Com. v. Mowatt, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARVIN DEAN MOWATT
Appellant No. 371 EDA 2016
Appeal from the PCRA Order January 4, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005277-2012
BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED DECEMBER 21, 2016
Marvin Dean Mowatt appeals from the January 4, 2016 order denying
his petition for post-conviction relief. We affirm.
In late May of 2012, police operating in Morrisville Borough, Bucks
County, conducted four controlled purchases of cocaine utilizing a
confidential informant (“CI”). On each of the four occasions, the CI
communicated with Appellant via cellular telephone to arrange a purchase of
the illicit substance. The CI then met with Appellant in the parking lot of
Appellant’s employer. Appellant provided the CI with powder cocaine, and,
in exchange, the CI furnished Appellant with $80 of pre-recorded money
provided by police.
* Former Justice specially assigned to the Superior Court.
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During the early morning hours of June 1, 2012, officers observed
Appellant exit his employment and enter his vehicle. Surveillance units were
aware Appellant had a suspended license and, thus, effectuated a traffic
stop. The officers apprehended Appellant, and a search of his person and
vehicle revealed two bags of cocaine, drug paraphernalia, and $1,978 in
cash, including $130 in the pre-recorded bills.
Based on the foregoing, Appellant was charged with five counts of
possession with intent to deliver (“PWID”), five counts of dealing in unlawful
proceeds, five counts of criminal use of a communication facility, and other
related charges. On October 19, 2012, Appellant entered an open guilty
plea to five counts of PWID, five counts of dealing in unlawful proceeds, and
five counts of criminal use of a communication facility. The trial court
conducted the mandatory colloquy. Neither the court nor Appellant’s
counsel conveyed to him that he may be subject to deportation as a
collateral consequence of his plea. The court accepted Appellant’s guilty
plea and scheduled the matter for sentencing.
The trial court held a sentencing hearing on January 25, 2013. During
the sentencing hearing, Appellant’s father testified that he and Appellant’s
mother were citizens of the United States. Appellant testified that he lived
in Pennsylvania most of his life. Counsel did not elicit any further testimony
regarding Appellant’s citizenship. At count one, the court sentenced
Appellant to six to twenty-three months incarceration and costs, with credit
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for two-weeks time served. Appellant’s sentence on the remaining counts
was ordered to run concurrent to this sentence. The court approved
immediate work release and permitted Appellant to petition for house arrest
after ninety days. Appellant did not file a post-sentence motion or pursue an
appeal. Thus, his judgment of sentence became final on February 24, 2013.
Subsequently, Appellant was deported to the United Kingdom as a result of
his conviction.
Thereafter, Appellant filed a timely PCRA petition alleging counsel was
ineffective for failing to provide proper guidance regarding the immigration
consequences of his guilty plea. Initially, the public defender was appointed
to represent Appellant. However, Appellant retained private counsel.
Private counsel filed a petition styled as an amended PCRA petition and
motion for coram nobis relief. The court scheduled a hearing on the matter
and entertained memoranda in support of the parties’ positions. On January
4, 2016, the court denied Appellant’s petition, and this timely appeal
followed. Appellant failed to comply with the court’s directive to file a Rule
1925(b) concise statement of matters complained of on appeal.
Nevertheless, the court authored its Rule 1925(a) opinion based on the
arguments presented during the PCRA hearing. This matter is now ready for
our review.
Appellant presents one issue for our consideration:
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A. Whether trial counsel was ineffective for failing to advise the
Appellant, as required by the United States Constitution and
the Pennsylvania Constitution, that his guilty plea could result
in being deported and as such, Appellant should be allowed to
withdraw his guilty plea, have his conviction abated, and his
trial rights reinstated?
Appellant’s brief at 5.
As a preliminary matter, the Commonwealth contends this issue is
waived. The rules of appellate procedure require an appellant to file and
serve a concise statement of matters complained of on appeal when directed
to do so by the court. Pa.R.A.P. 1925(b). The failure to file a court-ordered
statement ordinarily results in waiver of a party’s claims. Commonwealth
v. Hill, 16 A.3d 484, 494 (Pa. 2011).
The PCRA court did not find Appellant’s issue waived. The court
observed that, at the time it directed Appellant to file a Rule 1925(b)
statement, it was unclear who was representing Appellant for the purpose of
appeal, so the order was sent directly to Appellant. Thus, neither private
counsel nor the public defender was served with notice of that order.
Subsequently, since the court believed that Appellant’s private counsel
would handle the appeal, the court vacated a February 25, 2016 order
appointing the public defender to represent Appellant on appeal. The court
later learned that private counsel did not agree to represent Appellant on
appeal. As such, the court granted private counsel’s motion to withdraw and
reinstated the public defender to Appellant’s case.
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Since the court’s order vacating the appointment of the public
defender instigated the misunderstanding as to who was truly representing
Appellant on appeal, we consider this a breakdown in the processes of the
court. As we agree with the PCRA court that Appellant’s issue was not
waived, we address it.
Appellant fashioned his petition as an amended PCRA petition and
petition for coram nobis relief. In Commonwealth v. Descardes, 136 A.3d
493, 501 (Pa. 2016), the Pennsylvania Supreme Court held that a claim of
ineffective assistance of plea counsel, which is based on counsel’s failure to
advise him of the collateral consequences of his plea, was cognizable under
the PCRA. Furthermore, our High Court found that where a claim is
cognizable under the PCRA, the PCRA is the only method for obtaining
collateral review. Id. Thus, Appellant’s petition was properly considered by
the lower court as a petition for PCRA relief alone.
As Appellant’s petition is cognizable under the PCRA, we must
determine whether he is eligible for relief. Eligibility for relief under the
PCRA is governed by 42 Pa.C.S. § 9543, which provides in pertinent part:
(a) General Rule.- To be eligible for relief under this
subchapter, the 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:
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(i) Currently serving a sentence of imprisonment,
probation or parole for the crime;
(ii) Awaiting execution of a sentence of death for a
crime; or
(iii) Serving a sentence which must expire before the
person may commence serving the disputed
sentence.
42 Pa.C.S. § 9453(a).
We note, “[e]ligibility for relief under the PCRA is dependent upon the
petitioner currently serving a sentence of imprisonment, probation, or parole
for a crime.” Commonwealth v. Turner, 80 A.3d 754, 761-62 (Pa. 2013).
As such, “the denial of relief for a petitioner who has finished serving his
sentence is required by the plain language of the statute.” Commonwealth
v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997).
Upon review of the record, we observe that Appellant was sentenced
to six to twenty-three months incarceration on January 25, 2013, with two
weeks credit for time served. Hence, Appellant completed serving his
sentence on December 11, 2015. Since Appellant is no longer serving a
sentence of imprisonment, probation, or parole for a crime, he is ineligible
for PCRA relief. 42 Pa.C.S. § 9543(a)(1)(i); Turner, supra; Ahlborn,
supra. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2016
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