J-S06019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
VERNON ANDREWS                         :
                                       :
                  Appellant            :   No. 1444 EDA 2017

                Appeal from the PCRA Order April 24, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0013540-2011


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                     FILED MARCH 06, 2018

     Vernon Andrews appeals from the order denying his petition filed

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

We conclude that Andrews is ineligible for PCRA relief because he is no

longer serving a sentence of incarceration, parole, or probation and that

application of this eligibility requirement to Andrews did not violate his

Fourteenth Amendment right to due process. Therefore, we affirm.

     On September 12, 2012, Andrews pled guilty to possession with intent

to deliver a controlled substance, 35 P.S. § 780-113(a)(30), and criminal

conspiracy, 18 Pa.C.S.A. § 903. The trial court sentenced Andrews to 11½ to

23 months’ incarceration followed by three years’ probation. Andrews did not

appeal.

     On January 18, 2013, Andrews filed a pro se PCRA petition. Counsel

filed an amended petition on September 1, 2014. On March 6, 2015, the
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PCRA court denied the petition. Andrews appealed and this Court remanded

for an evidentiary hearing to clarify Andrews’ claim that trial counsel was

ineffective for failing to advise him of the immigration consequences of his

guilty plea. Commonwealth v. Andrews, No. 805 EDA 2015, unpublished

memorandum at 1, 14 (Pa.Super. filed June 3, 2016). After remand, the

Commonwealth filed a letter brief, arguing the PCRA court should dismiss

the petition because Andrews completed serving the probationary period of

his sentence on September 27, 2016. Andrews filed a response arguing,

among other things, that he had a liberty interest protected under the Due

Process Clause because of the collateral consequence of deportation. Letter

Br., filed Feb. 5, 2017, at 2.1 The PCRA court issued notice of its intent to

dismiss the petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907 and subsequently denied the petition. Andrews filed

a timely notice of appeal.

        Andrews raises the following issue on appeal:

           Must a petition for post conviction relief be denied because
           the defendant is no longer subject to imprisonment,
           probation or parole in Pennsylvania when the defendant is
           subject to deportation from the United States?

Andrews’ Br. at 4.

        Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

____________________________________________


1   On February 10, 2017, the Commonwealth filed a reply.



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evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

       To be eligible for PCRA relief, a petitioner must plead and prove by a

preponderance of the evidence that he or she has been convicted of a crime

and that he or she is “currently serving a sentence of imprisonment,

probation or parole for the crime.” 42 Pa.C.S.A. § 9543(a)(1)(i); see also

Commonwealth v. Plunkett, 151 A.3d 1108, 1113 (Pa.Super. 2016)

(appellant no longer eligible for collateral review when sentence expired

during pendency of appeal from denial of PCRA relief).

       Andrews argues that the PCRA’s requirement that a petitioner be

currently serving a sentence is unconstitutional when applied to petitioners

subject to deportation because it does not comport with the Fourteenth

Amendment’s       “substantive      due    process   requirement   of   fundamental

fairness.” Andrews’ Br. at 10-11. He notes that the United States Supreme

Court has stated that it is “‘most difficult’ to divorce” the penalty of

deportation from a conviction. Id. at 12 (quoting Padilla v. Kentucky, 559

U.S. 356, 365 (2010)).2
____________________________________________


2 Andrews has arguably waived his due process claim by failing to raise it
with specificity in his Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(ii) (“The
Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for
the judge.”); Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002)
(appellant waives any issues not raised in 1925(b) statement). Andrews’
Rule 1925(b) statement argues he was “denied due process of law and equal
protection of the laws” because section 9543(a)(1)(i) discriminates between
(Footnote Continued Next Page)


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      The PCRA court concluded that Andrews was ineligible for relief

because he was not currently serving a sentence for the crime and that his

due process rights were not violated because, after completion of his

sentence, his sentence no longer burdened his liberty. Trial Court Opinion,

filed June 26, 2017, at 5.

      In Commonwealth v. Turner, the Pennsylvania Supreme Court

addressed a petitioner’s claim that application of the PCRA’s requirement of

current incarceration, probation or parole to her violated her due process

rights because she received a short sentence. 80 A.3d 754 (Pa. 2013). The

Supreme Court concluded that “due process does not require the legislature

to continue to provide collateral review when the offender is no longer

serving a sentence.” Id. at 765. The Court stated:

          Because individuals who are not serving a state sentence
          have no liberty interest in and therefore no due process
          right to collateral review of that sentence, the statutory
          limitation of collateral review to individuals serving a
(Footnote Continued) _______________________

petitioners serving a sentence and those subjected to collateral
consequences, such as deportation; section 9542 abolished the writ of
coram nobis; and judicial and prosecutorial delay caused him to be denied
PCRA relief. Concise Statement of Errors Complained of on Appeal, filed Aug.
11, 2017, at ¶ 2. We, however, decline to find waiver because the statement
mentions due process and section 9642(a)(1)’s impact on those facing
deportation; in his letter brief filed with the trial court prior to dismissal
Andrews argued he had a liberty interested protected by due process
because he faced deportation; and the trial court addressed the claim in its
Rule 1925(a) opinion. See Commonwealth v. Laboy, 936 A.2d 1058, 1059
(Pa.2007) (declining to find waiver where appellant did not specify element
Commonwealth allegedly failed to prove, but the trial court addressed the
issue and case was straight forward).



