J-S36003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 MARIUSZ MARCINKOWSKI,                      :
                                            :
                      Appellant.            :   No. 2929 EDA 2017


                  Appeal from the PCRA Order, July 31, 2017,
                in the Court of Common Pleas of Bucks County,
             Criminal Division at No(s): CP-09-CR-0007139-2005.


BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED AUGUST 24, 2018

      Mariousz Marcinkowski appeals from the order denying his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

      The PCRA court summarized the pertinent facts and procedure as

follows:
              On September 15, 2005, [Marcinkowski] was charged by
           the Bristol Township, Bucks County Police Department with
           Possession of a Controlled Substance with Intent to Deliver,
           Intentionally Possessing a Controlled Substance and Use or
           Possession of Drug Paraphernalia.

              On January 31, 2006, [Marcinkowski] pled guilty to the
           charges. On March 17, 2006, he was sentenced by this
           Court to serve no less than one (1) year nor more than two
           (2) years of incarceration in the Bucks County Correctional
           Facility on the Possession with Intent to Deliver charge. No
           further penalties were imposed on the remaining charges.

              [Marcinkowski] did not file any post-sentence motions
           nor did he file a direct appeal from his judgment of sentence.
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          [Marcinkowski] was paroled on May 3, 2007, and his
       sentence expired in its entirety on March 13, 2008.

           On May 17, 2017, over nine (9) years after the expiration
       of his sentence, [Marcinkowski] filed a counseled “Nunc Pro
       Tunc Motion to Withdraw Guilty Plea,” in which he
       challenged the voluntariness of his original guilty plea and
       alleged ineffective assistance of counsel for failing to advise
       him of the immigration consequences stemming from his
       March 17, 2006 conviction.

          According to his Motion, [Marcinkowski] was arrested on
       March 24, 2017 by a member of the United States
       Department of Homeland Security and ICE and “is subject
       to detention, removal and deportation under Section
       227(a)(2)(B)(i) and 237(a)(2)(A)(iii) of the Immigration
       and Nationality Act.”

          On June 6, 2017, the Commonwealth filed an Amended
       Petition to Dismiss PCRA Petition for Lack of Jurisdiction as
       Petitioner is No Longer Serving a Sentence,” in which it
       observed that [Marcinkowski’s] Motion must be treated as a
       request for relief under the [PCRA], and that as a result, this
       Court lacks jurisdiction to entertain the Motion because
       [Marcinkowski’s] sentence had expired in its entirety.

          On June 14, 2017, this PCRA Court filed a Notice of Intent
       to Dismiss [Marcinkowski’s] Motion pursuant to Pa.R.Crim.P.
       907.

          On June 21, 2017, [Marcinkowski] filed a counseled
       “Answer to [PCRA] Court’s Notice of Intent to Dismiss,”
       arguing that his “Nunc Pro Tunc Motion to Withdraw his
       Guilty Plea[”] should not treated as a PCRA petition”
       because he “did not have the knowledge or ability to file a
       PCRA at the time he learned his guilty plea was not entered
       knowing, intelligent and voluntary [sic].” He was therefore
       “not asserting ineffective assistance of counsel,” but simply
       seeking to withdraw his guilty plea because it was not
       entered knowing, intelligent and voluntary [sic].”

          On July 31, 2017, after careful consideration of the
       various submissions of the parties and review of the record,
       this Court again concluded that it lacked jurisdiction in this
       matter and entered an Order dismissing [Marcinkowski’s]
       “Nunc Pro Tunc Motion to Withdraw Guilty Plea.”

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PCRA Court Opinion, 11/8/17, at 1-2 (footnotes omitted).

       [Marcinkowski] filed a pro se notice of appeal on August 31, 2017.1

Marcinkowski complied with the PCRA court’s subsequent order directing him

to file a statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), by timely filing a statement, as well as an amended statement.

Subsequently, the PCRA court appointed counsel. The PCRA court has also

complied with Pa.R.A.P. 1925(a).

       Marcinkowski raises the following issues in his counseled brief:

          I.     Did the [PCRA] Court err in failing to grant the Nunc
                 Pro Tunc Motion to Withdraw Guilty Plea . . . which
                 challenged     whether     [Marcinkowski]      received
                 ineffective assistance of counsel for failure to advise
                 [him] of the potential immigration consequences of
                 his plea and subsequent conviction for the felony of
                 Possession With Intent to Deliver a Controlled
                 Substance for which [he] now faces detention,
                 removal and deportation under . . . the Immigration
                 and Nationality Act?

          II.    Did the [PCRA] Court err when it failed to
                 acknowledge, from [Marcinkowski’s] “Amendment to
                 Defendant’s Rule 1925(b) Concise Statement of Errors
                 Complained of on Appeal,” that there was newly
                 discovered evidence in this case. Specifically, that
                 Lieutenant Ralph Johnson, was willing to speak on
                 [his] behalf to reduce the charge from the felony
                 Possession with Intent to Deliver a Controlled
                 Substance to Possession of a Controlled Substance; a
                 crime which is not subject to deportation.


