J-S44041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DEANTE DRAKE

                            Appellant               No. 420 WDA 2014


                 Appeal from the PCRA Order January 14, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011923-1993


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED NOVEMBER 21, 2014

       Deante Drake appeals, pro se, from the order entered January 14,

2014, in the Allegheny County Court of Common Pleas dismissing his second

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §

9541 et seq. Drake seeks relief from the judgment of sentence of four and

one-half to 10 years’ imprisonment, followed by four years’ probation,

imposed on May 4, 1995, after Drake entered a guilty plea to charges of

possession with intent to deliver (PWID) cocaine, possession of marijuana,

and criminal conspiracy.1 On appeal, Drake contends plea counsel provided

him with “improper information” concerning the sentencing range of crimes

for which he pled guilty, in violation of Alleyne v. United States, 133 S.Ct.
____________________________________________


1
   35 P.S. §§ 780-113(a)(30) and (a)(16), and 18 Pa.C.S. § 903,
respectively.
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2151 (U.S. 2013). Drake’s Brief at 4. For the reasons set forth below, we

affirm.

       On August 27, 1993, Drake was arrested and charged with PWID

cocaine, possession of marijuana and criminal conspiracy. On May 4, 1995,

he entered a negotiated guilty plea to all three charges.      Pursuant to the

terms of the plea agreement, the trial court sentenced him, that same day,

to four and one-half to 10 years’ imprisonment for PWID and four years’

consecutive probation for criminal conspiracy.         No further penalty was

imposed on the possession charge. The trial court specifically directed that

Drake’s sentence would run concurrently with a sentence he was then

serving in Washington County. See N.T., 5/4/1995, at 11-12. Further, the

court stated the effective date of sentencing would be the date of his arrest,

August 27, 1993, so that he would receive credit for time-served since that

time. See id. at 12. No direct appeal was filed.

       Approximately 16 years later, on June 27, 2011, Drake filed a pro se

document entitled “Petition to Withdraw Sufficient Facts,” claiming his plea

counsel did not properly inform him of his constitutional rights prior to the

entry of his guilty plea.2         Affidavit in Support of Petition to Withdraw

Sufficient Facts, 6/27/2011, at ¶ 9. The PCRA court treated the petition as a
____________________________________________


2
  As we will discuss infra, Drake’s sentence for the guilty plea charges
expired in August of 2007.



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first request for PCRA relief, and appointed counsel, who on January 5,

2012, filed a petition to withdraw and accompanying Turner/Finley3 “no-

merit” letter. On January 9, 2012, the PCRA court granted counsel’s petition

to withdraw. Thereafter, following proper Rule 9074 notice, the PCRA court

dismissed Drake’s petition as untimely filed on March 30, 2012. No appeal

was filed.

        Nearly two years later, on January 14, 2014, Drake filed a pro se

motion seeking leave to supplement and/or reconsider his prior PCRA

petition.    Relying on the United States Supreme Court’s recent decision in

Alleyne, supra,5 Drake asserted that plea counsel “failed to provide him

with the proper information concerning the sentencing range of the crime(s)

that he actually pled guilty to[.]”        Memorandum of Law, 1/14/2014, at 7.




____________________________________________


3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4
    Pa.R.Crim.P. 907.
5
  In Alleyne, supra, the United States Supreme Court expanded upon its
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, supra, 133 S.Ct. at 2155.




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On January 21, 2014, the trial court entered an order denying Drake’s

motion.6 This appeal followed.7

       In his pro se brief, Drake argues plea counsel provided him with

“misadvice” regarding the sentencing range of the crimes for which he was

pleading guilty, and, specifically, did not inform him, pursuant to Alleyne,

that he was entitled to have “a jury determine the identity of the controlled

substance beyond a reasonable doubt.”             Drake’s Brief at 8.   Moreover, he

argues that his improper sentence in the case sub judice “is currently being

used in the United States District Court for the Northern District of West

Virginia, to enhance [a federal] sentence.”8 Drake’s Brief at 5.

       When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d

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6
  We note that the trial court did not provide Drake with the requisite Rule
907 notice before denying his most recent petition. Nevertheless, “our
Supreme Court has held that where the PCRA petition is untimely, the failure
to provide such notice is not reversible error.” Commonwealth v. Lawson,
90 A.3d 1, 5 (Pa. Super. 2014). We conclude the same reasoning applies
here, where the present petition is Drake’s second attempt at collateral
relief, and he is no longer serving the sentence he is challenging. See infra.
7
  The PCRA court did not order Drake to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
8
  Drake does not specify how his sentence in the case sub judice is being
used to “enhance his sentence” in the federal case. See Drake’s Brief at 5.



