“Even assuming that 

Alleyne did announce a new constitutional rights, neither our Supreme 

Court, nor the United States Supreme Court has held that Alleyne is to be 

applied retroactively to cases in which the judgment of sentence had become 

final.”).

Therefore, because we conclude that Drake is not entitled to relief 

under the PCRA, or upon petition for writ of coram nobis, we affirm the order 

of the PCRA court.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2014