Com. v. Xu, H. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HUI XU :
:
Appellant : No. 1506 WDA 2021
Appeal from the PCRA Order Entered November 19, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division at
No(s): CP-65-CR-0001572-2019
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED: AUGUST 22, 2022
Appellant, Hui Xu, appeals from the November 19, 2021 Order entered
in the Westmoreland County Court of Common Pleas dismissing her first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46. Appellant challenges the PCRA court’s conclusion that she is
ineligible for relief because she is no longer serving a sentence. After careful
review, we affirm.
The relevant facts and procedural history are as follows. On April 18,
2019, the Commonwealth charged Appellant, a Chinese national, with two
counts each of Corrupt Organizations, Dealing in the Proceeds of Illegal
Activity, and Trafficking in Individuals, and one count each of Promoting
Prostitution and Criminal Conspiracy, arising from her ownership of four
massage parlors to which she transported women for the purpose of
engaging in prostitution.
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On December 12, 2019, with the aid of a Cantonese translator and
upon advice of her counsel, Appellant entered into a negotiated guilty plea to
two counts of Trafficking and one count each of Promoting Prostitution and
Criminal Conspiracy. That same day, the trial court sentenced Appellant
pursuant to her plea to three concurrent terms of one year less one day to
two years less two days incarceration in county jail. The court awarded
Appellant 260 days’ credit for time served. Appellant did not seek to
withdraw her guilty plea at any time or file a post-sentence motion or direct
appeal from her judgment of sentence.
On July 16, 2020, Appellant filed the instant counselled PCRA petition
asserting that her plea counsel, Anastasia Williams, Esquire, had rendered
ineffective assistance of counsel by failing to advise Appellant that her guilty
plea would likely result in her deportation. Petition, 7/16/20, at ¶ 15. She
also claimed that she entered her guilty plea unintelligently, was without the
aid of an interpreter when consulting with Attorney Williams, did not have
the aid of an interpreter when reviewing the Westmoreland County Guilty
Plea Petition, and did not complete the guilty plea petition that would have
advised her of the possibility that a guilty plea may be grounds for
deportation. Id.
Appellant completed her sentence on March 18, 2021.
On April 28, 2021, the PCRA court entered an order directing the
Westmoreland County court administrator to schedule a hearing on
Appellant’s PCRA petition. The order noted that “delays in scheduling [a]
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PCRA hearing have occurred due to COVID restrictions, lack of access to a
Chinese translator, and [Appellant’s] recent apprehension by ICS.” Order,
4/28/21, at ¶ 4.
Appellant’s PCRA hearing took place on July 15, 2021.1 Following its
consideration of the testimony elicited at the hearing and the parties’ briefs,
the PCRA court denied Appellant’s petition. The PCRA court concluded that,
because Appellant was no longer serving her judgment of sentence, she was
ineligible for relief under the PCRA and had not established that the delay in
adjudicating her petition had deprived her of due process.
This appeal followed. Appellant complied with the court’s order to file
a Pa.R.A.P. 1925(b) statement. The PCRA court filed a memorandum in lieu
of a Rule 1925(a) opinion referring this Court to the reasons provided in its
November 19, 2021 Order and Opinion in support of dismissal.
Appellant raises the following two issues for our review:
1. [Whether] the [PCRA c]ourt erred in determining that []
Appellant was not entitled to [PCRA] relief because she “was
no longer in custody?” The delay in the PCRA’s adjudication
was unreasonable and deprived [Appellant] of her
constitutional right to due process.
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1 At the hearing, the Commonwealth presented the testimony of, inter alia,
Attorney Williams. In sum, Attorney Williams testified that an interpreter
was present every time she interacted with Appellant, that she had “spent
extensive time” reviewing Appellant’s rights concerning the guilty plea as
well as her trial and appellate rights, and that she suggested “several times”
that Appellant contact an immigration attorney for advice regarding the
potential immigration consequences of a guilty plea. N.T. PCRA Hr’g,
7/15/21, at 22, 26-27.
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2. Whether [t]rial [c]ounsel, Anastasia Williams[,] was
ineffective by not engaging an interpreter fluent in Chinese
during her discussion with [] Appellant, who did not
understand English, when discussing the consequences of
entering pleas of guilty, her “actual innocence,” and including
but not limited to the direct ramifications of her being
deported to her native China to the criminal charges which
caused said pleas to be unknowingly, unwillingly, un-
intelligently[,] and unlawfully induced which so undermined
the truth-finding process that no reliable adjudication of guilt
could have taken place[?]
