J-E04005-13

                              2014 PA Super 210



COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

CLAUDE DESCARDES,

                         Appellee                     No. 2836 EDA 2010


                 Appeal from the Order September 24, 2010
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0000617-2006


BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, PANELLA,
        DONOHUE, SHOGAN, LAZARUS, OLSON, and WECHT, JJ.

CONCURRING AND DISSENTING OPINION BY BOWES, J.:
                                       Filed: September 23, 2014
    Ultimately, I agree with the learned majority that Appellee is not

entitled to withdraw his plea, whether it be under the PCRA statute or the

ancient common law writ of error coram nobis. I dissent, however, from the

                                                        coram nobis to achieve

review of his untimely ineffective assistance of counsel claim. In my view,

the majority fails to appreciate the interplay between PCRA review and

coram nobis under the unusual circumstances of this case, and confuses

ineligibility for relief under the PCRA with a lack of cognizability in the claim



review, see Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011), I am

compelled to write further.
J-E04005-13


       I begin by noting that although coram nobis still exists in Pennsylvania

under extremely limited circumstances, it does not generally apply where a

defendant is raising an allegation of ineffective assistance of counsel. While

I do not disagree that coram nobis may be an available form of relief in a

future case involving a new constitutional right declared retroactively

applicable where a defendant is no longer serving a sentence, and the right

involved is sufficiently important to justify overlooking finality concerns,

neither this Court nor the Pennsylvania Supreme Court has confronted such



common law coram nobis jurisprudence is as extensive as federal coram

nobis law, it ignores both the intent and the language of the PCRA statute,



pre-PCRA interpretation.1

       Traditionally, a writ of error coram nobis                  where facts

exist extrinsic of the record, unknown and unknowable by the exercise of

diligence at the time of its rendition, and which would, if known, have

prevented the judgment either in its entirety or in the form in which it was

               Commonwealth v. Harris, 41 A.2d 688, 690 (Pa. 1945).

____________________________________________


1
     For a quality discussion of the difference in federal coram nobis
jurisprudence and the common law writ, see Trujillo v. Nevada, 310 P.3d
594 (Nev. 2013). That case discusses whether a defendant could use coram
nobis to raise a Padilla claim under Nevada law.



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Phrased differently, where a defendant alleged an error of fact and not law

and no fault could be imputed to the court in pronouncing its judgment,

coram nobis was available.            Id.      The Harris Court delineated several

examples when coram nobis applied, stating,

       In a criminal prosecution where the accused was forced through
       well founded fears of mob violence to plead guilty, it has been
       considered that he is entitled to relief through the writ, and the
       judgment of conviction may be set aside and a new trial granted.
       The writ has been held to lie to correct such an error of fact as
       the conviction of a slave as a free person.

Id.

       Thus, at common law, coram nobis existed only to remedy errors of or

in the facts.    See Harris, supra; Commonwealth v. Morrison, 44 A.2d



common law writ, the purpose of which is to bring before a court a judgment

previously rendered by it for review or modification, on account of some

error of fact and not of law affecting the validity and regularity of the



(italics in original); Commonwealth v. Fiore, 665 A.2d 1185, 1189-1190

(Pa.Super. 1995).2 Certainly, this case does not involve a factual mistake.
____________________________________________


2
    I am cognizant that the United States Supreme Court in Fiore v. White,


have entitled him to relief, was premised on a new rule of law that was not
retroactive. However, the rule in question was not a new rule of law. See
Fiore v. White, 757 A.2d 842 (Pa. 2000).



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     However, Pennsylvania law, prior to the passage of the PCRA,

expanded   coram    nobis   to   some   limited   matters   of   law.    See

Commonwealth v. Sheehan, 285 A.2d 465 (Pa. 1971); Commonwealth

v. Fay, 439 A.2d 1227 (Pa.Super. 1982).           The Sheehan Court first

determined that the Post-

to the PCRA, did not abolish coram nobis. It then relied on the far broader

federal applicability of coram nobis fashioned by United States v. Morgan,

346 U.S. 502 (1954), wherein the High Court held that the denial of counsel

could be remedied via coram nobis following the expiration of the

                        See id                          Morgan noted that

cora[m] nobis as applied in American jurisdictions had not been confined

                                                                    Sheehan

extended coram nobis in Pennsylvania to matters of errors in process;

specifically, where a defendant was entirely denied his right to counsel. But

see Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013) (returning to the

Harris standard). Sheehan, however, does not mean that non-retroactive

                                                             coram nobis in

Pennsylvania.

