J-S26019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

BERANOBEL VALERIO

                         Appellant                   No. 1275 MDA 2014


                Appeal from the PCRA Order of June 26, 2014
               In the Court of Common Pleas of Berks County
              Criminal Division at No.: CP-06-CR-0002864-2005


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 01, 2015

      Beranobel Valerio appeals the June 26, 2014 order dismissing his

petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541, et seq. The PCRA court dismissed Valerio’s petition upon the basis

that the court lacked jurisdiction because the petition was untimely filed.

Before this Court, retained counsel for Valerio, George Gonzalez, Esq., who

also represented Valerio before the PCRA court, has filed a brief reviewing

Valerio’s underlying claim that his trial counsel was ineffective for failing to

advise (or incorrectly advising) him of the effect that a conviction would

have upon Valerio’s immigration status. Attorney Gonzalez also has filed a

petition to withdraw as counsel.       Notably, Attorney Gonzalez averredly

proceeds according to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),
J-S26019-15



opining that Valerio’s sole claim on appeal lacks merit.   In point of fact,

Turner and Finley apply only in the context of court-appointed counsel.

However, our own earlier order in this case mistakenly indicated otherwise.

Consequently, we analyze this case pursuant to the          Turner/Finley

procedure. After careful review, we affirm.

     The PCRA court provided the following account of this case’s

procedural background:

     On September 2, 2005, a jury found [Valerio] guilty of one
     (1) count of Possession of a Controlled Substance,2 one
     (1) count of Possession with Intent to Deliver (“PWID”) a
     Controlled Substance,3 one (1) count of Delivery of a Controlled
     Substance,4 and three (3) counts of Conspiracy5 to commit those
     crimes.    The Honorable Judge Forrest Schaeffer sentenced
     [Valerio], on October 6, 2005, to serve no less than one (1) to
     no more than two (2) years on the Delivery count. [Valerio] was
     also ordered to serve a consecutive one (1) to two (2) year
     sentence on the Conspiracy to Commit Delivery count. [Valerio]
     was represented at trial and sentencing by Stanley Silver,
     Esquire. No post-sentence motion or appeal was filed.

     _____________________
        2
            35 P.S. § 780-113(a)(16).
        3
            35 P.S. § 780-113(a)(30).
        4
            35 P.S. § 780-113(a)(30).
        5
            18 Pa.C.S. § 903(a).

     [Valerio] filed his first pro se PCRA petition (hereinafter “2006
     PCRA petition”) on July 7, 2006. Judge Schaeffer appointed Gail
     Chiodo, Esquire, on July 25, 2006, to represent [Valerio] in the
     disposition of his PCRA petition. Attorney Chiodo filed a “No
     Merit” Letter pursuant to Turner and Finley on October 26,
     2006, requesting leave to withdraw as counsel and expressing
     that, in her professional judgment, [Valerio’s] PCRA petition was
     meritless. Attorney Chiodo was granted leave to withdraw as
     PCRA counsel on December 5, 2006, and [Valerio] was given

                                    -2-
J-S26019-15


       NOTICE on January 4, 2007, that the [PCRA court] intended to
       dismiss his PCRA petition without a hearing. [Valerio’s] PCRA
       petition was dismissed on April 4, 2007. [Valerio] did not appeal
       from the [PCRA court’s] dismissal.

       On October 29, 2013, [Valerio], through George Gonzalez,
       Esquire, filed his present petition, titled NUNC-PRO TUNC
       PETITION FOR POST CONVICTION RELIEF PURSUANT TO
       42 Pa.C.S.A. §§ 9541, et seq., and/or PETITION FOR NUNC-PRO
       TUNC APPEAL AS TO DENIAL OF PETITION FOR POST
       CONVICTION RELIEF or in the alternative HABEAS CORPUS
       RELIEF (hereinafter “2013 PCRA petition”). . . .    [The PCRA
       court] ordered the Commonwealth on December 31, 2013, to file
       a response to [Valerio’s] 2013 PCRA petition, which was timely
       filed on February 25, 2014.

PCRA Court Order and Notice of Intent to Dismiss, 5/13/2014, at 3-4

(citations modified; emphasis in original).

