J-S06019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

VERNON ANDREWS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1444 EDA 2017

Appeal from the PCRA Order April 24, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0013540-2011

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 06, 2018

Vernon Andrews appeals from the order denying his petition filed 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

We conclude that Andrews is ineligible for PCRA relief because he is no 

longer serving a sentence of incarceration, parole, or probation and that 

application of this eligibility requirement to Andrews did not violate his

Fourteenth Amendment right to due process. Therefore, we affirm.

On September 12, 2012, Andrews pled guilty to possession with intent 

to deliver a controlled substance, 35 P.S. § 780-113(a)(30), and criminal

conspiracy, 18 Pa.C.S.A. § 903. The trial court sentenced Andrews to 111⁄2 to 

23 months’ incarceration followed by three years’ probation. Andrews did not 

appeal.

On January 18, 2013, Andrews filed a pro se PCRA petition. Counsel

filed an amended petition on September 1, 2014. On March 6, 2015, the 
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PCRA court denied the petition. Andrews appealed and this Court remanded 

for an evidentiary hearing to clarify Andrews’ claim that trial counsel was 

ineffective for failing to advise him of the immigration consequences of his 

guilty plea. Commonwealth v. Andrews, No. 805 EDA 2015, unpublished 

memorandum at 1, 14 (Pa.Super. filed June 3, 2016). After remand, the

Commonwealth filed a letter brief, arguing the PCRA court should dismiss 

the petition because Andrews completed serving the probationary period of 

his sentence on September 27, 2016. Andrews filed a response arguing, 

among other things, that he had a liberty interest protected under the Due 

Process Clause because of the collateral consequence of deportation. Letter 

Br., filed Feb. 5, 2017, at 2.1 The PCRA court issued notice of its intent to 

dismiss the petition without a hearing pursuant to Pennsylvania Rule of 

Criminal Procedure 907 and subsequently denied the petition. Andrews filed 

a timely notice of appeal.

Andrews raises the following issue on appeal:

Must a petition for post conviction relief be denied because 

the defendant is no longer subject to imprisonment, 

probation or parole in Pennsylvania when the defendant is 

subject to deportation from the United States?

Andrews’ Br. at 4.

Our standard of review from the denial of a PCRA petition “is limited to 

examining whether the PCRA court’s determination is supported by the 

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1 On February 10, 2017, the Commonwealth filed a reply.
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evidence of record and whether it is free of legal error.” Commonwealth v. 

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

To be eligible for PCRA relief, a petitioner must plead and prove by a 

preponderance of the evidence that he or she has been convicted of a crime 

and that he or she is “currently serving a sentence of imprisonment, 

probation or parole for the crime.” 42 Pa.C.S.A. § 9543(a)(1)(i); see also 

Commonwealth v. Plunkett, 151 A.3d 1108, 1113 (Pa.Super. 2016) 

(appellant no longer eligible for collateral review when sentence expired 

during pendency of appeal from denial of PCRA relief).

Andrews argues that the PCRA’s requirement that a petitioner be 

currently serving a sentence is unconstitutional when applied to petitioners

subject to deportation because it does not comport with the Fourteenth 

Amendment’s “substantive due process requirement of fundamental 

fairness.” Andrews’ Br. at 10-11. He notes that the United States Supreme 

Court has stated that it is “‘most difficult’ to divorce” the penalty of 

deportation from a conviction. Id. at 12 (quoting Padilla v. Kentucky, 559 

U.S. 356, 365 (2010)).2

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2 Andrews has arguably waived his due process claim by failing to raise it 

with specificity in his Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(ii) (“The 

Statement shall concisely identify each ruling or error that the appellant 

intends to challenge with sufficient detail to identify all pertinent issues for 

the judge.”); Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002)

(appellant waives any issues not raised in 1925(b) statement). Andrews’

Rule 1925(b) statement argues he was “denied due process of law and equal 

protection of the laws” because section 9543(a)(1)(i) discriminates between 

(Footnote Continued Next Page)
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The PCRA court concluded that Andrews was ineligible for relief 

because he was not currently serving a sentence for the crime and that his 

due process rights were not violated because, after completion of his 

sentence, his sentence no longer burdened his liberty. Trial Court Opinion, 

filed June 26, 2017, at 5.

In Commonwealth v. Turner, the Pennsylvania Supreme Court 

addressed a petitioner’s claim that application of the PCRA’s requirement of 

current incarceration, probation or parole to her violated her due process 

rights because she received a short sentence. 80 A.3d 754 (Pa. 2013). The 

Supreme Court concluded that “due process does not require the legislature 

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

serving a sentence.” Id. at 765. The Court stated: 

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 

(Footnote Continued) _______________________

petitioners serving a sentence and those subjected to collateral 

consequences, such as deportation; section 9542 abolished the writ of 

coram nobis; and judicial and prosecutorial delay caused him to be denied 

PCRA relief. Concise Statement of Errors Complained of on Appeal, filed Aug. 