                                                                        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


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nobis



                                                                Id. This latter

portion of the statute is no longer constitutionally sound in at least the

deportation context.       Padilla v. Kentucky, 130 S.Ct. 1473 (2010); see

also Commonwealth v. Masker, 34 A.3d 841 (Pa.Super. 2011) (Bowes, J.,

concurring and dissenting).3

       Our Supreme Court has interpreted the sole means language to

explain that the PCRA is the only method of obtaining collateral review when

the claim being raised is cognizable under the PCRA.      Commonwealth v.

Eller, 807 A.2d 838, 842 843 (Pa. 2002); Commonwealth v. Lantzy, 736

A.2d 564, 569



Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa.Super. 2004) (citation

                                                 e cognizable under the PCRA,
____________________________________________


3
    Where a person is contesting his conviction or sentence based on the
ineffective assistance of counsel, premised on advice relative to a collateral
consequence, he is not actually seeking direct relief from that collateral
consequence. Rather, he is seeking relief on his underlying conviction,
which indirectly would affect the collateral consequence in question. For
example, a defendant who loses his firearm rights as a result of a conviction
is not directly seeking to restore his firearm rights when he asserts counsel
was ineffective for not informing him of this consequence. Instead, the
defendant is seeking relief from his actual conviction. Phrased differently, a
defendant cannot petition the court to reinstate his firearm rights via a PCRA
petition, but he can challenge his conviction, though he will not be entitled to
relief. Commonwealth v. Abraham, 62 A.3d 343 (Pa. 2012).



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the common law and statutory remedies now subsumed by the PCRA are not

                                                 Commonwealth v. Hall, 771 A.2d

1232, 1235 (Pa. 2001).4

       When examining whether a claim is cognizable under the PCRA, our

Supreme Court has looked only to three requirements. First, the petitioner

must be convicted of a crime under the laws of this Commonwealth. See In

the Interest of A.P., 617 A.2d 764 (Pa.Super. 1992), affirmed, 639 A.2d

1181 (Pa. 1994) (claim not cognizable under the PCRA because juvenile was

not convicted of a crime but was rather adjudicated delinquent).        Second,



enumerated reasons set forth in the PCRA. See Commonwealth v. Judge,

916 A.2d 511, 518 (Pa. 2007) (claim not cognizable under the PCRA because




circumstances, the petitioner must be serving a period of imprisonment,

probation, and/or parole to permit the filing of a PCRA petition.          See

____________________________________________


4
   Our Supreme Court
resulted in some confusion. In some situations, like the one in the case at
bar, our High Court has used the term to refer to a claim being encompassed
by the PCRA. In other situations, the Court has used the term to refer to a
petitioner being entitled to relief on a claim. For example, it has held that
previously litigated and waived claims are not cognizable, however, this
obviously does not mean that such claims can be brought outside the PCRA.
Thus, it is necessary to examine the context in which our Supreme Court
used the term to determine its meaning.



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Commonwealth v. Stock, 679 A.2d 760, 761 (Pa. 1996) (claim not

cognizable under the PCRA because the defendant was only sentenced to

pay a fine).

       If all three requirements are present, our Supreme Court has

consistently concluded that the claim is cognizable under the PCRA and,

therefore, common law remedies are not available to the petitioner.           Our

Supreme Court does not consider the underlying merit of a particular claim

in determining whether a claim is cognizable under the PCRA.           Thus, the

scope of cognizable claims under the PCRA extends far beyond meritorious

claims.   See Commonwealth v. West, 938 A.2d 1034, 1044 (Pa. 2007)

(



range of claims for which a petitioner is no longer eligible for relief.      Cf.

