                            [J-20-2016] [M.O. - Todd, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 27 MAP 2015
                                               :
                     Appellant                 :   Appeal from the Order of the Superior
                                               :   Court dated 9/23/14 at No. 2836 EDA
                                               :   2010 which reversed/remanded the
              v.                               :   Order of the Court of Common Pleas of
                                               :   Montgomery County, Criminal Division,
                                               :   dated 9/23/10 at No. CP-46-CR-
CLAUDE DESCARDES,                              :   0000617-2006.
                                               :
                     Appellee                  :   ARGUED: September 10, 2015
                                               :   RESUBMITTED: January 20, 2016




                                 CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                     DECIDED: March 29, 2016


       I join the majority opinion and write only to elaborate on my own position

concerning a few points.

       First, I have some difficulty with the use of the term “collateral consequence” in

the deportation setting. In this regard, the Supreme Court of the United States has

explained: “Deportation as a consequence of a criminal conviction is, because of its

close connection to the criminal process, uniquely difficult to classify as either a direct or

a collateral consequence,” and “the collateral versus direct distinction is thus ill suited to

evaluating” claims of deficient attorney stewardship centered upon advice about

deportation. Padilla v. Kentucky, 559 U.S. 356, 366, 130 S. Ct. 1473, 1482 (2010).
       Secondly, while styled differently, in substance Appellee’s claim embodies an

entreaty for Padilla to be applied retroactively.      See, e.g., Brief for Appellee at 8

(“Descardes was never eligible to file for PCRA relief as the right to legal advice

regarding the collateral consequence of deportation . . . did not exist at the time the

PCRA took effect.”). The PCRA, however, imposes express limitations on such claims,

rendering relief available only where:

              the right asserted is a constitutional right that was
              recognized by the Supreme Court of the United States or the
              Supreme Court of Pennsylvania after the time period
              provided in this section and has been held by that court to
              apply retroactively.
42 Pa.C.S. §9545(b)(1)(iii) (emphasis added).           Per this prescription, it was the

Legislature’s express intention to condition the availability of post-conviction relief in the

face of new constitutional rulings upon the legal assessment of retroactivity by a court of

last resort.1 Accordingly, in my view -- however Appellee’s claim may be framed or

reframed – for present purposes, the Supreme Court of the United States’ decision that

Padilla is not retroactive is dispositive. See Chaidez v. United States, ___ U.S. ___,

___, 133 S. Ct. 1103, 1113 (2013).



       Justice Dougherty joins this concurring opinion.


1
  The plain language of the statute appears to require the retroactivity decision to be
made by the court that issued the underlying constitutional ruling in the first instance.
Given that the Supreme Court of the United States has afforded state courts some
latitude in fashioning their own retroactivity jurisprudence relative to federal
constitutional rulings, see Danforth v. Minnesota, 552 U.S. 264, 282, 128 S. Ct. 1029,
1042 (2008), and that the policy basis for withholding the availability of relief under
Section 9545(b)(1)(iii) in scenarios in which this Court might provide for broader
retroactive application is not immediately apparent, I reserve further comment on this
point for consideration in an appropriate case.



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