       In the explanation attending its Rule 907 opinion, the PCRA court

addressed     Valerio’s    ineffective    assistance   of   counsel   argument   and

determined that it lacked jurisdiction over Valerio’s petition.         On June 23,

2014, Attorney Gonzalez filed a detailed response to the PCRA court’s

Rule 907 notice.       On June 26, 2014, the PCRA court entered an order

dismissing Valerio’s petition.

       Valerio filed a timely notice of appeal on July 28, 2014.1 On July 29,

2014, the PCRA court entered an order pursuant to Pa.R.A.P. 1925(b)

directing Valerio to file a concise statement of the errors complained of on


____________________________________________


1
      The 30-day deadline fell on Saturday, July 26, 2014. Consequently,
Valerio was not required to file his notice of appeal until Monday, July 28,
2014.



                                           -3-
J-S26019-15



appeal. Valerio timely complied. On August 25, 2014, the PCRA court filed

a statement pursuant to Pa.R.A.P. 1925(a), in which it indicated that its May

13, 2014 opinion fully responded to the issues raised by Valerio.

       Notably, throughout the PCRA proceedings below, Attorney Gonzalez

sought relief on the merits, maintaining that the principles set forth in

Padilla v. Kentucky, 559 U.S. 356 (2010), required relief under the

circumstances sub judice. However, in the time between the PCRA court’s

disposition and briefing in the instant appeal, this Court issued its en banc

decision     in    Commonwealth                v.    Descardes,       101     A.3d      105

(Pa. Super. 2014), wherein we resolved essentially the same issue that

Valerio presented to the PCRA court in this case and ruled against the

defendant-appellant.2

       Recognizing the import of Descardes, Attorney Gonzalez transmitted

correspondence to Valerio and/or Valerio’s wife on several occasions during

the pendency of this appeal, explaining his skepticism that Valerio’s Padilla

argument      would    be    viable    in    light   of    Descardes.        During   that

correspondence,       Valerio’s   wife      evidently     asked   Attorney   Gonzalez    to

recommend other attorneys in an effort to retain one who assessed Valerio’s

case more favorably.        Shortly thereafter, Attorney Gonzalez avers, Valerio
____________________________________________


2
     Our decision in Descardes issued on September 23, 2014,
approximately two months after Valerio filed his notice of appeal, over a
month after Valerio filed his Rule 1925(b) concise statement, and just under
one month after the trial court issued its Rule 1925(a) opinion.



                                             -4-
J-S26019-15



and his wife stopped communicating with him.        See generally Petition to

Withdraw as Counsel, 12/30/2014, at 5-6 (unnumbered).

       In the meantime, Attorney Gonzalez had requested and received an

extension of Valerio’s briefing deadline in this Court, seeking time to

communicate with Valerio and his wife so that the situation could be sorted

out.   After receiving no further communication, and five days after this

Court’s extended deadline, Attorney Gonzalez simultaneously filed a brief, in

which he reviewed the Padilla issue and opined that it lacked merit, and

filed a petition to withdraw from his representation of Valerio.3

       Attorney Gonzalez’s presentation to this Court, in both the brief and in

his petition, resembled the method prescribed by Turner and Finley, supra,

and their progeny, which detail how a court-appointed attorney honors his or

her obligation in a case where he or she detects no meritorious issue to raise

on appeal. Indeed, Attorney Gonzalez invoked those cases in his petition to

withdraw.      See Petition to Withdraw as Counsel, 12/30/2014, at 2, 6;

cf. Brief for Valerio at 20-21 (concluding, after reviewing Padilla and

Descardes at length, that Gonzalez could discern “no non[-]frivolous
____________________________________________


3
      We typically decline to penalize de minimis tardiness in the submission
of briefs when the opposing party does not file a motion to dismiss on that
basis pursuant to Pa.R.A.P. 2188. See, e.g, Commonwealth v. Miller,
787 A.2d 1036, 1038 n.5 (Pa. Super. 2001) (rejecting the Commonwealth’s
suggestion that the appeal be dismissed because brief was untimely because
the Commonwealth did not formally move for dismissal).              Here, the
Commonwealth did not seek dismissal. Accordingly, we treat Valerio’s brief
as timely filed.



                                           -5-
J-S26019-15



argument for finding that [Valerio] is entitled to any relief that he seeks to

overturn his conviction . . . due to faulty advice he received from his then

trial counsel”).