Commonwealth v. Matin, 832 A.2d 1141, 1142 1143 (Pa.Super. 2003)



petitioner was ineligible for relief because he was no longer serving a

sentence).5

____________________________________________


5
   Under the PCRA, even a petitioner with a meritorious retroactive claim
would not be entitled to relief if he fails to bring his claim within 60 days of
the new ruling. See 42 Pa.C.S. § 9545 (b)(2). This is further proof that,
given the importance accorded to statutory deadlines and eligibility
requirements under the PCRA, the merit of a particular claim, in and of itself,
plays little dispositive role in determining whether a claim for collateral relief
may proceed.



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      In short, a claim is cognizable under the PCRA if it contests the



effectiveness of counsel during the plea process, trial, sentencing, appeal, or

PCRA review.    42 Pa.C.S. § 9543.     Concomitantly, a person who can no

longer file a timely petition or who is no longer serving a sentence is



conviction, or the effectiveness of counsel, he cannot achieve a different

form of collateral relief. See Turner, supra; Commonwealth v. Ahlborn,

699 A.2d 718 (Pa. 1997); Commonwealth v. Williams, 977 A.2d 1174

(Pa.Super. 2009); Pagan, supra; Commonwealth v. Hayes, 596 A.2d

195 (Pa.Super. 1991) (en banc).

      An ineffectiveness claim pertaining to deportation can be pursued

under the PCRA statute because all constitutional ineffectiveness claims are

cognizable under the PCRA.         Commonwealth ex rel. Dadario v.

Goldberg, 773 A.2d 126 (Pa. 2001); see also Commonwealth v.

Escobar, 70 A.3d 838 (Pa.Super. 2013) (defendant sentenced post-Padilla

and raising deportation ineffectiveness claim in PCRA); Commonwealth v.

McDermitt, 66 A.3d 810 (Pa.Super. 2013) (addressing within PCRA a

deportation ineffectiveness claim where defendant pled guilty and was

sentenced pre-Padilla); Commonwealth v. Ghisoiu, 63 A.3d 1272

(Pa.Super. 2013) (deportation ineffectiveness claim cognizable under PCRA

where defendant pled guilty pre-Padilla and sentenced post-Padilla);


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Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012) (deportation

ineffectiveness claim addressed in PCRA context where defendant pled and

was sentenced post-Padilla); Commonwealth v. Garcia, 23 A.3d 1059

(Pa.Super. 2011) (defendant sentenced pre-Padilla and raised deportation

ineffectiveness claim in PCRA petition, which was considered untimely).6

       Indeed, even in Commonwealth v. Frometa, 555 A.2d 92 (Pa.

1989), abrogated by Padilla, supra, our Supreme Court did not find that

the deportation ineffectiveness claim therein was not cognizable.      Rather,

the court determined that the person was not entitled to relief because

counsel could not be ineffective for not advising his client about a collateral

consequence of his plea. See also Commonwealth v. Abraham, 62 A.3d

343 (Pa. 2012) (ruling that collateral consequence doctrine still applies

outside of deportation and concluding that counsel was not ineffective for



____________________________________________


6

separate analyses for deportation ineffectiveness claims.          Defendants
sentenced post-Padilla who raise deportation ineffectiveness claims must
raise the issue in a timely PCRA petition. A person still serving his sentence
who was sentenced pre-Padilla must allege a deportation ineffectiveness
claim in a PCRA petition. That petition must be timely without utilizing
Padilla as a timeliness exception.        Finally, defendants sentenced pre-
Padilla, who are no longer serving a sentence, can raise a deportation
ineffectiveness issue via coram nobis, but the defendant is not entitled to
relief. This result ignores the legislative intent and original meaning of the
PCRA statute and unnecessarily complicates the issue. Indeed, the majority
fails to acknowledge the numerous cases in which this Court has treated a
deportation ineffectiveness claim as cognizable under the PCRA.



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failing to advise his client about the loss of a pension as a result of his

convictions, but not holding that ineffectiveness claim was non-cognizable).

