J-S53041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                   Appellant                :
                                            :
              v.                            :
                                            :
ROBERTO JIMENEZ,                            :
                                            :
                   Appellee                 :          No. 2194 MDA 2014

             Appeal from the Order entered on November 28, 2014
                in the Court of Common Pleas of Berks County,
                Criminal Division, No. CP-06-CR-0005557-2006

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 02, 2015

        The Commonwealth of Pennsylvania appeals from the Order granting

the Petition for Writ of Coram Nobis filed by Roberto Jimenez (“Jimenez”).

We reverse.

        In October 2006, Jimenez was a passenger in a vehicle that a police

officer stopped for a traffic infraction.   Upon approaching the vehicle, the

officer detected a strong odor of burnt marijuana, and he saw a marijuana

joint in the ashtray. Upon a search of Jimenez’s person, police discovered a

small amount of cocaine, and placed him under arrest. The Commonwealth

charged Jimenez with possession of cocaine, possession of a small amount of

marijuana for personal use, and conspiracy to possess a small amount of

marijuana.1



1
    35 P.S. §§ 780-113(a)(16), (31)(i); 18 Pa.C.S.A. § 903(a)(1).
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     On February 28, 2007, Jimenez pled guilty to the above-mentioned

charges (hereinafter “2007 plea”).2      During his guilty plea proceedings,

Jimenez was represented by Paul S. Missan, Esquire (“plea counsel”), whom

Jimenez had retained.    The trial court accepted Jimenez’s plea as being

knowingly, intelligently and voluntarily entered, and sentenced him to one

year of probation, plus a fine of $200. Jimenez did not appeal his judgment

of sentence.

     Several years later, in 2013, Jimenez was arrested in a different

county and charged with driving under the influence. Jimenez pled guilty,

and was accepted into the accelerated rehabilitative disposition program.

Shortly thereafter, officers from the United States Immigration and Customs

Enforcement office (“ICE”) arrested Jimenez on an immigration warrant,

which was issued as a result of Jimenez’s 2007 plea to possession of

cocaine.3   ICE informed Jimenez that he would be deported to Mexico

pursuant to the Immigration Act.

     On February 27, 2014, Jimenez filed a Petition for Writ of Coram

Nobis, through new counsel.    Therein, Jimenez argued that he should be

2
  Notably, Jimenez is not a United States citizen. According to Jimenez, his
parents brought him, illegally, from Mexico to the United States, when he
was approximately eighteen months old. N.T., 3/27/14, at 22; see also id.
at 22-23 (wherein Jimenez stated that he has resided in Reading,
Pennsylvania ever since his arrival in the United States).
3
  This conviction required Jimenez’s deportation pursuant to a section 1227
of the Immigration and Nationality Act (“the Immigration Act”), 8 U.S.C.A.
§ 1227(a)(2)(B)(i) (providing that a resident alien who has been convicted
of certain crimes relating to a controlled substance shall be deemed
deportable).

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J-S53041-15

entitled to withdraw the 2007 plea, since it was not knowingly, intelligently

and voluntarily entered, due to plea counsel’s ineffectiveness. Specifically,

Jimenez asserted that plea counsel was ineffective for failing to inform him

of the collateral consequences of his plea, to the extent that his conviction of

possession    of   cocaine   would   subject   him   to   mandatory   deportation

proceedings pursuant to the Immigration Act.          Jimenez argued that plea

counsel’s omission was contrary to the mandates of the United States

Supreme Court’s holding in Padilla v. Kentucky, 559 U.S. 356, 367, 374

(2010) (holding that a criminal defense attorney has an affirmative duty to

inform a defendant that the offense for which he or she pleads guilty

will result in his or her removal from the country).        Additionally, Jimenez

asserted that if plea counsel had advised him that pleading guilty to

possession of cocaine carried a sanction of mandatory deportation, he would

not have agreed to plead guilty.

        In March and May of 2014, the trial court conducted evidentiary

hearings on the Petition for Writ of Coram Nobis, at which Jimenez, plea

counsel, and plea counsel’s former administrative assistant, Daisy Diaz

(“Diaz”), testified. After the hearings, the trial court directed the parties to

submit memoranda of law. In its Memorandum, the Commonwealth argued,

inter alia, that the trial court should treat the coram nobis Petition as an

untimely petition for relief under the Post Conviction Relief Act (“PCRA”),4



4
    See 42 Pa.C.S.A. §§ 9541-9546.

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and, for that reason, determine that the court lacked jurisdiction to address

the Petition.

