J-S37024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMSHID ASSADINIA

                            Appellant                  No. 1928 MDA 2013


              Appeal from the PCRA Order dated October 22, 2013
                In the Court of Common Pleas of Centre County
               Criminal Division at No: CP-14-CR-0000411-2012


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 09, 2014

       Appellant Jamshid Assadinia appeals from the October 22, 2013, order

of the Court of Common Pleas of Centre County (trial court), which denied

his request for collateral relief under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-46.           Upon review, we dismiss this appeal because

Appellant is not eligible for relief under the PCRA.

       On June 5, 2013, Appellant filed a timely PCRA petition, alleging

ineffective assistance of counsel on the basis that his attorneys failed to

inform him of potential immigration consequences arising out of his plea of

nolo contendere.1      PCRA Petition, 6/5/13, at ¶ 11.   Specifically, Appellant

____________________________________________


1
  As the trial court noted, on December 21, 2012, Appellant entered a
negotiated nolo contendere plea to insurance fraud, 18 Pa.C.S. § 4117, and
theft by deception, 18 Pa.C.S. § 3922. Trial Court Opinion, 10/22/13, at 1.
(Footnote Continued Next Page)
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alleged that his attorneys failed to advise him that his conviction may result

in his deportation to Iran, his country of origin. Id. at ¶ 24, 26. Appellant

further alleged that, had he known of the immigration consequences, he

would not have pled nolo contendere. Id. at ¶ 25.

      Following a hearing, the              trial court issued an order, denying

Appellant’s PCRA petition. In so doing, the trial court concluded:
             Based on the testimony heard at the PCRA hearing, the
      [trial court] finds [Appellant’s attorneys] advised [Appellant] that
      there may be immigration consequences to his nolo contendere
      plea, and that [they] advised [Appellant] sufficiently to allow him
      to enter a knowing and voluntary plea. Therefore, the [trial
      court] believes [Appellant] was provided effective assistance of
      counsel.

Trial Court Opinion, 10/22/13, at 8. Appellant appealed to this Court.

      On appeal, Appellant raises two issues for our review. First, Appellant

argues    that   this     Court    should    resolve   the   merits   of   his   appeal,

notwithstanding the fact that he no longer is serving a sentence of

imprisonment, probation or parole.2 Second, he argues that the trial court

erred in denying his PCRA petition, because his trial counsel rendered

ineffective assistance by failing to advise him of possible immigration


                       _______________________
(Footnote Continued)

“He was sentenced to concurrent sentences of ninety days to six months in
the Centre County Correctional Facility.” Id.
2
 It is uncontroverted that, on October 31, 2013, after the trial court’s order
denying Appellant’s PCRA petition, Appellant completed his sentence. See
Appellant’s Brief at 10, 13; see Appellee’s Brief at 3, 5; see Appellant’s
Reply Brief at 2.




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consequences related to his plea of nolo contendere to insurance fraud and

theft by deception.

      We first turn to Appellant’s argument that this Court should address

the merit of his appeal (i.e., his second argument) despite the fact that he

completed his sentence.     The law concerning eligibility for relief is well-

settled.

      To be eligible for relief 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.C.S. § 9543(a)(1)(i)-(iii). Here, it is

undisputed that Appellant does not meet any of the foregoing eligibility

requirements, because he completed his sentence on October 31, 2013.

      Our Supreme Court addressed this precise issue in Commonwealth

v. Ahlborn, 699 A.2d 718 (Pa. 1997). In Ahlborn, the appellant finished

his sentence after he filed his PCRA petition.   Id. at 719.    The Supreme

Court denied him relief under the PCRA on the basis that he was not

currently serving a sentence.   Id. at 721. The Supreme Court specifically

reasoned:
      The denial of relief for a petitioner who has finished serving his
      sentence is required by the plain language of the [PCRA]. 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.




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Id. at 720 (emphasis in original); see also Commonwealth v. Hart, 911

A.2d 939, 942 (Pa. Super. 2006) (noting that “[a]s soon as his sentence is

completed, the petitioner becomes ineligible for relief, regardless of whether

he was serving his sentence when he filed the petition.”).

       In light of our Supreme Court’s decision in Ahlborn, we must conclude

that Appellant’s instant appeal must be dismissed. Appellant fails to meet

the PCRA’s eligibility requirements because he has completed his sentence.3

       Appeal dismissed.




____________________________________________


3
  Based on the outcome, we need not address Appellant’s second argument
on appeal. We note, however, this Court’s recent en banc decision in
Commonwealth v. Descardes, 2014 Pa. Super. 210, __ A.3d __, 2014 WL
4696243 (filed Sept. 23, 2014). In Descardes, the appellee pled guilty to
insurance fraud and conspiracy to commit insurance fraud and was
sentenced to one year of probation. Descardes, 2014 WL 4696243 at *1.
His sentence became final before the United States Supreme Court decided
Padilla v. Kentucky, 559 U.S. 356 (2010). Id. The appellee subsequently
left the United States, but was denied re-entry because of his felony
conviction. Id. Treating his petition for writ of coram nobis that was
predicated on Padilla as a PCRA petition, the trial court vacated the
appellee’s judgment of sentence and ordered his guilty plea withdrawn. Id.
On appeal, this Court concluded that the trial court erred in treating the
appellee’s coram nobis petition under the PCRA. Id. at 3. In so concluding,
we noted “[the appellee] 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.” Id. As a result, we reasoned that
“[b]ecause [the appellee’s] . . . claim [under Padilla] was not recognized
until well after the time he had to file a timely PCRA petition, coram nobis
review should be available to him.” Id.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2014




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