Commonwealth v. Cardenas-Torres

Decision Date11 October 2022
Docket Number355 MDA 2022
Citation287 A.3d 843 (Table)
Parties COMMONWEALTH of Pennsylvania v. Gilberto CARDENAS-TORRES, Appellant
CourtPennsylvania Superior Court

MEMORANDUM BY McCAFFERY, J.:

Gilberto Cardenas-Torres (Appellant) appeals from the order entered on January 27, 2022, in the Franklin County Court of Common Pleas, dismissing his petition for collateral relief filed under the Post Conviction Relief Act (PCRA).1 Appellant seeks relief from the judgment of sentence of three to 18 months of county imprisonment, imposed on December 3, 2020, after he pled guilty to one count of terroristic threats (intent to terrorize another).2 Appellant's court-appointed counsel, Christopher L. Reibsome, Esquire (PCRA counsel), has filed a petition to withdraw from representation and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).3 We grant PCRA counsel's petition to withdraw, and affirm the order dismissing Appellant's petition.

A recitation of the underlying facts is not necessary to our disposition. Briefly, on October 31, 2020, Appellant was charged with three counts each of terroristic threats and harassment. See PCRA Ct. Op., 4/11/22, at 1. On December 3rd, he entered a negotiated guilty plea to one count of terroristic threats and "agreed to the additional terms of 3-18 months incarceration." Id. As part of the agreement, the Commonwealth dismissed the remaining charges. Id. Appellant did not file a direct appeal.

Subsequently, Appellant filed several pro se documents: (1) a "motion in request for a Padilla[4 ] hearing," filed on August 18, 2021; and (2) two PCRA petitions, both filed on September 13, 2021, and alleging ineffective assistance of counsel for failing to advise him of the immigration consequences of his guilty plea. On January 7, 2022, the PCRA court held an evidentiary hearing on the matter. Both plea counsel, Christopher J. Mosebrook, Esquire, and Appellant testified. See PCRA Ct. Op. at 1. The PCRA court summarized their testimony as follows:

[Appellant] testified that he spoke over the phone with a woman regarding the guilty plea and the sentence of 3-18 months incarceration, but no one explained the consequences of his conviction and incarceration to him and how it would affect his immigration status. His attorney did not review or ask him about his immigration status. He did not know that he would be deported as a consequence of the guilty plea. Attorney Mosebrook testified that he spoke with [Appellant] over the phone regarding the 3-18 months incarceration and he knew that [Appellant] was not a permanent resident in the United States. From the conversation over the phone[,] he found out that [Appellant] did not have any immigration detainer lodged against him. Attorney Mosebrook understood that although no current detainer was lodged against him, it did not mean that a detainer could not be lodged against him. Therefore, Attorney Mosebrook advised [Appellant] to talk with an immigration attorney regarding the consequences ... a guilty plea ... would have on his immigration status. Attorney Mosebrook has no idea whether [Appellant] took his advice. The Public Defender's Office in Franklin County of Pennsylvania does not have a policy requiring public defenders to sign documents with clients to confirm their immigration status. When negotiating with the Franklin County District Attorney's Office regarding the guilty plea, Attorney Mosebrook mentioned [Appellant]’s immigration status to the district attorney and the possible impact of the guilty plea on [Appellant]’s immigration status. Attorney Mosebrook did not mention [Appellant]’s immigration status to the trial court at the time of the plea and sentencing.

Id. at 1-2.

On January 27, 2022, the PCRA court entered an order denying Appellant's petition. This appeal followed.5

Before we may conduct any substantive analysis, we must examine whether PCRA counsel has met the procedural requirements for withdrawing as counsel.

Counsel petitioning to withdraw from PCRA representation ... must review the case zealously. [PCRA] counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the "no merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that ... satisfy the technical demands of Turner/Finley , the courttrial court or this Court — must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

Commonwealth v. Walters , 135 A.3d 589, 591 (Pa. Super. 2016) (citation omitted).

