J-E04005- 13

2014 PA Super 210

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. CLAUDE DESCARDES Appellee No. 2836 EDA 2010

Appeal from the Order of September 24 , 2010 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP

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- CR -0000617-2006
BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, J., PANELLA, J.,

DONOHUE, J., SHOGAN, J., LAZARUS, J., OLSON, J., an d WECHT, J. OPINION BY PANELLA, J. FILED SEPTEMBER 23, 2014 After pleading guilty to insurance fraud 1 and conspiracy to commit insurance fraud, 2 and serving a probationary sentence, Claude Descardes, a resident alien, left the country for personal business. United States immigration officials denied him re-entry due to hi s felony convictions. After unsuccessful attempts to withdraw his guilty plea, Descardes became aware that the United States Supreme Court decided Padilla v. Kentucky , 559 U.S. 356 (2010), which held that a criminal defense at torney has an affirmative duty to inform a defendant that the off ense for which he pleads

____________________________________________ 1 18 P A .C ONS .S TAT .A NN . § 4117(a)(5).

2 18 P A .C ONS .S TAT .A NN . § 903.J-E04005-13

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guilty will result in his removal from the country. D escardes filed a petition for a writ of coram nobis relying on Padilla . In his petition, Descardes alleged that his guilty plea counsel was ineffective fo r failing to advise him of the adverse immigration consequences of his guilty plea. The trial court treated the coram nobis petition as a petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 P A .C ONS .S TAT .A NN . §§ 9541-9546, and granted him relief. In this appeal, we consider whether the trial court pro perly granted Descardes relief. Initially, we find that the trial co urt erred procedurally, and that it should have adjudicated the petition as a coram nobis petition. Further, we hold that Descardes is not entitled to reli ef due to the decision of the United States Supreme Court in Chaidez v. United States , ___ U.S. ___, 133 S.Ct. 1103 (2013), which held that Padilla does not apply retroactively. A short discussion of the procedural background is necessary before we address the issues involved. As previously mentioned, Descardes, a Haitian national with resident alien status, pled gui lty on August 9, 2006. On November 30, 2006, Descardes was sentenced to one year of probation and ordered to pay a $100.00 fine. Descardes did not pursue a direct appeal.J-E04005-13

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Subsequent thereto, Descardes left the United States bu t was denied

re - en try due to his felony conviction. 3 On December 7, 2009, Descardes filed a Petition for Reconsideration and Review of Denial of Petition for Writ of Error Coram Nobis , which raised, among other things, allegations that plea counsel was ineffective for failing to advise Descard es of the mandatory collateral consequence of deportation. The trial court treated Descardes’s petition as a petition for relief under the PCRA and dismissed the petition as untimely on March 12, 2010. On April 6, 2010, Descardes filed a second petition fo r writ of coram nobis based on the United States Supreme Court’s decision in Padilla , which held that a criminal defense attorney has an affirmati ve duty to inform a defendant that the offense for which he pleads guilty will result in his removal from the country. Treating the petition as a PCRA petition, the

____________________________________________ 3 Under the Immigration and Naturalization Act, depor tation is automatic upon a conviction of an “aggravated felony.” 8 U.S.C. § 1227(a)( 2)(A)(iii). The classified offenses include one that “involves fraud o r deceit in which the loss to the victim exceeds $10,000.” 8 U.S.C. § 1101(a)( 43)(M). The trial court and the parties contend that Descardes wa s deported. “Deportation” is defined as “[t]he act or an instance of re moving a person to another country; esp., the expulsion or transfer of an alien from a country.” B LACK ’ S L AW D ICTIONARY , 471 (8th ed. 2004). The United States did not deport Descardes. Rather, he was denied reentry to the United States due to his felony convictions. For our purposes here, it is a distinction without a difference; in either event, Descardes is not permitted in the United States. Therefore, we utilize the term and concept of depor tation in this Opinion

