J-S81011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA


                      v.

MARVIN DEAN MOWATT

                            Appellant                      No. 371 EDA 2016


                Appeal from the PCRA Order January 4, 2016
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0005277-2012



BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                             FILED DECEMBER 21, 2016

      Marvin Dean Mowatt appeals from the January 4, 2016 order denying

his petition for post-conviction relief. We affirm.

      In late May of 2012, police operating in Morrisville Borough, Bucks

County,   conducted        four   controlled   purchases   of   cocaine   utilizing   a

confidential informant (“CI”).          On each of the four occasions, the CI

communicated with Appellant via cellular telephone to arrange a purchase of

the illicit substance.     The CI then met with Appellant in the parking lot of

Appellant’s employer. Appellant provided the CI with powder cocaine, and,

in exchange, the CI furnished Appellant with $80 of pre-recorded money

provided by police.



* Former Justice specially assigned to the Superior Court.
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      During the early morning hours of June 1, 2012, officers observed

Appellant exit his employment and enter his vehicle. Surveillance units were

aware Appellant had a suspended license and, thus, effectuated a traffic

stop. The officers apprehended Appellant, and a search of his person and

vehicle revealed two bags of cocaine, drug paraphernalia, and $1,978 in

cash, including $130 in the pre-recorded bills.

      Based on the foregoing, Appellant was charged with five counts of

possession with intent to deliver (“PWID”), five counts of dealing in unlawful

proceeds, five counts of criminal use of a communication facility, and other

related charges.   On October 19, 2012, Appellant entered an open guilty

plea to five counts of PWID, five counts of dealing in unlawful proceeds, and

five counts of criminal use of a communication facility.       The trial court

conducted the mandatory colloquy.           Neither the court nor Appellant’s

counsel conveyed to him that he may be subject to deportation as a

collateral consequence of his plea.    The court accepted Appellant’s guilty

plea and scheduled the matter for sentencing.

      The trial court held a sentencing hearing on January 25, 2013. During

the sentencing hearing, Appellant’s father testified that he and Appellant’s

mother were citizens of the United States. Appellant testified that he lived

in Pennsylvania most of his life. Counsel did not elicit any further testimony

regarding Appellant’s citizenship.     At count one, the court sentenced

Appellant to six to twenty-three months incarceration and costs, with credit

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for two-weeks time served.       Appellant’s sentence on the remaining counts

was ordered to run concurrent to this sentence.           The court approved

immediate work release and permitted Appellant to petition for house arrest

after ninety days. Appellant did not file a post-sentence motion or pursue an

appeal. Thus, his judgment of sentence became final on February 24, 2013.

Subsequently, Appellant was deported to the United Kingdom as a result of

his conviction.

      Thereafter, Appellant filed a timely PCRA petition alleging counsel was

ineffective for failing to provide proper guidance regarding the immigration

consequences of his guilty plea. Initially, the public defender was appointed

to represent Appellant.      However, Appellant retained private counsel.

Private counsel filed a petition styled as an amended PCRA petition and

motion for coram nobis relief. The court scheduled a hearing on the matter

and entertained memoranda in support of the parties’ positions. On January

4, 2016, the court denied Appellant’s petition, and this timely appeal

followed. Appellant failed to comply with the court’s directive to file a Rule

1925(b)    concise   statement     of   matters   complained   of   on   appeal.

Nevertheless, the court authored its Rule 1925(a) opinion based on the

arguments presented during the PCRA hearing. This matter is now ready for

our review.

      Appellant presents one issue for our consideration:




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      A. Whether trial counsel was ineffective for failing to advise the
         Appellant, as required by the United States Constitution and
         the Pennsylvania Constitution, that his guilty plea could result
         in being deported and as such, Appellant should be allowed to
         withdraw his guilty plea, have his conviction abated, and his
         trial rights reinstated?

Appellant’s brief at 5.

      As a preliminary matter, the Commonwealth contends this issue is

waived.   The rules of appellate procedure require an appellant to file and

serve a concise statement of matters complained of on appeal when directed

to do so by the court. Pa.R.A.P. 1925(b). The failure to file a court-ordered

statement ordinarily results in waiver of a party’s claims. Commonwealth

v. Hill, 16 A.3d 484, 494 (Pa. 2011).

      The PCRA court did not find Appellant’s issue waived.         The court

observed that, at the time it directed Appellant to file a Rule 1925(b)

statement, it was unclear who was representing Appellant for the purpose of

appeal, so the order was sent directly to Appellant.    Thus, neither private

counsel nor the public defender was served with notice of that order.

Subsequently, since the court believed that Appellant’s private counsel

would handle the appeal, the court vacated a February 25, 2016 order

appointing the public defender to represent Appellant on appeal. The court

later learned that private counsel did not agree to represent Appellant on

appeal. As such, the court granted private counsel’s motion to withdraw and

reinstated the public defender to Appellant’s case.



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         Since the court’s order vacating the appointment of the public

defender instigated the misunderstanding as to who was truly representing

Appellant on appeal, we consider this a breakdown in the processes of the

court.     As we agree with the PCRA court that Appellant’s issue was not

waived, we address it.

         Appellant fashioned his petition as an amended PCRA petition and

petition for coram nobis relief. In Commonwealth v. Descardes, 136 A.3d

493, 501 (Pa. 2016), the Pennsylvania Supreme Court held that a 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. Furthermore, our High Court found that where a claim is

cognizable under the PCRA, the PCRA is the only method for obtaining

collateral review. Id. Thus, Appellant’s petition was properly considered by

the lower court as a petition for PCRA relief alone.

         As Appellant’s petition is cognizable under the PCRA, we must

determine whether he is eligible for relief.    Eligibility for relief under the

PCRA is governed by 42 Pa.C.S. § 9543, which provides in pertinent part:

         (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:




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                   (i) Currently serving a sentence of imprisonment,
                       probation or parole for the crime;

                (ii) Awaiting execution of a sentence of death for a
                     crime; or

               (iii) Serving a sentence which must expire before the
                     person may commence serving the disputed
                     sentence.

42 Pa.C.S. § 9453(a).

     We note, “[e]ligibility for relief under the PCRA is dependent upon the

petitioner currently serving a sentence of imprisonment, probation, or parole

for a crime.” Commonwealth v. Turner, 80 A.3d 754, 761-62 (Pa. 2013).

As such, “the denial of relief for a petitioner who has finished serving his

sentence is required by the plain language of the statute.” Commonwealth

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

     Upon review of the record, we observe that Appellant was sentenced

to six to twenty-three months incarceration on January 25, 2013, with two

weeks credit for time served.      Hence, Appellant completed serving his

sentence on December 11, 2015.       Since Appellant is no longer serving a

sentence of imprisonment, probation, or parole for a crime, he is ineligible

for PCRA relief.    42 Pa.C.S. § 9543(a)(1)(i); Turner, supra; Ahlborn,

supra. Accordingly, we affirm.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2016




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