J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GILBERTO CARDENAS

- TORRES

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 355 MDA 2022

Appeal from the PCRA Order Entered January 27, 2022

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

No(s): CP

- 28

- CR

- 0001604

- 2020

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E. *

MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 11, 2022

Gilberto Cardenas

- Torres (Appellant) appeals from the order entered on

January 27, 2022 , in the Franklin County Court of Common Pleas, dismissing

his petition for collateral relief filed under the Post Conviction Relief Act

(PCRA). 1 Appellant seeks relief from the judgment of sentence of three to 18

months of county imprisonment , imposed on December 3, 202 0 , after he pled

guilty to one count of terroristic threats (intent to terrorize another). 2

Appellant ’ s court

- appointed counsel, Christopher L. Reibsome , Esquire (PCRA

counsel), has filed a petition to withdraw from representation and a brief

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541

- 9546.

2 18 Pa.C.S. § 2706(a)(1).J

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-

pursuant to Anders v. California , 386 U.S. 738 (1967), and

Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). 3 We grant PCRA

counsel ’ s petition to withdraw, and affirm the order dismissing Appellant ’ s

petition.

A recitation of the underlying facts is not necessary to our disposition.

Briefly, on October 31, 2020, Appellant was charged with three counts each

of terroristic threats and harassment. See PCRA Ct. Op., 4/11/22, at 1. On

December 3rd, he entered a neg otiated guilty plea to one count of terroristic

threats and “agreed to the additional terms of 3

- 18 months incarceration.”

Id. As part of the agreement, the Commonwealth dismissed the remaining

charges. Id. Appellant did not file a direct appeal.

Subsequently, Appellant filed several pro se documents: (1) a “motion

in request for a Padilla [ 4 ] hearing,” filed on August 18 , 2021 ; and (2) two

P CR A petitions, both filed on September 1 3, 2021 , and alleging ineffective

_________________ __________ ______ ____ _______

3 Preliminarily, we note that PCRA counsel erroneously seeks to withdraw

under Anders

, supra

, instead of the proper procedure espoused in

Commonwealth v. Turner

, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley

, 550 A.2d 213 (Pa. Super. 1988) ( en banc ). Generally, we accept

an Anders brief in lieu of a Turner / Finley letter because an Anders brief

provides greater protection to the defendant. See Commonwealth v.

Fusselman

, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

4 See Padilla v. Kentucky , 559 U.S. 356 , 374 ( 2010) (holding that failure of

criminal defense attorney to advise their non

- citizen client of immigration

consequences of guilty plea constitutes constitutionally ineffective assistance

of counsel).J

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assistance of counsel for failing to advise him of the immigration consequences

of his guilty plea. On January 7, 2022, the PCRA court held an evidentiary

hearing on the matter. Both plea counsel, Christopher J. Mosebrook, Esquire,

and Appellant testified. See PCRA Ct. Op. at 1. The PC RA court summarized

their testimony as follows:

[Appellant] testified that he spoke over the phone with a woman

regarding the guilty plea and the sentence of 3

- 18 months

incarceration, but no one explained the consequences of his

conviction and incarceration to him and how it would affect his

immigratio n status. His attorney did not review o r ask him about

his immigration status. He did not know that he would be

deported as a consequence of the guilty plea. Attorney Mosebrook

testified that he spoke with [Appellant] over the phone regarding

the 3

- 18 m onths incarceration and he knew that [Appellant] was

not a permanent resident in the United States . From the

conversation over the phone[,] he found out that [Appellant] did

not have any immigration detainer lodged against him. Attorney

Mosebrook underst ood that although no current detainer was

lodged against him, it did not mean that a detainer could not be

lodged against him. Therefore, Attorney Mosebrook advised

[Appellant] to talk with an immigration attorney regarding the

consequences

. . . a guilty plea

. . . would have on his immigration

status. Attorney Mosebrook has no idea whether [Appellant] took

his advice. The Public Defender’s Office in Franklin County of

Pennsylvania does not have a policy requiring public defenders to

sign documents with clients to confirm their immigration status.

When negotiating with the Franklin County District Attorney’s

Office regarding the guilty plea, Attorney Mosebrook mentioned

[Appellant]’s immigration status to the district attorney and the

possible impact of the guilty plea on [Appellant]’s immigration

status. Attorney Mosebrook did not mention [Appellant]’s

immigration status to the trial court at the time of the plea and

sentencing.

