J-S70011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
DANIEL PACHECO-MORALES                    :
                                          :
                   Appellant              :        No. 1079 MDA 2017

               Appeal from the PCRA Order February 28, 2017
                In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0000385-2002,
            CP-67-CR-0000586-1997, CP-67-CR-0001947-1998,
                          CP-67-CR-0004350-1996


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                FILED NOVEMBER 14, 2017

      Appellant, Daniel Pacheco-Morales, appeals pro se from the order

entered in the York County Court of Common Pleas, which dismissed his first

petition for collateral relief (labeled a petition for writ of coram nobis), per

the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On

October 21, 1996, Appellant entered a guilty plea at docket CP-67-CR-

0004350-1996, to possession with intent to deliver a controlled substance

(“PWID”) and conspiracy.       The court sentenced Appellant on February 12,

1997, to an aggregate term of 6 to 18 months’ imprisonment. On May 21,

1997, Appellant entered a guilty plea at docket CP-67-CR-000586-1997, to

PWID and conspiracy. The court sentenced Appellant at that docket on June

30, 1997, to an aggregate term of 11½ to 23 months’ imprisonment,
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concurrent to the sentence at docket No. 4350-1996.       On June 18, 1998,

Appellant entered a guilty plea to PWID at docket CP-67-CR-0001947-1998.

The court sentenced Appellant that day to 15 to 30 months’ imprisonment.

On June 6, 2007, a jury convicted Appellant of PWID, at docket CP-67-CR-

0000385-2002.    The court sentenced Appellant at that docket on July 18,

2007, to 24 to 48 months’ imprisonment. On November 4, 2016, Appellant

filed a pro se petition for writ of coram nobis, challenging his convictions

and/or sentences at all of these dockets. The court treated Appellant’s filing

as a PCRA petition, and denied relief by order dated February 28, 2017, and

entered March 1, 2017. Appellant timely filed a pro se notice of appeal on

March 27, 2017.      That same date, Appellant also filed a motion for

appointment of counsel in the PCRA court; the court did not rule on the

motion. No Pa.R.A.P. 1925(b) statement was ordered or filed.

      Preliminarily, any petition for post-conviction collateral relief will

generally be considered a PCRA petition if the petition raises issues

cognizable under the PCRA.     See Commonwealth v. Peterkin, 554 Pa.

547, 722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole

means of obtaining collateral relief and encompasses all other common law

and statutory remedies for same purpose). Additionally, a PCRA petitioner

must be currently serving a sentence of imprisonment, probation or parole

for the conviction at issue to be eligible for PCRA relief. 42 Pa.C.S.A. §

9543(a)(1)(i).   See also Commonwealth v. Williams, 977 A.2d 1174


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(Pa.Super. 2009), appeal denied, 605 Pa. 700, 990 A.2d 730 (2010)

(explaining petitioner must be serving sentence of imprisonment, probation,

or parole for crime at issue to be eligible for PCRA relief; once sentence is

completed, petitioner is ineligible for PCRA relief, regardless of whether he

was serving his sentence when he filed petition). Further:

         This [C]ourt has held that the failure to appoint counsel for
         a [first-time] petitioner under the PCRA who has served his
         sentence is harmless error, and that a remand for
         appointment of counsel is not appropriate, as a remand
         would be futile under such a circumstance. The purpose
         for appointing counsel for a first-time petitioner, even
         where the petition appears to be untimely filed, is for the
         petitioner to attempt to establish an exception to the one-
         year time limitation. Obviously, where the petitioner is no
         longer serving a sentence of imprisonment, probation or
         parole, establishing such an exception is a legal
         impossibility, as the statute no longer applies. The law
         does not require the performance of a futile act.

Commonwealth v. Hart, 911 A.2d 939, 942 (Pa.Super. 2006) (internal

citations omitted).

      Instantly, Appellant filed his first pro se petition for collateral relief on

November 4, 2016, which he labeled a petition for writ of coram nobis. In

his petition, Appellant challenged the validity of his guilty pleas at docket

Nos. 4350-1996, 586-1997, and 1947-1998; and he attacked the legality of

his sentence at docket No. 385-2002.        These claims are cognizable under

the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(iii), (vii) (recognizing challenges

under PCRA to validity of guilty plea and legality of sentence).        Thus, the

court properly treated Appellant’s prayer for relief as a PCRA petition. See


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Peterkin, supra.            Appellant contends he is entitled to collateral relief

because he is currently serving a federal sentence in an unrelated case and

was designated a “career offender” in that case as a result of his state

convictions, which enhanced his federal sentence.          Significantly, however,

Appellant concedes he is no longer serving a sentence at any of the

referenced state dockets.          Consequently, Appellant is ineligible for PCRA

relief.    See 42 Pa.C.S.A. § 9543(a)(1)(i); Williams, supra.         Further, the

court’s failure to appoint counsel for Appellant where he is ineligible for PCRA

relief amounts to harmless error.1             See Hart, supra.   Accordingly, we

affirm.2

          Order affirmed.




____________________________________________


1 The PCRA court’s failure to issue appropriate notice per Pa.R.Crim.P. 907
similarly amounts to harmless error under these circumstances and does not
require a remand. See generally Hart, supra.

2 The order denying PCRA relief lists only docket No. 385-2002. We direct
the York County Clerk of Courts to enter the court’s order denying PCRA
relief at each of the relevant dockets.



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J-S70011-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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