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court vacated Descardes’s judgment of sentence and ordered the August 9, 2006 guilty plea withdrawn. The Commonwealth then filed a timely appeal. We must first consider whether the trial court properly treated Descardes’s petition for a writ of coram nobis as a PCRA petition. Preliminarily, we note that the PCRA contains a custod ial requirement to be eligible for relief. See Commonwealth v. Turner , 80 A.3d 754, 767 (Pa. 2013) (noting eligibility for relief under the PCRA is limited to those serving a sentence). Under the PCRA, a petitioner mus t either be “ currently serving a sentence of imprisonment, probation or parole for the crime” or “awaiting execution of a sentence of death for the crime ” or “ serving a sentence which must expire before the person may commence serving the disputed sentence.” 42 P A .C ONS .S TAT .A NN . § 9543(a)(1)(i)-(iii). Descardes does not meet any of the foregoing three eligibility requirements. He completed his sentence by serving a one-year probationar y sentence that expired in 2007. He was obviously not sentenced to deat h for insurance fraud and was not serving any other sentence that would toll the commencement of the sentence under dispute. He is theref ore ineligible for PCRA relief. See Turner , 80 A.3d at 767 (“ [O]ur legislature chose not to create any statutory entitlement to collateral review for defendants who have completed their sentences.”). The trial court, however, found that Descardes is noneth eless eligible for PCRA relief because under Padilla “deportation is not a ‘collateralJ-E04005-13

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consequence’ of a guilty plea, but is in fact part and parcel of the punishment for the original crime, so that a person fa cing deportation as a result of criminal conviction is still eligible for [PC RA] relief ... despite his original criminal sentence having expired.” Trial Cour t Opinion, 9/24/10, at
2. We agree t hat “deportation is a drastic measure” as, “at times,” it is the “equivalent of banishment o[r] exile[.]” Fong Haw Tan v. Phelan , 333 U.S. 6, 10 (1948) (citation omitted). See also Bridges v. Wixon , 326 U.S. 135, 164 (1945) (Murphy, J., concurring) (“The impact of deportation upon the life of an alien is often as great if not greater than the imposition of a criminal sentence.”). However, although deportation “is a penalty,” id ., it “is not, in a strict sense, a criminal sanction,” despite its i ntimate r elation to the criminal process. Padilla , 559 U.S. at 365. See also United States v. Restrepo , 999 F.2d 640, 647 (2d Cir. 1993). Deportation is not a sentence and Descardes is not in custod y. Therefore, he is not eligible for PCRA relief. See , e.g. , Turner . The PCRA court’s reliance upon Padilla for the assertion that deportation constitutes a sentence for purposes of the PCRA eligibility provisions , although understandably sympathetic, is misplaced. The question remains, however, whether the lower cour t properly treated Descardes’s petition for a writ of coram nobis as a PCRA petition. The PCRA states that it “ shall be the sole means of obtaining collateral relie fJ-E04005-13

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and encompasses all other common law and statutory remed ies for the same purpose that exist when this subchapter takes effect, incl uding habeas corpus and coram nobis .” 42 P A .C ONS .S TAT .A NN . § 9542. The key consideration is whether the underlying claim is cognizab le under the PCRA; if so, a petitioner “may only obtain relief under the PCRA.” Commonwealth v. Pagan , 864 A.2d 1231, 1233 (Pa. Super. 2004) (emphasis in original). See also Turner , 80 A.3d at 767 (“ The PCRA provides eligibility for relief for cognizable claims, ... and is the sole means of obtaining collateral relie f in Pennsylvania.”); Commonwealth v. West , 938 A.2d 1034, 1043 (Pa. 2007) (“[T]he PCRA subsumes all forms of collateral rel ief ... to the extent a remedy is available under such enactment.”) (emphasis omi tted); Commonwealth v. Peterkin , 722 A.2d 638, 640 (Pa. 1998) (“The writ [of habeas corpus ] continues to exist only in cases in which there is no re medy under the PCRA.”). It is rare for a claim to fall outside of the ambit of the PCRA. See Commonwealth v. Hackett , 956 A.2d 978, 986 (Pa. 2008) (referring to claims that “fall outside the PCRA’s statutory scheme” as “un ique claims”); Commonwealth v. Burkett , 5 A.3d 1260, 1274 (Pa. Super. 2010) (referring to claims that do “not fit within the stat utory scheme of the PCRA” as “rare instances”). For example, our Supreme Court f ound that a substantive due process challenge to the validity of recom mitting the defendant to prison, after a nine-year delay in which he had mistakenly beenJ-E04005-13

