J-S43043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

JOSE FRANCISCO GREGORIO

                         Appellant                      No. 595 EDA 2015


                    Appeal from the Order February 11, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000792-1997


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED SEPTEMBER 15, 2015

      Appellant, Jose Francisco Gregorio, appeals from the order entered in

the Northampton County Court of Common Pleas, which denied his petition

for writ of coram nobis. We affirm.

      The relevant facts and procedural history of this case are as follows.

On September 9, 1997, Appellant pled guilty to one count of possession of a

controlled   substance   with   intent   to   deliver   (“PWID”),   after   police

apprehended Appellant in a bar during a drug surveillance operation. The

trial court sentenced Appellant to a term of one (1) to two (2) years’

incarceration. Appellant did not file a direct appeal. Due to the conviction,

the federal government deported Appellant to the Dominican Republic after

he completed his sentence. After Appellant reentered the United States, he

was convicted in federal court of illegal reentry and deported again.
J-S43043-15


Appellant returned to the United States once more.      In 2012, following a

traffic stop, Appellant was convicted in Lehigh County of false identification

to law enforcement authorities and DUI—highest rate of alcohol. The court

imposed an aggregate sentence of three (3) days to (12) months’

incarceration and granted Appellant credit for time served and immediate

parole.    Appellant was subsequently convicted in federal court of another

illegal reentry charge, for which he received a sentence of fifty-seven (57)

months’ incarceration, followed by thirty-six (36) months of supervised

release.

        On November 10, 2014, Appellant filed a pro se petition for writ of

coram nobis. With the exception of one claim, the court treated the filing as

a Post Conviction Relief Act (“PCRA”)1 petition and appointed counsel.     On

December 29, 2014, counsel filed a Turner/Finley2 “no-merit” letter and a

petition to withdraw, which the court granted on January 6, 2015.          On

January 14, 2015, the court issued notice of its intent to dismiss the entire

petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed no

response. The court dismissed the petition on February 11, 2015. On March

2, 2015, Appellant filed a timely pro se notice of appeal along with a


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
2
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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J-S43043-15


voluntary statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

         WHETHER THE [PCRA] COURT ERRED IN LAW AND FACT
         FINDING THAT THE PETITION FOR CORAM NOBIS WAS
         UNTIMELY, WHEN THERE IS NO[] TIME LIMITATION
         UNDER THE COMMO[N] LAW WRIT[.]

         WHETHER THE [PCRA] COURT[’]S DENIAL OF THE WRIT
         OF ERROR CORAM NOBIS VIOLATED SUBSTANTIVE AND
         PROCEDURAL    DUE    PROCESS,    AND   APPELLANT’S
         CONSTITUTIONAL LIBERTY INTEREST TO HAVE ACCESS
         TO THE COURT, IN THAT THE [PCRA] COURT FOUND THAT
         APPELLANT WAS UNABLE TO PROVE THE EXIST[E]NCE OF
         A FUNDAMENTAL ERROR OF FACT OR LAW JUSTIFYING
         THE WRIT, BUT YET, THE [PCRA] COURT WAS UNABLE TO
         PRODUCE COP[IES] OF THE PLEA AND SENTENCING[]
         TRANSCRIPTS AT APPELLANT’S OWN EXPEN[S]ES, WHICH
         WOULD HAVE ENABLED APPELLANT TO SUBSTANTIATE
         THE COMPLAINED FUNDAMENTAL ERRORS OF LAW AND
         FACT.

         WHETHER A WRIT OF ERROR CORAM NOBIS IS AVAILABLE
         TO CORRECT AN ERROR IN THE JUDGMENT THAT WAS
         OBTAINED UNDER DURESS AND THAT DUE TO
         [APPELLANT’S]  IMMEDIATE   DEPORTATION     AFTER
         RELEASED TO THE INS, APPELLANT WAS PREVENTED
         FROM UNDERGO[ING] A DIRECT APPEAL[] OR A POST
         CONVICTION CHALLENGE.