       Taking this invocation at face value, and treating his submissions

accordingly, this Court determined that Attorney Gonzalez had not fully

complied with the Turner/Finley procedure spelled out in Commonwealth

v. Friend, 896 A.2d 607 (Pa. Super. 2006). Specifically, we found a defect

in counsel’s failure to document that he had informed Valerio of his right to

proceed pro se or retain another attorney, as required by Friend.         See

Commonwealth v. Freeland, 106 A.3d 768, 774-75 (Pa. Super. 2014).4

Consequently, we entered an order directing Attorney Gonzalez to furnish

Valerio with the required notice and to submit a copy of the compliant

correspondence with this Court. Attorney Gonzalez timely submitted to this

Court a letter that purported to satisfy the Friend requirements and the

terms of our order.

       Unfortunately, this series of events reflected and engendered a critical

misunderstanding regarding the applicable standard.       And while Attorney

Gonzalez initiated the problems by citing Turner and Finley before this


____________________________________________


4
      Friend was abrogated on other grounds by Commonwealth v. Pitts,
981 A.2d 875 (Pa. 2009). However, the core notification requirements were
undisturbed by Pitts, as recognized by this Court in Commonwealth v.
Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).         See also Freeland,
106 A.3d at 774-75.



                                           -6-
J-S26019-15



Court, our error in taking Attorney Gonzalez’s representation at face value

exacerbated the confusion. Although we failed to observe the distinction in

our interactions with Attorney Gonzalez, the law is clear that Turner/Finley

practice is available only to court-appointed counsel, not to privately

retained attorneys such as Attorney Gonzalez.          See Turner, 544 A.2d at

928. Nonetheless, it would be inequitable to hold the consequences of our

error against Attorney Gonzalez, and more inequitable still to hold them

against Valerio, whose right to appeal must be protected in any event.

      Further   complicating   this   case,      the   letter   Attorney   Gonzalez

transmitted to Valerio, as submitted to this Court as proof of compliance,

was   ambiguous    on   the    most   critical    point—Valerio’s    rights   under

Turner/Finley when counsel seeks to withdraw. It is clear beyond dispute

that the most critical information such a letter must convey concerns the

petitioner’s rights to retain another attorney to continue his representation

or to proceed pro se. See Freeland, supra. Our order utilized the correct

terms in directing Attorney Gonzalez to do so. Order, 1/9/2015.

      The letter that Attorney Gonzalez sent in response to our order and

then submitted for our review reads as follows:

      Enclosed please find a copy of the latest order that I have
      received from the Superior Court of Pennsylvania as it pertains
      to the Motion to Withdraw my Appearance that I have filed with
      said Court as to the representation of your husband. As you can
      gather, I have been ordered by said Court to advise you that
      even though I have filed such a motion to withdraw my
      appearance, you can still proceed with said case either by
      retaining another attorney to represent your husband as to this
      matter, or he may choose to proceed on his own, in the event

                                      -7-
J-S26019-15


      said court grants         me    [sic]   the     motion   to   withdraw     my
      appearance.

Letter, 1/15/2015.

      The   problem    arises    in   the     final   clause   of   the   last   sentence.

Specifically, that sentence can be read to conclude that Valerio may proceed

pro se only in the event that this Court grants Attorney Gonzalez’s petition

to withdraw.    This is incorrect:      Attorney Gonzalez’s petition to withdraw,

assuming the application of the Turner/Finley standard under the peculiar

circumstances of this case, immediately triggered Valerio’s rights to retain

new counsel or proceed pro se.            To the extent that Attorney Gonzalez’s

January 15, 2015 letter suggested otherwise, it was misleading, and the fact

that it also might be read consistently with the Turner/Finley requirements

cannot be cited as a basis for allowing Valerio’s rights to be infringed when

he might reasonably infer from that letter a critical misstatement of his

options. Standing alone, the infirmity in this letter would militate in favor of

remanding this case yet again to enable Attorney Gonzalez to transmit a

corrective letter to Valerio.

      Fortunately, the letter does not stand alone.                 In the wake of the

January 15, 2015 letter, we issued a second order on January 28, 2015.

That order provided as follows:

      In light of the fact that [Attorney Gonzalez] has filed a petition to
      withdraw as counsel pursuant to [Turner and Finley, Valerio]
      shall be permitted to file a response to counsel’s petition to
      withdraw and no-merit letter, either pro se or via privately
      retained counsel, within thirty (30) days of the date that this
      Order is filed. [Valerio’s] failure to file a pro se or counseled

                                          -8-
J-S26019-15


      response may be considered as a waiver of his right to present
      his issues to this Court.

