Com. v. Weithers, G.

J-S38006-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GLEN WIETHERS :
:
Appellant : No. 667 WDA 2020
Appeal from the PCRA Order Entered June 5, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at No(s):
CP-02-CR-0008678-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GLEN WEITHERS :
:
Appellant : No. 668 WDA 2020
Appeal from the PCRA Order Entered June 5, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at No(s):
CP-02-CR-0010644-2015
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 8, 2022
Appellant, Glen Weithers, a.k.a. Glen Wiethers, appeals from the order
dismissing his untimely petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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The facts underlying Appellant’s convictions in the cases listed at CP-
02-CR-0008678-2015 (“8678-15”) and CP-02-CR-0010644-2015 (“10644-
15”) are not germane to this appeal. At 8678-15, the Commonwealth
charged Appellant with two counts of driving under the influence of alcohol
(“DUI”), and one count of driving impaired with a DUI-suspended license. At
10644-15, the Commonwealth charged Appellant with one count each of
patronizing prostitutes, solicitation–patronizing prostitutes, possession of a
controlled substance, and driving with a DUI-suspended license. On March
29, 2016, Appellant entered a guilty plea in both cases. On that same day,
the trial court sentenced him to an aggregate term of 6 months’
intermediate punishment and a concurrent term of 3 years’ probation.1
Appellant did not file a direct appeal. Subsequently, according to Appellant,
“the federal government began removal proceedings against [Appellant] due
to criminal convictions that included the cases in this matter in January
2019[,]” and the “removal was affirmed in January 2020.” Appellant’s Brief
at 8.
Appellant filed a pro se PCRA petition at 10644-15 on October 8, 2019.
After obtaining current counsel, Appellant filed a motion for special relief
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1 We note that, absent a violation of his probation, Appellant was set to
complete his sentence by April of 2019. However, Appellant concedes that
he completed his sentence at 10644-2015 on September 25, 2017, and that
the trial court terminated his probation in the case at 8678-2015 on October
2, 2018. Appellant’s Brief at 8.
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docketed under both 10644-15 and 8678-15, acknowledging that he had
completed his sentence(s) at those docket numbers, but nevertheless
seeking “habeas corpus or coram nobis relief.” Id. at 9. The PCRA court
issued an order denying relief on June 5, 2020.
Appellant filed timely notices of appeal from that order in both cases
8678-15 and 10644-15, which this Court docketed at 667 WDA 2020 and
668 WDA 2020, respectively. By order dated August 21, 2020, this Court
sua sponte consolidated these appeals as captioned above.
Appellant now presents the following question for our review:
1. Does the Pennsylvania [PCRA] violate the United States
Constitution’s due process and equal protection provisions as
applied to petitioners who have completed their sentences but
would otherwise be eligible for PCRA relief:
a. Specifically: Through the Ninth Amendment, does the
United States Constitution’s protections of the rights to
due process and equal protection include the right to open
courts, the right to a remedy in court, habeas corpus
relief, and coram nobis relief?
Id. at 6.
Essentially, Appellant argues that his trial counsel provided ineffective
assistance of counsel (“IAC”) by failing to advise him of the immigration
consequences of his plea,2 in that “two of the counts to which he pleaded are
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2 In Padilla v. Kentucky, 559 U.S. 356, 374 (2010), the Supreme Court
held that the Sixth Amendment’s right to the effective assistance of counsel
requires counsel to “inform her client whether [a guilty] plea carries a risk of
deportation.”
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considered crimes of moral turpitude and removable under federal law.”
Appellant’s Brief at 11 n.1. The PCRA court determined that it lacked
jurisdiction to entertain Appellant’s IAC claim under the PCRA statute
because Appellant’s sentence had expired, and the PCRA “limits relief to
those serving a sentence.” PCRA Court Opinion, 6/22/21, at 4.3
Appellant concedes that he is not entitled to relief under the PCRA,
acknowledging that “post-conviction relief is limited to people who are
currently serving a sentence of incarceration, probation, or parole, or are
challenging their completed sentence based on DNA evidence.” Appellant’s
Brief at 12; see id. (stating “the PCRA offers a remedy for petitioners who
are still serving a sentence, those who have completed their sentences are
statutorily barred from a judicial remedy”); and see 42 Pa.C.S. §
9543(a)(1)(i)-(iv) (limiting PCRA relief to parties who have not completed
their sentence, except for those who seek relief based on DNA evidence
____________________________________________
3 We also note that Appellant’s PCRA petition was untimely, as it was not
filed “within one year of the date the judgment of sentence becomes final[.]”
