J-E04005-13


                                  2014 PA Super 210

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

CLAUDE DESCARDES

                            Appellee                   No. 2836 EDA 2010


                 Appeal from the Order of September 24, 2010
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000617-2006


BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, J., PANELLA, J.,
        DONOHUE, J., SHOGAN, J., LAZARUS, J., OLSON, J., and
        WECHT, J.

OPINION BY PANELLA, J.                                FILED SEPTEMBER 23, 2014

        After pleading guilty to insurance fraud1 and conspiracy to commit

insurance fraud,2 and serving a probationary sentence, Claude Descardes, a

resident alien, left the country for personal business.         United States

immigration officials denied him re-entry due to his felony convictions. After

unsuccessful attempts to withdraw his guilty plea, Descardes became aware

that the United States Supreme Court decided Padilla v. Kentucky, 559

U.S. 356 (2010), which held that a criminal defense attorney has an

affirmative duty to inform a defendant that the offense for which he pleads
____________________________________________


1
    18 PA.CONS.STAT.ANN. § 4117(a)(5).
2
    18 PA.CONS.STAT.ANN. § 903.
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guilty will result in his removal from the country. Descardes filed a petition

for a writ of coram nobis relying on Padilla.       In his petition, Descardes

alleged that his guilty plea counsel was ineffective for failing to advise him of

the adverse immigration consequences of his guilty plea.         The trial court

treated the coram nobis petition as a petition pursuant to the Post

                                       PA.CONS.STAT.ANN. §§ 9541-9546, and

granted him relief.

      In this appeal, we consider whether the trial court properly granted

Descardes relief. Initially, we find that the trial court erred procedurally, and

that it should have adjudicated the petition as a coram nobis petition.

Further, we hold that Descardes is not entitled to relief due to the decision of

the United States Supreme Court in Chaidez v. United States, ___ U.S.

___, 133 S.Ct. 1103 (2013), which held that Padilla does not apply

retroactively.

      A short discussion of the procedural background is necessary before

we address the issues involved.       As previously mentioned, Descardes, a

Haitian national with resident alien status, pled guilty on August 9, 2006.

On November 30, 2006, Descardes was sentenced to one year of probation

and ordered to pay a $100.00 fine.          Descardes did not pursue a direct

appeal.




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        Subsequent thereto, Descardes left the United States but was denied

re-entry due to his felony conviction.3          On December 7, 2009, Descardes

filed a Petition for Reconsideration and Review of Denial of Petition for Writ

of Error Coram Nobis, which raised, among other things, allegations that

plea counsel was ineffective for failing to advise Descardes of the mandatory



petition as a petition for relief under the PCRA and dismissed the petition as

untimely on March 12, 2010.

        On April 6, 2010, Descardes filed a second petition for writ of coram

nobis                                                             Padilla, which

held that a criminal defense attorney has an affirmative duty to inform a

defendant that the offense for which he pleads guilty will result in his

removal from the country.          Treating the petition as a PCRA petition, the



____________________________________________


3
    Under the Immigration and Naturalization Act, deportation is automatic
                                                                 2)(A)(iii).



    The trial court and the parties contend that Descardes was deported.


BLACK S LAW DICTIONARY, 471 (8th ed. 2004). The United States did not
deport Descardes. Rather, he was denied reentry to the United States due
to his felony convictions. For our purposes here, it is a distinction without a
difference; in either event, Descardes is not permitted in the United States.
Therefore, we utilize the term and concept of deportation in this Opinion.



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2006 guilty plea withdrawn. The Commonwealth then filed a timely appeal.

     We must first consider whether the trial court properly treated

                                coram nobis as a PCRA petition.

     Preliminarily, we note that the PCRA contains a custodial requirement

to be eligible for relief. See Commonwealth v. Turner, 80 A.3d 754, 767

(Pa. 2013) (noting eligibility for relief under the PCRA is limited to those

                                                                   currently

serving a sentence

                                                                  serving a

sentence which must expire before the person may commence serving the

                        PA.CONS.STAT.ANN. § 9543(a)(1)(i)-(iii). Descardes

does not meet any of the foregoing three eligibility requirements.       He

completed his sentence by serving a one-year probationary sentence that

expired in 2007. He was obviously not sentenced to death for insurance

fraud and was not serving any other sentence that would toll the

commencement of the sentence under dispute. He is therefore ineligible for

PCRA relief. See Turner                      [O]ur legislature chose not to

create any statutory entitlement to collateral review for defendants who



     The trial court, however, found that Descardes is nonetheless eligible

for PCRA relief because under Padilla


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                                                                           of the

punishment for the original crime, so that a person facing deportation as a




2.

      We agree t

                                               Fong Haw Tan v. Phelan, 333

U.S. 6, 10 (1948) (citation omitted). See also Bridges v. Wixon, 326 U.S.

                                                    impact of deportation upon

the life of an alien is often as great if not greater than the imposition of a

                                                                          id

                                                                    elation to the

criminal process. Padilla, 559 U.S. at 365.       See also United States v.

