J-S13003-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

PETER GORDON

Appellant No. 1369 MDA 2019

Appeal from the PCRA Order Entered July 10, 2019

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-CR-0006831-2016

BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED DECEMBER 16, 2020

Appellant, Peter Gordon, appeals from an order denying relief under the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541—9546. Appellant 

asserts that guilty plea counsel was ineffective for failing to advise of the 

consequences that pleading guilty might have on his immigration status. We 

affirm. 

On May 16, 2017, Appellant, while represented by counsel, entered a 

negotiated guilty plea and was sentenced to five years’ probation for Medicaid 

fraud (unentitled reimbursement), theft by deception and tampering with 

public records.1 During sentencing, guilty plea counsel advised Appellant on 

the record that pleading guilty could affect his immigration status. Appellant 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 62 Pa.C.S.A. § 1407, 18 Pa.C.S.A. §§ 3922 and 4911, respectively.
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acknowledged that he understood. Counsel asked Appellant if he still wished 

to go forward with the plea as outlined, and Appellant stated that he wanted 

to continue with the plea. N.T., 5/16/17, at 7-8. Appellant also apologized to 

the court and promised not to commit the same conduct again. Id. at 11. 

After sentencing, Appellant did not request to withdraw his plea or file 

a direct appeal. Accordingly, Appellant’s judgment of sentence became final

on June 15, 2017.

Over one year later, on November 18, 2018, relying on the holding in 

Padilla v Kentucky, 559 U.S. 356 (2010) (counsel must inform defendant 

whether guilty plea carries risk of deportation), Appellant filed a pro se PCRA 

petition alleging that guilty plea counsel was ineffective for failing to advise 

him of the immigration consequences of pleading guilty. The PCRA court 

appointed counsel, who filed an amended PCRA petition, and the 

Commonwealth filed a response. In a memorandum and order dated June 4, 

2019, the PCRA court informed Appellant of its intent to dismiss his petition 

without a hearing. On July 10, 2019, the court entered an order dismissing 

Appellant’s petition. On August 8, 2019, Appellant filed a timely appeal to this 

Court. The PCRA court entered a Pa.R.A.P. 1925 statement without ordering 

Appellant to file a statement of matters complained of on appeal.
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In this Court, PCRA counsel has filed an Anders2 brief and an application 

to withdraw as counsel. On May 28, 2020, due to a defect in PCRA counsel’s 

cover letter to Appellant enclosing her application to withdraw (counsel’s 

failure to provide proper notice of Appellant’s right to proceed pro se), we filed 

a memorandum denying her application without prejudice. We instructed 

counsel to send Appellant another letter fully advising him of his immediate 

right, either pro se or with privately retained counsel, to file a brief on any 

additional points he deems worthy of review. We further directed PCRA 

counsel to advise Appellant that he may respond, within thirty days of 

counsel’s amended letter, to counsel’s Anders brief. 

On June 26, 2020, PCRA counsel filed an amended motion to withdraw 

as counsel. Attached to this motion was a letter to Appellant dated June 25, 

2020 advising that he could file a supplemental brief, either pro se or through 

private counsel, on any points he found worthy of review. Appellant did not 

file anything in response to counsel’s June 25, 2020 letter. 

____________________________________________

2 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

apparently in the mistaken belief that an Anders brief is required where 

counsel seeks to withdraw on appeal from the denial of PCRA relief. Where 

counsel seeks to withdraw on appeal from the denial of PCRA relief, a 

Turner/Finley “no-merit letter” is the appropriate filing. Commonwealth 

v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014) (citing Commonwealth 

v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 

213 (Pa. Super. 1988) (en banc)). Nevertheless, our practice in these 

situations is to accept counsel’s Anders brief and evaluate whether it 

substantially satisfies Turner/Finley criteria. Commonwealth v. Widgins, 

29 A.3d 816, 819 (Pa. Super. 2011).
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We first address whether PCRA counsel has met the Finley

requirements for withdrawing as PCRA counsel. These requirements are as 

follows:

(1) PCRA counsel must file a no-merit letter (or in this case, an 

Anders brief) that details the nature and extent of counsel's 

review of the record, lists the appellate issues, and explains why 

those issues are meritless.

