Com. v. Pratt, H. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HENRY PRATT
Appellant No. 1824 EDA 2020
Appeal from the PCRA Order entered August 26, 2020
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0002336-2015,
CP-15-CR-0003331-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
HENRY PRATT
Appellant No. 1825 EDA 2020
Appeal from the PCRA Order entered August 26, 2020
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0002336-2015,
CP-15-CR-0003331-2014
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 5, 2021
Appellant, Henry Pratt, appeals from the August 26, 2020 orders of the
Court of Common Pleas of Chester County, which denied his requests for
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collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
Upon review, we affirm.
The relevant procedural background of the instant appeal can be
summarized as follows.1
On November 20, 2015, [Appellant] entered into a negotiated
guilty plea [at docket number] CP-15-CR-2336-2015[,] in which
he pled guilty to one (1) count of [access device fraud.] At the
same time, [Appellant] entered into a negotiated guilty plea to
one count of [forgery at docket number] CP-15-CR-3331-2014.
On the same day, [Appellant] was sentenced to the agreed upon
sentence of two (2) years of probation on the count of [access
device fraud] followed by two (2) years of probation on the count
of [forgery]. As the probation sentences were to run consecutive
to one another, [Appellant] received an aggregate sentence of
four (4) years of probation. [Appellant] did not file any post-
sentence motion or a direct appeal from the judgment of
sentence[.]
PCRA Court Opinion, 1/27/21, at 1-2 (footnotes omitted).
On June 11, 2018, Appellant filed his first PCRA petition. The PCRA court
appointed counsel to assist Appellant in the PCRA proceedings. On August 23,
2018, Appellant pro se filed a request for the appointment of new counsel,
which the PCRA court denied on September 18, 2018.
On August 27, 2018, court-appointed counsel filed a petition for leave
to withdraw as PCRA counsel along with “no merit” letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
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1 The factual background is not at issue here.
We have relied on the factual
background summary offered by the PCRA court in its January 27, 2021
opinion. See PCRA Court Opinion, 1/27/21, at 5.
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v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Appellant pro se filed
a response. On September 18, 2018, the PCRA court issued a notice of its
intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant objected. On October 17, 2018, the PCRA court dismissed
Appellant’s petition as untimely and granted counsel’s petition to withdraw.
Appellant timely appealed pro se to our Court. Because Appellant failed
to comply with Pa.R.A.P. 341 and Commonwealth v. Walker, 189 A.3d 969,
977 (Pa. 2018), we quashed the appeal. See Commonwealth v. Pratt, No.
3194 EDA 2018, unpublished memorandum at 4 (Pa. Super. filed September
13, 2019). On March 16, 2020, our Supreme Court denied Appellant’s petition
for allowance of appeal from our decision. See Commonwealth v. Pratt,
611 MAL 2019 (Pa. 2020).
On March 26, 2020, Appellant filed a second PCRA petition, which is the
subject of the instant appeal. The PCRA court ordered the Commonwealth to
respond to Appellant’s petition. Upon consideration of Appellant’s petition,
and the Commonwealth’s response thereto, on May 6, 2020, the PCRA court
issued its notice of intent to dismiss Appellant’s second PCRA petition as
untimely, without an evidentiary hearing. On May 22, 2020, Appellant filed a
response seeking leave to file a counseled amended petition, which the PCRA
court granted on May 28, 2020.
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On July 10, 2020, Appellant filed a counseled amendment to his second
PCRA petition.2 The PCRA court directed the Commonwealth to respond to
Appellant’s amended second PCRA petition. On August 26, 2020, after
considering the amended petition and the Commonwealth’s response, the
PCRA court dismissed Appellant’s second PCRA petition and the amendment
on multiple grounds, including failure to meet the PCRA’s timeliness and
eligibility requirements. This appeal followed.
On appeal, Appellant raises two claims:
1. The PCRA Court erroneously ruled that [Appellant]’s petition
was untimely, when the petition was filed within one-year of
[Appellant]’s discovery that trial counsel’s errors were
responsible for [Appellant]’s deportation custody and
prosecution by immigration authorities. This places [Appellant]
squarely within 42 Pa.C.S.A. § 9545(b)(2) as amended to
expand the time for filing a petition from 60 days to one year
from the date the claim could have been presented.
2. The PCRA Court erroneously ruled that it lacked jurisdiction to
rule on [Appellant]’s claim because his initial probationary
sentence expired while the PCRA [petition] was pending.
[Appellant] is subject to a removal order, and is on conditional
supervised release under an order of supervision monitored
[by] the Department of Homeland Security, solely as a direct
consequence of the criminal convictions[,] which are addressed
in the petition. Thus[,] he remains constructively in “custody”
as a result of these criminal cases, and instant petitions are
properly within the jurisdiction of the PCRA Court.
Appellant’s Concise Statement, 10/21/20 (unnumbered).
