Opinion
J-S70042-13 No. 1660 EDA 2013
04-29-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. VAUGHN V. BENNETT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered May 9, 2013
In the Court of Common Pleas of Northampton County
Criminal Division at No.: CP-48-CR-0003534-2007
BEFORE: GANTMAN, J., OLSON, J., and WECHT, J. MEMORANDUM BY WECHT, J.:
Vaughn V. Bennett challenges the order dismissing his petition under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. We affirm.
The PCRA court set forth the factual and procedural history as follows:
[Bennett] has been a lawful permanent resident of the United States since June 1990, having emigrated from Jamaica as a child. [Bennett] was charged in this case with the offenses of unlawful possession of a controlled substance, possession with intent to deliver a controlled substance, and delivery of a controlled substance. On May 5, 2008, [Bennett] entered into a negotiated plea of nolo contendere on the charge of possession with intent to deliver a controlled substance, [35 P.S. § 780-113(a)(30),] with a proposed agreed sentence of 8 to 23 months in the Northampton County Prison. The Court accepted the proposed agreed sentence, and imposed same on the date of the plea. [Bennett] did not file an appeal of his sentence, and accordingly his sentence became final on June 4, 2008. At all phases of the proceedings, [Bennett] was represented by Matthew C. Potts, Esquire. Attorney Potts was not aware ofPCRA Court Opinion, 4/15/2013, at 2-3 (citations modified, brackets added by PCRA court removed).
[Bennett's] immigration status at any time during his representation of [Bennett].
On February 28, 2012, [Bennett] was charged with removability from the United States by the U.S. Department of Homeland Security ["DHS"], on the basis of his conviction of a removable offense in this case. The Notice to Appear served upon [Bennett] by [DHS] on November 6, 2012, specifically provided that his conviction in this case formed the basis for his removal proceedings.[]
[Bennett] filed the instant PCRA petition on February 7, 2013, alleging therein that he was denied his constitutional right to the effective assistance of counsel at the time of his nolo contendere plea on May 5, 2008, in that plea counsel failed to inform [Bennett] of the possibility that he may be subject to deportation as a result of his plea. [Bennett] based his PCRA claim on the holding in Padilla v. Kentucky, 559 U.S. 356 (2010), in which the Supreme Court of the United States held that the Sixth Amendment right to effective assistance of counsel requires attorneys to inform their non-citizen clients of whether their pleas carry a risk of deportation.
While [Bennett's] PCRA [petition] is facially untimely, in that the one[-]year filing period expired on June 4, 2009, in accordance with 42 Pa.C.S. § 9545(b)(1), [Bennett] alleges in his petition that an exception to the one[-]year requirement must be found pursuant to 42 Pa.C.S. § 9545(b)(1)(ii), which permits the untimely filing of a PCRA petition within 60 days after the discovery of new facts in support of the petition, as "[Bennett] did not know or fully understand the consequences of his guilty plea in this case until he retained counsel for his immigration case . . . in mid-December 2012."
Specifically, DHS identified the following bases for removal: (1) Bennett was convicted of the illicit trafficking in a controlled substance, including a drug trafficking crime; (2) Bennett was convicted of two crimes of moral turpitude that did not arise out of a single scheme of criminal misconduct (the second crime of moral turpitude involved Bennett's 1992 Queens County, New York conviction for second-degree robbery). See Notice to Appear, removal proceedings under section 240 of the Immigration and Nationality Act at 3 (served Nov. 6, 2012). Based upon the record before us, it is unclear whether DHS asserted a basis for removal that did not depend at least in part upon his conviction in the instant case. However, the Immigration and Nationality Act identifies any "aggravated felony" as a sufficient basis for removal, and "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year" is an aggravated felony under the act. 8 U.S.C. § 1101(a)(43)(G). At the time of Bennett's 1992 conviction, second-degree robbery was a class C felony under New York law, see N.T. Penal § 160.10, subject to a statutory maximum term of fifteen years' imprisonment. See N.Y. Penal § 70.00(2)(c). In any event, this has no bearing on our disposition of the instant case.
The PCRA court rejected Bennett's invocation of the timeliness exception provided by PCRA section 9545(b)(1)(ii) for newly-discovered facts that previously were "unknown to the petitioner and could not have been ascertained by the exercise of due diligence," on the basis that Bennett had failed to file his petition within sixty days of learning of the circumstance that at least arguably qualified him for that exception. See 42 Pa.C.S. § 9545(b)(2) ("Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented."). The court observed that Bennett was apprised by DHS of his exposure to deportation as a consequence of his guilty plea in this matter by the notice that he undisputedly received on November 6, 2012. However, Bennett did not file the instant PCRA petition until February 12, 2013, ninety-eight days thereafter.
Bennett did not pursue the exception set forth in subsection 9545(b)(1)(iii) for relief sought based upon "a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively." Notably, any invocation of that section would have failed, inasmuch as this Court has held that Padilla, upon which Bennett's underlying claim of ineffective assistance of counsel rests, did not recognize a "new" constitutional right. Accordingly, the subsection 9545(b)(1)(iii) timeliness exception presumably would not apply under the circumstances of this case. See Commonwealth v. Garcia, 23 A.3d 1059, 1064-65 (Pa. Super. 2011) (holding that Padilla merely "clarified and refined the scope of a criminal defendant's long-standing constitutional right to the effective assistance of counsel during the guilty plea process" (footnote omitted)).