Order, 1/28/2015 (per curiam).         This order contains clear and accurate

direction   regarding   Valerio’s   options   in   the   wake   of   an   attorney’s

Turner/Finley letter. Furthermore, Valerio did not respond in any way.

      Because we perceive this to be an adequate corrective and must

assume that Valerio received this order, and because, were we to remand,

Attorney Gonzalez would presumably simply send yet another letter detailing

exactly what we explained in our January 28, 2015 order, we discern no

benefit to protracting this case by a remand that would result only in

redundant correspondence.       Accordingly, for all the foregoing reasons, we

will analyze the case in its present posture pursuant to the Turner/Finley

procedure.

      Turner and Finley require that counsel satisfy the following steps

before he will be permitted to withdraw:

      Counsel petitioning to withdraw from PCRA representation must
      proceed under [Turner/Finley and] . . . must review the case
      zealously. Turner/Finley counsel must then submit a “no-
      merit” letter to the [PCRA] court, or brief on appeal to this Court,
      detailing the nature and extent of counsel’s diligent review of the
      case, listing the issues which petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

      Counsel must also send to the petitioner: (1) a copy of the “no
      merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed
      pro se or by new counsel.

      Where counsel submits a petition and no-merit letter that satisfy
      the technical demands of Turner/Finley, the court—[PCRA]

                                       -9-
J-S26019-15


      court or this Court—must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations

omitted).

      We find that Attorney Gonzalez has satisfied these criteria. His brief

before this Court manifests a diligent review of the case; it identifies the

Padilla issue and discusses it at length, ultimately concluding that

Descardes unequivocally precludes the relief sought; and explicitly requests

permission to withdraw. As well, albeit imperfectly and with some prodding

and supplementation by this Court, the record indicates that Attorney

Gonzalez transmitted to Valerio a copy of the brief, a copy of his petition to

withdraw, and an imperfect statement advising Valerio of his rights, the

flaws in which plainly were cured in this Court’s subsequent order.

Accordingly, we may now conduct our own independent review of the record

and the issue raised. We find no detriment to Valerio’s interests in doing so,

because in all particulars the objectives underlying Turner and Finley have

been satisfied in full.

      Citing Padilla, Valerio argues that trial counsel was ineffective for

failing to advise him of, or incorrectly advising him regarding, the potential

effect upon his immigration status that would befall him as a consequence of

his conviction. Because the PCRA court found that it lacked jurisdiction to

review Valerio’s petition, we begin by reviewing that determination.      Our



                                    - 10 -
J-S26019-15



approach is girded by the fact that Valerio, Attorney Gonzalez, and the PCRA

court all appear to have assumed that the petition properly must be

evaluated under the PCRA. That assumption by itself is problematic in light

of our decision in Descardes, supra, which resembles this case in most

relevant particulars.

      In Descardes, the petitioner, a Haitian defendant with resident alien

status, pleaded guilty to several offenses involving insurance fraud. He was

sentenced to one year of probation.     Later, he left the country but was

denied reentry due to his felony conviction. 101 A.3d at 107.

      On December 7, 2009, Descardes filed what he styled a “Petition for

Reconsideration and Review of Denial of Petition for Writ of Error Coram

Nobis,” alleging that his guilty plea counsel was ineffective for failing to

advise Descardes regarding the immigration consequences of pleading

guilty. The trial court treated Descardes’ petition as one invoking the PCRA,

and denied relief upon the basis that the petition was untimely under the

PCRA’s requirements and, for that reason, the PCRA court lacked jurisdiction

to consider the petition. Id.