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2 Said petition was framed as a petition for habeas corpus relief.The PCRA
court treated it as a PCRA petition. Appellant does not challenge the PCRA
court’s characterization of his petition.
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At the outset, before we can address the merits of the appeal, we must
address two preliminary matters. First, we must consider whether Appellant
complied with the requirements of Walker, and second, whether Appellant is
eligible for PCRA relief.
Regarding the first matter, Appellant filed two separate notices of
appeal, each listing both of his docket numbers related to this appeal,
pursuant to Pa.R.A.P. 341 and Walker. Because Appellant included both trial
court docket numbers on each notice of appeal, this Court issued rules to show
cause why his appeals should not be quashed pursuant to Walker.
Appellant’s counsel filed a response stating that he had asked his assistant to
prepare the notices but “did not adequately specify that each Notice of Appeal
was required to list docket numbers separately.” Appellant’s Response to
Order to Show Cause, 11/24/20, at 1. In addition to filing a response to our
order, on the same day, counsel filed amended notices of appeal to comply
with Pa.R.A.P. 341 and Walker. Our Court referred the Walker issue to the
merits panel.
In light of our en banc decision in Commonwealth v. Johnson, 236
A.3d 1141 (Pa. Super. 2020) (en banc), we decline to quash the present
appeals. In Johnson, we “observe[d] that [Pa.R.A.P.] 341 and Walker make
no mention of case numbers on a notice of appeal.” Id. at 1148. Specifically,
the en banc panel opined that where an appellant files a separate notice of
appeal at each trial court docket, “[t]he fact that the notices [of appeal]
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contained [more than one trial court docket number] is of no consequence.”
Id. The Johnson court explicitly overruled the majority decision of a three-
judge panel in Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019),
that held a notice of appeal was permitted to contain only one docket number.
See Johnson, 236 A.3d at 1148. Because Appellant filed separate notices of
appeal at each docket, he has complied with Walker.
Next, we must consider whether Appellant is eligible for relief under the
PCRA. To be eligible for relief under the PCRA, a petitioner must be either
“currently serving a sentence of imprisonment, probation or parole for the
crime,” “awaiting execution of a sentence of death for the crime,” or “serving
a sentence which must expire before the person may commence serving the
disputed sentence.” 42 Pa.C.S.A. § 9543(a)(1)(i)-(iii).
Our Supreme Court and this Court have consistently interpreted Section
9543(a) to require that a PCRA petitioner be serving a sentence while relief is
being sought. Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997);
see also Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011), and
Commonwealth v. Matin, 832 A.2d 1141 (Pa. Super. 2003). As our
Supreme Court explained in Ahlborn, the denial of relief for a petitioner who
has finished serving his sentence is required by the plain language of the PCRA
statute. Ahlborn, 699 A.2d at 720. Indeed, to be eligible for relief, a
petitioner must be currently serving a sentence of imprisonment, probation,
or parole. Id. To grant relief at a time when an appellant is not currently
serving such a sentence would be to ignore the language of the PCRA. Id. As
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a result, courts lose jurisdiction to entertain the matter the moment an
appellant’s sentence expires. See Commonwealth v. Turner, 80 A.3d 754,
769 (Pa. 2013) (holding that when a petitioner’s sentence expires while his
PCRA petition is pending before the PCRA court, the PCRA court loses
jurisdiction to rule on the merits of the petition).
Here, based on our review of the record, Appellant does not meet the
foregoing eligibility requirements as he completed his sentences prior to the
filing of the instant PCRA petition. Indeed,
it is unassailable that [Appellant] was sentenced on November 20,
2015 to four (4) years[’] probation. [Appellant]’s probation has
not been violated or extended. Consequently, [Appellant]’s
probation expired on or about November 20, 2017 [at docket
number CP-15-CR-2336-2015] and on November 13, 2019 [at
docket number CP-15-CR-3331-2014], and [Appellant] is no
longer serving a sentence for the sentences which are the subject
of his PCRA petition. [Appellant] did not file his second PCRA
petition until March 26, 2020, which was approximately four (4)
months after his probationary sentence expired. Accordingly,
[Appellant] is no longer eligible for PCRA relief because the
sentence for the challenged conviction is complete. Although [the
PCRA court] recognizes [Appellant]’s current immigration status,
unfortunately this fact alone does not excuse the untimeliness of
his PCRA petition or otherwise confer jurisdiction upon the court.
PCRA Court Opinion, 1/27/21, at 13-14 (footnote, internal citations, and some
capitalization omitted).
We agree with the PCRA court’s analysis and conclusions. Appellant
himself acknowledges that he is not eligible for PCRA relief: “Appellant
recognizes that his [first] PCRA petition was untimely filed and that when he
filed the instant petition, his sentence had expired. He also recognizes that
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these two facts render [A]ppellant ineligible for PCRA relief.” Appellant’s Brief
at 19 (citing in support Ahlborn, supra, and Commonwealth v. Robinson,
139 A.3d 178 (Pa. 2016)).
Elsewhere, however, Appellant argues that he is in fact “serving” a
sentence for purposes of the PCRA “because he is under supervision of the
Department of Homeland Security” as a result of the expired convictions.