11, 2017, at ¶ 2. We, however, decline to find waiver because the statement

mentions due process and section 9642(a)(1)’s impact on those facing 

deportation; in his letter brief filed with the trial court prior to dismissal 

Andrews argued he had a liberty interested protected by due process 

because he faced deportation; and the trial court addressed the claim in its 

Rule 1925(a) opinion. See Commonwealth v. Laboy, 936 A.2d 1058, 1059

(Pa.2007) (declining to find waiver where appellant did not specify element 

Commonwealth allegedly failed to prove, but the trial court addressed the 

issue and case was straight forward).
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sentence of imprisonment, probation, or parole is 

consistent with the due process prerequisite of a protected 

liberty interest. 42 Pa.C.S. § 9543(a)(1)(i). Of course, the 

legislature was free to extend a statutory right of collateral 

review to individuals like Petitioner who had completed 

their sentence and, had they done so, they would be 

constitutionally obligated to ensure that those rights were 

impacted only in accord with due process. See Evitts v. 

Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 83 L.Ed.2d 821 

(1985) (“when a State opts to act in a field where its 

action has significant discretionary elements, it must 

nonetheless act in accord with the dictates of the 

Constitution—and, in particular, in accord with the Due 

Process Clause”); Haag, 809 A.2d at 282–83 (providing 

that although a PCRA petitioner does not have a Sixth 

Amendment constitutional right to counsel during collateral 

review, the Commonwealth, by way of procedural rule, 

provided for the appointment of counsel during a first 

petition for post-conviction relief, thereby creating a rulebased right to the effective assistance of counsel). 

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.

Id. at 766.

Further, in Commonwealth v. Descardes, the petitioner, a Haitian 

national who had resident alien status in the United States, pled guilty to 

insurance fraud and conspiracy to commit insurance fraud without being 

informed that deportation was a collateral consequence of his plea. 136 A.3d 

493, 494 (Pa. 2016). After he completed serving his probationary sentence, 

he went on a business trip. Id. at 494. Immigration officials denied him reentry due to the conviction. Id. The Pennsylvania Supreme Court concluded 
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the petitioner was ineligible for PCRA relief because he was no longer serving 

a sentence of imprisonment, probation, or parole for the crime. Id. at 503.3

Applying Descardes and Turner, we are constrained to conclude that

application of the PCRA’s requirement that a petitioner be currently serving a 

sentence of incarceration, probation, or parole for the crime to be eligible for 

relief does not violate the due process rights of those facing deportation 

because of the convictions. As with protections for those who receive a short 

sentence, the legislature did not create a statutory entitlement to collateral 

review for defendants who face deportation as a result of their convictions. 

See Turner, 80 A.3d at 767 (noting that the legislature “chose not to create 

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3 Andrews cites federal cases to support his due process claim. The federal 

cases, however, are not binding on this court and are inapplicable because 

the cases are at a different procedural posture and/or interpret and apply 

federal statutes. Lee v. United States, 137 S.Ct. 1958 (2017) (addressing 

motion to vacate conviction and noting issue was whether defendant could 

establish he was prejudiced by counsel’s unreasonable representation in 

which he assured defendant that he would not face deportation); Padilla, 

559 U.S. at 359 (concluding, in timely post-conviction proceeding, that 

“constitutionally competent counsel would have advised [defendant] that his 

conviction . . . made him subject to deportation”); Amenuvor v. 

Mazurkiewicl, 457 Fed.Appx. 92, 93 (3d Cir. Jan. 11, 2012) (finding 

defendant “in custody” for purposes of 28 U.S.C. § 2241(c)(1) where he was 

subject to a detainer from the Unites States Immigration and Customs 

Enforcement (“ICE”) after release from state custody); Gutierrez v. 

Gonzales, 125 Fed.Appx. 406, 409, 416 (3d Cir. Mar. 16, 2005) (finding 

petitioner who filed petition for writ of habeas corpus after he was removed

met section 2241(c)’s custody requirement in the “unique” circumstances of 

the case where he was in ICE custody when he requested relief but was 

“effectively prevented from doing so by his counsel’s affirmative 

misrepresentations,” the language of 2241(c) did not preclude an 

interpretation that would provide jurisdiction, and “multiple strong policy 

concerns weigh in favor of finding custody”) .
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any statutory entitlement to collateral review for defendants who have 

completed their sentences”). The PCRA court did not err in denying the 

petition.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date:3/6/18

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4 To the extent Andrews argues that his case is not moot because the case 

was capable of repetition yet evading review, Andrews’ Br. at 13-14, we find 

the issue waived and inapplicable. First, Andrews failed to raise this issue 

before the trial court and, therefore, any claim that the trial court erred in 

not reviewing his claim because it was capable of repetition yet evading 

review is waived. Pa.R.A.P. 302(a) (issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal). Further, the 

doctrine is inapplicable here, where Andrews’s claim is not moot. Rather, the 

PCRA court found, and we affirmed, that Andrews is ineligible for PCRA 

relief. See Turner, 80 A.3d 765-68 (PCRA petitioner not entitled to PCRA 

hearing after completed serving sentence); Plunkett, 151 A.3d at 1113 

(Pa.Super. 2016) (appellant no longer eligible for collateral review when 

sentence expired during pendency of appeal from denial of PCRA relief).