      Since all constitutional ineffectiveness claims relating to a conviction or

the sentencing process can be entertained under the PCRA, see Goldberg,

supra                                     That Appellee is no longer serving a

sentence and that he could not have achieved relief before his sentence

expired does not result in a cognizable claim becoming non-cognizable,

thereby allowing him to seek coram nobis relief. Such a finding is directly

refuted by the PCRA statute.

      The legislature was certainly aware at the time it passed the PCRA

statute that coram nobis could apply to those not serving a sentence since

this was established law.       That it expressly provided that the PCRA

subsumes coram nobis, and that one is ineligible for relief under the PCRA if

no longer serving a sentence, unequivocally indicates that post-conviction



claim were to be reviewed under the PCRA.

      In Pagan, supra, this Court expressly addressed the issue of whether

coram nobis was available as a remedy outside the PCRA where the

petitioner was no longer serving his sentence.      We noted that the statute

states that a person is ineligible for PCRA relief if he is not currently serving

a sentence for the crime in question or serving a sentence that must expire

before the petitioner begins serving his disputed sentence.          42 Pa.C.S.


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§ 9543(a)(1)(i), (iii). We held that where the underlying substantive claim

is encompassed by the PCRA, i.e., cognizable, coram nobis will not lie.

                                               Ahlborn, supra

collateral consequences flowing from a conviction will not provide the

                                                                Pagan, supra at

1233.     Here, Appellee was no longer serving his one-year probationary

sentence at the time he filed his petition. Thus, by its plain terms, Appellee

was not eligible for PCRA relief. Ahlborn, supra; Hayes, supra; Williams,

supra; Matin, supra; Commonwealth v. Fisher, 703 A.2d 714 (Pa.Super.

1997).7

____________________________________________


7
  A petitioner also must timely file a PCRA petition in order to be eligible for
PCRA relief. The fact that a petitioner can no longer timely file a PCRA
petition does not automatically mean that he may seek collateral relief via
an alternative means; otherwise, the PCRA time-bar would prove
meaningless. See Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998);
Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013). Instantly,
Appellee did not timely file his petition, but did allege a timeliness exception,
namely, that the United States Supreme Court in Padilla v. Kentucky, 130
S.Ct. 1473 (2010), established a new constitutional rule of law and held its

however, because the United States Supreme Court held in Chaidez v.
United States, 133 S.Ct. 1103 (2013), that Padilla does not apply
retroactively.

  While Appellee accurately recognizes that this Court can grant broader
retroactivity to a decision rendered by the United States Supreme Court,
Danforth v. Minnesota, 552 U.S. 264 (2008); Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013), this legal principle offers no comfort to

exception, the High Court that hands down the new rule must declare its
decision retroactive. Commonwealth v. Abdul-Salaam, 812 A.2d 497
(Footnote Continued Next Page)


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      Recently, the Pennsylvania Supreme Court in Turner, supra, rejected

an as-applied due process challenge to the PCRA statutory requirement that

the defendant be serving her sentence at the time relief is granted. It also

                                                      coram nobis relief. In Turner,

the defendant filed a timely petition.           However, her two-year probationary

sentence expired before the PCRA court awarded her a new trial. The PCRA

court determined that to deny relief violated due process.            The Supreme

Court reversed, concluding that she could have sought relief on direct appeal

via the Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003) exception.

                                                         claim was cognizable under

the PCRA and that she could not seek relief outside the statute. The Turner

Court noted that coram nobis was not available since ineffectiveness claims

                       _______________________
(Footnote Continued)

(Pa. 2002). Thus, Appellee is not entitled to PCRA relief because the PCRA
court lacked jurisdiction to afford relief. See Taylor, supra.

