HomeMy WebLinkAboutCP-21-CR-0001036-2013
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs. :
: CP-21-CR-0001036-2013
:
SHANICE PORTER :
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
BREWBAKER, J., December 6, 2017
Appellant was born in Jamaica and currently resides in an immigration detention facility,
where she is “currently in imminent and urgent danger of being deported by the United States
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Immigration and Customs Enforcement” due to her third degree felony conviction for forgery.
On August 20, 2013, Appellant was sentenced to 4 to 14 months of incarceration after pleading
guilty to the Forgery charge. Her sentence expired on or about December 12, 2014.
Under federal immigration law, an aggravated felony is a felony with a sentence tail
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equal to or greater than 365 days. Appellant avers that an aggravated felony results in nearly
certain deportation. In an effort to avoid her deportation, Appellant filed for PCRA relief.
Specifically, Appellant sought to be resentenced to a reduced maximum sentence of less than 1
year/12 months/365 days under the theory that a sentence 364 days or less may be treated
differently in immigration proceedings.
Appellant argued that she was eligible for relief because she alleged plea counsel did not
satisfy the constitutional requirements set forth in Padilla and the test in Commonwealth v.
Pierce. The Commonwealth argued that the Appellant wanted immigration relief and was
seeking to use the PCRA’s jurisdictional requirements to achieve that end.
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Aff. in Supp. of Mot.
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See 8 U.S.C. § 1101(a)(43)(G)
On September 21, 2017, this Court heard argument on the Commonwealth’s Motion to
dismiss the Appellant’s Petition. On September 25, 2017, after consideration of the parties’
briefs and arguments, this Court granted the Commonwealth’s Motion to dismiss the Appellant’s
PCRA Petition. On October 24, 2017, the Appellant filed a Notice of Appeal and pursuant to
Order, on November 14, 2017, Appellant filed her concise statement.
Appellant complains of the following errors on appeal:
1.To the extent that Ms. Porter’s PCRA was based on lack of jurisdiction,
Appellant respectfully submits that the instant case is more analogous to 42
Pa.C.S. 9543(a)(1)(ii), rather than to 42 Pa.C.S. 9543 (a)(1)(i), as cited by the
Commonwealth. And even if paragraph (a)(1)(i) is dispositive, the Court’s
language in Com. v. Descardes, 136 A.3d 493, 501-503, (Pa. 2016), suggests
that Appellant’s current incarceration, by federal authorities, satisfies the
eligibility requirement. Significantly, in Descardes, the Supreme Court of
Pennsylvania used the language, “no longer incarcerated” rather than, “sentence
of imprisonment.” And, furthermore, Appellant is still subject to imprisonment,
in Cumberland County, on this instant case because of unpaid costs and fines at
this docket number as shown, in the public record at pages 42-45 of the docket.
(citations omitted)
2.To the extent that the dismissal is based, in whole or in part, on the merits,
Appellant is eligible for relief because it appears Plea Counsel did not satisfy
the requirements to warn Appellant as set forth in Padilla v. Kentucky, 559 U.S.
356 (2010), and did satisfy the three-prong Com. v. Pierce, 527 A.2d 973 (Pa.
1987) test for ineffective assistance of counsel because \[t\]he Appellant was not
sufficiently informed about the probable immigration/deportation collateral
consequences (prong 1 arguable merit) when there was no reasonable basis for
the omission (prong 2 - reasonable basis) for the act or omission, where
Appellant was prejudiced (prong 3 prejudice to the Appellant) by the
subsequent deportation proceedings initiated by the sentence in the instant
matter, which with the facts and circumstances of the current case would appear
to satisfy the 3-prongs of the Pierce test and Strickland v. Washington, 466 U.S.
668 (1984) and therefore constitute \[i\]neffective \[a\]ssistance of counsel. But, no
evidentiary hearing has yet been held. Therefore, without evidentiary hearing,
and with IAC, Ms. Porter is denied “substantial justice,” which from the
language of Pa.R.Crim.P. 905 would appear to be a desirable aspect of a PCRA
outcome.
