J-S27025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    ARACELIS SUAREZ                             :
                                                :
                     Appellant                  :   No. 3448 EDA 2017


                 Appeal from the PCRA Order October 13, 2017
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0001048-2011


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                  FILED MAY 29, 2018

        Aracelis Suarez appeals from the order, entered in the Court of Common

Pleas of Monroe County, dismissing her petition filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”) or, in the

alternative, the writ of coram nobis. After careful review, we affirm.

        On December 20, 2011, Suarez, a Cuban national with permanent U.S.

residency, pled guilty to one count of possession with intent to deliver a

controlled substance.1 She was subsequently sentenced to 9 to 23 months’

incarceration on February 16, 2012.            On August 29, 2012, the trial court

granted Suarez’s petition for early parole and ordered that her supervision be

waived and discontinued. On April 17, 2017, Suarez filed a PCRA petition, in

which she alleged that she had entered her plea “with the understanding and
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1   35 P.S. § 780-113(a)(30).
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knowledge that she would not face deportation because of the long-standing

diplomatic situation between the United States and Cuba.”           PCRA Petition,

4/17/17, at ¶ 4. However, Suarez asserted that, “[s]ince the taking of her

plea, . . . circumstances have changed due the opening of diplomatic ties with

Cuba and modified United States policy regarding the deportation of

individuals convicted of certain offenses.”       Id. at 6.   She alleged that she

would not have agreed to plead guilty had she known she would be subject to

deportation and, thus, her plea was not entered knowingly, intelligently, and

voluntarily.

      On April 24, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss without an evidentiary hearing. On May 30, 2017, Suarez

responded to the court’s Rule 907 notice with an “Answer Regarding Timing

of Motion for Post Conviction Collateral Relief,” in which she averred that “[a]t

the time [Suarez] entered the plea, there was no way she would have been

able to ascertain the possibility of deportation to Cuba, as such deportation

was not a legal viability.”     Answer Regarding Timing, 5/30/17, at ¶ 8.

However, Suarez asserted that “[r]ecent changes to this law have made such

deportation possible, if not likely.” Id. at 9.

      On June 12, 2017, the Commonwealth filed its answer to Suarez’s

motion. Thereafter, on June 17, 2017, Suarez filed a petition for writ of coram

nobis, arguing that, to the extent she is ineligible for PCRA relief, “coram nobis

now stands as the sole means of addressing what would otherwise be an

unconstitutional conviction and result.”     Petition for Writ of Coram Nobis,

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6/17/17, at ¶ 18. The Commonwealth responded on June 29, 2017, and the

court held a hearing on July 18, 2017. Both parties filed court-ordered briefs

and, on October 13, 2017, the court issued an opinion and order denying relief

under both the PCRA and the writ of coram nobis. This timely appeal follows,

in which Suarez raises the following issues for our review:

      1. Did the trial court err and abuse its discretion by not finding
      that any failure of [Suarez] to file a timely PCRA was the result of
      the ineffectiveness of counsel and, as such, that [her] PCRA was
      timely filed for court review?

      2. Did the trial court err and abuse its discretion by not finding,
      following [the] PCRA hearing, that trial counsel was ineffective and
      that such inefficiency [sic] was constitutionally infirm such that
      [Suarez] is entitled to a new trial?

      3. Did the trial court err and abuse its discretion by not finding
      that if [Suarez’s] PCRA petition was denied, she is entitled to
      coram nobis relief?

Brief of Appellant, at 5.

      We begin by noting our well-settled standard of review:

      On appeal from the denial of PCRA relief, our standard and scope
      of review is limited to determining whether the PCRA court’s
      findings are supported by the record and without legal error. Our
      scope of review is limited to the findings of the PCRA court and
      the evidence of record, viewed in the light most favorable to the
      prevailing party at the PCRA court level. The PCRA court’s
      credibility determinations, when supported by the record, are
      binding on this Court. However, this Court applies a de novo
      standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014)

(citations and quotations omitted).




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       To be eligible for relief under the PCRA, a petitioner must plead and

prove that she has been convicted of a crime under the laws of this

Commonwealth and is, at the time relief is granted, currently serving a

sentence of imprisonment, probation or parole for the crime. 42 Pa.C.S.A. §

9543(a)(1). Here, Suarez concedes that she is no longer subject to any form

of supervision as a result of her conviction. Thus, she is ineligible for PCRA

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

(“[T]he denial of relief for a petitioner who has finished serving his sentence

is required by the plain language of the statute. 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.).

       Suarez argues that, even if she is not entitled to relief under the PCRA,

she is nonetheless entitled to relief under the writ of coram nobis.        We

disagree.

       Although the ancient remedy of error coram nobis is still in existence in

Pennsylvania, it is one which in practice has become almost obsolete.

Commonwealth v. Brewer, 85 A.2d 618 (Pa. Super. 1952). In repeatedly

rejecting efforts to make use of this extraordinary writ, this Court has

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2Suarez attempts to argue that her petition should be deemed timely because
she satisfies two of the exceptions to the jurisdictional time bar under section
9545(b)(1). However, even if she could establish jurisdiction, which she
cannot, she still cannot establish eligibility for relief, as she is no longer
serving a sentence. Ahlborn, supra.

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invariably referred to its limited scope. Commonwealth v. Taylor, 165 A.2d

390, 391 (Pa. Super. 1960). Specifically, the writ lies only where some fact

exists outside of the record, which fact was not known at the time the

judgment was rendered, through no fault of the petitioner, and which fact, if

known, would have prevented the judgment. Id., citing Commonwealth v.