      On March 31, 2010, the United States Supreme Court issued its

decision in Padilla v. Kentucky, 559 U.S. 356 (2010), wherein the Court

held that counsel may be deemed constitutionally ineffective for failing to

advise a defendant client that a guilty plea would subject the defendant to

automatic deportation. On April 6, 2010, Descardes filed a second petition

seeking a writ of coram nobis. The PCRA court treated this petition, too, as

                                   - 11 -
J-S26019-15



one filed under the PCRA and vacated Descardes’ judgment of sentence and

ordered that Descardes’ guilty plea be withdrawn. Descardes, 101 A.3d at

107. The Commonwealth appealed.

      Sitting en banc, this Court concluded first that the trial court erred in

treating Descardes’ petition as one invoking the PCRA.           The PCRA, we

emphasized, requires for relief to be granted that a petitioner be “currently

serving a sentence of imprisonment, probation or parole for the crime” or

“awaiting execution of a sentence of death for the crime” or “serving a

sentence which must expire before the person may commence serving the

disputed sentence.”    Id. (quoting 42 Pa.C.S. § 9543(a)(1)).        Descardes,

having satisfied his probationary sentence long before filing his petition,

therefore was not eligible for PCRA relief. We further explained as follows:

      The PCRA states that it “shall be the sole means of obtaining
      collateral relief and encompasses all other common[-]law and
      statutory remedies for the same purpose that exist when this
      subchapter takes effect, including habeas corpus and coram
      nobis.” 42 Pa.C.S. § 9542. The key consideration is whether
      the underlying claim is cognizable under the PCRA; if so, a
      petitioner “may only obtain relief under the PCRA.”
      Commonwealth         v.    Pagan,       864    A.2d    1231,    1233
      (Pa. Super. 2004)     (emphasis       in    original);   see     also
      Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013) (“The
      PCRA provides eligibility for relief for cognizable claims, . . . and
      is the sole means of obtaining collateral relief in Pennsylvania.”);
      Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007)
      (“[T]he PCRA subsumes all forms of collateral relief . . . to the
      extent a remedy is available under such enactment.” (emphasis
      omitted)); Commonwealth v. Peterkin, 722 A.2d 638, 640
      (Pa. 1998) (“The writ [of habeas corpus] continues to exist only
      in cases in which there is no remedy under the PCRA.”).




                                     - 12 -
J-S26019-15


     It is rare for a claim to fall outside the ambit of the PCRA. . . .
     For example, our Supreme Court found that a substantive due
     process challenge to the validity of recommitting the defendant
     to prison, after a nine-year delay in which he had mistakenly
     been free on appeal bond, did not fall within the ambit of the
     PCRA. See West, supra. The Supreme Court also has held that
     an allegation that Canada violated the petitioner’s rights under
     the International Covenant for Civil and Political Rights was not a
     cognizable PCRA claim. See Commonwealth v. Judge, 916
     A.2d 511 (Pa. 2007).

     In turning to Descardes’[] claim, it is, in broad terms, one of
     ineffective assistance of plea counsel, a claim that is explicitly
     within the purview of the PCRA.                See 42 Pa.C.S.
     § 9543(a)(2)(ii).     Descardes’[] exact claim, however, is
     predicated upon the Supreme Court’s holding in Padilla—that
     the Sixth Amendment requires defense counsel to advise
     defendant about the risk of deportation arising from a guilty
     plea. This particular claim of ineffective assistance of counsel
     did not exist until 2010 when the Supreme Court decided
     Padilla, which was years after Descardes completed his
     sentence. The time for pursuing a claim of ineffective assistance
     of counsel in a timely filed PCRA petition had long since expired.
     Under the circumstances presented, we find that this is one of
     the rare instances where the PCRA fails to provide a remedy for
     the claim.

Descardes, 101 A.3d at 108-09 (citations modified).

     The writ of coram nobis, we noted, affords a defendant a means by

which to collaterally attack a criminal conviction for a person who no longer

is in custody. Id. at 109 (citing Chaidez v. United States, 133 S.Ct. 1103

(U.S. 2013)).   Because Descardes was no longer in custody, he was

excluded from PCRA relief. However, “he continue[d] to suffer the serious

consequences of his deportation because of his state conviction.” Thus, we

held that, “[b]ecause Descardes’[] specific ineffective assistance of counsel




                                   - 13 -
J-S26019-15



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.” Id.

      There is simply no daylight in any material aspect of the case sub

judice and Descardes. As in Descardes, and as acknowledged by Attorney

Gonzalez, Valerio has long since fulfilled his entire sentence.             As in

Descardes, Valerio’s claims arise under Padilla, which was announced

years after Valerio’s PCRA eligibility had expired.    Consequently, all things

being equal, the PCRA court arguably erred in treating Valerio’s petition as

one arising under the PCRA.