Id. at 1

- 2.J

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On January 27, 2022, the PCRA court entered an order den ying

Appellant’s petition. This appeal followed. 5

Before we may conduct any substantive analysis, we must examine

whether PCRA counsel has met the procedural requirements for withdrawing

as counsel.

Counsel petitioning to withdraw from PCRA representation .

. . must review the case zealously. [PCRA] counsel must then

submit a “ no

- merit ” letter to the trial court, or brief on appeal to

this Court, detailing the nature and extent of counsel ’ s diligent

review of the case, listing the issues which petitioner wants to

have reviewed, explaining why and how those issues lack merit,

and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the

“ no merit ” letter/brief; (2) a copy of counsel ’ s petition to

withdraw; and (3) a statement advising petitioner of the right to

proceed pro se or by new counsel.

Where counsel submits a petition and no

- merit letter that.

.

. satisfy the technical demands of Turner/Finley

, the court

—

trial court or this Court

— must then conduct its own review of the

merits of the case. If the court agrees with counsel that the claims

are without merit, the court will permit counsel to withdraw and

deny relief.

Commonwealth v. Walters

, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

Instantly, we conclude that PCRA counsel has substantially complied

with the requirements of Turner/Finley

. Specifically, PCRA counsel ’ s

_________________ __________ ______ ____ _______

5 Appellant complied with the PCRA court ’ s directive to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. On April 11 , 202 2 , the court

issued a Pa.R.A.P. 1925(a) opinion

.J

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Anders brief and petition to withdraw detail the nature and e xtent of his

review, address the issue raised at the PCRA hearing, and determine that the

claim lack s merit. In his petition, PCRA counsel indicated that he reviewed all

issues for appeal, researched the law and reviewed the facts to find any issue

of merit, and concluded that Appellant is barred from relief because he is

currently not serving a sentence as required by the PCRA. See Petition of

Appellant [’s] Counsel for Leave to Withdraw, 6/10/22 , at 1 (unpaginated)

. In

his letter to Appellant, PCRA counsel indicated he sent Appellant his petition

to withdraw, as well as his Anders brief, and notified him that he had the

right to retain priv ate counsel or proceed pro se

. See Letter from PCRA

Counsel to Appellant, 6/10/22, at 1 (unpaginated). Appellant has not filed a

response to counsel’s request to withdraw. As counsel has complied with the

technical requirements to withdraw his representation pursuant to

Turner/Finley

, we must now conduct our independent review of the issue s

raised by counsel and determine whether the issue s lack merit. See Walters

,

135 A.3d at 591.

Appellant raises the following issue s: (1) whether trial counsel ’s failure

to “inform or advise [Appellant] of the immigration ramifications of a plea and

instead telling him to consult an immigration attorney while incarcerated

violates” Padilla and, therefore, constitutes ineffective assistance ; and (2)

whethe r a defendant raising [ Padilla ] violations must prove the outcome of aJ

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case or innocence before they can succeed on an ineffective assistance of

counsel claim, based on Padilla [?]” Anders Brief at 8. 6

Based on the nature of Appellant’s claims, we are g uided by the

following. Our standard of review regarding the denial of PCRA relief calls for

us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error. See Commonwealth v. Busanet

, 54 A.3d 35,

45 (Pa. 2012). “Our scope of review is limited to the findings of the PCRA

court and the evidence of record, viewed in the light most favorable to the

party who prevailed in the PCRA court proceeding.” Id. 7

Relevant to the matter herein, although it is unclear exactly when

Appellant was released, it is un disputed that he is no longer serving his

sentence for the conviction at issue

. 8 See Anders Brief at 10 (“As of April

_________________ __________ ______ ____ _______

6 The Commonwealth filed a letter with this Court on J une 27, 2022 , indicating

that it would not be fil ing an appellee’s brief in the matter. See Letter,

6/27/22.

7 Moreover, “ [a] PCRA court passes on witness credibility at PCRA hearings,

and its credibility determinations should be provided great deference by

reviewing courts. Indeed, one of the primary reasons PCRA hearings are held

in the first place is so that credibility determinations can be made[.] ”

Commonwealth. v. Johnson

, 966 A.2d 523, 539 (Pa. 2009) (citations

omitted). See also Commonwealth v. Flor

, 259 A.3d 891, 910

- 11 (Pa.

2021).

8 At the time of the PCRA hearing, Appellant was being held in Massachusetts

because he indicated th at the county jail in Pennsylvania had closed but he

also stated he was there on an immigration detainer. See N.T., 1/7/22, at 5

-

6. Moreover, we point out the tail end of his sentence had expired in June of

2022.J

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30, 2022, Appellant has completed his sentence and is no longer serving on

parole.”); see also Motion for Post Conviction Collateral Relief, 9/13/21, at 1

(“I have completed all sentence.”) (grammatical error in original)

.