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        sentence of imprisonment, probation, or parole is
        consistent with the due process prerequisite of a protected
        liberty interest. 42 Pa.C.S. § 9543(a)(1)(i). Of course, the
        legislature was free to extend a statutory right of collateral
        review to individuals like Petitioner who had completed
        their sentence and, had they done so, they would be
        constitutionally obligated to ensure that those rights were
        impacted only in accord with due process. See Evitts v.
        Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 83 L.Ed.2d 821
        (1985) (“when a State opts to act in a field where its
        action has significant discretionary elements, it must
        nonetheless act in accord with the dictates of the
        Constitution—and, in particular, in accord with the Due
        Process Clause”); Haag, 809 A.2d at 282–83 (providing
        that although a PCRA petitioner does not have a Sixth
        Amendment constitutional right to counsel during collateral
        review, the Commonwealth, by way of procedural rule,
        provided for the appointment of counsel during a first
        petition for post-conviction relief, thereby creating a rule-
        based right to the effective assistance of counsel).
        However, the legislature did not do so. Rather, the General
        Assembly, through the PCRA, excluded from collateral
        review those individuals who were no longer subject to a
        state sentence, thereby limiting the statutory right of
        collateral review to those whose liberty was constrained.

Id. at 766.

     Further, in Commonwealth v. Descardes, the petitioner, a Haitian

national who had resident alien status in the United States, pled guilty to

insurance fraud and conspiracy to commit insurance fraud without being

informed that deportation was a collateral consequence of his plea. 136 A.3d

493, 494 (Pa. 2016). After he completed serving his probationary sentence,

he went on a business trip. Id. at 494. Immigration officials denied him re-

entry due to the conviction. Id. The Pennsylvania Supreme Court concluded




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the petitioner was ineligible for PCRA relief because he was no longer serving

a sentence of imprisonment, probation, or parole for the crime. Id. at 503.3

       Applying Descardes and Turner, we are constrained to conclude that

application of the PCRA’s requirement that a petitioner be currently serving a

sentence of incarceration, probation, or parole for the crime to be eligible for

relief does not violate the due process rights of those facing deportation

because of the convictions. As with protections for those who receive a short

sentence, the legislature did not create a statutory entitlement to collateral

review for defendants who face deportation as a result of their convictions.

See Turner, 80 A.3d at 767 (noting that the legislature “chose not to create
____________________________________________


3 Andrews cites federal cases to support his due process claim. The federal
cases, however, are not binding on this court and are inapplicable because
the cases are at a different procedural posture and/or interpret and apply
federal statutes. Lee v. United States, 137 S.Ct. 1958 (2017) (addressing
motion to vacate conviction and noting issue was whether defendant could
establish he was prejudiced by counsel’s unreasonable representation in
which he assured defendant that he would not face deportation); Padilla,
559 U.S. at 359 (concluding, in timely post-conviction proceeding, that
“constitutionally competent counsel would have advised [defendant] that his
conviction . . . made him subject to deportation”); Amenuvor v.
Mazurkiewicl, 457 Fed.Appx. 92, 93 (3d Cir. Jan. 11, 2012) (finding
defendant “in custody” for purposes of 28 U.S.C. § 2241(c)(1) where he was
subject to a detainer from the Unites States Immigration and Customs
Enforcement (“ICE”) after release from state custody); Gutierrez v.
Gonzales, 125 Fed.Appx. 406, 409, 416 (3d Cir. Mar. 16, 2005) (finding
petitioner who filed petition for writ of habeas corpus after he was removed
met section 2241(c)’s custody requirement in the “unique” circumstances of
the case where he was in ICE custody when he requested relief but was
“effectively prevented from doing so by his counsel’s affirmative
misrepresentations,” the language of 2241(c) did not preclude an
interpretation that would provide jurisdiction, and “multiple strong policy
concerns weigh in favor of finding custody”) .



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any statutory entitlement to collateral review for defendants who have

completed their sentences”). The PCRA court did not err in denying the

petition.4

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:3/6/18




____________________________________________


4 To the extent Andrews argues that his case is not moot because the case
was capable of repetition yet evading review, Andrews’ Br. at 13-14, we find
the issue waived and inapplicable. First, Andrews failed to raise this issue
before the trial court and, therefore, any claim that the trial court erred in
not reviewing his claim because it was capable of repetition yet evading
review is waived. Pa.R.A.P. 302(a) (issues not raised in the lower court are
waived and cannot be raised for the first time on appeal). Further, the
doctrine is inapplicable here, where Andrews’s claim is not moot. Rather, the
PCRA court found, and we affirmed, that Andrews is ineligible for PCRA
relief. See Turner, 80 A.3d 765-68 (PCRA petitioner not entitled to PCRA
hearing after completed serving sentence); Plunkett, 151 A.3d at 1113
(Pa.Super. 2016) (appellant no longer eligible for collateral review when
sentence expired during pendency of appeal from denial of PCRA relief).



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