42 Pa.C.S. § 9545(b)(1). The PCRA’s time limitations implicate our
jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Appellant appears to assert that his petition’s untimeliness
would have been excused pursuant to Section 9545(b)(1)(ii) as a newly-
discovered fact. See Appellant’s Brief at 12. However, the PCRA court did
not reach this question, and instead dismissed Appellant’s PCRA petition
solely based on his completion of the underlying sentence. Because
Appellant contends that he is entitled to relief outside the auspices of the
PCRA, we need not address this other procedural hurdle that potentially bars
consideration of the merits of his IAC claim under the PCRA.
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obtained under Section 9543.1(d)). Appellant further recognizes that “[o]ur
courts have consistently concluded that all claims that are cognizable under
the PCRA must be raised as such. Further, the language of the act states
the legislature’s intent to replace habeas corpus and coram nobis relief with
PCRA actions.” Appellant’s Brief at 12; see also 42 Pa.C.S. § 9542 (“The
action established in this subchapter shall be the sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies for the same purpose that exist when this subchapter takes effect,
including habeas corpus and coram nobis.”). Indeed, Appellant further
concedes that, in Commonwealth v. Descardes, 136 A.3d 493 (Pa. 2015),
“the Pennsylvania Supreme Court concluded that claims like [Appellant]’s
are cognizable under the PCRA and that defendants who have completed
their sentences are not eligible for PCRA relief.” Appellant’s Brief at 13.
Nevertheless, Appellant contends that the Ninth Amendment to the
United States Constitution might “prohibit the limitations the PCRA has
placed on the right to coram nobis relief[,]” although Appellant admits that
“this Court has not issued an opinion addressing the question.” Id.Appellant further argues that:
Historically, coram nobis was an avenue of relief for individuals
who had completed their sentences but still sought relief from
the consequences of their conviction. Commonwealth v.
Sheehan, [285 A.2d 465] (Pa. 1971). In fact, coram nobis still
survives to offer post-sentence completion relief to individuals in
federal court and Maryland. United States v. Johnson, 237 F.
3d 751 (6th Cir. 2001); 28 U.S.C. § 1651(a); State v. Rich, 454
Md. 448, 461 (Md. 2017). Thus, the right to a post-sentence
completion remedy should rightfully be acknowledged as one of
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the unenumerated rights retained by the people and protected
by the Fourteenth Amendment’s due process provisions as
applied to the states. U.S. Const., amend. XIV (“No state shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”)[.]
It may be argued that individuals who have completed their
sentences have the option of pursuing a governor’s pardon and
that remedy is sufficient to serve the function coram nobis
formerly fulfilled. Pa. Const., art. IV, § 9. It should be noted
that the function of the governor’s pardon is that of an act of
mercy and not part of the right to a judicial remedy to reverse a
conviction or otherwise review the validity of a conviction.
Appellant’s Brief at 14-15.
Although Appellant posits a theoretical basis for providing relief outside
the PCRA, the historical remedy provided by a writ of coram nobis has been
subsumed into the PCRA, as explicitly stated in Section 9542. Thus,
Appellant is essentially challenging the constitutionality of the PCRA statute’s
replacement of the coram nobis remedy.
When faced with any constitutional challenge to legislation, we
proceed to our task by presuming constitutionality in part
because there exists a judicial presumption that our sister
branches take seriously their constitutional oaths. Indeed, a
legislative enactment will not be deemed unconstitutional unless
it clearly, palpably, and plainly violates the Constitution. “Any
doubts are to be resolved in favor of a finding of
constitutionality.” Payne v. Dept. of Corrections, … 871 A.2d
795, 800 ([Pa.] 2005). Accordingly, a party challenging the
constitutionality of a statute bears a very heavy burden of
persuasion.
