Com. v. Henry, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAYAN DANE HENRY,
Appellant No. 1513 MDA 2011
Appeal from the PCRA Order July 27, 2011
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004850-2004
BEFORE: STEVENS, P.J., LAZARUS, J., and WECHT, J.
JUDGMENT ORDER BY LAZARUS, J. FILED OCTOBER 09, 2014
Rayan Dane Henry appeals from the order entered in the Court of
Common Pleas of York County denying his petition filed under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On December 14, 2004, Henry entered a guilty plea to one count of
Possession of a Controlled Substance with Intent to Deliver (PWID). 1 On
February 14, 2005, the court sentenced him to time served (22 days) to
twelve months’ incarceration. Henry did not file post-sentence motions or a
direct appeal.2 On April 7, 2011, Henry filed a PCRA petition, averring that
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1
35 P.S. § 780-113(a)(30).
2
Henry’s petition is patently untimely. His judgment of sentence became
final on March 16, 2005, when the time expired to file a direct appeal from
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at the time of his plea, counsel did not inform him that his conviction could
result in a removal action by the United States Department of Immigration
and Customs Enforcement. Henry maintained that such an allegation of
ineffectiveness is now cognizable under Padilla v. Kentucky, 559 U.S. 356
(2010), and that since he was not informed of the removal proceedings until
February 10, 2011, and such could not have been previously discovered
through due diligence, his petition was timely. The PCRA concluded that
Henry “has set forth no newly recognized right to avoid the one-year time
limit.” Trial Court Order, 7/27/2011.
We first note that 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:
(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.
_______________________
(Footnote Continued)
his February 14, 2005 judgment of sentence. Henry had one year, or until
March 16, 2006, in which to file a timely PCRA petition. The instant petition
was filed on April 7, 2011, over six years after his judgment of sentence
became final.
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42 Pa.C.S. § 9543(a)(1)(i) (emphasis added). See Commonwealth v.
Ahlborn, 699 A.2d 718 (Pa. 1997) (holding that plain language of this
section requires denial of relief for petitioner who has finished serving
sentence); see also Commonwealth v. Turner, 80 A.3d 754, 767 (Pa.
2013) (noting eligibility for relief under PCRA is limited to those serving
sentence).
The record indicates that at the time Henry filed his PCRA petition, he
was confined at the Bristol County House of Correction in North Dartmouth,
MA, because the United States Department of Immigration and Customs
Enforcement had detained him there as a result of his conviction. See PCRA
Petition, 4/7/2011, at ¶¶ 2-3. His direct sentence for the crime of PWID,
however, had elapsed. Henry, therefore, is ineligible for PCRA relief. 42
Pa.C.S. § 9543(a)(1)(i).
Even were Henry eligible for PCRA relief, his argument that his petition
was timely filed under the “new recognized constitutional right” exception to
the one-year time bar, see 42 Pa.C.S. § 9545(b)(1)(iii), also fails. In
Padilla, decided on March 31, 2010, the United States Supreme Court held
that counsel has an affirmative duty to inform defendant of the deportation
consequences of his plea. However, in Chaidez v. United States, 133
S. Ct. 1103 (2013), the Court held Padilla does not apply retroactively. As
this Court recently stated in Commonwealth v. Descardes, 2014 Pa. Super.
210, (en banc) (filed September 23, 2014), “this is a claim that is not
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subject to the timeliness exception of 42 Pa. Cons.Stat.Ann. §
9545(b)(1)(iii), as Padilla did not recognize a new “constitutional right.””
Id. at *3, n.5, quoting Commonwealth v. Garcia, 23 A.3d 1059, 1064 (Pa.
Super. 2011). In addition, as stated above, in Chaidez the Supreme Court
ruled that Padilla has no retroactive effect. As Padilla does not apply
retroactively, it could not serve as the basis for the untimely collateral attack
on Henry’s conviction, which was final when Padilla was decided. See
Descardes, supra.
Order affirmed.3
President Judge Stevens did not participate in the consideration or
decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2014
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3
Our decision today is without prejudice to Henry’s right to raise his claim in
a writ of coram nobis under the appropriate circumstances. See Chaidez,
133 S. Ct. at 1106 n. 1.
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