J-S58008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

DAMIR BRGULJA,

                            Appellee                   No. 1978 MDA 2015


                 Appeal from the Order Entered October 19, 2015
              in the Court of Common Pleas of Cumberland County
                Criminal Division at No.: CP-21-CR-0001515-2009


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED AUGUST 10, 2016

        The Commonwealth appeals from the court’s grant of Appellee, Damir

Brgulja’s, petition for writ of error coram nobis. We vacate and remand.

        We take the following facts from our independent review of the

certified record.    On October 22, 2009, Appellee, a refugee from Bosnia-

Herzegovina, (see Petition for Writ of Error Coram Nobis, 10/06/15, at

Appendix 1A, Declaration of Appellee, at 1; id. at Appendix 1D, I-94

Departure Record), pleaded guilty to possession with intent to deliver a

controlled substance (PWID).1            On December 1, 2009, the trial court



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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sentenced Appellee to twenty-three months of probation. Appellee did not

file a direct appeal.

       On May 21, 2015, immigration authorities detained Appellee for

deportation because of his PWID conviction. (See id. at unnumbered page

3).   On October 6, 2015, Appellee filed a petition for writ of error coram

nobis on the basis of Padilla v. Kentucky, 559 U.S. 356 (2010), arguing

that his counsel was ineffective for failing to advise him of the possible

immigration consequences of pleading guilty.

       On October 19, 2015, the court held a hearing in which Appellee

testified remotely from a York County facility where he was being detained

while awaiting deportation.         The same day, the court granted Appellee’s

petition, deemed his guilty plea withdrawn, vacated his judgment of

sentence,     and    released    Appellee      on   his   own   recognizance.   The

Commonwealth timely appealed.2

       The Commonwealth raises one question for this Court’s review:

“Whether the [trial] court erred in granting [Appellee] relief because Padilla

. . . is not retroactive to judgements that became final before its holding and

therefore cannot be the basis for relief here . . . ?” (Commonwealth’s Brief,


____________________________________________


2
  On November 24, 2015, the Commonwealth filed a timely statement of
errors complained of on appeal pursuant to the court’s order. See Pa.R.A.P.
1925(b). The court filed an opinion on December 23, 2015. See Pa.R.A.P.
1925(a).




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at   4).      For   the   reasons   discussed   below,   we   conclude   that   the

Commonwealth’s issue has merit, albeit on slightly different grounds.

      Our standard of review of this issue is de novo and our scope of review

is plenary.    See Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa.

2016).

      Before we address the Commonwealth’s issue, we must determine

whether we have jurisdiction to consider its merits.               We find the

Pennsylvania Supreme Court’s decision in Descardes dispositive.                  In

Descardes, the High Court considered whether the appellee “was entitled to

seek review of his ineffectiveness of counsel claim, based on counsel’s failure

to advise him of the collateral consequences of his guilty plea, via a petition

for writ of coram nobis.” Id. at 494 (footnote omitted).

             In August 2006, [a]ppellee, a Haitian national who held
      resident alien status in the United States, pled guilty to
      insurance fraud, a felony, and conspiracy to commit insurance
      fraud. Appellee was not advised prior to entering his plea that
      deportation was a collateral consequence of his plea pursuant to
      the Immigration and Naturalization Act, 8 U.S.C.[A.] §
      1227(a)(2)(A)(iii) (deportation is automatic upon a conviction for
      an aggravated felony). On November 30, 2006, [a]ppellee was
      sentenced to one year of probation and a fine, and did not
      appeal his judgment of sentence. He completed serving his
      probationary sentence in November 2007. In 2009, [a]ppellee
      left the United States on personal business and, when he
      attempted to reenter the country, United States immigration
      officials denied him reentry due to his felony convictions.