      By an Order entered on November 28, 2014, the trial court granted

the Petition for Writ of Coram Nobis, directing that Jimenez may withdraw

his 2007 plea. In so ruling, the trial court did not conclude that the coram

nobis Petition fell under the purview of the PCRA.                The Commonwealth

timely filed a Notice of Appeal.           In response, the trial court ordered the

Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors

complained      of   on   appeal,    and    the    Commonwealth       timely     complied.

Subsequently, on February 18, 2015, the trial court issued a Memorandum

in support of its November 28, 2014 Order.

      On appeal, the Commonwealth presents the following questions for our

review:

       A. Did Jimenez fail to demonstrate that he is entitled to
          relief, as the [] Petition [for Writ of Coram Nobis] should
          have been treated as an untimely PCRA Petition?

       B. Did Jimenez fail to demonstrate that [plea] counsel was
          ineffective for failing to inform him of the immigration
          consequences of his [2007] plea?

Brief for the Commonwealth at 4 (capitalization omitted).

      The Commonwealth first argues that the trial court erred in failing to

treat the coram nobis Petition as an untimely PCRA Petition. See id. at 8-

12.   According to the Commonwealth, Jimenez’s claim, asserting plea

counsel’s   ineffectiveness    for    failing     to   inform   him   of   the   collateral

consequences of a guilty plea, is “clearly cognizable under the PCRA,” and,

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therefore, “is properly considered [] under the PCRA, even if it is raised as a

request for a writ of coram nobis.”        Id. at 10 (citing Commonwealth v.

Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) (where the appellant sought

collateral relief from his convictions via a petition for a writ of coram nobis,

asserting his incompetency to either enter a plea or stand trial for his past

offenses, holding that this claim “goes to the very legality of his convictions

and is clearly encompassed by the PCRA[,]” and the claim “had to be

brought under the PCRA.”), and 42 Pa.C.S.A. § 9542 (providing, inter alia,

that the PCRA “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.”)). Additionally, the Commonwealth challenges the

trial   court’s   reliance   upon   the   en   banc   decision   of   this   Court   in

Commonwealth v. Descardes, 101 A.3d 105 (Pa. Super. 2014) (en banc),

in support of the trial court’s determination that Jimenez’s Petition for Writ of

Coram Nobis did not fall under the PCRA. See Brief for the Commonwealth

at 10-11.

        In order to resolve this jurisdictional question, we must determine

whether Descardes necessitates categorizing this case as one lying outside

the framework of the PCRA and hence not subject to its strictures.              In its

February 18, 2015 Memorandum, the trial court addressed the implications

of Descardes in the instant case as follows:




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     While we acknowledge the legislature intended for the PCRA to
     the be the sole means of obtaining post conviction collateral
     relief under most circumstances, it is not the sole means of relief
     for all defendants in all situations. See 42 Pa.[C.S.A.] § 9542.
     There is little doubt that, where the PCRA can provide relief, the
     PCRA subsumes common law remedies. [In Descardes, t]he
     Superior Court recently tackled this very issue, noting that “[t]he
     key consideration is whether the underlying claim is cognizable
     under the PCRA; if so, a petitioner ‘may only obtain relief under
     the PCRA.’” [] Descardes, 101 A.3d [at] 107 [] [(]quoting []
     Pagan, 864 A.2d [at] 1233 [] (emphasis in original)[)]. [In
     Descardes], as here, the defendant was ineligible for PCRA
     relief because he was not serving a sentence. [Descardes, 101
     A.3d at 107 (stating that “d]eportation is not a sentence and
     Descardes is not in custody. Therefore, he is not eligible for
     PCRA relief.”[)] [] In ruling that the trial court erred in treating
     the defendant’s Coram Nobis petition as a PCRA petition, the
     Descardes Court acknowledged that, in general, the PCRA
     “subsumes all forms of collateral relief … to the extent that a
     remedy is available under such enactment[,]” and that “[i]t is
     rare for a claim to fall outside the ambit of the PCRA.” Id. at
     108 (internal citations and quotations omitted) (emphasis
     added). This case, like the factually-similar case of Descardes,
     represents one of those rare instances.

            In Descardes, the defendant argued that his trial counsel
     failed to advise him of the immigration consequences[FN 1] that
     arose as a result of his guilty plea.


         [FN   1]
                 The so-called “immigration consequences” in
         Descardes are far more attenuated than they are in
         the present matter …. In Descardes, the defendant
         pled guilty to insurance fraud and was not deported as
         a result of his plea, but rather[,] was denied re-entry
         into the United States after a voluntary departure. …
         [T]he denial of [Descardes’s] reentry to the United
         States was far less foreseeable than the “immigration
         consequences” [here] (i.e., mandatory deportation) for
         [Jimenez].