Stilp v. Commonwealth, 905 A.2d 918, 938–39 (Pa. 2006) (some citations
omitted).
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Appellant has simply failed to meet his heavy burden of persuasion
that the PCRA’s subsummation of the historical right of coram nobis is
unconstitutional. Appellant does not cite any persuasive, much less
controlling, legal authority suggesting the unconstitutionality of the PCRA on
this basis.
To the contrary, our Supreme Court has held that “[t]he plain
language of [Section 9542] demonstrates quite clearly that the General
Assembly intended that claims that could be brought under the PCRA must
be brought under that Act” and that no “other statutory or common law
remedy ‘for the same purpose’ is intended to be available; instead, such
remedies are explicitly ‘encompassed’ within the PCRA.” Commonwealth
v. Hall, 771 A.2d 1232, 1235 (Pa. 2001). Furthermore, the Court noted
that it had “repeatedly and uniformly given effect to this plain language
contained in the PCRA.” Id.Later, in Descardes, our Supreme Court rejected a similar claim. In
that case, the Superior Court initially held that coram nobis relief was
available where the petitioner’s PCRA petition was untimely without
exception, despite having a potentially meritorious claim based on Padilla,
which had been decided after Descardes was able to file a timely PCRA
petition. See Commonwealth v. Descardes, 101 A.3d 105, 109 (Pa.
Super. 2014), vacated, 136 A.3d 493 (Pa. 2016). The Superior Court found
that
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because Descardes’s specific ineffective assistance of counsel
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 because of his state conviction. The trial court
should have addressed his petition for a writ of coram nobis, not
under the PCRA, but as a coram nobis petition.
Id.Our Supreme Court reversed, stating that
the Superior Court’s decision in the instant case is contrary to
the decisions of this Court which hold that, where a petitioner’s
claim is cognizable under the PCRA, the PCRA is the only method
of obtaining collateral review. As a result, [Descardes’s] PCRA
petition should have been dismissed because, as he was no
longer incarcerated at the time it was filed, he was ineligible for
PCRA relief, and, thus, both the PCRA court and the Superior
Court lacked jurisdiction to entertain the petition.
Descardes, 136 A.3d at 503.
While the Descardes Court did not specifically address the issue as a
challenge to the PCRA’s constitutionality under the Ninth Amendment, the
Court clearly rejected the logic underlying such a claim, and expressed no
reservations as to the power of the legislature to subsume the historical
remedy of coram nobis into the PCRA despite the PCRA’s timeliness and
sentence-serving procedural hurdles. Furthermore, as conceded by
Appellant, “Ninth Amendment case law has suggested that the amendment
is not an independent source of substantive rights[.]” Appellant’s Brief
at 13 (emphasis added).
For these reasons, Appellant has not met his high burden of
demonstrating the unconstitutionality of the PCRA based on its
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subsummation of the writ of coram nobis.4 Accordingly, we conclude that
the PCRA court did not err in determining that it lacked jurisdiction to
entertain Appellant’s IAC claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2022
____________________________________________
4 We note that Appellant did not develop an independent argument with
respect to his claim that his petition should have been heard as a writ of
habeas corpus. In a footnote, Appellant acknowledges that, “where a
sentence has been completed, the appropriate remedy had historically been
a writ of coram nobis. However, in some cases, some actions were styled as
requests for habeas corpus relief.” Appellant’s Brief at 12 n.2. He then
states that, “[g]oing forward, for the sake of clarity and brevity, Counsel will
refer to coram nobis relief exclusively, but does not intend to abandon any
parallel claim for habeas corpus relief.” Id. To the extent that Appellant
presents an identical argument for habeas corpus relief, we reject such a
claim for the reasons set forth, supra. However, to the extent that Appellant
attempts to raise claim for habeas corpus relief on any other basis, any such
claim has been waived for lack of development.
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