J-S56028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JORGE SALCEDO

                            Appellant                No. 576 MDA 2014


                Appeal from the PCRA Order of March 13, 2014
             In the Court of Common Pleas of Lackawanna County
               Criminal Division at No.: CP-35-CR-0000699-2012


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 19, 2014

       Jorge Salcedo appeals the March 13, 2014 order, dismissing without a

hearing his petition for collateral relief under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-46. Because Salcedo has finished serving his

sentence, he is ineligible for relief under the PCRA. Consequently, we affirm

the PCRA court’s order denying relief.

       The PCRA court has provided the following history and analysis of the

instant matter:

       On October 26, 2012, [Salcedo pleaded] nolo contendere to one
       count of possession of a small amount of marijuana. He was
       sentenced that same date to 15 to 30 days[’ incarceration] and
       ordered [to be] released because he had already served the
       sentence. He was represented by Patrick Rogan, Esq.

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       On October 10, 2013, [Salcedo] filed a [PCRA petition] alleging
       that Mr. Rogan was ineffective for failing to advise him properly
       of the consequences of his plea on his immigration status. Kurt
       Lynott, Esq. was appointed to represent [Salcedo]. On February
       19, 2014, Mr. Lynott filed a Motion to Withdraw as Counsel and
       [a] Turner-Finley letter.[1] On March 13, 2014, this motion
       was granted and [the PCRA] court issued a Memorandum and
       Order dismissing the PCRA petition.[2]

____________________________________________


1
       See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(collectively outlining the procedure by which appointed counsel may seek to
withdraw when he finds no meritorious grounds for relief to pursue under
the PCRA).
2
       Neither the docket nor the certified record reflects that appointed
counsel properly filed his Turner/Finley letter and petition to withdraw as
counsel. Moreover, neither the PCRA court’s procedural account nor the
docket or certified record indicates that the court filed and served upon
Salcedo a notice of intent to dismiss the petition without a hearing, as
unequivocally required by Pa.R.Crim.P. 907(1). Although these omissions
are troubling, this Court has held that the absence of a Rule 907(1) notice is
a matter that the appellant must raise before this Court on peril of waiver.
See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citing
Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007)).
Furthermore, while we cannot confirm that counsel ever served Salcedo with
his Turner/Finley letter, petition to withdraw, and letter explaining to
Salcedo his rights to proceed pro se or with retained counsel and to file a
rebuttal to the PCRA court’s notice, the PCRA court referred to those items in
its opinion pursuant to Pa.R.A.P. 1925(a) and Salcedo has made no protest
to this Court. Furthermore, in light of our disposition of this case, it appears
that the PCRA court lacked jurisdiction over this petition for reasons that are
not subject to material dispute. Under such circumstances, remanding this
case so that the PCRA court may perfect the certified record would merely
protract proceedings destined for the same result. Moreover, it is an
appellant’s burden to confirm that the certified record contains all materials
necessary to adjudicate his appeal. See Commonwealth v. Spotti, 94
A.3d 367, 381 (Pa. Super. 2014) (“The Rules of Appellate Procedure place
the burden on the appellant to ensure that the record contains what is
necessary to effectuate appellate review . . . .”).        Thus, despite our
reservations, we will not order relief sua sponte for these oversights.



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     On March 27, 2014, [Salcedo] filed a Notice of Appeal, and on
     April 3, 2014, [the PCRA] court ordered him to file a concise
     statement of [errors] complained of on appeal.                   [See
     Pa.R.A.P. 1925(b).] On April 24, 2014, [Salcedo] filed a [Rule
     1925(b)] statement. In his concise statement, [Salcedo] alleges
     that [the PCRA] court erred in finding that he was not eligible for
     PCRA relief because his sentence had been served in this case
     since he is still incarcerated as a direct result of his conviction in
     this case. However, [Salcedo] has finished serving the sentence
     for the crime committed in this case, so he is not eligible for
     PCRA relief in this case. See PCRA Court Memorandum and
     Order, 3/13/2014.        He is currently being detained by the
     Department of Homeland Security for deportation proceedings.
     He also alleges that the [PCRA] court should have treated his
     petition as a writ of coram nobis, but the common law writ of
     coram nobis does not survive as an alternative remedy outside
     the PCRA. 42 Pa.C.S. § 9542; Commonwealth v. Fiore, 665
     A.2d 1185 (Pa. Super. 1995).

PCRA Court Opinion, 5/22/2014, at 1-2 (citations modified).

     Before this Court, Salcedo raises the following issues:

       I.   Whether the PCRA court erred in claiming that Salcedo is
            ineligible to file a PCRA petition.

      II.   Whether the PCRA court erred in not treating Salcedo’s PCRA
            petition as a petition for writ of coram nobis, because the court
            violated Salcedo’s due process rights and his attorney has shown
            ineffectiveness of counsel by incorrectly advising Salcedo of the
            immigration consequence of the plea, misrepresenting the
            immigration laws, and by misrepresenting himself as having
            knowledge, understanding, and experience in the immigration
            laws.