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1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have

no support in the certified record.”       Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

      Here, the PCRA court dismissed Drake’s petition as untimely filed.

While we agree the petition was untimely filed pursuant to 42 Pa.C.S. §

9545(b)(1), we conclude that Drake has, initially, failed to plead and prove

that he is eligible for relief pursuant to 42 Pa.C.S. 9543(a)(1), which

provides, in pertinent part, as follows:

      (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:

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

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

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

42 Pa.C.S. § 9543(a)(1)(i)-(iii) (emphasis supplied).   In the present case,

Drake has failed to demonstrate that he is still serving a sentence for the

conviction which he is appealing.


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        As previously stated, on May 4, 1995, Drake was sentenced to a term

of four and one-half to 10 years’ imprisonment, followed by a consecutive

four years’ probation. The trial court directed the sentence run concurrently

with another sentence Drake was then serving, and that the sentence would

be effective as of the date of his arrest, August 27, 1993. Accordingly, his

sentence in the present matter would have expired in August of 2007, six

and one-half years before the instant petition was filed. Therefore, Drake is

not entitled to PCRA relief. See Commonwealth v. Price, 876 A.2d 988,

994 (Pa. Super. 2005) (“[I]f the court’s decision is correct, we can affirm on

any ground.”) (quotation omitted), appeal denied, 897 A.2d 1184 (Pa.

2006), and cert. denied, 549 U.S. 902 (2006).

        In his reply brief, however, Drake argues that, even if we find he is not

entitled to relief under the PCRA, we should consider his petition a writ of

coram nobis.      While Drake acknowledges that the PCRA encompasses all

common law remedies such as habeas corpus and coram nobis,9 he asserts

the PCRA did not completely abrogate the common law writ of coram nobis.

Therefore, he argues, the trial court should have evaluated “whether or not

Alleyne … is retroactively applicable.” Drake’s Reply Brief at 3.



____________________________________________


9
    42 Pa.C.S. § 9542.




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       The writ of coram nobis “provides a way to collaterally attack a

criminal conviction for a person ... who is no longer ‘in custody’ and

therefore cannot seek habeas relief....”         Commonwealth v. Descardes,

___ A.3d ___, 2014 PA Super 210, *3 (Sept. 23, 2014) (en banc), quoting

Chaidez v. United States, 133 S.Ct. 1103, 1106 n.1 (U.S. 2013).                   In

Descardes, the petitioner, a Haitian national with resident alien status, pled

guilty to insurance fraud and served a probationary sentence.             After his

sentence was complete, the petitioner left the United States, and was later

denied re-entry based upon his felony conviction.           Id. at *1.   He filed a

petition for writ of coram nobis, arguing that, pursuant to Padilla v.

Kentucky, 559 U.S. 356 (U.S. 2010),10 his plea counsel was ineffective for

failing   to   advise   him    of   “the   mandatory   collateral   consequence   of

deportation.” Id. The trial court treated the filing as a PCRA petition, and

granted him relief. On appeal, the en banc court reversed, concluding the

petitioner could seek relief through a writ of coram nobis when he was

denied re-entry into the United States due to his felony conviction.

       First, the Court determined that coram nobis review should be

available to the petitioner because he was “no longer in custody,” and,

____________________________________________


10
   In Padilla, the United States Supreme Court held that plea counsel has an
affirmative duty to inform his or her client whether the “plea carries a risk of
deportation.” Padilla, supra, 559 U.S. at 374.




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therefore, not eligible for PCRA relief, “but he [still] continue[d] to suffer the

serious consequences of his deportation because of his state conviction.”

Id. at *3. However, the Court held that the petitioner was ultimately not

entitled to relief since the decision in Padilla was determined to have no

retroactive effect. Id. at *4, citing Chaidez, supra.

       In the present case, we need not decide whether the writ of coram

nobis is available as an avenue of relief for Drake since the United States

Supreme Court has not held that Alleyne has retroactive effect.              See

United States v. Reyes, 755 F.3d 210, 213 (3d Cir. 2014) (“[T]he decision

to make Alleyne retroactive rests exclusively with the Supreme Court,

which has not chosen to do so.”). See also Commonwealth v. Miller, ___

A.3d ___, 2014 PA Super 214, *5 (Pa. Super. 2014) (“Even assuming that

Alleyne did announce a new constitutional rights, neither our Supreme

Court, nor the United States Supreme Court has held that Alleyne is to be

applied retroactively to cases in which the judgment of sentence had become

final.”).

       Therefore, because we conclude that Drake is not entitled to relief

under the PCRA, or upon petition for writ of coram nobis, we affirm the order

of the PCRA court.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2014




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