Commonwealth v. Salcedo

COMMONWEALTH OF PENNSYLVANIA Appellee v. JORGE SALCEDO Appellant

J-S56028-14

No. 576 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 10, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order of March 13, 2014

In the Court of Common Pleas of Lackawanna County

Criminal Division at No.: CP-35-CR-0000699-2012

BEFORE: PANELLA, J., WECHT, J., and PLATT, J.^*

MEMORANDUM BY WECHT, J.:

Jorge Salcedo appeals the PCRA court's March 13, 2014 order dismissing his petition for collateral relief, which the PCRA court treated as a petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. We affirm.

The PCRA court has provided the following history and analysis of the instant matter:

On October 26, 2012, [Salcedo pleaded] nolo contendere to one count of possession of a small amount of marijuana. He was sentenced that same date to 15 to 30 days[' incarceration] and ordered [to be] released because he had already served the sentence. He was represented by Patrick Rogan, Esq.

On October 10, 2013, [Salcedo] filed a [PCRA petition] alleging that Mr. Rogan was ineffective for failing to advise him properly

of the consequences of his plea on his immigration status. Kurt Lynott, Esq. was appointed to represent [Salcedo]. On February 19, 2014, Mr. Lynott filed a Motion to Withdraw as Counsel and [a] Turner-Finley letter.[¹] On March 13, 2014, this motion was granted and [the PCRA] court issued a Memorandum and Order dismissing the PCRA petition.[²] On March 27, 2014, [Salcedo] filed a Notice of Appeal, and on April 3, 2014, [the PCRA] court ordered him to file a concise statement of [errors] complained of on appeal. [See Pa.R.A.P. 1925(b).] On April 24, 2014, [Salcedo] filed a [Rule 1925(b)] statement. In his concise statement, [Salcedo] alleges that [the PCRA] court erred in finding that he was not eligible for PCRA relief because his sentence had been served in this case since he is still incarcerated as a direct result of his conviction in this case. However, [Salcedo] has finished serving the sentence for the crime committed in this case, so he is not eligible for PCRA relief in this case. See PCRA Court Memorandum and Order, 3/13/2014. He is currently being detained by the Department of Homeland Security ["DHS"] for deportation proceedings. He also alleges that the [PCRA] court should have treated his petition as a writ of coram nobis, but the common law writ of coram nobis does not survive as an alternative remedy outside the PCRA. 42 Pa.C.S. § 9542; Commonwealth v. Fiore, 665 A.2d 1185 (Pa. Super. 1995).

PCRA Court Opinion, 5/22/2014, at 1-2 (citations modified).

Before this Court, Salcedo raises the following issues:

I. Whether the PCRA court erred in claiming that Salcedo is ineligible to file a PCRA petition.

II. Whether the PCRA court erred in not treating Salcedo's PCRA petition as a petition for writ of coram nobis, because the court violated Salcedo's due process rights and his attorney has shown ineffectiveness of counsel by incorrectly advising Salcedo of the immigration consequence of the plea, misrepresenting the immigration laws, and by misrepresenting himself as having knowledge, understanding, and experience in the immigration laws.

III. Whether the PCRA court erred in not allowing Salcedo an opportunity to challenge his conviction and show how his due process rights were violated during his proceedings and how it was conducted, because immediately after Salcedo pleaded nolo contendere on October 26, 2014 . . . he was ineligible for PCRA relief because he was incarcerated for 226 days without being brought to trial . . ., therefore immediately his sentence was expired.

Salcedo did not know that he needed to challenge and vacate his conviction until months after he was detained by United States Immigration and Customs Enforcement ("ICE"). Salcedo was informed by an immigration attorney and had done some research and found out that his trial attorney was ineffective, incompetent and had misadvised Salcedo and incorrectly informed Salcedo of the immigration consequences of his plea and Salcedo has no other remedy to challenge and vacate his conviction in order for Salcedo to be eligible for a sort of relief from deportation and not to be separated from his wife and 2 children that they have together and are United States citizens.

Brief for Salcedo at 2-3 (emphasis added; revised for clarity). The important common element of these issues is that they hinge upon whether plea counsel rendered constitutionally ineffective assistance of counsel.

Generally, we have held that relief for such questions must be sought under the PCRA:

Appellant's claim for [IAC] in connection with advice rendered regarding whether to plead guilty is cognizable under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii). See Commonwealth v. Lynch, 820 A.2d 728, 731-32 (Pa. Super. 2003) ("If the [IAC] caused the defendant to enter an involuntary or unknowing plea, the PCRA will afford the defendant relief."); Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006). Our standard of review of a [PCRA] court order granting or denying relief under the PCRA calls upon us to determine "whether the determination of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (footnote omitted; citations modified).

This Court's recent en banc decision in Commonwealth v. Descardes, 101 A.3d 105 (Pa. Super. 2014) (en banc), however, complicated that principle relative to circumstances where the entry of a plea may adversely affect one's immigration status or lead to deportation. In Descardes, the appellant, Claude Descardes, sought coram nobis relief in the trial court for IAC, arguing that counsel had failed to inform him of the immigration consequences of his plea in violation of the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356 (2010). The trial court treated Descardes' petition as one filed pursuant to the PCRA, and denied relief on the basis that the petition was untimely. Descardes, 101 A.3d at 107.

On appeal, this Court observed that Descardes no longer was in custody, and thus could not seek relief under the PCRA. Id. However, because Padilla was decided after Descardes' sentence expired, Descardes' claim lay in a narrow band of collateral claims not cognizable under the PCRA:

Because Descardes' specific [IAC] claim was not recognized until well after the time he had to file a timely PCRA petition, coram nobis review should be available to him. Descardes is no longer in custody, thus the PCRA provides no relief, but he continues to suffer the serious consequences of his deportation . . . ."

Id. at 109. Consequently, Descardes' avenue for relief necessarily lay outside the confines of the PCRA, and therefore was not subject to the PCRA's jurisdictional limitations. Id.; see Commonwealth v. Judge, 916A.2d 511, 521 (Pa. 2007) ("[S]ince the PCRA does not provide a remedy for Appellant's claims regarding the Committee's determination that his deportation from Canada violated [an international compact], they may be raised in a petition for writ of habeas corpus.").

Under the circumstances before us, we need not determine whether Descardes compels similar treatment in this case. As noted, supra, Salcedo's claims, at root, are predicated on his assertion that plea counsel rendered IAC. Generally, such claims, by whatever procedural mechanism raised, are subject to the following standard:

Pennsylvania has recast the two-factor inquiry regarding the effectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), as the following three-factor inquiry:

[I]n order to obtain relief based on [an IAC] claim, a petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is presumed to be effective, and [the appellant] bears the burden of pleading and proving each of the three factors by a preponderance of the evidence." Rathfon, 899 A.2d at 369; see also Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa. 2001).

The right to the constitutionally effective assistance of counsel extends to counsel's role in guiding his client with regard to the consequences of entering into a guilty plea. Wah, 42 A.3d at 338.

Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.

Id. at 338-39 (internal quotation marks and modifications omitted); see Commonwealth v.Yager, 685 A.2d 1000, 1003-04 (Pa. Super. 1996). Thus, to establish prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Rathfon, 899 A.2d at 369-70 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). "The reasonable probability test is not a stringent one"; it merely refers to "a probability sufficient to undermine confidence in the outcome." Id. at 370 (quoting Commonwealth v. Hickman, 799 A.2d 136, 141

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