(2) PCRA counsel must file an application to withdraw, serve the 

PCRA petitioner with the application and the no-merit letter (or 

Anders brief), and advise the petitioner that if the Court grants 

the motion to withdraw, the petitioner can proceed pro se or hire 

his own lawyer.

(3) This Court must independently review the record and agree 

that the appeal is meritless.

Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011). As 

discussed in our May 28, 2020 memorandum, PCRA counsel’s Anders brief 

substantially complies with Turner/Finley standards. Moreover, counsel 

served her Anders brief on Appellant, and in response to our May 28, 2020 

memorandum, counsel notified Appellant informing him of his right to file a 

supplemental brief pro se or through private counsel. 

We turn to the issues raised in this appeal. “On appeal from the denial 

of PCRA relief, our standard of review requires us to determine whether the 

ruling of the PCRA court is supported by the record and free of legal error.”

Widgins, 29 A.3d at 819. As this Court has explained:

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. This 

review is limited to the findings of the PCRA court and the evidence 

of record. We will not disturb a PCRA court’s ruling if it is 
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supported by evidence of record and is free of legal error. This 

Court may affirm a PCRA court’s decision on any grounds if the 

record supports it. Further, we grant great deference to the 

factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

Before we may address the merits of this appeal, however, we must 

determine whether the PCRA court had jurisdiction to entertain the underlying 

PCRA petition. The PCRA contains the following restrictions governing the 

timeliness of any PCRA petition.

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment becomes final, unless the petition alleges and the 

petitioner proves that:

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or laws of this Commonwealth 

or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to 

the petitioner and could not have been ascertained by the exercise 

of due diligence; or

(iii) the right asserted is a constitutional right that was recognized 

by the Supreme Court of the United States or the Supreme Court 

of Pennsylvania after the time period provided in this section and 

has been held by that court to apply retroactively.

(2) Any petition invoking an exception provided in paragraph (1) 

shall be filed within one year of the date the claim could have been 

presented.
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(3) For purposes of this subchapter, a judgment becomes final at 

the conclusion of direct review, including discretionary review in 

the Supreme Court of the United States and the Supreme Court 

of Pennsylvania, or at the expiration of time for seeking the 

review.

42 Pa.C.S.A. § 9545(b). Section 9545's timeliness provisions are 

jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014). 

Additionally, “the PCRA confers no authority upon this Court to fashion ad hoc

equitable exceptions to the PCRA time-bar in addition to those exceptions 

expressly delineated in the Act.” Commonwealth v. Robinson, 837 A.2d 

1157, 1161 (Pa. 2003).

Here, Appellant's judgment of sentence became final on June 15, 2017. 

42 Pa.C.S.A. § 9545(b)(3). Thus, Appellant’s PCRA petition filed on November 

18, 2018 is facially untimely under the PCRA’s statute of limitations.

Appellant’s petition does not satisfy any of the three exceptions to the 

statute of limitations. His claim that guilty plea counsel was ineffective for 

failing to advise him of the immigration consequences of pleading guilty does 

not raise an issue of government interference or newly discovered evidence. 

The third and final exception, which concerns retroactive application of United 

States Supreme Court or Pennsylvania Supreme Court decisions recognizing 

a constitutional right, only applies when either Court enters a decision after

the limitation period but rules that the decision applies retroactively to cases 

on collateral review. Padilla, the decision relied upon by Appellant, was 

decided seven years before Appellant’s sentence became final, and eight 
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years before the expiration of the PCRA’s statute of limitations. Thus, this 

exception does not apply to Appellant.3

Accordingly, we affirm the order dismissing Appellant’s PCRA petition.

Petition to withdraw as counsel granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2020

____________________________________________

3

In any event, both the United States Supreme Court and Pennsylvania 

Supreme Court have held that Padilla does not apply retroactively to cases 

on collateral review. Chaidez v. United States, 568 U.S. 342 (2013);

Commonwealth v. Descardes, 136 A.3d 493, 496 n.6 (Pa. 2016).