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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 FEBRUARY 10, 2015

       Jorge Salcedo appeals the PCRA court’s March 13, 2014 order

dismissing his petition for collateral relief, which the PCRA court treated as a

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

46. We affirm.

       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.

       On October 10, 2013, [Salcedo] filed a [PCRA petition] alleging
       that Mr. Rogan was ineffective for failing to advise him properly
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       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 is
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 of intent to dismiss, 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 that are 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 [“DHS”] 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.

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            Salcedo did not know that he needed to challenge and
            vacate his conviction until months after he was detained
            by 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 (emphasis added; revised for clarity). The important

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

counsel rendered constitutionally ineffective assistance of counsel.

      Generally, we have held 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 the
      [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). Our standard of review of a [PCRA] court
      order granting or denying relief under the PCRA 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). “The PCRA court’s findings will not be disturbed unless
      there is no support for the findings in the certified record.”
      Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

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

(footnote omitted; citations modified).


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      This   Court’s   recent   en   banc    decision    in    Commonwealth        v.

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

complicated 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 trial 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 trial court treated Descardes’ petition as one filed pursuant to the PCRA,

and denied relief on the basis that the petition was untimely. Descardes,

101 A.3d at 107.

      On appeal, this Court observed that Descardes no longer was in

custody, and thus could not seek relief under the PCRA.               Id.    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 109.    Consequently, Descardes’ avenue for relief necessarily lay

outside the confines of the PCRA, and therefore was not subject to the

PCRA’s jurisdictional limitations. Id.; see Commonwealth v. Judge, 916



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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.”).

      Under the circumstances before us, we need not determine whether

Descardes compels similar treatment in this case.             As noted, supra,

Salcedo’s claims, at root, are predicated on his assertion that plea counsel

rendered IAC. Generally, such claims, by whatever procedural mechanism

raised, are subject to the following standard:

      Pennsylvania has recast the two-factor inquiry regarding the
      effectiveness of counsel set forth by the United States Supreme
      Court in Strickland v. Washington, 466 U.S. 668 (1984), as
      the following three-factor inquiry:

         [I]n order to obtain relief based on [an IAC] claim, a
         petitioner must establish: (1) the underlying claim has
         arguable merit; (2) no reasonable basis existed for
         counsel’s actions or failure to act; and (3) petitioner
         suffered prejudice as a result of counsel’s error such that
         there is a reasonable probability that the result of the
         proceeding would have been different absent such error.

      Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005)
      (citing Commonwealth v. Pierce, 527 A.2d 973, 975
      (Pa. 1987)). Trial counsel is presumed to be effective, and [the
      appellant] bears the burden of pleading and proving each of the
      three factors by a preponderance of the evidence.” Rathfon,
      899 A.2d at 369; see also Commonwealth v. Meadows, 787
      A.2d 312, 319-320 (Pa. 2001).

      The right to the constitutionally effective assistance of counsel
      extends to counsel’s role in guiding his client with regard to the
      consequences of entering into a guilty plea. Wah, 42 A.3d at
      338.



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            Allegations of ineffectiveness in connection with the entry
            of a guilty plea will serve as a basis for relief only if the
            ineffectiveness caused the defendant to enter an
            involuntary or unknowing plea.       Where the defendant
            enters his plea on the advice of counsel, the voluntariness
            of the plea depends on whether counsel’s advice was
            within the range of competence demanded of attorneys in
            criminal cases.

       Id. at 338-39 (internal quotation marks and modifications
       omitted); see Commonwealth v.Yager, 685 A.2d 1000, 1003-
       04 (Pa. Super. 1996).       Thus, to establish prejudice, “the
       defendant must show that there is a reasonable probability that,
       but for counsel’s errors, he would not have pleaded guilty and
       would have insisted on going to trial. Rathfon, 899 A.2d at 369-
       70 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “The
       reasonable probability test is not a stringent one”; it merely
       refers to “a probability sufficient to undermine confidence in the
       outcome.” Id. at 370 (quoting Commonwealth v. Hickman,
       799 A.2d 136, 141 (Pa. Super. 2002)).

Barndt, 74 A.3d at 192 (citations modified).

       Whether an IAC claim is brought under the auspices of the PCRA or by

a petition for a writ of coram nobis, the Pierce-factor analysis, which

establishes the constitutional floor for the sufficiency of counsel, applies

equally.3     Thus, at a minimum, a petitioner seeking relief for IAC, by

whatever procedural means, must separately address each of the three

prongs in order to establish a basis for relief. Failure expressly to plead and
____________________________________________


3
      Indeed, before the Supreme Court made clear in Commonwealth v.
Grant that claims of ineffective assistance of counsel must be deferred until
any direct appeal is resolved and pursued under the PCRA, see 813 A.2d
726, 739 (Pa. 2002) (“We hold that, as a general rule, a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral
review.”), such claims routinely were raised on direct appeal and measured
according to the Pierce standard.



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prove any one of these prongs standing alone is fatal to an IAC claim.

Commonwealth v. Steele, 961 A.2d 786, 799, 801-02 (Pa. 2008);

Commonwealth v. DuPont, 860 A.2d 525, 532 (Pa. Super. 2004).