     III.   Whether the PCRA court erred in not allowing Salcedo an
            opportunity to challenge his conviction and show how his due
            process rights were violated during his proceedings and how it
            was conducted, because immediately after Salcedo pleaded nolo
            contendere on October 26, 2014 . . . he was ineligible for PCRA
            relief because he was incarcerated for 226 days without being
            brought to trial . . ., therefore immediately his sentence was
            expired. Salcedo did not know that he needed to challenge and
            vacate his conviction until months after he was detained by

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              United States Immigration and Customs Enforcement (“ICE”).
              Salcedo was informed by an immigration attorney and had done
              some research and found out that his trial attorney was
              ineffective, incompetent and had misadvised Salcedo and
              incorrectly informed Salcedo of the immigration consequences of
              his plea and Salcedo has no other remedy to challenge and
              vacate his conviction in order for Salcedo to be eligible for a sort
              of relief from deportation and not to be separated from his wife
              and 2 children that they have together and are United States
              citizens.


Brief for Salcedo at 2-3 (revised for clarity).         The important common

element of these issues is that they hinge upon whether plea counsel

rendered constitutionally ineffective assistance of counsel (“IAC”).

       Before we look to the merits of Salcedo’s claims, we must determine

whether the PCRA court had jurisdiction to adjudicate his petition in the first

instance.3 Although Salcedo couches his petition in terms of the common-

law writ of coram nobis, we have held in general that relief for such

questions must be sought under the PCRA:

       Appellant’s claim for [IAC] in connection with advice rendered
       regarding whether to plead guilty is cognizable under the PCRA
       pursuant to 42 Pa.C.S. § 9543(a)(2)(ii). See Commonwealth
       v. Lynch, 820 A.2d 728, 731-32 (Pa. Super. 2003) (“If [IAC]
       caused the defendant to enter an involuntary or unknowing plea,
       the PCRA will afford the defendant relief.”); Commonwealth v.
       Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006).



____________________________________________


3
      “An objection to lack of subject-matter jurisdiction can never be
waived; it may be raised at any stage in the proceedings by the parties or by
a court in its own motion.” Commonwealth v. Little, 314 A.2d 270, 272
(Pa. 1974).



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Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(footnote omitted; citations modified).4

       This general rule is not without exception. This Court’s recent en banc

decision in Commonwealth v. Descardes, No. 2836 EDA 2010, 2014 WL

4696243 (Pa. Super. Sept. 23, 2014) (en banc), for example, qualified that

principle relative to circumstances where the entry of a plea may adversely

affect one’s immigration status or lead to deportation. In Descardes, the

appellant, Claude Descardes, sought coram nobis relief in the PCRA court for

IAC, arguing that counsel had failed to inform him of the immigration

consequences of his plea in violation of the United States Supreme Court’s

decision in Padilla v. Kentucky, 559 U.S. 356 (2010).        The PCRA court

treated Descardes’ petition as one filed pursuant to the PCRA, and denied

relief on the basis that the petition was untimely.    Descardes, 2014 WL

4696234, at *1.

       On appeal this Court observed that Descardes was no longer in

custody, and thus could not seek relief under the PCRA.         Id. at *2-3.


____________________________________________


4
       Our standard of review of a PCRA court order granting or denying relief
calls upon us to determine “whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). We will
not disturb the PCRA court’s findings unless there is no support for the
findings in the certified record. Commonwealth v. Wah, 42 A.3d 335, 338
(Pa. Super. 2012).




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However, because Padilla was decided after Descardes’ sentence expired,

Descardes’ claim lay in a narrow band of collateral claims not cognizable

under the PCRA:

     Because Descardes’ specific [IAC] 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. Descardes is no longer
     in custody, thus the PCRA provides no relief, but he continues to
     suffer the serious consequences of his deportation . . . .”

Id. at *3. Consequently, Descardes’ avenue for relief necessarily lay outside

the confines of the PCRA, and therefore was not subject to its procedural

requirements or jurisdictional limitations.   Id.; see Commonwealth v.

Judge, 916 A.2d 511, 521 (Pa. 2007) (“[S]ince the PCRA does not provide a

remedy for Appellant’s claims regarding the Committee’s determination that

his deportation from Canada violated [an international compact], they may

be raised in a petition for writ of habeas corpus.”).   Nonetheless, because

the United States Supreme Court ultimately held that the new constitutional

rule announced in Padilla did not apply retroactively, see Chaidez v.

United States, 133 S.Ct. 1103 (2013), we held that it could not support

Descardes’ collateral challenge via coram nobis, and we denied relief.