Therefore, we must consider whether Appellant is eligible for relief under

the PCRA. Section 9543(a)(1)(i) sets forth the eligibility requirements , in

relevant part, as follows:

( 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 [or]

(ii) awaiting execution of a sentence of death for the

crime [.]

. . .

42 Pa.C.S. § 9543(a)(1)(i)

- ( ii ) (emphasis added)

.

Case law has strictly interpreted the requirement that the

petitioner be currently serving a sentence for the crime to be

eligible for relief.

Here, the denial of relief for a petitioner who has

finished serving his sentence is required by the plain

language of the st atute. To be eligible for relief a petitioner

must be currently serving a sentence of imprisonment,

probation or parole. To grant relief at a time when appellant

is not currently serving such a sentence would be to ignore

the language of the statute.

Co mmonwealth v. Ahlborn

, 699 A.2d 718, 720 (Pa. 1997)

(emphasis in original).J

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Commonwealth v. Plunkett

, 151 A.3d 1108, 1109 (Pa. Super. 2016)

( emphasis in original). Consequently, courts lose jurisdiction over matters

when a defendant’s sentence expires. See Commonwealth v. Turner , 80

A.3d 754, 769 (Pa. 2013)

In addressing Appellant’s claim, we are guided by Commonwealth v.

Descardes

, 136 A.3d 493 (Pa. 2016). In Descardes

, the petitioner was a

Haitian national, who had resident alien status, in the United States.

Descardes

, 136 A.3d at 494. He had pled guilty to insurance fraud and

conspiracy to commit insurance fraud. Id. He was “ not advised prior to

enter ing his plea that deportation was a collateral consequence of his plea

pursuant to the Immigration and Naturalization Act, 8 U.S.C. §

1227(a)(2)(A)(iii) (deportation is automatic upon a conviction for an

aggravated felony). ” Descardes

, 136 A.3d at 494. After he completed

serving his probationary sentence in 2007

, he went on a personal business

trip in 20 0 9. Id. W hen he attempted to reenter the United States,

immigration officials denied him reentry due to his convictions. Id. The

petition argued that his plea counsel was ineffective for failing to advise him

of the mandatory consequence of deportation and sought to have his

conviction vacated and his guilty plea withdrawn in light of Padilla

. Id. at

494

- 95. The Pennsylva nia Supreme Court concluded his “ PCRA petition

should have been dismissed because, as he was no longer incarcerated at the

time it was filed, he was ineligible for PCRA relief, and, thus, both the PCRAJ

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court and the Superior Court lacked jurisdiction to en tertain the petition.” Id.

at 503. Here, like Descardes

, Appellant is ineligible for relief under the PCRA

because he completed his sentence even though he raised a Padilla claim.

We find this Court’s decision in Plunkett dispositive in the present

matter. There, the defendant was on probation at the time h e filed his PCRA

petition. Plunkett

, 151 A.3d at 1109. The defendant “ completed his

sentence after the PCRA hearing and order denying him relief, as well as after

filing his notice of appeal, but prior to the transmittal of the certified record to

this Court.” Id. at 1110

. A panel of this Court determined the defendant was

ineligible for relief, finding “ the statutory requirement that a PCRA petitioner

be currently serving the sentence is applicable to the instant circumstance

where the PCRA court ’ s order was issued while petitioner was still serving the

required sentence , but that sentence terminated prior to the resolution of his

appeal. ” Id. at 1112

- 13

. Like the defendant in Plunkett , Appellant

completed his sentence after the PCRA hearing and the court’s order denying

him relief, as well as after filing his notice of appeal, but while the matter was

pending before us.

Our decision is also supported by this Court’s discussion in Turner

,

which was summarized by the Plunkett Court a s follows: “ Turner

[ultimately] determined, because the petitioner’s liberty interest was no

longer affected after his or her sentence was completed, there was no due

process violation in denying relief when the PCRA petition had been filed in aJ

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timely ma nner, but the sentence expired prior to any adjudication. ” Plunkett

,

151 A.3d at 1110

. The Turner Court stated:

We agree with the Commonwealth that due process does

not require the legislature to continue to provide collateral review

when the offender is no longer serving a sentence

. Analogously,

because the common law and statutory writ of habeas corpus in

federal court challenges the basis of criminal conviction and

custody, it requires that a petitioner be in custody before habeas

jurisdiction can attach. Preiser v. Rodriguez

, 411 U.S. 475, 484

(1973) (providing that the essence of the common law writ of

habeas corpus is an attack by a person in custody upon the legality

of that custody, and that the traditional function of the wri t is to

secure release from illegal custody); United States ex rel.