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free on appeal bond, did not fall within the ambit of the PCRA. See West

. The Supreme Court has also held that an allegation th at Canada violated the petitioner’s rights under the International Covenant for Civil and Political Rights was not a cognizable PCRA claim. See Commonwealth v. Judge , 916 A.2d 511 (Pa. 2007). In turning to Descardes’s claim, it is, i n broad terms, one of ineffective assistance of plea counsel, a claim that is explicitly wi thin the purview of the PCRA. See 42 P A .C ONS .S TAT .A NN . § 9543(a)(2)(ii). Descardes’s exact claim, however, i s predicated upon the Supreme Court’s holding in Padilla

— that the Sixth Amendment requires defense counsel to advise d efendant about the risk of deportation arising from a guilty plea. This particular claim of ineffective assistance of counsel did not exist until 201 0 when the Supreme Court decided Padilla , which was years after Descardes completed his
sentence. 4 The time for pursuing a claim of ineffective assistance of counsel in a timely filed PCRA petition had long since expir ed. 5 Under the

____________________________________________ 4 Prior to Padilla , the law in Pennsylvania was that counsel “in providin g adequate assistance to a criminal defendant contemplati ng a guilty plea” was “not required to advise a defendant of the collater al consequences of pleading guilty, including the immigration consequence s which may result from the plea.” Commonwealth v. Garcia , 23 A.3d 1059, 1064 (Pa. Super. 2011) (citing Commonwealth v. Frometa , 555 A.2d 92 (Pa. 1989)).

5 As explained in Garcia , this is a claim that is not subject to the timeliness exception of 42 P A .C ONS .S TAT .A NN . § 9545(b)(1)(iii), as Padilla did not recognize a new “constitutional right.” 23 A.3d at 106 4. In addition, as we (Footnote Continued Next Page)J-E04005-13

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circumstances presented, we find that this is one of the ra re instances where the PCRA fails to provide remedy for the claim. As noted, Descardes sought relief not through the PCRA, but by filing a petition for writ of coram nobis . This writ “ provides a way to collaterally attack a criminal conviction for a person ... who is no lon ger ‘in custody’ and therefore cannot seek habeas relief....” Chaidez , ___ U.S. at ___, 133 S.Ct. at 1106 n.1 (citation omitted). Indeed, in Chaidez , the petitioner sought to avoid deportation by filing a writ of coram nobis to overturn her conviction by arguing that her attorney provided ineffective ass istance by failing to advise her of the immigration consequences of pleading g uilty. See id ., ___ U.S. at ___, 133 S.Ct. at 1106. Because Descardes’s specific ineffective assistance of counsel clai m was not recognized until well after the time he had t o file a timely PCRA petition, coram nobis review should be available to him. Descardes is no longer in custody, thus the PCRA provides no relief, b ut he continues to suffer the serious consequences of his deportation because of his state conviction. The trial court should have addressed his pet ition for a writ of coram nobis , not under the PCRA, but as a coram nobis petition. Lastly, we must consider whether Descardes is entitled to relief when his claim is addressed as a petition for writ of coram nobis . In Chaidez , the (Footnote Continued) _______________________ discuss below, in Chaidez the Supreme Court ruled that Padilla has no retroactive effect.J-E04005-13

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United States Supreme Court held that Padilla announced a new rule of constitutional law that is inapplicable on collateral r eview to a petitioner seeking a writ of coram nobis whose conviction had become final before Padilla

. See ___ U.S. at ___, 133 S.Ct. at 1107- 113. Put simply, “ Padilla does not have retroactive effect.” Id ., at ___, 133 S.Ct. at 1105. Therefore, as Padilla does not apply retroactively it may not serve as the basis for the collateral attack of Descardes’s convicti on, which was final when Padilla was decided. See United States v. Amer , 681 F.3d 211, 214 (5th Cir. 2012). Order reversed. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished. President Judge Bender, President Judge Emeritus Ford Elliott, Judge Shogan, Judge Lazarus, and Judge Wecht join the opini on. Judge Donohue concurs in the result. Judge Bowes files a concurring and dissenting opinion in which Judge Olson joins, and Judge Donohue concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/23/2014