J-A08040-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                   Appellee                 :
                                            :
                     v.                     :
                                            :
GUSTAVO M. HERNANDEZ,                       :
                                            :
                   Appellant                :     No. 2145 EDA 2016

                    Appeal from the Order June 17, 2016
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): MC-51-CR-0843401-2005

BEFORE:     PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED MAY 21, 2018

      Gustavo Hernandez (Appellant) appeals from the June 17, 2016 order

dismissing his petition filed pursuant to the Post-Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

      On November 22, 2013, Appellant entered a negotiated guilty plea to

possession of a controlled substance, and was sentenced to six months of

probation. Appellant’s probationary term ended on May 28, 2014.

             On June 3, 2014, Appellant filed a PCRA petition asserting
      ineffective [assistance of] counsel. On December 22, 2014,
      Appellant filed the instant amended PCRA petition and/or writ of
      habeas corpus and/or writ of coram nobis. The amended PCRA
      petition avers that trial counsel was ineffective for permitting
      Appellant to plead guilty without an interpreter. Appellant further
      avers that because he pled without an interpreter, he did not
      voluntarily, knowingly, and intentionally waive his right to pretrial
      motions and a trial. In addition, Appellant avers that he did not
      waive his right to speak with an immigration attorney, since trial



*Retired Senior Judge assigned to the Superior Court.
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      counsel should have known that a plea to the possession offense
      would ultimately result in deportation.

            Specifically, Appellant avers that trial counsel was
      ineffective: for failing to have Appellant apply for a diversionary
      program[ ]; for failing to file a meritorious motion to suppress;
      and, for inaccurately and materially misadvising Appellant that
      accepting the plea would not result in his deportation and/or
      removal from the United States pursuant to applicable
      immigration laws. On July 16, 2013, Appellant received a notice
      to appear in Immigration Court, whereby Appellant presently
      faces deportation.

Trial Court Opinion, 5/9/2017, at 2 (footnote and unnecessary capitalization

omitted).

      On June 17, 2016, the trial court dismissed Appellant’s petition, holding

that Appellant’s petition must be construed as a PCRA petition and, pursuant

to 42 Pa.C.S. § 9543, Appellant was not eligible for relief because he was no

longer serving a sentence.     This timely-filed appeal followed.1    On appeal,

Appellant asks this Court to determine whether the PCRA court erred in

“denying Appellant’s petition for writ of coram nobis on the ground that the

only avenue for relief for Appellant’s claim of ineffective assistance [of

counsel] was by way of [a PCRA] petition[.]” Appellant’s Brief at 2.

      In determining whether        the   PCRA   court properly     characterized

Appellant’s petition as a PCRA petition, we observe the following.

      The current version of Pennsylvania’s [PCRA] explicitly states that
      it shall be the sole means of obtaining collateral relief and that its


1The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal, but the PCRA court did file a Pa.R.A.P.
1925(a) opinion.

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J-A08040-18


     provisions encompass[ ] all other common law and statutory
     remedies for the same purpose that exist when this subchapter
     takes effect, including habeas corpus and coram nobis. Under the
     plain words of the statute, if the underlying substantive claim is
     one that could potentially be remedied under the PCRA, that claim
     is exclusive to the PCRA. It is only where the PCRA does not
     encompass a claim that other collateral procedures are available.

Commonwealth v. Pagan, 864 A.2d 1231, 1232–33 (Pa. Super. 2004)

(internal citations and quotation marks omitted).

     Claims of ineffective assistance of counsel are cognizable under the

PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii) (stating that to be eligible for relief

under the PCRA, a petitioner must plead and prove that a conviction or

sentence resulted from “[i]neffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place”). Our Supreme Court recently decided a factually similar case, and

held that the PCRA was the sole means for collateral review.

            [Descardes] could have raised in a PCRA petition an
     ineffectiveness of counsel claim based on counsel’s failure to
     advise him of the consequences, including deportation, of his
     guilty plea. The fact such claim likely would have been rejected on
     its merits does not change the fact that it could have been raised
     under the PCRA.

            For all of the foregoing reasons, we conclude the Superior
     Court’s decision in the instant case is contrary to the decisions of
     this Court which hold that, where a petitioner’s claim is cognizable
     under the PCRA, the PCRA is the only method of obtaining
     collateral review. As a result, [Descardes’s] PCRA petition should
     have been dismissed because, as he was no longer incarcerated
     at the time it was filed, he was ineligible for PCRA relief, and, thus,
     both the PCRA court and the Superior Court lacked jurisdiction to
     entertain the petition.


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J-A08040-18



Commonwealth v. Descardes, 136 A.3d 493, 503 (Pa. 2016).

      We are bound by our Supreme Court’s ruling on this issue. Appellant

concedes as much in his brief.

      Appellant concedes this Court is bound by the Supreme Court’s
      ruling in [] Descardes, [] wherein the Court held that the Post
      Conviction Relief Act is the only lawful method for obtaining
      collateral review - thus reversing this Court’s holding in
      Commonwealth v. Descardes, [] 101 A.3d 105 (Pa. Super.
      2014) that a petition for writ of coram nobis is a lawful avenue for
      challenging a conviction in appropriate circumstances in which a
      PCRA petition is not an available avenue for relief. However, this
      appeal is presented in good faith on the ground that it is the only
      method by which Appellant can obtain possible reconsideration by
      the Pennsylvania Supreme Court (by means of a petition for
      allowance of appeal) of its holding that a petition for writ of coram
      nobis is not a lawful means to obtain collateral review of a
      conviction.

Appellant’s Brief at 9.

      Accordingly, the PCRA court properly considered Appellant’s petition as

a PCRA petition; Appellant is not eligible for PCRA relief because he is no longer

serving his sentence; and thus the PCRA court did not err in denying

Appellant’s petition.     See 42 Pa.C.S. § 9543(a)(1); Commonwealth v.

Turner, 80 A.3d 754, 766 (Pa. 2013) (“[T]he General Assembly, through the

PCRA, excluded from collateral review those individuals who were no longer

subject to a state sentence….”).

      Order affirmed.




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J-A08040-18




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 5/21/18




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