J-S75011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MODESTO OSCO

Appellant No. 820 EDA 2016

Appeal from the PCRA Order February 16, 2016

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0002619-2013

BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 05, 2016

Modesto Osco appeals from the February 16, 2016 order denying his 

petition for post-conviction relief. We affirm. 

During the early morning hours on July 30, 2013, Appellant entered 

the bedroom of his girlfriend’s thirteen-year-old daughter. Appellant sat on 

the girl’s bed and massaged her thighs and back. He then proceeded to 

place two fingers on her vagina on the outside of her clothing. As the victim 

attempted to rebuke his conduct, Appellant reached under her shirt and 

squeezed her breasts. Later that morning, the victim conveyed the incident 

to her mother who, in turn, notified the police. 

Based on the foregoing, the Commonwealth charged Appellant with 

corruption of minors and indecent assault of a person less than sixteen years 
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of age. Subsequently, the felony count of corruption of minors was 

withdrawn and the indecent assault account was amended to indecent 

assault without consent. Thereafter, Appellant entered an open guilty plea 

to that offense. The trial court conducted the mandated colloquy, and 

Appellant’s written guilty plea statement was entered into the record. The 

court also noted that, since Appellant was in this country illegally, he may be 

subject to deportation as a collateral consequence of his plea. The court 

accepted Appellant’s guilty plea and scheduled the matter for sentencing. 

The trial court held a sentencing hearing on January 3, 2014. During 

this proceeding, the court again notified Appellant that deportation was a 

possible collateral consequence of his conviction. Appellant’s counsel 

confirmed he had discussed the possibility of deportation with him. The 

court sentenced Appellant to five months to twenty-four months 

incarceration with credit for time served. Appellant did not file for post-trial 

relief, nor did he pursue appellate review. 

On October 2, 2014, Appellant filed a timely motion for post-conviction 

relief averring counsel was ineffective for failing to provide proper advice 

regarding the immigration consequences of his guilty plea. Following a 

series of continuances, the court held a hearing, and ultimately, denied 

Appellant’s petition. Appellant filed a timely notice of appeal and complied 

with the court’s order to file a Rule 1925(b) concise statement of errors 
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complained of on appeal. The court then authored its Rule 1925(a) opinion, 

and this matter is now ready for our review. 

Appellant offers one issue for our consideration:

A defense lawyer is constitutionally ineffective when he provides 

his noncitizen client with inaccurate or misleading information 

about the “collateral consequence” of deportation in connection 

with a guilty plea. Should this Court reverse the PCRA court’s 

refusal to grant post-conviction relief where the Appellant’s plea 

counsel provided him with incomplete and inaccurate information 

about the immigration consequences of his plea, including the 

permanent inability to return to the United States? 

Appellant’s brief at 4. 

Prior to addressing the issue raised, we must first determine whether 

Appellant is eligible for relief under the PCRA. Eligibility for relief under the 

PCRA is governed by 42 Pa.C.S. § 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:

 

(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. § 9453(a). 
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We note, “[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, 761-62 (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). 

Upon review of the record, we observe that Appellant was sentenced 

to five to twenty-four months incarceration on January 3, 2014. Thus, 

Appellant completed serving his sentence on January 3, 2016. Since 

Appellant is no longer serving a sentence of imprisonment, probation, or 

parole for a crime, he is ineligible for PCRA relief. 42 Pa.C.S. § 

9543(a)(1)(i); Turner, supra; Ahlborn, supra. As Appellant is ineligible 

for PCRA relief, we need not reach the merits of his claim. Accordingly, we 

affirm. 

Order Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016
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