J-S19042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RAMON BRITO                                :
                                               :
                      Appellant                :   No. 769 MDA 2016

                   Appeal from the PCRA Order April 15, 2016
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001898-2008


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

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 08, 2017

       Appellant Ramon Brito appeals from the Order entered in the Court of

Common Pleas of York County on April 15, 2016, following a hearing,

dismissing his “Applicant Motion for Withdrawal of Plea Agreement,” which

the trial court treated as a first petition filed pursuant to the Post Conviction

Relief Act (“PCRA”).1 Appellant’s court-appointed PCRA counsel has filed a

petition to withdraw his representation, along with a Turner/Finley “no-

merit” letter.2     We grant counsel’s petition to withdraw his representation

and affirm the PCRA court’s order.


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*
  Former Justice specially assigned to the Superior Court.
1
   42 Pa.C.S.A. §§ 9541-9546.
2
   Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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        On June 19, 2008, Appellant, a native of the Dominican Republic, pled

nolo contendere to Theft by Unlawful Taking or Disposition and Receiving

Stolen Property3 and was sentenced to an aggregate term of six (6) months’

probation.4     Appellant did not file a post-sentence motion to withdraw his

plea or a direct appeal, and on October 14, 2008, Appellant’s penalty was

deemed satisfied.

        Appellant’s plea contributed to an immigration action against him, and

on April 29, 2014, he filed a Petition for Expungement.        The trial court

denied the petition on May 30, 2014, following a hearing.            Appellant

thereafter filed a Motion for Modification of Sentence on March 23, 2015, and

the trial court denied the same as untimely in its order filed on June 19,

2015.

        Appellant filed his “Applicant Motion for Withdrawal of Plea Agreement”

pro se on July 9, 2015. The trial court treated Appellant’s petition under the

auspices of the PCRA and entered an order appointing counsel on August 19,

2015.     Counsel filed an Amended Petition for Post Conviction Relief on

October 16, 2015.          Thereafter, Appellant retained private counsel who

entered his appearance on March 28, 2016, and following a hearing held on

April 5, 2016, appointed counsel was removed. A PCRA hearing was held on

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3
  18 Pa.C.S.A. §§ 3921, 3925.
4
  Appellant was alleged to have stolen a bicycle worth approximately twenty-
five (25) dollars. N.T. PCRA Hearing, 4/15/16, at 7.



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April 15, 2016, at which time Appellant testified extensively regarding his

immigration status, work history and community involvement.          N.T. PCRA

Hearing, 4/15/16, at 32.      Following oral argument, the Commonwealth

expressed its willingness to produce a letter for Appellant to submit to the

Governor in his effort to receive an expedited pardon. Id. at 44-45. In its

order entered on that same date, the PCRA court stated it was “constrained”

to deny Appellant’s PCRA petition due to its lack of jurisdiction.

      On May 10, 2016, Appellant filed a notice of appeal pro se and counsel

filed a second notice of appeal two days later. On May 20, 2016, the PCRA

court directed Appellant to file a concise statement of the matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Counsel filled a

motion for extension of time in which to file the concise statement on June

10, 2016, and the PCRA granted the same and directed that the statement

should be filed on or before July 20, 2016. Pursuant to Appellant’s request

and following a hearing held on June 29, 2016, the PCRA court permitted

private counsel to withdraw and appointed current counsel.

      Appellant filed a Rule 1925(b) statement pro se on June 22, 2016, and

the PCRA court filed its Opinion pursuant to Pa.R.A.P. 1925(a) on August 24,

2016. Therein, the PCRA court aptly summarized the five issues Appellant

wished to pursue on appeal as follows:

            [ ] Appellant appeals for the following reasons.       [ ]
      Appellant believes that we erred in finding his PCRA petition to
      be untimely.    [ ] Appellant avers that his counsel in the
      underlying case was ineffective. [ ] Appellant also alleges that

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       he suffered manifest injustice because his plea was not entered
       knowingly or intelligently. We cannot discern the meaning of [ ]
       Appellant’s fourth matter complained of; however, for the
       reasons cited infra we do not believe it necessary to understand
       it at this time.