  In this respect, however, the majority does not confront the fact that,
outside of the PCRA arena, this Court may grant broader retroactive effect to
a decision of the United States Supreme Court. By deciding that coram
nobis applies, the majority opens the door to potential retroactive application
of Padilla, irrespective of Chaidez. Hence, it is legally erroneous for the
majority to say that Chaidez is binding on the issue of retroactivity once it
determines that the PCRA is inapplicable. Indeed, retroactivity is not a
constitutional issue and is grounded in state law. See Danforth, supra. It

States Supreme Court retroactivity decision would control. The majority
neglects to discuss why, once it decided that the PCRA is inapplicable,
Padilla is not retroactive under state retroactivity principles. As recently as
Cunningham, supra, our Supreme Court has noted that federal
retroactivity analysis may be ill-fitting for purposes of state collateral review.



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are cognizable under the PCRA and do not fit within the purview of coram

nobis.   Compare Commonwealth v. Brown, 943 A.2d 264, 277 (Pa.

2008) (Baer, J., dissenting).

      Simply put, so long as the issue could have been leveled in a PCRA

petition, i.e., an ineffectiveness claim, the person is foreclosed from seeking

relief via a common law writ, even though PCRA relief is no longer available

or the person was not entitled to a remedy under the statute. Cf. Pagan,

supra at 1233.     I recognize that this case does not present a typical

ineffectiveness   claim   and   implicates   additional   concerns   involving

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), and Commonwealth

           , 880 A.2d 597 (Pa. 2005).           While those concerns have

subsequently been ameliorated by Commonwealth v. Holmes, 79 A.3d

562 (Pa. 2013), that decision could not have benefited Appellee.



him to be able to pursue PCRA relief in a timely fashion.            First, as



court sentenced Appellee a                                             Grant,

supra, any ineffectiveness claim likely had to be deferred until PCRA review.

But see Bomar, supra; see also Turner, supra. Nevertheless, his short

sentence virtually ensured that he would be ineligible for PCRA relief.

Moreover, the Supreme Court in           , supra, expressly declined to allow




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a short sentence exception to Grant and permit defendants to raise

ineffectiveness claims on direct appeal.

      Further, while Appellee could have sought review under Bomar at the

time of his conviction, the governing precedent in this Commonwealth was

Frometa, supra.     That decision precluded finding plea counsel ineffective

based on failing to inform a client about potential deportation consequences.

However, presenting a claim and being able to achieve relief are

distinct.

for relief and the lack of entitlement to a remedy under the PCRA with the

cognizability of his ineffectiveness issue. Obviously, the fact that a person

wishing to challenge his conviction is no longer serving a sentence or cannot

timely file a PCRA petition does not render his underlying claims non-

cognizable.   See Turner, supra; Ahlborn, supra; Pagan, supra; Hall,

supra, at 1235. In addition, simply because the ineffectiveness claim would

have been meritless at the time it was raised does not translate into the

issue becoming non-cognizable.        Indeed, if this were the case, then

countless ineffectiveness claims that are raised in PCRA petitions would be

able to be raised in a coram nobis petition.

      Phrased differently, although Frometa would have precluded relief on



petition, that does not mean he could not have advanced this claim under

the PCRA. I provide an example to illustrate. Currently, counsel cannot be


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ineffective for failing to present a diminished capacity defense where the

defendant asserts he is innocent.    Commonwealth v. Gibson, 951 A.2d

1110 (Pa. 2008). That fact does not mean that a defendant can raise the

issue outside the PCRA because it would not entitle him to a remedy. Since



conviction, post-conviction relief must be sought via the PCRA.            Cf.

Commonwealth v. Chester, 733 A.2d 1242, 1251 (Pa. 1999), abrogated

on other ground by Grant, supra

cognizable under the PCRA they will be addressed solely within the context

of the PCRA, and any remedy to be afforded petitioner must be within the



      Our Supreme Court has never permitted extra-PCRA review of claims

that were non-meritorious when the petitioner was eligible for PCRA relief

but which became meritorious at a later date. Instead, such claims must be

reviewed under the PCRA framework.       Accordingly, the fact that Appellee

could not present a meritorious claim when he was eligible for relief does not

mean that his claim falls outside of the PCRA.   In this case, Appellee was

convicted of crimes under the laws of this Commonwealth. His claim - then

and now - has always been one of the seven enumerated claims set forth in

the PCRA, i.e., ineffective assistance of counsel.          See 42 Pa.C.S.