Having determined that Bennett could not satisfy the subsection 9545(a)(1)(ii) exception to the PCRA's jurisdictional time limit, the PCRA court, on April 15, 2013, issued a twenty-day notice of its intent to dismiss Bennett's petition pursuant to Pa.R.Crim.P. 907. On May 6, 2013, Bennett filed a response in opposition to the PCRA court's intent to dismiss. On May 9, 2013, the PCRA court filed its order dismissing Bennett's PCRA petition for untimeliness. Bennett filed a notice of appeal of this order on June 6, 2013. On June 14, 2013, the PCRA court directed Bennett to file a concise statement of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Bennett timely complied on July 1, 2013. On July 3, 2013, the PCRA court issued its Rule 1925(a) statement indicating that it stood on the reasoning set forth in its April 15, 2013 Rule 907 notice.
Bennett raises the following issues for review:
[1.] Whether the [PCRA] court erred in dismissing [Bennett's] PCRA [p]etition as untimely given that he qualifies for the exception to the timeliness requirement set forth in 42 Pa.C.S. § 9545(b)(1)(ii), the facts upon which his petition were predicated were not known to [Bennett] untilBrief for Bennett at 8 (citations modified). Our standard of review of a PCRA court order denying PCRA relief calls upon us to determine only "whether the PCRA court's findings are supported by the record and free of legal error." Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).
December 20, 2012, and his PCRA petition was filed within sixty (60) days of that date, on February 12, 201[3?]
[2.] Whether the [PCRA] court erred in relying on Commonwealth v. Howard, 788 A.2d 351 (Pa. 2002) in dismissing [Bennett's] PCRA petition given that this case is distinguishable from Howard [?]
These issues are of a piece: Stated briefly, Bennett maintains that the PCRA court erred in its determination that Bennett knew or should have known of his removability for his nolo contendere plea to possession with intent to deliver in this matter upon his November 6, 2012 receipt of the DHS notice to appear. Bennett insists that, notwithstanding his receipt of the DHS notice, he could not, in fact, have recognized the gravamen of his plea, vis-à-vis his immigration status, until he met with counsel, which, despite his allegedly diligent efforts, did not occur until December 20, 2012. Consequently, Bennett maintains that, contrary to the PCRA court's ruling, his February 7, 2013 PCRA petition was filed within sixty days of when Bennett could have recognized that he had a basis to challenge the constitutional effectiveness of plea counsel, who failed to advise Bennett of the potential for immigration consequences arising from his nolo contendere plea.
Before we may consider Bennett's issues, however, we must determine whether the PCRA court had jurisdiction over Bennett's petition in the first instance. See Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (noting that this Court may raise jurisdictional questions under the PCRA sua sponte). Before this Court, the Commonwealth has observed that Bennett had served his sentence in all particulars as of May 11, 2010, when he had exhausted the duration of his parole and paid his costs and fines in full. The record bears this out. An court order of record dated May 6, 2010, and filed on May 11, 2010, provides as follows: "[I]t is hereby ordered that [Bennett's] case is closed. The bench warrant issued on April 16, 2010 is hereby vacated. This is necessitated by the defendant paying all court costs and fines in full." The Commonwealth argues that, as a consequence of the fact that Bennett's parole long since had run its course as of February 12, 2013, when he filed his PCRA petition, Bennett was ineligible for relief under the PCRA. We agree.
The timing of this order corresponds roughly with the timing of the entry of his sentence and its duration. Specifically, Bennett was sentenced on May 8, 2008, to nine to twenty-three months' county imprisonment, but was paroled effective immediately. See Order, 5/5/2008 (granting, on the same day as sentencing, Bennett's petition for parole, effective immediately). Consequently, his sentence would have expired on or about April 8, 2010. Notably, a bench warrant was entered on April 16, 2010, approximately a week after his sentence ran, evidently because Bennett had not settled all costs and fees. Once he did so, on May 11, 2010, the court closed his case.
The PCRA sets forth several very particular eligibility criteria that must be satisfied. See 42 Pa.C.S. § 9543. Among these is that, "at the time relief is granted," the petitioner must be "currently serving a sentence of imprisonment, probation or parole for the crime." The burden of establishing eligibility under section 9543 is borne by the petitioner. Commonwealth v. Soto, 983 A.2d 212, 213-14 (Pa. Super. 2009). For claims that are cognizable under the PCRA, such as the ineffective assistance of counsel claim set forth by Bennett, see 42 Pa.C.S. § 9543(a)(2)(ii), Pennsylvania law affords no exception to this requirement. See Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (holding that, as a matter of the PCRA's "clear and unambiguous" language, "the denial of relief for a petitioner who has finished serving his sentence is required by the plain language of the statute").
Bennett's case has been closed for some time now, and had been closed for over two years at the time that he filed his PCRA petition. His claim for relief was couched in terms of the effectiveness of plea counsel in failing to recognize or to advise Bennett regarding the potential immigration consequences associated with his nolo contendere plea. Claims for ineffective assistance of counsel, being cognizable under the PCRA, see 42 Pa.C.S. § 9543(a)(2)(ii), must be brought under that act, see 42 Pa.C.S. § 9542 ("The action established in this subchapter shall be the sole means of obtaining collateral relief . . . ."), as they were in this case. Consequently, only if Bennett could plead and prove all of the PCRA's eligibility requirements could he invoke the PCRA court's jurisdiction to grant relief.
Although the trial court held a hearing and ultimately disposed of Bennett's petition based upon its putative untimeliness, we need not review that question. We find, rather, that Bennett failed to establish the PCRA court's jurisdiction because he no longer was serving a sentence of incarceration, probation, or parole when he filed his petition. Consequently, Bennett was not and is not eligible for relief under the PCRA.
This Court may affirm the decision of the PCRA court on any basis. Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009) (citing Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)).
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary