J-S57002-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
                   v.                    :
                                         :
DEANTE DRAKE,                            :
                                         :
                        Appellant        :    No. 227 WDA 2015

               Appeal from the Order Entered January 21, 2015,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0011923-1993

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, AND STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED SEPTEMBER 07, 2016

      Deante Drake (Appellant) appeals, pro se, from the January 21, 2015

order denying his petition for writ of coram nobis.1 We affirm.

            [Appellant] pled guilty to Violation of the Controlled
      Substance, Drug, Device and Cosmetic Act and Criminal
      Conspiracy on May 4, 1995. [Appellant] was sentenced to a
      period of incarceration of not less than four and one-half (4½)
      years nor more than ten (10) years, plus a consecutive period of
      probation of four years. No appeal was filed.

             On or about June 15, 2011, [Appellant] filed a document
      entitled “Petition to Withdraw Sufficient Facts.” The [trial court]
      treated the document as a Petition under the Post Conviction
      Relief Act[, 42 Pa.C.S. §§ 9541-9546,] and appointed the Public
      Defender of Allegheny County to represent [Appellant].

* Retired Senior Judge assigned to the Superior Court.
1
  “A writ of coram nobis ‘is generally available to challenge the validity   of a
judgment based on facts not before the court when the judgment               was
entered.’” Commonwealth v. Descardes, 136 A.3d 493, 494 n.1                  (Pa.
2016) (quoting Commonwealth v. Sheehan, 285 A.2d 465, 467                    (Pa.
1971)).
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      Appointed Counsel filed a “no merit” letter and Petition for Leave
      to Withdraw Appearance due to the fact that the PCRA Petition
      was time-barred. On January 9, 2012, the [PCRA court] issued
      an Order granting the Petition for Leave to Withdraw and
      directing [Appellant] to notify the [PCRA court] as to whether he
      intended to proceed pro se, retain private counsel, or withdraw
      the Petition. As [Appellant] failed to reply in a timely manner to
      said Order, the [PCRA court] issued a Notice of Intention to
      Dismiss on February 27, 2012. On March 20, 2012, a final Order
      dismissing the Petition as time-barred was issued. Again, no
      direct appeal was filed.

            In January 2014, [Appellant] filed a pro se Motion for
      Leave to Supplement and/or Reconsider Previously Filed Post-
      Conviction Petition. The [PCRA court] denied the Motion of
      January 14, 2014. [Appellant] appealed the denial of his Motion.
      The denial was affirmed by the Superior Court in a Memorandum
      Opinion dated November 21, 2014. [See Commonwealth v.
      Drake, 2014 WL 10788753 (Pa. Super. 2014).]

            Not tiring of litigation, [Appellant] filed a pro se Petition for
      Writ of Error Coram Nobis[] on January 13, 2015. The Petition
      was denied on January 21, 2015.

Trial Court Opinion, 2/23/2015, at 1-2.

      Appellant pro se filed a notice of appeal on February 6, 2015.            On

February 23, 2015, the trial court issued a three-page opinion, concluding

that the denial of Appellant’s petition for writ of coram nobis was proper.

Id. at 3.   This Court must determine whether the trial court erred in so

holding.2


2
   The record reflects that from April 2015 to February 2016, Appellant filed a
litany of pro se motions, and his appeal was dismissed for failure to file a
brief and reinstated on two separate occasions. On March 18, 2016, we
directed the prothonotary to file Appellant’s “Petition for Writ of Error Coram
Nobis,” and the July 14, 2015 supplement to this petition, as Appellant’s
brief. The Commonwealth filed its brief on May 9, 2016, and Appellant
responded by filing a “Motion for Clarification for the Error of the Superior


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       Before we consider the substance of the appeal, we must determine

whether Appellant’s petition properly is characterized as a petition for writ of

coram nobis.

       The current version of Pennsylvania’s Post Conviction Relief Act
       [PCRA] explicitly states that it “shall be the sole means of
       obtaining collateral relief” and that its 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)

(citations omitted).

       Here, Appellant’s contentions are that his counsel was ineffective in

failing to advise him that (1) he had a right to have a jury find, beyond a

reasonable doubt, the type of drug that Appellant possessed with intent to

deliver, and (2) that if he committed a later crime he would face a stiffer

penalty as a recidivist for having a prior felony conviction. Memorandum of

Law in Support of Petition, 1/13/2015, at 3, 4.

       Appellant’s challenges to his plea counsel’s effectiveness are claims

that   are   cognizable   under   the   PCRA.     42   Pa.C.S.   § 9543(a)(2)(ii).

Accordingly, Appellant’s petition must be considered a PCRA petition.




Court for Accepting a Motion that was Denied January 21, 2014” on May 25,
2016. On June 2, 2016, we directed the prothonotary to file said motion as
Appellant’s reply brief.


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Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (“[A]

collateral petition that raises an issue that the PCRA statute could remedy is

to be considered a PCRA petition[.]”).

        Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

The PCRA’s “[s]tatutory time restrictions are mandatory and jurisdictional in

nature, and may not be altered or disregarded to reach the merits of the

claims raised in the petition.” Commonwealth v. Taylor, 933 A.2d 1035,

1038 (Pa. Super. 2007). Appellant’s judgment of sentence became final in

1995.       He has not pled and offered to prove a timeliness exception.

Accordingly, the trial court lacked jurisdiction to entertain the merits of the

petition.

        Moreover, because he is no longer serving his sentence, Appellant is

not eligible for PCRA relief. 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….”).

        Appellant contends that, even though he is no longer serving a

sentence, a change in the law “that was not available at the time of [his]

conviction” warrants coram nobis relief. Memorandum of Law in Support of

Petition, 1/13/2015, at 3.



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     Our Supreme Court has rejected such contentions:

     [T]he fact that [the petitioner’s] claim, had he raised it while still
     serving his sentence, would likely have been held to be meritless
     under … the prevailing law at the time, does not mean the claim
     was not cognizable under the PCRA. … The fact that there was
     no legal support for [the petitioner’s] ineffectiveness claim until
     after the time period for filing a PCRA petition had expired does
     not remove the claim itself from the purview of the PCRA.

Commonwealth v. Descardes, 136 A.3d 493, 502 (Pa. 2016).

     Accordingly, the trial court did not err in denying Appellant’s petition.

     Order affirmed.

     P.J.E. Ford Elliott did not participate in the consideration or decision of

this memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/7/2016




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