____________________________________________


1 Marcinkowski filed his pro se appeal one day late. Nevertheless, we decline
to quash the appeal on this basis as it appears the “prisoner mailbox rule”
renders it timely. See generally, Commonwealth v. Brandon, 51 A.3d 231
(Pa. Super. 2012).

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Marcinkowski’s Brief at 5-6.

      Initially, we note that the PCRA court correctly treated Marcinkowski’s

motion as a petition under the PCRA because his claim of ineffective assistance

of counsel for failing to warn him of the possible deportation consequences of

his guilty plea to a felony drug charge is cognizable under the post-conviction

statute. Commonwealth v. Descardes, 136 A.2d 493, 501-02 (Pa. 2016).

This Court’s standard of review regarding an order dismissing a petition under

the PCRA is to determine whether the PCRA court’s conclusion is supported by

the evidence of record and is free of legal error. The PCRA court’s factual

findings will not be disturbed unless there is no support for the findings in the

certified record.   Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.

Super. 2013) (citations omitted).

      In denying Marcinkowski post-conviction relief, the PCRA court

explained:

             In accordance with 42 Pa.C.S.A. § 9543(a)(1)(i),
         [Marcinkowski] must be “currently serving a sentence of
         imprisonment, probation or parole” in order to be eligible for
         relief under the PCRA. Here, [Marcinkowski] is no longer
         serving a sentence for his conviction under Docket No. CP-
         09-CR-0007139-2005, and in fact [his] sentence expired
         nine (9) years ago. He is clearly not entitled to relief under
         the PCRA.

PCRA Court Opinion, 11/8/17, at 4-5.

      The PCRA court explained that “[the] necessity to comply with the

requirement under 42 Pa.C.S.A. § 9543(a)(1)(i) was confirmed by the

Supreme Court of Pennsylvania in Descardes, supra[.]”         Id. at 5. In that

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case, a non-citizen petitioner was denied reentry into the United States due

to a prior conviction for which he had completed his sentence. In Descardes,

our Supreme Court held that Descardes’ petition should have been dismissed

because, as he was no longer incarcerated at the time it was filed, he was

ineligible for relief under the PCRA. Descardes, 136 A.3d at 503. The PCRA

court noted that, although the court was sympathetic to Marcinkowski’s

“current plight,” it could not consider Marcinkowski’s request because he had

completed serving his sentence. PCRA Court Opinion, 11/8/17, at 5. Our

review   of   the   record   supports    the   PCRA   court’s   conclusion   that

Marcinskowski’s appeal is controlled by our Supreme Court’s decision in

Descardes.

     Marcinkowski argues that, although untimely, he meets an exception to

the PCRA’s time bar because he filed his motion within sixty days of

discovering he was subject to deportation.

     Our review of the record supports the Commonwealth’s assertion that

Marcinkowski’s claim regarding the timeliness of his petition is waived,

because it was not raised before the PCRA court and, therefore, is

inappropriately being raised for the first time on appeal.      See generally,

Pa.R.A.P. 302(a); see also Commonwealth v. Burton, 936 A.2d 521, 525

(Pa. Super. 2007) (explaining asserted exceptions to the time restrictions in

the PCRA must be included in the petition and may not be raised for the first

time on appeal).




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       Moreover, even if true, in light of Descardes, the timeliness of his PCRA

petition is irrelevant.     Marcinkowski is ineligible for relief under the PCRA

because he completed his sentence.2 In addition, Marcinkowski’s attempt to

distinguish    Descardes,       because        he,   unlike   Descardes,   “is   currently

incarcerated” is not persuasive.                Although Marcinkowski is currently

incarcerated due to the actions of a federal government agency, he is no

longer serving his judgment of sentence for the underlying drug charges. See

42 Pa.C.S.A. § 9543(a)(1)(i) (providing to be eligible for relief under the PCRA

the petitioner must be “currently serving a sentence of imprisonment . . . for

the crime”).

       In his second issue, Marcinkowski raises an alternative argument to his

timeliness claim, by asserting that he possesses newly discovered evidence in

the form of proffered testimony “by the Affiant in the original criminal case.”

Marcinkowski’s Brief at 24.         According to Marcinkowski, Lieutenant Ralph

Johnson would testify that he should have been charged only with possession

of the drugs. This claim fails for two reasons.

       First, as noted above, the timeliness of Marcinkowski’s petition must

yield to the standing issue regarding ineligibility for relief under the PCRA.

Second, by first raising this claim in his amended Rule 1925(b) statement,
____________________________________________


2 We are disinclined to accept the Commonwealth’s argument that this appeal
should be quashed, because we, as well as the trial court, lacked jurisdiction
to address Marcinkowski’s filing. See Commonwealth Brief at 7-8. Instead,
we follow the disposition reached by our Supreme Court in Descardes.



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Marcinkowski’s contention inappropriately is being raised for the first time on

appeal. See generally, Rule 302(a), supra; see also Commonwealth v.

Watson, 835 A.2d 786, 791 (Pa. Super. 2003)(explaining that, a party cannot

rectify the failure to preserve an issue by proffering it in response to a

Pa.R.A.P. 1925(b) order).

      In sum, because Marcinkowski is no longer serving his sentence for the

underlying drug charges to which he pled guilty, he is ineligible for post-

conviction relief, and the PCRA court properly dismissed his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2018




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