J-S75011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                    v.

MODESTO OSCO

                         Appellant                     No. 820 EDA 2016


               Appeal from the PCRA Order February 16, 2016
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0002619-2013



BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.:                           FILED DECEMBER 05, 2016

      Modesto Osco appeals from the February 16, 2016 order denying his

petition for post-conviction relief. We affirm.

      During the early morning hours on July 30, 2013, Appellant entered

the bedroom of his girlfriend’s thirteen-year-old daughter. Appellant sat on

the girl’s bed and massaged her thighs and back.        He then proceeded to

place two fingers on her vagina on the outside of her clothing. As the victim

attempted to rebuke his conduct, Appellant reached under her shirt and

squeezed her breasts. Later that morning, the victim conveyed the incident

to her mother who, in turn, notified the police.

      Based on the foregoing, the Commonwealth charged Appellant with

corruption of minors and indecent assault of a person less than sixteen years
J-S75011-16



of age.      Subsequently, the felony count of corruption of minors was

withdrawn and the indecent assault account was amended to indecent

assault without consent. Thereafter, Appellant entered an open guilty plea

to that offense.     The trial court conducted the mandated colloquy, and

Appellant’s written guilty plea statement was entered into the record. The

court also noted that, since Appellant was in this country illegally, he may be

subject to deportation as a collateral consequence of his plea.      The court

accepted Appellant’s guilty plea and scheduled the matter for sentencing.

        The trial court held a sentencing hearing on January 3, 2014. During

this proceeding, the court again notified Appellant that deportation was a

possible collateral consequence of his conviction.          Appellant’s counsel

confirmed he had discussed the possibility of deportation with him.         The

court    sentenced   Appellant   to   five   months   to   twenty-four   months

incarceration with credit for time served. Appellant did not file for post-trial

relief, nor did he pursue appellate review.

        On October 2, 2014, Appellant filed a timely motion for post-conviction

relief averring counsel was ineffective for failing to provide proper advice

regarding the immigration consequences of his guilty plea.          Following a

series of continuances, the court held a hearing, and ultimately, denied

Appellant’s petition. Appellant filed a timely notice of appeal and complied

with the court’s order to file a Rule 1925(b) concise statement of errors




                                      -2-
J-S75011-16



complained of on appeal. The court then authored its Rule 1925(a) opinion,

and this matter is now ready for our review.

      Appellant offers one issue for our consideration:

      A defense lawyer is constitutionally ineffective when he provides
      his noncitizen client with inaccurate or misleading information
      about the “collateral consequence” of deportation in connection
      with a guilty plea. Should this Court reverse the PCRA court’s
      refusal to grant post-conviction relief where the Appellant’s plea
      counsel provided him with incomplete and inaccurate information
      about the immigration consequences of his plea, including the
      permanent inability to return to the United States?

Appellant’s brief at 4.

      Prior to addressing the issue raised, we must first determine whether

Appellant is eligible for relief under the PCRA. Eligibility for relief under the

PCRA is governed by 42 Pa.C.S. § 9543, which provides in pertinent part:

      (a)   General Rule.- To be eligible for relief under this
            subchapter, the petitioner must plead and prove by a
            preponderance of the evidence all of the following:

            (1)    That the petitioner has been convicted of a crime
                   under the laws of this Commonwealth and is at the
                   time relief is granted:

                   (i) Currently serving a sentence of imprisonment,
                       probation or parole for the crime;

                  (ii) Awaiting execution of a sentence of death for a
                       crime; or

                  (iii) Serving a sentence which must expire before the
                        person may commence serving the disputed
                        sentence.

42 Pa.C.S. § 9453(a).



                                      -3-
J-S75011-16



      We note, “[e]ligibility for relief under the PCRA is dependent upon the

petitioner currently serving a sentence of imprisonment, probation, or parole

for a crime.” Commonwealth v. Turner, 80 A.3d 754, 761-62 (Pa. 2013).

As such, “the denial of relief for a petitioner who has finished serving his

sentence is required by the plain language of the statute.” Commonwealth

v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997).

      Upon review of the record, we observe that Appellant was sentenced

to five to twenty-four months incarceration on January 3, 2014.         Thus,

Appellant completed serving his sentence on January 3, 2016.            Since

Appellant is no longer serving a sentence of imprisonment, probation, or

parole for a crime, he is ineligible for PCRA relief.         42 Pa.C.S. §

9543(a)(1)(i); Turner, supra; Ahlborn, supra.       As Appellant is ineligible

for PCRA relief, we need not reach the merits of his claim. Accordingly, we

affirm.

      Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2016




                                    -4-
J-S75011-16




              -5-