      Salcedo argues that the trial court erred in declining to treat his

petition for collateral relief as a petition for a writ of coram nobis, rather

than as a petition under the PCRA.      By so arguing, he seeks to avoid the

jurisdictional consequences of the undisputed fact that he no longer is

serving a sentence, as required to be eligible for relief under the PCRA, see

42 Pa.C.S. § 9543(a)(1)(i), and indeed was discharged to DHS custody at

the time of sentencing because his time served exceeded the fifteen to

thirty-day term of incarceration imposed by the trial court as part of

Salcedo’s negotiated nolo contendere plea. In so arguing, Salcedo resorts to

case law interpreting the PCRA’s predecessor Post-Conviction Hearing Act,

see Brief for Appellant at 12-14, which case law, we have had occasion to

note, is of very limited utility to interpreting the PCRA because the latter

reflected wholesale changes to the PCHA framework that it supplanted. See

generally     Commonwealth        v.   Fiore,    665      A.2d   1185,   1191-92

(Pa. Super. 1995). Accordingly, his resort to such case law is unavailing.

      More importantly, though, Salcedo’s arguments all hinge upon his

contention that his various attorneys, and plea counsel in particular,

rendered IAC in failing properly to inform him of the potential immigration

consequences of entering a plea of nolo contendere. This is reflected in his

initial pro se petition, wherein he alleged as follows:

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      1.   [Salcedo] was misadvise[d] by [his] attorney of the
      consequences of pleading nolo contendere[,] which in turn
      impacted and is [a]ffecting [Salcedo’s] immigration status.

      2.    [Salcedo] was coerced in taking the plea because of [his]
      race and possib[ly his] nationality.

      3.    After being indicted, [he] wasn’t given the opportunity to
      go to trial within . . . 180 days of being in custody.

Pro Se PCRA Petition at 3.    He further asserted that he “was ineffectively

represented,” “would not have pleaded nolo contendere,” and “would not

have this charge on [his] record.” Id. (capitalization modified).

      After appointed PCRA counsel was permitted to withdraw pursuant to

Turner/Finley, the PCRA court directed Salcedo to file a concise statement

of errors complained of on appeal. Salcedo’s Rule 1925 statement was not

to the contrary.    Therein, Salcedo largely contended that his ongoing

incarceration on an ICE detainer qualified as incarceration under the PCRA,

entitling him to seek relief thereunder.   In the alternative, he contended

that, even if his ICE incarceration did not qualify as incarceration for

purposes of PCRA eligibility, he should have been afforded coram nobis,

relief outside the strictures of the PCRA. Finally, he alleged that he wished

to press claims including IAC “during his proceedings with all four of

[Salcedo’s] attorney[s],” that he had been denied his right to due process,

and that he had not timely been brought to trial as required by

Pa.R.Crim.P. 600. Rule 1925(b) Statement at 3.

      Before this Court, Salcedo effectively abandons his broad due process

claims and his Rule 600 argument, concentrating instead upon his eligibility


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for collateral relief within or outside the PCRA. Critically, he does not in any

recognizable way plead that he had an even potentially meritorious claim for

IAC. Specifically, Salcedo does not argue discretely (1) that his claim of IAC

has arguable merit; (2) that his attorney lacked a reasonable basis for any

actions or omissions to act in connection with Salcedo’s plea proceedings;

and (3) that Salcedo was prejudiced by the complained-of acts or omissions

in the sense that, had counsel comported himself consistently with his

professional obligations, there was a reasonable probability that Salcedo

would have opted to maintain his innocence and proceed to trial. As noted,

supra, the omission of any discussion of even one of these elements, let

alone all three, necessarily is fatal to an IAC claim. See Rathfon, supra.4

       We recognize that PCRA counsel’s withdrawal pursuant to Turner and

Finley, and the PCRA court’s determination that it lacked jurisdiction to

address the merits of Salcedo’s claims, understandably have prompted

Salcedo to focus before this Court upon his eligibility for relief at the expense

of developing the bases upon which he seeks relief. However, that does not

____________________________________________


4
      Although we do not reach the question, we note that the sentencing
transcript undermines the claim that he was not, nor could be, aware of the
potential for immigration consequences arising as a consequence of his nolo
contendere plea in the instant case. See Notes of Testimony, 10/26/2012,
at 6 ([Plea counsel addressing the court]: “I have discussed with [Salcedo]
whether there would be immigration implications here. I don’t believe there
are arising from this charge, but he’s aware that that’s possible,
particularly in light of his past,” i.e., a prior felony conviction in New York
(emphasis added)).



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relieve him of the burden of pleading at a minimum the substantive basis for

such relief sufficiently clearly to persuade this court that remanding the case

for further proceedings would be more than an exercise in futility. It is not

for us to make determinations of fact, but it also is not for us to infer that a

meritorious argument may lie when the appellant has made no effort to

establish what that argument might be.

       Because Salcedo has not pleaded any basis upon which relief might be

granted, even if he were deemed eligible for such relief, we decline to pass

upon Salcedo’s arguments pertaining to his eligibility for relief outside the

confines of the PCRA. Instead, we find that Salcedo’s underlying claims of

IAC, upon which his substantive claims for relief are predicated, were

insufficiently developed before the PCRA court and this Court to warrant

further consideration.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015

____________________________________________


5
    We may affirm a correct trial court ruling on any basis.
Commonwealth v. Pacell, 497 A.2d 1375, 1377 n.1 (Pa. Super. 1985).



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