     The Court note[d] that this did not become a basis for an
     ineffective assistance of counsel claim until 2010[,] under
     Padilla [], which was specifically held not to be retroactive

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     under Chaidez v. United States[, 133 S. Ct. 1103 (2013).5]
     See Descardes[, 101 A.3d] at 108-09. Because there was no
     remedy available to the defendant under the PCRA, the
     [Superior] Court concluded that “this is one of the rare instances
     where the PCRA fails to provide [a] remedy for the claim.” Id.
     at 109. Just as here, Descardes filed a [P]etition for Coram
     Nobis relief.   [The Descardes Court held that “b]ecause
     Descardes’ specific ineffective assistance of counsel claim was
     not recognized until well after the time he had to file a timely
     PCRA petition, coram nobis review should be available to him.”
     Id.

            Just like the defendant in Descardes, [Jimenez] is not in
     custody or under supervision,[FN 2] and he would not be entitled
     to Padilla relief by virtue of the ruling in Chaidez, and
     therefore[,] he has been rendered completely ineligible for PCRA
     relief. Contrary to the Commonwealth’s assertions that [the
     trial] court erred in ruling on the merits of [Jimenez’s] Petition
     for Writ of Coram Nobis, the Descardes [C]ourt specifically
     found that it was error, under nearly identical circumstances, for
     the trial court to treat the defendant’s coram nobis petition as a
     PCRA petition, holding, that “the trial court should have
     addressed his petition for a writ of coram nobis, not under the
     PCRA, but as a coram nobis petition.” Id. (emphasis added).
     Therefore, we respectfully submit that, consistent with the ruling
     in Descardes, it was appropriate to consider the merits of
     [Jimenez’s] Petition for Writ of Coram Nobis under these unique
     circumstances, and moreover[,] that it would be improper treat
     the Petition as a request for relief under the PCRA.
         [FN 2]
               [See Descardes, 101 A.3d at 109 (stating that]
         “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.”[); see also id. (explaining that 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 ….’”
         (quoting Chaidez, 133 S. Ct. at 1106 n.1).]




5
  We discuss below the implications of the Chaidez decision to Jimenez’s
claim for collateral relief, as well as the retroactivity of Padilla.

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Trial Court Memorandum, 2/18/15, at 3-5 (footnote and paragraph breaks

added; footnotes and emphasis in original; other footnotes in original

omitted).    Upon review, we agree with the trial court’s analysis and

determination that, pursuant to Descardes, it would be improper to treat

Jimenez’s Petition for Writ of Coram Nobis as a request for relief under the

PCRA.

       Additionally, to the extent that the Commonwealth argues that

“Descar[d]es was incorrectly decided,” Brief for the Commonwealth at 11,

we cannot ignore the binding precedent from an en banc decision of this

Court.6   See Pa.R.A.P. 3103 (providing that “[a]n opinion of the court en

banc is binding on any subsequent panel of the appellate court in which the

decision was rendered.”); see also Commonwealth v. Flowers, 113 A.3d

1246, 1250 n.4 (Pa. Super. 2015) (noting that three-judge panel is bound

by a prior en banc decision of this Court).

       We next consider whether Jimenez is entitled to relief when his claim

is addressed as one for coram nobis relief.   See Descardes, 101 A.3d at

109.    Three years after the Padilla decision, the United States Supreme

Court, in Chaidez, limited Padilla by holding that it cannot be applied




6
  We observe that the Pennsylvania Supreme Court granted allowance of
appeal in Descardes, to address the issue of whether the decision of the
majority conflicts with prior Pennsylvania Supreme Court and Superior Court
precedent.    See Commonwealth v. Descardes, 101 A.3d 1207 (Pa.
2015); see also Descardes, 101 A.3d at 110-117 (Bowes, J. dissenting).
However, while the appeal is pending, we are bound by Descardes.

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retroactively.   Chaidez, 133 S. Ct. at 1113;7 see also Descardes, 101

A.3d at 109; Commonwealth v. Ghisoiu, 63 A.3d 1272, 1274 (Pa. Super.

2013) (where the PCRA petitioner invoked Padilla, claiming that his guilty

plea counsel was ineffective for failing to advise him of the immigration

consequences of his pleas, observing the Chaidez Court’s holding that

Padilla does not have retroactive effect).        Thus, only convictions that

occurred after Padilla was decided, on March 31, 2010, may be collaterally

attacked based on criminal defense counsel’s failure to provide advice

concerning potential deportation consequences of a plea.