Appellant’s Brief at 4 (reordered for ease of disposition).
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record
and free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014)). “This Court grants great deference to the findings of the PCRA court
if the record contains any support for those findings.” Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that he is “currently serving a
sentence of imprisonment, probation[,] or parole for the crime[.]” 42
Pa.C.S. § 9543(a)(1)(i). A petitioner who has completed his sentence is no
longer eligible for post-conviction relief. Commonwealth v. Soto, 983 A.2d
212, 213 (Pa. Super. 2009); see also Commonwealth v. Turner, 80 A.3d
754, 765 (Pa. 2013) (“[D]ue process does not require the legislature to
continue to provide collateral review when the offender is no longer serving
a sentence.”). This is so even if the petitioner filed his PCRA petition during
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the pendency of his sentence. Commonwealth v. Williams, 977 A.2d
1174, 1176 (Pa. Super. 2009) (“As soon as his sentence is completed, the
petitioner becomes ineligible for relief, regardless of whether he was serving
his sentence when he filed the petition.”). See also Commonwealth v.
Plunkett, 151 A.3d 1108, 1112-13 (Pa. Super. 2016) (affirming the PCRA
court’s order denying relief where the petitioner’s sentence expired while his
appeal from the PCRA court’s order was pending before this Court).
Appellant concedes that she is no longer serving a sentence of
imprisonment, probation, or parole. Appellant’s Brief at 12. Nevertheless,
in her first issue, she argues that, because she was allegedly deprived of
effective representation of counsel, this Court should “carve out an
additional exception to the bar to Appellant’s PCRA [p]etition” in the interest
of “fundamental fairness.”2 Id. at 14-15.
In urging this Court to “carve out an exception” to benefit Appellant,
she cites our Supreme Court’s opinion in Turner, in which she alleges our
Supreme Court provided “a possible exception” to the requirement that a
petitioner must be serving a sentence in order to be eligible for PCRA relief.
Id. at 13. Appellant relies on the Turner Court’s discussion of the general
principle that “fundamental fairness” is a requirement of due process in
support of her claim that because Turner provided a “possible exception”
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2 This issue presents a question of law over which we exercise plenary
review. Commonwealth v. Turner, 80 A.3d 754, 759 (Pa. 2013).
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that this Court should do the same for her. Id. (citing Turner, 80 A.3d at
768).
Following our review, we conclude that Turner does not support
Appellant’s argument. In Turner, the defendant completed her two-year
sentence of probation after she had filed a PCRA petition alleging ineffective
assistance of trial counsel. 80 A.3d at 758. The Commonwealth filed a
motion to dismiss the defendant’s petition on the basis that she was
ineligible for relief under the PCRA because she was no longer serving a
sentence. Id. In response, the defendant argued that the dismissal of her
petition would violate her due process rights by denying her any opportunity
to vindicate her right to the effective assistance of counsel. Id. The PCRA
court agreed. Id. Our Supreme Court reversed, however, concluding that,
because the defendant was no longer serving a sentence, she no longer had
a protected liberty interest that implicated her due process rights. Id. at
765-66. The Court concluded “the statutory limitation of collateral review to
individuals serving a sentence of imprisonment, probation, or parole is
consistent with the due process prerequisite of a protected liberty interest.”
Id. at 766. Thus, the defendant in Turner, like Appellant, was ineligible for
collateral relief.
Appellant also urges this Court to apply the holding in
Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018), a case where the
defendant was sentenced only to pay a fine and restitution and not to
imprisonment, probation, or parole and had raised an ineffective assistance
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of counsel claim in a post-sentence motion. In reversing this Court, the
Supreme Court “require[d] trial courts to examine ineffectiveness claims
[raised in post-sentence motions] when the defendant is ineligible for PCRA
review.” Id. at 353. Delgros is clearly distinguishable from the instant
case given that Appellant was sentenced to a term of incarceration. We,
thus, decline to apply its holding.
In sum, because Appellant completed her sentence before the PCRA
court ruled on the merits of her ineffective assistance of counsel claims, her
claims are no longer cognizable under the PCRA and the PCRA court properly
denied her PCRA petition. Accordingly, we affirm.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2022
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3 In light of our disposition, we need not address Appellant’s remaining
issue.
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