         WHETHER THE WRIT OF ERROR CORAM NOBIS IS
         AVAILABLE TO CORRECT THE JUDGMENT OF CONVICTION
         TO REFLECT THAT [APPELLANT PLED] GUILTY TO…SIMPLE
         POSSESSION AS HE IS ACTUAL[LY] INNOCEN[T] OF THE
         CHARGE OF POSSESSION WITH INTENT TO DISTRIBUTE
         COCAINE, BUT FOR THE LACK OF TRANSCRIPT HE IS NOT
         ABLE TO SUBSTANTIAT[E] HIS CONTENTION THAT HE
         [PLED] UNDER DURESS TO THE POSSESSION WITH
         INTENT TO DISTRIBUTE.

(Appellant’s Brief at 1-2).

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J-S43043-15


      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157

(2003). The PCRA requires a petition to be filed within one year of the date

the underlying judgment becomes final.     42 Pa.C.S.A. § 9545(b)(1).     A

judgment is deemed final at the conclusion of direct review or at the

expiration of time for seeking review.        42 Pa.C.S.A. § 9545(b)(3).

Generally, to obtain merits review of a PCRA petition filed more than one

year after a petitioner’s sentence became final, the petitioner must allege

and prove at least one of the three timeliness exceptions. See 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Craig A.

Dally, we conclude Appellant’s issues merit no relief.     The PCRA court

opinions comprehensively discuss and properly dispose of the questions

presented. (See Opinion in Support of Order, filed February 11, 2015, at 1;

Opinion in Support of Rule 907 Notice, filed January 14, 2015, at 2-3)

(finding: Appellant’s claims one through four in petition for writ of coram

nobis concerned validity of Appellant’s 1997 guilty plea and alleged

constitutional violations in connection with PWID conviction; those claims


                                   -4-
J-S43043-15


were cognizable under PCRA; Appellant failed to seek review of claims within

PCRA prescribed time limits;3 court had no jurisdiction over those claims;

coram nobis review was available for Appellant’s fifth claim in petition,

regarding plea counsel’s alleged failure to advise Appellant of mandatory

deportation consequences of PWID conviction, as required by Padilla v.

Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010);

nevertheless, Padilla has no retroactive effect, noting Chaidez v. U.S., ___

U.S. ___, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), where, U.S. Supreme

Court expressly held that Padilla does not apply retroactively to collateral

review cases; Appellant’s judgment of sentence became final and his PWID

sentence concluded long before Padilla was decided in 2010; Padilla does

not apply to Appellant’s case).        Accordingly, we affirm on the basis of the

PCRA court opinions.4

       Order affirmed.




____________________________________________


3
  Appellant failed to plead and prove any statutory exception to the PCRA’s
timeliness requirements. Moreover, Appellant is ineligible for relief under
the PCRA with respect to his PWID conviction because he is no longer
serving a sentence for that offense. See 42 Pa.C.S.A. § 9543(a)(1)(i).
4
  On June 17, 2015, Appellant filed a motion in which he asserted the
Commonwealth’s brief is deficient and asked this Court to compel the
Commonwealth to “answer any and all of the issues Appellant presented to
this Court.” Appellant further requested a thirty-day extension of time to file
a reply brief. Due to our disposition, we deny Appellant’s open motion.



                                           -5-
J-S43043-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




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                                                     IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY,
                                                                         PENNSYLVANIA

                                                                                                                        CRIMINAL DIVISION

                  COMMONWEALTH                                                       OF PENNSYLVANIA

                                              v.

                  JOSE GREGORIO,
                                                                                     Defendant.

