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-46-CR-0000617-2006 

BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, J., PANELLA, J., 

DONOHUE, J., SHOGAN, J., LAZARUS, J., OLSON, J., and 

WECHT, J.

OPINION BY PANELLA, J. FILED SEPTEMBER 23, 2014 

 After pleading guilty to insurance fraud1

 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 his 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 attorney has an 

affirmative duty to inform a defendant that the offense for which he pleads 

____________________________________________ 

1 18 PA.CONS.STAT.ANN. § 4117(a)(5). 

2 18 PA.CONS.STAT.ANN. § 903. 
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guilty will result in his removal from the country. Descardes filed a petition 

for a writ of coram nobis relying on Padilla. In his petition, Descardes 

alleged that his guilty plea counsel was ineffective for 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 PA.CONS.STAT.ANN. §§ 9541-9546, and 

granted him relief. 

In this appeal, we consider whether the trial court properly granted 

Descardes relief. Initially, we find that the trial court erred procedurally, and 

that it should have adjudicated the petition as a coram nobis petition. 

Further, we hold that Descardes is not entitled to relief 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 guilty 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. 
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 Subsequent thereto, Descardes left the United States but was denied 

re-entry 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 Descardes 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 for writ of coram 

nobis based on the United States Supreme Court’s decision in Padilla, which 

held that a criminal defense attorney has an affirmative 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, deportation 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 or 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 was deported. 

“Deportation” is defined as “[t]he act or an instance of removing a person to 

another country; esp., the expulsion or transfer of an alien from a country.” 

BLACK’S LAW DICTIONARY, 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 deportation 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 custodial 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 must 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 PA.CONS.STAT.ANN. § 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 probationary sentence that 

expired in 2007. He was obviously not sentenced to death for insurance 

fraud and was not serving any other sentence that would toll the 

commencement of the sentence under dispute. He is therefore 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 nonetheless eligible 

for PCRA relief because under Padilla “deportation is not a ‘collateral 
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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 facing deportation as a 

result of criminal conviction is still eligible for [PCRA] relief ... despite his 

original criminal sentence having expired.” Trial Court Opinion, 9/24/10, at 

2. 

We agree that “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 intimate relation 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 custody. 

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 court 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 relief 
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and encompasses all other common law and statutory remedies for the same 

purpose that exist when this subchapter takes effect, including habeas 

corpus and coram nobis.” 42 PA.CONS.STAT.ANN. § 9542. The key 

consideration is whether the underlying claim is cognizable 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 relief in 

Pennsylvania.”); Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 

2007) (“[T]he PCRA subsumes all forms of collateral relief ... to the extent a 

remedy is available under such enactment.”) (emphasis omitted); 

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 remedy 

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 “unique claims”); 

Commonwealth v. Burkett, 5 A.3d 1260, 1274 (Pa. Super. 2010) 

(referring to claims that do “not fit within the statutory scheme of the PCRA” 

as “rare instances”). For example, our Supreme Court found that a 

substantive due process challenge to the validity of recommitting the 

defendant to prison, after a nine-year delay in which he had mistakenly been 
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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 that 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, in broad terms, one of ineffective 

assistance of plea counsel, a claim that is explicitly within the purview of the 

PCRA. See 42 PA.CONS.STAT.ANN. § 9543(a)(2)(ii). Descardes’s exact claim, 

however, is predicated upon the Supreme Court’s holding in Padilla—that 

the Sixth Amendment requires defense counsel to advise defendant about 

the risk of deportation arising from a guilty plea. This particular claim of 

ineffective assistance of counsel did not exist until 2010 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 expired.5 Under the 

____________________________________________ 

4

 Prior to Padilla, the law in Pennsylvania was that counsel “in providing 

adequate assistance to a criminal defendant contemplating a guilty plea” 

was “not required to advise a defendant of the collateral consequences of 

pleading guilty, including the immigration consequences 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 PA.CONS.STAT.ANN. § 9545(b)(1)(iii), as Padilla did not 

recognize a new “constitutional right.” 23 A.3d at 1064. In addition, as we 

(Footnote Continued Next Page) 
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circumstances presented, we find that this is one of the rare 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 longer ‘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 assistance by failing to 

advise her of the immigration consequences of pleading guilty. See id., ___ 

U.S. at ___, 133 S.Ct. at 1106. 

Because Descardes’s specific ineffective assistance of counsel claim 

was not recognized until well after the time he had to 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, but he continues to 

suffer the serious consequences of his deportation because of his state 

conviction. The trial court should have addressed his petition 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. 
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United States Supreme Court held that Padilla announced a new rule of 

constitutional law that is inapplicable on collateral review 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 conviction, 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 opinion. 

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