Harris, 41 A.2d 688 (Pa. 1945). The writ of error coram nobis is concerned

only with factual errors, never operating to correct errors of law. Id., citing

Commonwealth v. Connelly, 94 A.2d 68 (Pa. Super. 1953).

      In 1988, the legislature enacted the PCRA, which replaced the Post

Conviction Hearing Act (“PCHA”). Under the PCHA, “[a]ll claims previously

cognizable on a common law writ, in circumstances not covered by the terms

of the Act, may still be litigated by means of the common law writ. Merely

because one is not incarcerated, on parole or probation does not [p]er se

preclude a collateral attack on his conviction.” Commonwealth v. Sheehan,

285 A.2d 465, 467 (Pa. 1971). However, in enacting the PCRA, the legislature

significantly altered the eligibility requirements for collateral relief.    Of

significance here, section 9542 of the PCRA provides:

      This subchapter provides for an action by which persons convicted
      of crimes they did not commit and persons serving illegal
      sentences may obtain collateral relief. The action established
      in this subchapter shall be the sole means of obtaining
      collateral relief 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. This subchapter is not intended to limit the
      availability of remedies in the trial court or on direct appeal from
      the judgment of sentence, to provide a means for raising issues


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      waived in prior proceedings or to provide relief from collateral
      consequences of a criminal conviction. Except as specifically
      provided otherwise, all provisions of this subchapter shall apply to
      capital and noncapital cases.

42 Pa.C.S.A. § 9542 (emphasis added).

      Our Supreme Court has construed the language of section 9542 to

      demonstrate[] quite clearly that the General Assembly intended
      that claims that could be brought under the PCRA must be
      brought under that Act. No other statutory or common law
      remedy “for the same purpose” is intended to be available;
      instead, such remedies are explicitly “encompassed” within the
      PCRA.

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (emphasis in

original).

      Here, Suarez’s underlying claim is that her plea was invalid, as it was

not entered knowingly, intelligently and voluntarily due to the alleged

ineffectiveness of plea counsel. Such a claim falls squarely within the ambit

of the PCRA. See Commonwealth v. Descartes, 136 A.3d 493 (Pa. 2016)

(claim based on counsel’s ineffectiveness in advising him regarding possible

deportation consequences of plea could have been raised in PCRA petition).

Accordingly, as Suarez’s claim is cognizable under the PCRA, the PCRA is the

only method of obtaining collateral review. Ahlborn, supra. “[C]oram nobis

relief does not become available merely because the PCRA refuses to remedy




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a petitioner’s grievance.”3 Commonwealth v. Pagan, 864 A.2d 1231, 1233

(Pa. Super. 2004).
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3 In any event, our review of the record in this matter demonstrates that
Suarez’s underlying ineffectiveness claim is without merit. Although Suarez
asserts that she was told by plea counsel that “she would absolutely not be
deported were she to plead guilty in this case,” the record belies her assertion.
Specifically, at the PCRA hearing, Chandra Bleice, Esquire, Suarez’s plea
counsel, testified as follows:

       Q: Do you remember discussing with her at that time questions
       of deportation?

       A: I tell all of my clients that have pled to possession with intent
       to deliver that if they have -- if they’re here legally they could
       potentially be deported based on that plea.

       Q: Okay. Did you have any special discussion with her since she
       was from Cuba? Let me put it this way: Do you recall discussions
       involving the special status of someone from Cuba?

       A: I remember some discussion being brought up with the
       interpreter and Ms. Suarez present whether she was going to be
       deported based on the U.S. and Cuba’s relations and whether or
       not Cuba would accept her, something to that effect. I could not
       give her advice on whether or not Cuba was going to deport her -
       - or the U.S. was going to deport her back to Cuba. My advice to
       immigration clients is the same based on what their plea is to or
       what they have been convicted [of]. It doesn’t change based on
       what country they’re from.

       Q: There was discussion at the time, however, that Cuba was a
       special situation?

       A: I remember something to the effect about Cuba, yes. I don’t
       -- my advice could only have been I don’t know.

       Q: Do you recall when Cuba -- did she say to you, “I won’t be
       deported to Cuba,” or did someone say that to her, if you recall?

       A: I don't know. I never told her that she would not be
       deported because she was from Cuba.



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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/18




____________________________________________


N.T. PCRA Hearing, 7/18/17, at 16-17 (emphasis added).

     Additionally, at Suarez’s plea hearing, the trial judge noted the potential
immigration impact of the plea as follows:

       THE COURT: . . .        There are also things called collateral
       consequences of pleas. They are things that don’t come out in
       sentencing but that might affect you in some other way. The best
       example of that is if you are not a United States citizen certain
       pleas and certain sentencings may affect your immigration status,
       your ability to remain in the country or your ability to leave the
       country and come back to the country. So that might apply in
       your case. That’s something you do need to ask your attorney or
       they should have already spoken with you about.

N.T. Guilty Plea Hearing, 12/20/11, at 6.

      Based on the foregoing, it is clear that Suarez has not proven that
counsel advised her that she would not be deported because she was from
Cuba, or that she was unaware of the potential immigration consequences of
her guilty plea. Accordingly, even if the plain language of the PCRA did not
foreclose consideration of her claim pursuant to the writ of coram nobis, she
would be entitled to no relief.

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