                                                                                                                                 ORDER OF COURT

                                              AND NOW, this __                                      .,_f/_LJ.f                                  day of February 2015, after sending notice dated January 14;

                  2015 to Defendant advising him of this Court's intention to dismiss his Petition for Writ of Coram Nobis

                  without hearing in accordance with PA.R.CRIM.P. 907, this Court's receipt of correspondence                                                                                                                                                                                                                         from

                  Defendant dated January 6, 2015, and its receipt of a Motion for Reconsideration and/or Clarification

                  dated Januarylfi, 2015 and its full review and consideration of both pieces of correspondence, it is hereby
                                                                                                                 ••          •   ~          •                                                            ',J •     : ~.:      '- '.:                                                              I   '   '   '. .:       I       •




                  ORDERED                                  .and ~pl~CT_E.I>, that Defendant's P~tition for Writ of C01:amNobis :is her~byJ)ISMJSSED
                  . : '·"'·' r. '.                         ., ·~.                .     .•.. · . .         ~                                                               .... ::;.. ::·       .s ,


                  WITIIOUT HEARING~'\vhile' a Writ ofCoramNobis
                   r • ••.           .   ';       ·.·. '            .   '.   .            !    ,..· •..               .·.•           . .·               ;: .•   ..   ·-
                                                                                                                                                                          isifr'appiopri~te nieans-by'which to correct· a
                                                                                                                                                                           '·-       .: ..- . __; ... : ,",      ,:.       . :·   .. '.1       "'. ._.   ·:::.··   i"::·, :. ·.,w.':'.       ~·._:: .                 .       .             -:·
                                              .                                                                                        .            .                                                                                      .                       ..                    '                                              .

                  fundamental error of fact of law, a review· of the rec~rd demonstrates (1)-i°hat· the instant petition is

                  untimely': and (2) Petitioner, by his own admission, is unable to prove the existence of some fundamental




r:11.l'".~
             n
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:!.::-.;lJ:11;>


                                                                                                                                                                                                                                                                                                                                       J.
                  1 .        See Com.row. v. Turner, 80 A.3d 754 (Pa".' 20t3)      ·a.eni.ed sub nom. Turner,/ Pennsylvania, i34 S. Ct.                          cert:
                  1771 (2014) ("[D]ue process does not require the legislature to continue to provide collateral review when the
                  offencfir.:'i.s' no                        fonger
                                           sefvin{a sentence."). See      Chaidei' \t:- rns.;t133~ s;. C{ i 103 {2CH3)'~Tlie Court's· 201 o      a1so
                  decision in Padilla v. Kentucky, which held that defense counsel must apprise a defendant as to the risk of
                  deportation in connection with. the entry of a guilty plea, and upon which Defendant' s Petition for: C,..or:a_m· N,gbis is
                  based, requiring defense counsel to advise defendant about the risk of deportation arising from a guilty plea, does
                  not apply.retroactively.) . .                               a,·                  r• .             ·,,·.             ::,-




                                                                                                                                                                                                                                                                                                                                                  3
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        IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY,
                            PENNSYLVANIA

                                     CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                                                                                    '111-;~



       v.                                                     C-0048-CR- 792-1997                       -·- ·~~......d
JOSE GREGORIO,                                                                                          =o
                                                                                                        _._
                       Defendant.
                                                                                          :<~::1··:·1
                                                                                          -n l..        c..n
       NOTICE OF INTENTION TO DISMISS PETITION WITHOUT HEARIN'G (,,                                     C)



       AND NOW, this              /~day of January 2015, after receipt and review of

correspondence from counsel for Defendant, the Court hereby notifies Defendant of its intention

to dismiss Defendant's Petition for Coram Nobis without hearing, based upon a finding that said

petition is devoid of merit. The Defendant shall have twenty (20) days from the date of this

notice within which to file a response to this notice. Absent receipt of a timely response, it is the

Court's intention to enter an Order dismissing Defendant's petition.

