Com. v. Salcedo, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JORGE SALCEDO
Appellant No. 576 MDA 2014
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.: FILED FEBRUARY 10, 2015
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
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*
Retired Senior Judge assigned to the Superior Court.
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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]
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1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(collectively outlining the procedure by which appointed counsel may seek to
withdraw when he finds no meritorious grounds for relief to pursue under
the PCRA).
2
Neither the docket nor the certified record reflects that appointed
counsel properly filed his Turner/Finley letter and petition to withdraw as
counsel. Moreover, neither the PCRA court’s procedural account nor the
docket or certified record indicates that the court filed and served upon
Salcedo a notice of intent to dismiss the petition without a hearing, as is
required by Pa.R.Crim.P. 907(1). Although these omissions are troubling,
this Court has held that the absence of a Rule 907(1) notice is a matter that
the appellant must raise before this Court on peril of waiver. See
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citing
Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007)).
Furthermore, while we cannot confirm that counsel ever served Salcedo with
his Turner/Finley letter, petition to withdraw, and letter explaining to
Salcedo his rights to proceed pro se or with retained counsel and to file a
rebuttal to the PCRA court’s notice of intent to dismiss, the PCRA court
referred to those items in its opinion pursuant to Pa.R.A.P. 1925(a) and
Salcedo has made no protest to this Court. Furthermore, in light of our
disposition of this case, it appears that the PCRA court lacked jurisdiction
over this petition for reasons that are not subject to material dispute. Under
such circumstances, remanding this case so that the PCRA court may perfect
the certified record would merely protract proceedings that are destined for
the same result. Moreover, it is an appellant’s burden to confirm that the
certified record contains all materials necessary to adjudicate his appeal.
See Commonwealth v. Spotti, 94 A.3d 367, 381 (Pa. Super. 2014) (“The
Rules of Appellate Procedure place the burden on the appellant to ensure
that the record contains what is necessary to effectuate appellate
review . . . .”). Thus, despite our reservations, we will not order relief sua
sponte for these oversights.
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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.
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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).
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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, 916
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A.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.
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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 (Pa. Super. 2002)).
Barndt, 74 A.3d at 192 (citations modified).
Whether an IAC claim is brought under the auspices of the PCRA or by
a petition for a writ of coram nobis, the Pierce-factor analysis, which
establishes the constitutional floor for the sufficiency of counsel, applies
equally.3 Thus, at a minimum, a petitioner seeking relief for IAC, by
whatever procedural means, must separately address each of the three
prongs in order to establish a basis for relief. Failure expressly to plead and
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3
Indeed, before the Supreme Court made clear in Commonwealth v.
Grant that claims of ineffective assistance of counsel must be deferred until
any direct appeal is resolved and pursued under the PCRA, see 813 A.2d
726, 739 (Pa. 2002) (“We hold that, as a general rule, a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral
review.”), such claims routinely were raised on direct appeal and measured
according to the Pierce standard.
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prove any one of these prongs standing alone is fatal to an IAC claim.
Commonwealth v. Steele, 961 A.2d 786, 799, 801-02 (Pa. 2008);
Commonwealth v. DuPont, 860 A.2d 525, 532 (Pa. Super. 2004).
Salcedo argues that the trial court erred in declining to treat his
petition for collateral relief as a petition for a writ of coram nobis, rather
than as a petition under the PCRA. By so arguing, he seeks to avoid the
jurisdictional consequences of the undisputed fact that he no longer is
serving a sentence, as required to be eligible for relief under the PCRA, see
42 Pa.C.S. § 9543(a)(1)(i), and indeed was discharged to DHS custody at
the time of sentencing because his time served exceeded the fifteen to
thirty-day term of incarceration imposed by the trial court as part of
Salcedo’s negotiated nolo contendere plea. In so arguing, Salcedo resorts to
case law interpreting the PCRA’s predecessor Post-Conviction Hearing Act,
see Brief for Appellant at 12-14, which case law, we have had occasion to
note, is of very limited utility to interpreting the PCRA because the latter
reflected wholesale changes to the PCHA framework that it supplanted. See
generally Commonwealth v. Fiore, 665 A.2d 1185, 1191-92
(Pa. Super. 1995). Accordingly, his resort to such case law is unavailing.