See Opinion in Support of Order Pursuant to Rule 1925(a) of the Rules of

Appellate Procedure, filed 8/24/16, at 3.

       The PCRA court indicated that it had dismissed Appellant’s purported

PCRA petition on the basis that, because Appellant was no longer serving a

sentence of imprisonment, probation, or parole for the instant crimes, he

was not entitled to relief under the PCRA. Id. at 4. In the alternative, the

PCRA court stated that even were Appellant still serving a sentence or on

probation or parole, his only avenue to establish that trial counsel had been

ineffective would have been a claim that the United States Supreme Court

established a newly recognized constitutional right in Padilla v. Kentucky,

599 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).5 Noting that this

Court rejected such an argument in Commonwealth v. Garcia, 23 A.3d

1059, 1064-65 (Pa.Super. 2011), the trial court found that even if it had

jurisdiction over Appellant’s PCRA petition, a claim alleging counsel’s

ineffectiveness in light of Padilla would be untimely.      See Opinion in



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5
  Therein, the Supreme Court held that the appellant’s trial counsel had been
ineffective for failing to advise him that pleading guilty may resort in
deportation.



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Support of Order Pursuant to Rule 1925(a) of the Rules of Appellate

Procedure, filed 8/24/16, at 5.

      Current counsel filed a Petition for Withdrawal of Appearance with this

Court on January 3, 2017. Therein, counsel noted Appellant had been

deported to the Dominican Republic on or about October 3, 2016, and stated

that his efforts to locate Appellant had been unsuccessful. He further opined

the various claims Appellant wished to assert on Appeal as per his pro se

Rule 1925(b) statement are without merit. Counsel also filed a separate

Turner/Finley “no-merit” letter and provided proof of service on Irma Cruz,

Appellant’s designated “Power of Attorney,” as Appellant’s current address is

unknown.

      At the outset, we conclude the PCRA court properly treated Appellant’s

motion as his first PCRA petition.         The PCRA provides: “The action

established in this subchapter 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[.]”    42 Pa.C.S.A. § 9542.      Thus, where a petitioner’s claim is

cognizable under the PCRA, regardless of the title given to the petition, the

Court must     analyze   the   petition under   the   auspices   of the   PCRA.

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa.Super. 2013).

      In his instant petition, Appellant sought a new trial based upon the

alleged effectiveness of trial counsel and involuntariness of his plea, and


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such claims are     within the   purview    of the   PCRA.   42   Pa.C.S.A.   §

9543(a)(2)(ii), (iii); Commonwealth v. Descartes, ___ Pa. ____, ____,

136 A.3d 493, 501-02 (2016) (stating it is well established that an

appellant’s claim of ineffective assistance of plea counsel based upon

counsel’s failure to advise him of the collateral consequences of his plea, was

cognizable under the PCRA). See also Commonwealth ex rel. Dadario v.

Goldberg, 565 Pa. 280, 773 A.2d 126 (2001) (allegations of counsel’s

ineffectiveness during plea bargaining process are cognizable under the

PCRA); Commonwealth v. Turner, 622 Pa. 318, 345, 80 A.3d 754, 770

(where a petitioner alleges ineffective assistance of counsel, those claims are

cognizable under the PCRA and the writ of habeas corpus is not available).

Accordingly, the PCRA court properly treated Appellant’s “Applicant Motion

for Withdrawal of Plea Agreement,” as a PCRA petition.

      With regard to petitions filed under the PCRA, “[o]ur standard of

review of the denial of PCRA relief is clear; we are limited to determining

whether the PCRA court’s findings are supported by the record and without

legal error.”   Commonwealth v. Wojtaszek, 951 A.2d 1169, 1170

(Pa.Super. 2008) (quotation and quotation marks omitted).