Concise Statement of Errors Complained of on Appeal, filed October 24, 2017.
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According to Pennsylvania’s Post-Conviction Relief Act, to be eligible for relief a
petitioner must plead and prove by a preponderance of the evidence all of the following:
(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. § 9543.
The denial of relief for a petitioner who has finished serving his sentence is required by
the plain language of the statute. To be eligible for relief a petitioner must currently be serving a
sentence of imprisonment, probation or parole. To grant relief at a time when appellant is not
currently serving such a sentence would be to ignore the requirements of the statute. Com. v.
Ahlborn, 548 Pa. 544, 548, 699 A.2d 718, 720 (1997).
The search for legislative intent must end where the language used by the legislature is
clear. Ahlborn, 548 Pa. 544, 548, 699 A.2d 718, 720; citing Commonwealth v. Bursick, 526 Pa.
6, 10, 584 A.2d 291, 293 (1990) (“We are constrained ... to apply statutory language enacted by
the legislature rather than speculate as to whether the legislative spirit or intent differs from what
has been plainly expressed in the relevant statutes.”) Similarly, this Court has held that “the
PCRA precludes relief for those petitioners whose sentences have expired, regardless of the
collateral consequences of their sentence.” Commonwealth v. Hart, 2006 PA Super 324, ¶ 12,
911 A.2d 939, 942 (2006); Commonwealth v. Fisher 703 A.2d 714, 716 (Pa. Super. Ct. 1997),
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rev’d,reversed by 556 Pa. 653, 730 A.2d 952 (1999).
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The Pennsylvania Supreme Court reversed on other grounds pursuant to its decision in Commonwealth v.
Randolph, 553 Pa. 224, 718 A.2d 1242 (1998). Commonwealth v. Fisher, 556 Pa. 653, 730 A.2d 952 (1999).
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Appellant argued that she is entitled to relief under the PCRA based on two theories.
First, Appellant argued that her potential deportation is a collateral consequence of her
conviction that entitled her to relief under the statute, where the failure to sufficiently inform her
constituted ineffective assistance of counsel. Second, Appellant argued that she is, in fact,
currently “serving a sentence of imprisonment,” as she is presently detained by federal
immigration authorities.
These arguments, however, do not overcome the clear language and interpretation of the
statute. First, case law specifically forecloses the use of the PCRA where an Appellant has
satisfied his or her sentence, and only collateral consequences remain. In Commonwealth v.
Fisher, the Appellant attempted to seek relief under a similar theory, as he remained subject to
certain collateral consequences, which were fines totaling $120,000, of his conviction even after
satisfying his sentence. Id. However, the Superior Court found that, although the predecessor to
the PCRA, the Post-Conviction Hearing Act, may have afforded relief, “this Court has since
interpreted the Post-Conviction Relief Act to preclude relief for those petitioners whose
sentences have expired, regardless of the collateral consequences of their sentence.” Id.
Next, Appellant’s creative argument that her present imprisonment satisfies the
requirements of the PCRA is meritless. The plain language of the statute indicates that the
statute applies to those serving sentences of imprisonment, probation, or parole, “for the crime.”
42 Pa.C.S. § 9543(a)(1)(i). The “crime” referred to is the underlying conviction for which the
person was originally sentenced. In contrast, in the instant case, Appellant is currently detained
under circumstances that, although arguably collateral, are in fact separate from her underlying
conviction. She has already satisfied the sentence underlying her conviction and thus the PCRA
offers her no relief.
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While this Court is sympathetic to the plight of the Appellant, we are constrained from
granting her relief by the statute and resulting case law. We agree with the Commonwealth’s
assertion that her relief may best be sought elsewhere.
December 6, 2017 _______________________________
Jessica E. Brewbaker, J.
Charles Volkert, Jr., Esquire
Chief Deputy District Attorney
Dirk Berry, Esquire
For the Defendant
:rlm
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