§ 9543(a)(2)(ii); see also Escobar, supra; McDermitt, supra; Ghisoiu,

supra; Wah, supra


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of imprisonment, probation or parole for the crime; (ii) awaiting execution of

a sentence of death for the crime; or (iii) serving a sentence which must



Pa.C.S. § 9543(a)(1)(i-iii).       Accordingly, he is no longer eligible for relief

under the PCRA.8 Id.

       This construction is consistent with both our Supreme Court and the



                                                    Hall, supra at 1235 (internal

quotation marks an

to a bifurcated system of post-conviction review, in which certain claims for

relief are considered under the PCRA, while other claims for relief are

                                               Id. at 1235-1236 (internal quotation

marks and citation omitted). Our Supreme Court has rebuked attempts by

this Court to permit such bifurcated review. See id.



entitled to seek collateral relief outside the PCRA because a subsequent

change in the law recognized the validity of his ineffective assistance claim,

is flawed when examined under the guise of the PCRA and erects the very

type of bifurcated review which our Supreme Court has previously forbidden.
____________________________________________


8

deportation is frivolous.



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Consider an example in which the Supreme Court of the United States or

Pennsylvania adopts a new rule of constitutional law that is deemed worthy

of retroactive application.       A petitioner benefitting from the new decision

comes forward with a claim for collateral relief. In such a case, the ensuing

change in the legal landscape would permit an otherwise time-barred PCRA

claim so long as the petitioner requests relief within 60 days of the new

opinion. See 42 Pa.C.S. §§ 9545(b)(1)(iii), 9545(b)(2). Nevertheless, the

petitioner would be ineligible for PCRA relief if he were no longer serving a

sentence. See 42 Pa.C.S. § 9543(a)(1)(i-iii). In these circumstances, the



notwithstanding the recently bolstered merit of his contentions.

       By allowing Appellee to pursue coram nobis relief outside of the PCRA,

                                                        -conviction options in a

situation where his ineffective assistance claim is untimely and he is

ineligible for PCRA relief because he is no longer serving a sentence.       In



eligibility requirements of the PCRA and thus represents an unwarranted
                                                             9
departure fro

____________________________________________


9
   While in this case the majority decision does not result in Appellee being
                                             handed a classic Pyrrhic victory,
id est, a victory obtained at such a cost that it outweighs the benefit
                                                             , __ A.3d __, __
(Pa. 2014) (filed August 18, 2014) (Castille, C.J., concurring). Thus, the
(Footnote Continued Next Page)


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      I

pronouncements, the PCRA process is the sole means of collaterally

contesting a conviction by raising ineffectiveness issues, including matters

relating to deportation. Turner, supra; Hall, supra

Assembly intended that claims that could be brought under the PCRA must

                                                            Ahlborn, supra at

720-721; Haun, supra at 699                                                sole



original)); see also Pagan, supra at 1233           coram nobis relief does not

become available merely because the PCRA refuses to remedy a petitioner's

grievance; rather, we look at the claims

original); cf. Hayes, supra at 199

conviction relief under the PCRA to individuals who at the time of filing for

PCRA relief are serving a sentence of imprisonment, probation or parole for a

conviction, regardless of the collateral criminal consequences from the



      In sum, the majority decision creates bifurcated review, and, by

conflating a lack of entitlement to relief with cognizability, unnecessarily

expands coram nobis

                       _______________________
(Footnote Continued)

Commonwealth, though winning this case, actually is an aggrieved party.
See Commonwealth v. Robinson, 837 A.2d 1157, 1160-61 & n.7 (Pa.
2003).



                                           - 18 -
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case does not fit within the narrow parameters of coram nobis, and since he

was not entitled to PCRA relief because he was no longer serving his

sentence and his petition was untimely, I agree that the court below erred.

     Judge Olson joins the Concurring and Dissenting Opinion.

     Judge Donohue Concurs in the Result in the Concurring and Dissenting

Opinion.




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