Instantly, we conclude that PCRA counsel has substantially complied with the requirements of Turner/Finley . Specifically, PCRA counsel's Anders brief and petition to withdraw detail the nature and extent of his review, address the issue raised at the PCRA hearing, and determine that the claim lacks merit. In his petition, PCRA counsel indicated that he reviewed all issues for appeal, researched the law and reviewed the facts to find any issue of merit, and concluded that Appellant is barred from relief because he is currently not serving a sentence as required by the PCRA. See Petition of Appellant[’s] Counsel for Leave to Withdraw, 6/10/22, at 1 (unpaginated). In his letter to Appellant, PCRA counsel indicated he sent Appellant his petition to withdraw, as well as his Anders brief, and notified him that he had the right to retain private counsel or proceed pro se. See Letter from PCRA Counsel to Appellant, 6/10/22, at 1 (unpaginated). Appellant has not filed a response to counsel's request to withdraw. As counsel has complied with the technical requirements to withdraw his representation pursuant to Turner/Finley , we must now conduct our independent review of the issues raised by counsel and determine whether the issues lack merit. See Walters , 135 A.3d at 591.

Appellant raises the following issues: (1) whether trial counsel's failure to "inform or advise [Appellant] of the immigration ramifications of a plea and instead telling him to consult an immigration attorney while incarcerated violates" Padilla and, therefore, constitutes ineffective assistance; and (2) whether a defendant raising [Padilla ] violations must prove the outcome of a case or innocence before they can succeed on an ineffective assistance of counsel claim, based on Padilla [?]" Anders Brief at 8.6

Based on the nature of Appellant's claims, we are guided by the following. Our standard of review regarding the denial of PCRA relief calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. See Commonwealth v. Busanet , 54 A.3d 35, 45 (Pa. 2012). "Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding." Id.7

Relevant to the matter herein, although it is unclear exactly when Appellant was released, it is undisputed that he is no longer serving his sentence for the conviction at issue.8 See Anders Brief at 10 ("As of April 30, 2022, Appellant has completed his sentence and is no longer serving on parole."); see also Motion for Post Conviction Collateral Relief, 9/13/21, at 1 ("I have completed all sentence.") (grammatical error in original).

Therefore, we must consider whether Appellant is eligible for relief under the PCRA. Section 9543(a)(1)(i) sets forth the eligibility requirements, in relevant part, as follows:

(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 :
(i) currently serving a sentence of imprisonment, probation or parole for the crime [or]
(ii) awaiting execution of a sentence of death for the crime[.] ...

42 Pa.C.S. § 9543(a)(1)(i)-(ii) (emphasis added).

Case law has strictly interpreted the requirement that the petitioner be currently serving a sentence for the crime to be eligible for relief.
Here, the denial of relief for a petitioner who has finished serving his sentence is required by the plain language of the statute. To be eligible for relief a petitioner must be currently serving a sentence of imprisonment, probation or parole. To grant relief at a time when appellant is not currently serving such a sentence would be to ignore the language of the statute.
Commonwealth v. Ahlborn , 699 A.2d 718, 720 (Pa. 1997) (emphasis in original).

Commonwealth v. Plunkett , 151 A.3d 1108, 1109 (Pa. Super. 2016) (emphasis in original). Consequently, courts lose jurisdiction over matters when a defendant's sentence expires. See Commonwealth v. Turner , 80 A.3d 754, 769 (Pa. 2013)

In addressing Appellant's claim, we are guided by Commonwealth v. Descardes , 136 A.3d 493 (Pa. 2016). In Descardes , the petitioner was a Haitian national, who had resident alien status, in the United States. Descardes , 136 A.3d at 494. He had pled guilty to insurance fraud and conspiracy to commit insurance fraud. Id. He was "not advised prior to entering his plea that deportation was a collateral consequence of his plea pursuant to the Immigration and Naturalization Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (deportation is automatic upon a conviction for an aggravated felony)." Descardes , 136 A.3d at 494. After he completed serving his probationary sentence in 2007, h...

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