                                  STATEMENT OF REASONS

                                       Procedural History

       On September 9, 1997, Defendant, a legal resident of the Dominican Republic, appeared

before the Honorable William F. Moran (Ret.) to plead guilty to one count of Possession with

Intent to Deliver Cocaine. He received a sentence of one (1) to two (2) years of incarceration,

and received credit for time served. His sentence terminated in 1999. Subsequent to his release

from prison, the Defendant was deported. Sometime thereafter, the Defendant made illegal entry

back into the United States and was deported once more. Defendant then gained illegal entry into

the United States for a third time and in 2012, he was placed under arrest by the Allentown




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 Police Department on charges of DUI under 75 Pa.C.S.A. § 3802(c) and other offenses,

 including False Identification to Law Enforcement ("False ID").

         Defendant entered a plea to the DUI and the False ID on June 4, 2012, receiving a

 sentence of three (3) days to six (6) months on the DUI, and three (3) days to twelve (12) months

 (concurrent) on the False ID charge. The Defendant was given credit for time served and granted

immediate parole to a U.S. Immigration & Customs Enforcement detainer. Attendant with that

detainer, the Defendant was charged and convicted of illegal entry into the United States, for

which he received a sentence of fifty-seven (57) months in federal prison, followed by thirty-six

(36) months of supervision. The Defendant is currently serving the incarceration portion of that

sentence.

                                                   Discussion

         By his petition for writ of coram no bis, 1 the Defendant contends that:

         his 1997 guilty plea was not knowing, intelligent and voluntary because (a) he
         pled guilty under duress simply to [gain] release from confinement; (b) [he] was .
         . . innocent of the crime charged; (c) the Commonwealth obtained information
         from [him] in violation of his Fifth-Amendment right 'against compelled self-
         incrimination; ( d) the Commonwealth violated his Sixth Amendment Right to
         confront witnesses against him; and (e) he was not informed of the potential
         immigration consequences of his [guilty plea].

Letter from Defense Counsel dated December 29, 2014 at 3.

         A petition for writ of coram nobus shall be treated as a PCRA except in cases where the

PCRA does not provide a remedy. 42 PA.C.S.A. § 9542; Commw. v. Descardes, 101 A.3d 105,

108 (Pa. Super. 2014). As defense counsel has ably noted, the issues raised by Defendant as set

forth above at (a) and (b) fall under the purview of the PCRA at 42 PA.C.S.A. § 9543(a)(2)(iii);


         "The writ of coram nobis is a procedural tool, the purpose of which is to correct errors of fact only. Its
function is to bring before the court rendering the judgment matters of fact which, if they had been known at the
time judgment was rendered, would have prevented its rendition." 16C WEST'S PA. PRAC., CRIMINAL PRACTICE §
34:2.


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and his issues at (c) and (d) fall under the purview of the PCRA at 42 PA.C.S.A. § 9543(a)(2)(i).

Thus, the Court finds Defendant's        failure to seek timely review within the jurisdictional

limitations of the PCRA is fatal to these claims. See Commw. v. Turner, 80 A.3d 754 (Pa. 2013)

cert. denied sub nom. Turner v. Pennsylvania, 134 S. Ct. 1771 (2014) ("[D]ue process does not

require the legislature to continue to provide collateral review when the offender is no longer

serving a sentence.")

       At first blush, it would also appear that Defendant's claim at (e) would fall squarely

under the purview of the PCRA at 42 PA.C.S.A. § 9543(a)(2)(ii). However, case law is

instructive on this point. Commw. v. Descardes, 101 A.3d 105 (Pa. Super. 2014). Defendant's

claim is based on jurisprudential developments arising from the United States Supreme Court's

decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Padilla, which was decided well after the

disposition of Defendant's     case, established that the failure to advise a defendant of the

deportation consequences      of entering a plea constitutes ineffective assistance of counsel, as

alleged in the instant case. However, the law is clear that Padilla does not apply retroactively.

Chaidez v. U.S., 133 S. Ct. 1103 (2013). Accordingly, the Court concurs with defense counsel's

contention that Defendant's    claims for relief are meritless. In light of the foregoing, the Court

enters the attached Notice of Intention to Dismiss Defendant's Petition for Writ of Coram Nobis

without hearing.

                                              BY THE COURT:




                                                                                                  J.




                                                  3