2014 WL 4696234, at *4.

     In order to resolve the jurisdictional question at issue in the instant

case, 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. We find that it does not. In Commonwealth v. West, 938



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A.2d 1034 (Pa. 2007), as in Judge, our Supreme Court recognized that

common-law habeas corpus relief remained available for collateral claims

that were not cognizable under the PCRA.       In West, the Court held as

follows:

      West’s substantive due process challenge to the continuing
      validity of his judgment of sentence, following nine years of pre-
      incarceration delay, falls outside the ambit of the potential
      claims cognizable under the PCRA. As in Judge, West’s claim
      does not implicate the truth determining process underlying his
      conviction and sentence, nor does it implicate the legality of the
      sentence imposed. Rather, West asserts that incarcerating him
      on such a sentence after the significant delay between the time
      of sentencing and the time he was recalled is fundamentally
      unfair and constitutionally infirm. Thus, as we conclude that
      West could not pursue this claim through the PCRA, we find that
      the Superior Court properly reviewed it pursuant to habeas
      corpus.

938 A.2d at 1044-45.

      Our Supreme Court has held that the rare circumstance in which

collateral relief may be available outside the confines of the PCRA extends

“only to those rare instances where a defendant seeking . . . relief is not,

and never was, eligible to seek collateral relief under the PCRA because he

could not satisfy the PCRA’s custody requirement.”       Commonwealth v.

Hall, 771 A.2d 1232, 1236-37 (Pa. 2001) (emphasis added) (quoting

Commonwealth v. Murray, 753 A.2d 201, 203 n.2 (Pa. 2000), abrogated

on other grounds by Commonwealth v. Brown, 943 A.2d 264 (Pa. 2008)).

Thus, what unites Judge, West, and Descardes is that in each case there

was never a moment during which the petitioner was eligible for PCRA relief


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for the matters complained of. In Judge and West, the claims in question

did not fall within the categories of claims cognizable under the language of

the PCRA. In Descardes, the petitioner, having been released from custody

immediately upon the entry of his judgment of sentence, never had an

opportunity to challenge the effectiveness of his guilty plea counsel, even

though such an IAC claim technically would be cognizable under the PCRA.

      The same is not true of Salcedo in the instant case. As in Descardes,

Salcedo’s claim of IAC in connection with the entry of a nolo contendere plea

is, on its face, cognizable under the PCRA. See 42 Pa.C.S. §§ 9543(a)(2)(ii)

(IAC), (iii) (unlawfully induced guilty plea). However, unlike in Descardes,

upon the entry of his plea, Salcedo commenced serving a one-year sentence

of probation.    Thus, for a year following Salcedo’s plea, he had the

prerogative to seek relief under the PCRA, but did not do so until he had

served the lion’s share of his sentence.

      It is true that even a one-year sentence, as a practical matter, may

provide insufficient time to litigate fully a petition for relief under the PCRA.

However, Pennsylvania courts have never held that the difficulties faced by a

would-be PCRA petitioner due to the brevity of his sentence necessitates

relief by other means, such as the writ of habeas corpus or coram nobis.

Indeed, our Supreme Court has rejected the invitation to create a short-

sentence exception to the PCRA’s jurisdictional requirement that a petitioner

currently be serving a sentence of imprisonment, probation or parole for his

crime, as required by PCRA subsection 9543(a)(1)(i). See Commonwealth

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v. O’Berg, 880 A.2d 597 (Pa. 2005) (rejecting the argument that the Court

should create an exception to the rule that ineffectiveness claims cannot be

raised on direct appeal in cases where the brevity of the sentence may

render it impossible for a defendant to fully litigate his direct appeal and a

subsequent petition for collateral relief).

      For the foregoing reasons, we are constrained to conclude that, as a

jurisdictional matter, Salcedo’s claims of IAC leading to the inducement of a

guilty plea that was not knowing or voluntary were cognizable under the

PCRA upon the entry of his judgment of sentence and could have been

pursued under the PCRA’s auspices at that time. Accordingly, Salcedo must

be held to the PCRA’s requirement that he be serving a sentence at all times

during the pendency of his PCRA petition.

      Salcedo does not dispute that his one-year probation sentence long

since has expired.    His only rebuttal vis-à-vis the PCRA’s requirements is

that his allegedly ongoing detention by ICE is tantamount to the continued

service of a sentence for the crime to which he pleaded guilty. He cites no

legal authority that supports his argument and we are unaware of none.

Moreover, the plain terms of the PCRA resist such an exception, in that they

require that a petitioner is “currently serving a sentence . . . for the crime.”

42 Pa.C.S. § 9543(a)(1)(i) (emphasis added).         While Salcedo may be in

ICE’s custody, neither is that detention, itself, a “sentence,” as such, nor is it

imprisonment “for the crime,” even if the imprisonment arose collaterally as

a consequence of Salcedo’s plea.

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      Having concluded that Salcedo’s claims technically are cognizable

under the PCRA, he necessarily must satisfy all of the prerequisites to

seeking and obtaining relief under the PCRA.      Because he cannot satisfy

PCRA subsection 9543(a)(1)(i), he is barred from seeking collateral relief for

IAC associated with his nolo contendere plea.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2014




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