Restrepo, 999 F.2d 640, 647 (2d Cir. 1993).

      Deportation is not a sentence and Descardes is not in custody.

Therefore, he is not eligible for PCRA relief. See, e.g., Turner. The PCRA

                      Padilla for the assertion that deportation constitutes a

sentence   for   purposes   of   the   PCRA   eligibility   provisions,   although

understandably sympathetic, is misplaced.

      The question remains, however, whether the lower court properly

                                              coram nobis as a PCRA petition.

The PCRA states that it shall be the sole means of obtaining collateral relief


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and encompasses all other common law and statutory remedies for the same

purpose that exist when this subchapter takes effect, including habeas

corpus and coram nobis          42 PA.CONS.STAT.ANN. § 9542.          The key

consideration is whether the underlying claim is cognizable under the PCRA;

                       only obtain relief                    Commonwealth

v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) (emphasis in original).

See also Turner                     The PCRA provides eligibility for relief for

                                                                            f in

                  Commonwealth v. West, 938 A.2d 1034, 1043 (Pa.

                                                               to the extent a



Commonwealth v. Peterkin

habeas corpus] continues to exist only in cases in which there is no remedy



     It is rare for a claim to fall outside of the ambit of the PCRA.      See

Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008) (referring to



Commonwealth v. Burkett, 5 A.3d 1260, 1274 (Pa. Super. 2010)




substantive due process challenge to the validity of recommitting the

defendant to prison, after a nine-year delay in which he had mistakenly been


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free on appeal bond, did not fall within the ambit of the PCRA. See West.

The Supreme Court has also held that an allegation that Canada violated the



Rights was not a cognizable PCRA claim. See Commonwealth v. Judge,

916 A.2d 511 (Pa. 2007).

                                                 n broad terms, one of ineffective

assistance of plea counsel, a claim that is explicitly within the purview of the

PCRA. See 42 PA.CONS.STAT.ANN.                                       exact claim,

however, i                                                          Padilla that

the Sixth Amendment requires defense counsel to advise defendant about

the risk of deportation arising from a guilty plea.       This particular claim of

ineffective assistance of counsel did not exist until 2010 when the Supreme

Court decided Padilla, which was years after Descardes completed his

sentence.4 The time for pursuing a claim of ineffective assistance of counsel

in a timely filed PCRA petition had long since expired.5               Under the

____________________________________________


4
    Prior to Padilla


pleading guilty, including the immigration consequences which may result
                   Commonwealth v. Garcia, 23 A.3d 1059, 1064 (Pa.
Super. 2011) (citing Commonwealth v. Frometa, 555 A.2d 92 (Pa.
1989)).
5
 As explained in Garcia, this is a claim that is not subject to the timeliness
exception of 42 PA.CONS.STAT.ANN. § 9545(b)(1)(iii), as Padilla did not

(Footnote Continued Next Page)


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circumstances presented, we find that this is one of the rare instances where

the PCRA fails to provide remedy for the claim.

      As noted, Descardes sought relief not through the PCRA, but by filing a

petition for writ of coram nobis                       provides a way to collaterally



                                                 Chaidez, ___ U.S. at ___, 133 S.Ct.

at 1106 n.1 (citation omitted). Indeed, in Chaidez, the petitioner sought to

avoid deportation by filing a writ of coram nobis to overturn her conviction

by arguing that her attorney provided ineffective assistance by failing to

advise her of the immigration consequences of pleading guilty. See id., ___

U.S. at ___, 133 S.Ct. at 1106.



was not recognized until well after the time he had to file a timely PCRA

petition, coram nobis review should be available to him.            Descardes 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. The trial court should have addressed his petition for a writ of

coram nobis, not under the PCRA, but as a coram nobis petition.

      Lastly, we must consider whether Descardes is entitled to relief when

his claim is addressed as a petition for writ of coram nobis. In Chaidez, the
                       _______________________
(Footnote Continued)

discuss below, in Chaidez the Supreme Court ruled that Padilla has no
retroactive effect.



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United States Supreme Court held that Padilla announced a new rule of

constitutional law that is inapplicable on collateral review to a petitioner

seeking a writ of coram nobis whose conviction had become final before

Padilla. See ___ U.S. at ___, 133 S.Ct. at 1107-                        Padilla

                                      Id., at ___, 133 S.Ct. at 1105.

      Therefore, as Padilla does not apply retroactively it may not serve as



when Padilla was decided.     See United States v. Amer, 681 F.3d 211,

214 (5th Cir. 2012).

      Order reversed. Case remanded for proceedings consistent with this

Opinion. Jurisdiction relinquished.

      President Judge Bender, President Judge Emeritus Ford Elliott, Judge

Shogan, Judge Lazarus, and Judge Wecht join the opinion.

      Judge Donohue concurs in the result.

      Judge Bowes files a concurring and dissenting opinion in which Judge

Olson joins, and Judge Donohue concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




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