Appellant’s Brief at 22. Yet, Appellant did not provide any authority (nor could
we find any) for his contention that a removal order from the U.S. Department
of Homeland Security is in fact part of the sentence imposed by the trial court
in 2015.
In light of the foregoing, we conclude that Appellant is not eligible for
PCRA relief because he is no longer serving the sentence being challenged
here.
Because Appellant is not eligible for PCRA relief, we need not address
the merits of Appellant’s claims, i.e., that trial counsel was ineffective, that
Appellant only learned of this new fact when he consulted an immigration
attorney in April 2018, and that the instant petition was filed within a year
from the date he discovered the problems with his guilty plea.
In any event, even if Appellant were eligible for relief, Appellant failed
to plead and prove that his second PCRA petition was timely under the newly-
discovered fact exception set forth in Section 9545(b)(1)(ii). See Appellant’s
Brief at 12-20.
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First, regardless of whether the ineffectiveness claim raised here has
been “previously litigated” for purposes of the PCRA, see Pa.C.S.A. § 9544,
Appellant’s unawareness of (i) counsel’s ineffectiveness or (ii) the import of
Padilla v. Kentucky, 559 U.S. 356 (2010), are not sufficient to trigger a
newly-discovered fact exception under Section 9545(b)(1)(ii).
It is well-established that “counsel’s ineffectiveness may not be invoked
as a newly-discovered ‘fact’ for purposes of invoking the subsection
9545(b)(1)(ii) exception.” Commonwealth v. Peterson, 192 A.3d 1123,
1129 (Pa. 2018) (citing Commonwealth v. Gamboa-Taylor, 753 A.2d 780,
785 (Pa. 2000)).
To the extent Appellant argues that the newly-discovered fact consists
of him recently becoming aware of Padilla we are unaware of any decision or
statute that supports the proposition advanced herein by Appellant, i.e.,
ignorance of law can be invoked as a newly-discovered ‘fact’ for purposes of
subsection 9545(b)(1)(ii). In fact, the opposite is true. See Commonwealth
v. Yohe, 2019 WL 2246618, at *5 (Pa. Super. May 24, 2019) (“[L]ater-
acquired knowledge of a legal principle does not constitute a newly-discovered
fact.”); see also Commonwealth v. Baroni, 795 A.2d 1007, 1009-10 (Pa.
Super. 2002) (holding discovery of standing rule of law does not constitute a
fact for purposes of the newly-discovered fact exception).
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Furthermore, the record belies Appellant’s claim that he learned of
potential immigration ramifications arising from his guilty plea only in 2018.
Indeed, the PCRA court noted:
[Appellant] include[d] in the Appendix to his PCRA petition, a
three (3) page document, which is a Notice to Appear from the
Department of Homeland Security. This document is dated July
15, 2016, approximately twenty-seven (27) months prior to
[Appellant] filing his first untimely PCRA petition. Accordingly, this
document clearly rebuts [Appellant]’s claim that he first learned
of the potential consequences of his guilty plea in 2018.
PCRA Opinion, 1/27/21, at 11.
Additionally, we would note that even under Appellant’s own recitation
of facts, the instant petition was filed more than a year after he allegedly
learned of the Padilla problem. In fact, Appellant allegedly learned of the
immigration issues in April of 2018. The instant petition was filed in March
2020, which is well beyond the one-year time limitation under 42 Pa.C.S.A. §
9545(b)(2).3
Finally, although not clearly stated anywhere, Appellant appears to
believe that the instant petition, which is—by Appellant’s own words—
untimely, is somehow an extension of his first untimely PCRA petition making
the instant petition timely. Nowhere, however, does Appellant explain how it
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3 Section 9545(b)(2) reads: “Any petition invoking an exception provided in
[Section 9545(b)(1)] shall be filed within one year of the date the claim could
have been presented.” Section 9545(b)(2) was amended to enlarge the
deadline from sixty days to one year. The amendment applies only to claims
arising on or after December 24, 2018. We assume, without deciding, that
the latest amended version of Section 9545(b)(2) is applicable here.
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could be so, given that the PCRA court denied his first PCRA petition as
untimely, the appeal challenging the untimeliness was quashed for failure to
comply with Walker, and Appellant’s petition to the Supreme Court seeking
to reverse our quashal was denied. We are unaware of any authority for
Appellant’s argument, nor does Appellant provide any.
In light of the foregoing, we conclude Appellant is not eligible for PCRA
relief. See Ahlborn, supra; Turner, supra. Accordingly, we affirm the
August 26, 2020, order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2021
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