More importantly, though, Salcedo’s arguments all hinge upon his
contention that his various attorneys, and plea counsel in particular,
rendered IAC in failing properly to inform him of the potential immigration
consequences of entering a plea of nolo contendere. This is reflected in his
initial pro se petition, wherein he alleged as follows:
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1. [Salcedo] was misadvise[d] by [his] attorney of the
consequences of pleading nolo contendere[,] which in turn
impacted and is [a]ffecting [Salcedo’s] immigration status.
2. [Salcedo] was coerced in taking the plea because of [his]
race and possib[ly his] nationality.
3. After being indicted, [he] wasn’t given the opportunity to
go to trial within . . . 180 days of being in custody.
Pro Se PCRA Petition at 3. He further asserted that he “was ineffectively
represented,” “would not have pleaded nolo contendere,” and “would not
have this charge on [his] record.” Id. (capitalization modified).
After appointed PCRA counsel was permitted to withdraw pursuant to
Turner/Finley, the PCRA court directed Salcedo to file a concise statement
of errors complained of on appeal. Salcedo’s Rule 1925 statement was not
to the contrary. Therein, Salcedo largely contended that his ongoing
incarceration on an ICE detainer qualified as incarceration under the PCRA,
entitling him to seek relief thereunder. In the alternative, he contended
that, even if his ICE incarceration did not qualify as incarceration for
purposes of PCRA eligibility, he should have been afforded coram nobis,
relief outside the strictures of the PCRA. Finally, he alleged that he wished
to press claims including IAC “during his proceedings with all four of
[Salcedo’s] attorney[s],” that he had been denied his right to due process,
and that he had not timely been brought to trial as required by
Pa.R.Crim.P. 600. Rule 1925(b) Statement at 3.
Before this Court, Salcedo effectively abandons his broad due process
claims and his Rule 600 argument, concentrating instead upon his eligibility
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for collateral relief within or outside the PCRA. Critically, he does not in any
recognizable way plead that he had an even potentially meritorious claim for
IAC. Specifically, Salcedo does not argue discretely (1) that his claim of IAC
has arguable merit; (2) that his attorney lacked a reasonable basis for any
actions or omissions to act in connection with Salcedo’s plea proceedings;
and (3) that Salcedo was prejudiced by the complained-of acts or omissions
in the sense that, had counsel comported himself consistently with his
professional obligations, there was a reasonable probability that Salcedo
would have opted to maintain his innocence and proceed to trial. As noted,
supra, the omission of any discussion of even one of these elements, let
alone all three, necessarily is fatal to an IAC claim. See Rathfon, supra.4
We recognize that PCRA counsel’s withdrawal pursuant to Turner and
Finley, and the PCRA court’s determination that it lacked jurisdiction to
address the merits of Salcedo’s claims, understandably have prompted
Salcedo to focus before this Court upon his eligibility for relief at the expense
of developing the bases upon which he seeks relief. However, that does not
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4
Although we do not reach the question, we note that the sentencing
transcript undermines the claim that he was not, nor could be, aware of the
potential for immigration consequences arising as a consequence of his nolo
contendere plea in the instant case. See Notes of Testimony, 10/26/2012,
at 6 ([Plea counsel addressing the court]: “I have discussed with [Salcedo]
whether there would be immigration implications here. I don’t believe there
are arising from this charge, but he’s aware that that’s possible,
particularly in light of his past,” i.e., a prior felony conviction in New York
(emphasis added)).
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relieve him of the burden of pleading at a minimum the substantive basis for
such relief sufficiently clearly to persuade this court that remanding the case
for further proceedings would be more than an exercise in futility. It is not
for us to make determinations of fact, but it also is not for us to infer that a
meritorious argument may lie when the appellant has made no effort to
establish what that argument might be.
Because Salcedo has not pleaded any basis upon which relief might be
granted, even if he were deemed eligible for such relief, we decline to pass
upon Salcedo’s arguments pertaining to his eligibility for relief outside the
confines of the PCRA. Instead, we find that Salcedo’s underlying claims of
IAC, upon which his substantive claims for relief are predicated, were
insufficiently developed before the PCRA court and this Court to warrant
further consideration.5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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5
We may affirm a correct trial court ruling on any basis.
Commonwealth v. Pacell, 497 A.2d 1375, 1377 n.1 (Pa. Super. 1985).
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