      Before we proceed to review the merits of the issues presented in

PCRA counsel’s Turner/Finley brief, we must determine whether counsel

has satisfied certain procedural requirements to withdraw his representation.

      Counsel petitioning to withdraw from PCRA representation...must
      review the case zealously. [PCRA] counsel must then submit a

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     “no-merit” letter to the trial 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—trial 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. Walters, 135 A.3d 589, 591 (Pa.Super. 2016)

(quotations and citation omitted).

     Instantly, we determine that PCRA counsel has complied with the

procedural requirements of Turner/Finley.      Specifically, PCRA counsel’s

“no-merit” letter and petition to withdraw detail the nature and extent of

PCRA counsel’s review, address the claims raised in Appellant’s PCRA

petition, and determine that the issues lack merit and are frivolous since

Appellant, who has completed his sentence, is not eligible for relief. PCRA

counsel also indicated that, after his own independent review of the record,

he could not identify any meritorious issues that he could raise on

Appellant’s behalf to overcome his statutory ineligibility. Counsel also

provided this Court with proof that he sent Appellant’s “Power of Attorney”

his petition to withdraw, along with his Turner/Finley “no-merit” letter in



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light of the fact that Appellant was deported to the Dominican Republic on or

about October 3, 2016, and counsel has had no contact with Appellant since

September of 2016. Counsel also instructed Appellant that he had the right

to retain private counsel or proceed pro se.6 As counsel has complied with

the Turner/Finley requirements to withdraw his representation, we must

now determine whether the PCRA court correctly dismissed Appellant’s PCRA

petition on the basis that he was ineligible for relief.

       “Eligibility for relief under the PCRA is dependent upon the petitioner

[pleading and proving by a preponderance of the evidence that he is]

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

crime.” Commonwealth v. Turner, 622 Pa. 318, 80 A.3d 754, 761–62

(2013). See 42 Pa.C.S.A. § 9543(a)(1)(i).          As our Supreme Court has

explained, as soon as his sentence is completed, a PCRA petitioner becomes

ineligible for relief.   Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d

718, 720 (1997).
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6
  We note that while within the no-merit letter counsel informed Appellant of
his rights pursuant to Commonwealth v. Friend, 896 A.2d 607, 615
(Pa.Super. 2006), counsel erroneously suggested that Appellant’s right to
retain private counsel or represent himself was contingent upon this Court’s
allowing current counsel to withdraw.          See “No-Merit Letter” dated
12/19/16, at 6 (“Please be advised that should the court grant the
Petition to Withdraw as Counsel, you have the right to proceed pro se or
with the assistance of privately-retained counsel of your choice”) (emphasis
added). Accordingly, on January 6, 2017, this Court ordered that Appellant
would be permitted to file a response to counsel’s petition and no-merit
letter, either pro se or through privately retained counsel within thirty days.
Appellant has filed no response.



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       In the case sub judice, Appellant was sentenced on June 19, 2008, to

six months’ probation, and his penalty was satisfied on October 14, 2008.

Accordingly, when Appellant filed his current petition on July 9, 2015, he was

not “serving a sentence of imprisonment, probation, or parole” for the

crimes at issue; and thus, the PCRA court properly ruled that Appellant could

not obtain relief under the PCRA.

       Moreover, the trial court correctly stated that the Supreme Court of

the United States’ decision in Padilla did not create a newly recognized

constitutional right.7 Therefore, we affirm the PCRA court’s order dismissing

Appellant’s petition, and we grant court-appointed counsel’s petition to

withdraw his representation.

       Petition to Withdraw Granted; Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2017




____________________________________________


7
 Additionally, the United States Supreme Court has ruled that Padilla does
not apply retroactively. See Chaidez v. United States, ___ U.S. ____,
____, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149, ____ (2013).



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