J-S67023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
JOSE D. MURILLO GUTIERREZ,              :
                                        :
                   Appellant            :         No. 1356 EDA 2017

                Appeal from the PCRA Order March 22, 2017
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0005835-2015

BEFORE:    GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                    FILED DECEMBER 12, 2017

      Jose D. Murillo Gutierrez (“Gutierrez”) appeals from the Order

dismissing his first Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court concisely summarized the relevant history underlying

this appeal as follows:

      [Gutierrez] was charged on August 14, 2015, with one count of
      Endangering Welfare of Children - Parent/Guardian/Other Person
      Commits Offense, 18 Pa.C.S. § 4304(a)(1), after police
      discovered that he had left his nine-year-old son in an
      automobile with the engine running on July 26, 2015, while he
      went into the premises of the Parx Casino in Bensalem
      Township, Bucks County, Pennsylvania.

            On November 13, 2015, [Gutierrez] entered a plea of
      guilty and was sentenced on the same day to one year of
      probation. [Gutierrez] failed to file post-sentence motions or a
      direct appeal, and his sentence expired in its entirety on
      November 13, 2016. The Bucks County Adult Probation and
      Parole Department administratively closed [Gutierrez’s] case on
      December 27, 2016.

____________________________________
* Former Justice specially assigned to the Superior Court.
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              On December 12, 2016, [Gutierrez] filed a [counseled
       PCRA] Petition alleging ineffective assistance of trial counsel
       pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), for
       failing to advise him of the collateral consequences of his
       criminal conviction on his immigration status.           [Gutierrez]
       alleged in his [P]etition that he first learned of the “harsh
       immigration consequences to his counseled guilty plea” on June
       15, 2016, when he was taken into custody by Immigration and
       Customs Enforcement (“ICE”) and charged with removability as
       a result of his conviction.[1] [Gutierrez] claim[ed] that he “would
       not have ple[]d guilty had he known that this plea would result
       in his mandatory detention in immigration custody and possible
       deportation from the United States,” and[,] because he did not
       fully understand the consequences of his guilty plea, [Gutierrez]
       [] requested that he be permitted to withdraw his guilty plea and
       proceed to counseled plea negotiations and/or trial.

              After    considering    [Gutierrez’s]    [P]etition,   the
       Commonwealth’s response filed on January 25, 2017, and the
       record, th[e PCRA c]ourt determined that [it] lacked jurisdiction
       in this matter. [The court] therefore issued a Notice of Intent to
       Dismiss on January 30, 2017, and then a subsequent Order
       dismissing [Gutierrez’s] request for post-conviction collateral
       relief on March 22, 2017.

             On April 21, 2017, [Gutierrez] filed a Notice of Appeal from
       [the] Order of March 22, 2017. In accordance with [the PCRA
       court’s] Order of May 5, 2017, [Gutierrez] filed a [Pa.R.A.P.
       1925(b)] Statement of [M]atters Complained of on Appeal on
       May 25, 2017[.]

PCRA Court Opinion, 6/19/17, at 1-2 (footnote and emphasis added).

       On appeal, Gutierrez presents the following questions for our review:

       I.   Whether th[e] [PCRA c]ourt erred in dismissing [Gutierrez’s]
            [PCRA P]etition … given that [Gutierrez] had completed his
____________________________________________


1 Under the Immigration and Naturalization Act, deportation is automatic
upon a conviction of a “crime of child abuse [or] child neglect[.]” 8 U.S.C.A.
§ 1227(a)(2)(E)(i).



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         sentence, yet equitable tolling applies as (1) his PCRA
         [P]etition falls within the 42 Pa.C.S.A. § 9545(b)(1)(ii) [and]
         (iii) exceptions to the one[-]year filing requirement, thus
         making the petition [sic]?

      II. Whether [Gutierrez] was denied effective assistance of
          counsel in regard to the collateral consequence of his
          negotiated plea, conviction and sentence[,] given that his
          prior counsel incorrectly advised [Gutierrez] and the court of
          the law or policy of the United States as it relates to arrest,
          detention and deportation by the Department of Homeland
          Security, following criminal conviction[?]      See Padilla[,
          supra].

Brief for Appellant at 4 (issues numbered).

      Before we can address the substance of Gutierrez’s claims, we must

first determine whether the PCRA court lacked jurisdiction to entertain the

Petition. To be eligible for PCRA relief, a petitioner must plead and prove:

      (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 the
         crime; or

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

42 Pa.C.S.A. § 9543(a)(1) (emphasis added).

      In the instant case, Gutierrez does not meet any of the three eligibility

requirements in section 9543(a)(1).     Gutierrez correctly concedes that his

sentence expired in November 2016, prior to his filing the instant PCRA

Petition in December 2016. Brief for Appellant at 9. Section 9543(a)(1)(i)

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clearly mandates that a PCRA petitioner must be currently serving a

sentence of imprisonment, probation or parole for the conviction at issue to

be eligible for PCRA relief. Id. § 9543(a)(1)(i); see also Commonwealth

v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (stating that “[t]o grant relief at

a time when [the petitioner] is not currently serving [] a sentence would be

to ignore the language of the statute.”) (emphasis in original).    Moreover,

“the PCRA precludes relief for those petitioners whose sentences have

expired, regardless of the collateral consequences of their sentence.”

Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009)

(emphasis added); see also Commonwealth v. Descardes, 136 A.3d 493,

501-02 (Pa. 2016).      Accordingly, because Gutierrez was not serving a

sentence at the time he filed his PCRA Petition, neither the PCRA court nor

this Court has jurisdiction to address it. See Commonwealth v. Plunkett,

151 A.3d 1108, 1110 (Pa. Super. 2016) (collecting similar cases); see also

Commonwealth v. Lewis, 63 A.3d 1274, 1281 (Pa. Super. 2013)

(observing that “[w]ithout jurisdiction, [a PCRA court] simply do[es] not

have the legal authority to address the substantive claims.”) (citation

omitted).

      Furthermore, though we are sympathetic to Gutierrez’s plight, we are

unable to afford him relief on his claim that he should be “entitled to

equitable tolling of the pertinent time periods[,]” such that his filing of the

PCRA Petition after his sentence expired should be excused.          Brief for


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Appellant at 10; see also id. at 10-11 (listing reasons why Gutierrez’s delay

in filing the Petition “was interfered with, and frustrated, by delays not

attributable to him.”). This Court has explained that “[c]ase law has strictly

interpreted the requirement that the petitioner be currently serving a

sentence for the crime to be eligible for relief.”    Plunkett, 151 A.3d at

1109; see also Lewis, 63 A.3d at 1279 (stating the general rule that the

PCRA’s timeliness requirements are “not subject to the doctrine of equitable

tolling[.]”).

      Accordingly, we conclude that the PCRA court properly dismissed

Gutierrez’s PCRA Petition for lack of jurisdiction.

      Order affirmed.

      President Judge Gantman joins the memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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