      The instant case parts ways from Descardes, however, insofar as

Valerio’s petition does not expressly invoke coram nobis. Indeed, Valerio’s

petition collectively invokes every grounds for relief except coram nobis, at

least in its title.   The petition contained in the certified record is a hand-

written, general prayer for relief by Valerio himself, which eventually was

submitted    or   resubmitted    by   Mr. Gonzalez    under   the   guise   of   a

November 27, 2013 “Petition to Attach Affidavit to Nunc-Pro Tunc Petition

for Post Conviction Relief pursuant to 42 Pa.C.S.A. [§§] 9541, et seq.,

and/or Petition for Nunc-Pro Tunc Appeal as to Denial of Petition for Post

Conviction Relief or in the alternative Habeas Corpus Relief.” On that one-

page petition, Mr. Gonzalez indicated that Valerio had filed a pro se PCRA

petition on October 29, 2013, but that an affidavit by Valerio had been

omitted.    The docket contains distinct entries for the October 29, 2013

petition and the November 27, 2013 petition.         However, in the unofficial

                                      - 14 -
J-S26019-15



numbering of the docket sheet, each filing appears under the number “35,”

and corresponding to that number are the one-page petition to attach

followed by the one-page, handwritten pro se petition and/or affidavit in

question.

       In short, these two lone pages appear to comprise the entirety of

Valerio’s 2013 PCRA petition.            However, more robust information and

argument is found in Attorney Gonzalez’s subsequent answer to the trial

PCRA court’s Rule 907 dismissal notice. Therein, Valerio fleshed out in detail

the basis of his ineffectiveness claim—to wit, that he is entitled to relief

pursuant to the United States Supreme Court’s decision in Padilla.

Moreover, Attorney Gonzalez’s response to the trial court’s Rule 907 notice

acknowledges that Valerio’s fulfillment of his entire sentence renders him

ineligible for PCRA relief, but argues that, precisely because he is ineligible,

in light of Padilla, the lack of an avenue for seeking such relief constitutes a

violation of his right to due process of law.5




____________________________________________


5
      Arguably, Valerio’s failure to invoke coram nobis at any time during
the proceedings before the PCRA effectively waives any entitlement he has
to seek such relief. However, given that Descardes had not yet issued
indicating that coram nobis was the appropriate avenue for relief under
these circumstances, and how challenging our jurisprudence has been with
regard to when collateral relief may be pursued outside the confines of the
PCRA, as well as the fact that Attorney Gonzalez raised the same substantive
arguments as those raised in Descardes, we decline to dispose of this
appeal based upon waiver.



                                          - 15 -
J-S26019-15



      Descardes giveth and Descardes taketh away.           Before the PCRA

court, Valerio made the same substantive argument for extra-PCRA eligibility

for relief that this Court accepted in Descardes as sufficient to support

review under coram nobis rather than within the PCRA.          However, the

Descardes’ Court nonetheless denied relief on the merits:

      In Chaidez, the United States Supreme Court held that Padilla
      announced a new rule of constitutional law that is inapplicable on
      collateral review to a petition seeking a writ of coram nobis
      whose conviction had become final before Padilla.             See
      133 S.Ct. at 1107-13. Put simply, “Padilla does not have
      retroactive effect.” 133 S.Ct. at 1105.

      Therefore, as Padilla does not apply retroactively[,] it may not
      serve as the basis for the collateral attack of Descardes’[]
      conviction, which was final when Padilla was decided. See
      United States v. Amer, 681 F.3d 211, 214 (5th Cir. 2012).

Descardes, 101 A.3d at 109 (citations modified). Consequently, if for no

other reason, Valerio is not entitled to relief pursuant to the Descardes

Court’s determination that Padilla’s prospective application renders the

prayers for relief of those whose judgments of sentence were imposed and

sentences served before Padilla’s issuance infirm.

      As noted, Attorney Gonzalez effectively has satisfied all of the

technical requirements of Turner and Finley.         Furthermore, we have

conducted an independent review of the record and found no meritorious

basis upon which Valerio might seek relief within or outside the PCRA

context.   Accordingly, we find that Attorney Gonzalez may withdraw, and

that Valerio is not entitled to relief.



                                          - 16 -
J-S26019-15



     Order affirmed. Petition to withdraw as counsel granted.

     Judge Jenkins joins the memorandum.

     Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2015




                                   - 17 -