                                     *    *     *

            On May 26, 2010, [a]ppellee filed a . . . Petition for Writ of
      Error Coram Nobis based on the United States Supreme Court’s
      decision in Padilla . . . . In Padilla, which was decided on

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      March 31, 2010, the [H]igh Court held that criminal defense
      counsel has an affirmative duty to inform a defendant that the
      offense to which he is pleading guilty will result in deportation[.]
      . . . The trial court treated [a]ppellee’s May 26 petition as a
      timely first PCRA petition, . . . vacated [a]ppellee’s conviction,
      and ordered that his plea of guilty be withdrawn.

Id. at 494-95 (record citation omitted).

      On appeal, a panel of this Court determined that the trial court should

have treated the request for relief as a petition for writ of error coram nobis

because appellee had finished serving his sentence, and denied the petition

because Padilla does not apply retroactively.        See Commonwealth v.

Descardes, 101 A.3d 105, 109 (Pa. Super. 2014).             In addressing this

Court’s decision, the Supreme Court observed:

      [The Supreme] Court has consistently held that, pursuant to the
      plain language of Section 9542 [of the PCRA], where a claim is
      cognizable under the PCRA, the PCRA is the only method of
      obtaining collateral review. See Commonwealth v. Turner,
      622 Pa. 318, 80 A.3d 754, 770 (2013) (“The PCRA at Section
      9542 subsumes the remedies of habeas corpus and coram
      nobis.”). It is equally well established that [a]ppellee’s claim of
      ineffective assistance of plea counsel, which is based on
      counsel’s failure to advise him of the collateral consequences of
      his plea, was cognizable under the PCRA. [See 42 Pa.C.S.A. §§
      9543(a)(2)(ii), (iii).]

      . . . . As noted by Judge Bowes in her Concurring and Dissenting
      Opinion[] . . . :

                                  *    *    *

                   By allowing [an a]ppellee to pursue coram
            nobis relief outside of the PCRA, the [Court would]
            give[] [a]ppellee greater post-conviction options in a
            situation where his ineffective assistance claim is
            untimely and he is ineligible for PCRA relief because
            he is no longer serving a sentence. [This would]

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           serve[] as a judicial veto of the eligibility
           requirements of the PCRA and thus represent[] an
           unwarranted departure from the legislature’s clear
           statutory directives.
      Descardes, 101 A.3d at 116–17.          Thus, [a]ppellee’s only
      method of obtaining collateral review was the PCRA.

                                  *    *    *

          [Hence], we conclude the Superior Court’s decision in the
      instant case is contrary to the decisions of th[e Supreme] Court
      which hold that, where a petitioner’s claim is cognizable
      under the PCRA, the PCRA is the only method of obtaining
      collateral review. As a result, [a]ppellee’s 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 PCRA court and the
      Superior Court lacked jurisdiction to entertain the
      petition.

Descardes, 136 A.3d at 501-03 (most citations omitted) (emphasis added).

      In this case, Appellee was sentenced to twenty-three months’

probation on December 1, 2009. On October 6, 2015, nearly six years later,

and well after his sentence expired, Appellee filed a petition for writ of error

coram nobis asserting ineffective assistance of counsel in failing to inform

him about the immigration consequences of his guilty plea on the basis of

Padilla.   (See Petition for Writ of Error Coram Nobis, 10/06/15, at

unnumbered pages 1, 3).          As observed by our Supreme Court in

Descardes, this claim fits squarely within the parameters of the PCRA. See

Descardes, supra at 502-03; see also 42 Pa.C.S.A. §§ 9543(a)(2)(ii), (iii).

Therefore, the court should have treated Appellee’s request for relief as a

PCRA petition, and dismissed it for lack of jurisdiction because Appellee no


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longer was serving his sentence, and therefore was not eligible for PCRA

relief.     See Descardes, supra at 501-03; see also 42 Pa.C.S.A. §

9543(a)(1)(i). Hence, because the trial court acted without jurisdiction, we

are constrained to vacate its order granting Appellee’s petition for writ of

error coram nobis.

          Order vacated and case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2016




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