Dessus v. Pennsylvania

, 452 F.2d 557, 559

- 60 (3d Cir. 1971)

( “ the sine qua non of federal habeas corpus jurisdiction is that

petitioner be ‘ in custody ’

. . . ” even as to claims of constitu tional

dimension: “ Thus, custody is the passport to federal habeas

corpus jurisdiction. Without custody, there is no detention.

Without detention, or the possibility thereof, there is no federal

habeas jurisdiction. ” (emphasis added)). See also 28 U.S.C. §

2255(a) (extending the right to seek habeas corpus relief to “ [a]

prisoner in custody under sentence ” of a federal court); 2 8 U.S.C.

§ 2254(b) (extending the right to “ a person in custody pursuant

to the judgment of a State court ” ). Accordingly, because [the

p] etitioner ’ s liberty is no longer burdened by a state sentence , she

has no due process right to collateral review of th at sentence

.

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 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 individual s like [the

p] etitioner 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 (1985) ( “ when a Stat e opts to act in

a field where its action has significant discretionary elements, it

must nonetheless act in accord with the dictates of theJ

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Constitution

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

Clause ” )[.]

. . .

Turner

, 80 A.3d at 765

- 66. Accordingly, Appellant is not entitled to relief

pursuant to Plunkett and Turner

. 9

Additionally

, it merits mention that while it appears Appellant is

currently incarcerated due to the actions of a federal government agency, he

is no longer serving his judgment of sentence for the underlying terroristic

threats conviction

. See 42 Pa.C.S. § 9543(a)(1)(i) (providing to be eligible

for relief under the PCRA the petitioner must be “ currently serving a sentence

of imprisonment . . . for the crime ” ) (emphasis added)

. Accordingly, because

Appellant is no longer serving the sentence being challenged herein, we

conclude that he is not eligible for PCRA relief

. 10

_________________ __________ ______ ____ _______

9 Moreover, it merits mention that Commonwealth v. Delgros

, 183 A.3d

352 (Pa. 2018)

, is not applicable to the instant matter. There, the defendant

was convicted of receiving stolen property and sentenced only to pay a fine

and restitution

. Id. at 354. The court did not impose any imprisonment,

probation, or parole

. Id. T he defendant then raised an ineffective assistance

of counsel claim in a post

- sentence motion. Id. In reversing a decision by a

panel of this Court, the Pennsylvania Supreme Court “ require[d] trial courts

to examine ineffectiveness claims [raised in post

- sentence motions] when the

defendant is ineligible for PCRA review. ” Id. at 353

. However, Delgros is

distinguishable from the present case because here, Appellant was sentenced

to a term of incarceration as opposed to a fine or restitution amount

.

10 While our rationale differs from the PCRA court insofar as it did not conduct

an eligibility analysis, it is well

- settled that we may affirm on any basis

. See

Commonwealth v. Clouser , 998 A.2d 656, 661 n.3 (Pa. Super. 2010). In

any event, even if Appellant were eligibl e for review , we would affirm on the

basis of the PCRA court’s April 11, 2022

, opinion

. See PCRA Ct. Op. at 3

- 8

(finding : (1) though Attorney Mosebrook did not advise Appellant of the

(Footnote Continued Next Page)J

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Lastly, after conducting our independent review, we agree with PCRA

counsel that there is no basis for relief in the present case. See Walters

, 135

A.3d at 591. Accordingly, we affirm the PCRA court ’ s dismissal of Appellant ’ s

petition, and we grant counsel ’ s petition to withdraw.

Order affirmed. PCRA Counsel ’ s p etition for l eave to w ithdraw granted.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/11/2022

_________________ __________ ______ ____ _______

potential deportation consequences of his guilty plea, counsel did advise

Appellant to talk with an immigration attorney regarding the consequences of

a guilty plea ; (2) applying the rule in Commonwealth v. Wah , 42 A.3d 335

(Pa. Super. 2010), Attorney Mosebrook acted within the range of

professionally co mpetent assistance and did not violate Padilla ; and (3)

Appellant failed to demonstrate that he was prejudiced by counsel’s actions

and that the outcome of the proceedings would have been different).