      As noted above, the trial court, in its Memorandum, acknowledged the

Supreme Court’s holding in Chaidez.           See Trial Court Memorandum,

2/18/15, at 4 (wherein the court correctly observed that “Padilla … was

specifically held not to be retroactive under Chaidez”). However, the trial

court failed to address how Chaidez is not fatal to Jimenez’s claim for

collateral relief.   Instead, the trial court engaged in a thorough discussion

concerning its finding that plea counsel was ineffective for failing to inform

Jimenez of the immigration consequences that arose as a result of his guilty




7
  In so holding, the Chaidez Court determined that Padilla created a new
rule of law, rather than merely having applied existing precedent to a new
set of facts. See Chaidez, 133 S. Ct. at 1110-11.


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plea. See id. at 5-13.8 The trial court’s rationale in this regard, however

persuasive as it may be, is in conflict with Descardes, wherein this Court

was presented with an identical substantive claim for coram nobis relief as

the claim raised by Jimenez. See Descardes, 101 A.3d at 108-09 (stating

that although “Descardes’s claim … is, in broad terms, one of ineffective

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

PCRA[,] … Descardes’s exact claim … is predicated upon the Supreme

Court’s holding in Padilla – that the Sixth Amendment requires defense

counsel to advise defendant about the risk of deportation arising from a

guilty plea.” (emphasis in original)).     Here, Jimenez’s claim is likewise

predicated upon Padilla. See Petition for Writ of Coram Nobis, 2/27/14, at

¶¶ 11-13; see also Brief for Appellee at 5 (asserting that Jimenez’s “claim,

in reliance on Padilla, asserts ineffectiveness of [plea] counsel”).    Though

the claim raised in Descardes was, “in broad terms, one of ineffective

assistance of plea counsel,” the Court did not treat the claim under the

traditional ineffectiveness analysis, unlike the trial court in the instant

matter.   Compare Descardes, 101 A.3d at 108-09, with Trial Court

Memorandum, 2/18/15, at 5-13.          Rather, the Descardes Court clearly


8
  In sum, the trial court found that plea counsel was ineffective for the
following reasons: (1) plea counsel did not personally discuss with Jimenez
the written guilty plea colloquy that Jimenez had signed; rather, counsel
delegated this important responsibility to his former administrative assistant,
Diaz, who is not an attorney; and (2) neither Diaz nor plea counsel informed
Jimenez that, if he pled guilty to possession of cocaine, he would be
subjecting himself to mandatory deportation proceedings. See Trial Court
Memorandum, 2/18/15, at 6-13.

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announced that Descardes was not entitled to relief, on the merits of his

claim, based upon the holding in Chaidez, i.e., that Padilla does not apply

retroactively. See Descardes, 101 A.3d at 109.

      In the instant case, as in Descardes, because Jimenez’s judgment of

sentence became final approximately three years before the Padilla

decision, he cannot use Padilla’s recognition of a Sixth Amendment right to

counsel, on immigration consequences of a guilty plea, to collaterally attack

his 2007 plea. See Descardes, 101 A.3d at 109; see also Chaidez, 133

S. Ct. at 1113.9   Accordingly, though we are sympathetic with Jimenez’s

situation, we are constrained to rule that the trial court erred in granting the

Petition for Writ of Coram Nobis, and permitting Jimenez to withdraw his

guilty plea.10



9
  We have reviewed Jimenez’s argument that Chaidez does not preclude
him from obtaining relief under Padilla. See generally Brief for Appellee at
6-10; see also id. at 8 (relying upon this Court’s decision in
Commonwealth v. Garcia, 23 A.3d 1059, 1064 (Pa. Super. 2011), which
predated Chaidez, and held that “the United States Supreme Court’s
Opinion in Padilla did not recognize a new ‘constitutional right’ as
envisioned by our Legislature in enacting Subsection 9545(b)(1)(iii) [of the
PCRA].”); see also Brief for Appellee at 9 (pointing out that “the Supreme
Court of the United States has held that state courts may grant broader
retroactive effect to a United States Supreme Court constitutional ruling.
See Danforth v. Minnesota, 552 U.S. 264 (2008).”). Nevertheless, as
mentioned above, we are bound by this Court’s en banc decision in
Descardes. See Pa.R.A.P. 3103; see also Ghisoiu, 63 A.3d at 1274 n.2
(observing that the Chaidez decision “calls into question this Court’s
decision in [] Garcia”).
10
   Based upon our granting the Commonwealth relief, we need not address
its second issue, challenging the trial court’s determination that plea counsel
was ineffective.

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     Order reversed. Case remanded for proceedings consistent with this

Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/2/2015




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