J-S58008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
DAMIR BRGULJA,
Appellee No. 1978 MDA 2015
Appeal from the Order Entered October 19, 2015 in the Court of Common Pleas of Cumberland County Criminal Division at No.: CP-21-CR-0001515-2009
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 10, 2016
The Commonwealth appeals from the court’s grant of Appellee, Damir
Brgulja’s, petition for writ of error coram nobis. We vacate and remand.
We take the following facts from our independent review of the
certified record. On October 22, 2009, Appellee, a refugee from Bosnia-
Herzegovina, (see Petition for Writ of Error Coram Nobis, 10/06/15, at
Appendix 1A, Declaration of Appellee, at 1; id. at Appendix 1D, I-94
Departure Record), pleaded guilty to possession with intent to deliver a
controlled substance (PWID).1 On December 1, 2009, the trial court
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 35 P.S. § 780-113(a)(30). J-S58008-16
sentenced Appellee to twenty-three months of probation. Appellee did not
file a direct appeal.
On May 21, 2015, immigration authorities detained Appellee for
deportation because of his PWID conviction. (See id. at unnumbered page
3). On October 6, 2015, Appellee filed a petition for writ of error coram
nobis on the basis of Padilla v. Kentucky, 559 U.S. 356 (2010), arguing
that his counsel was ineffective for failing to advise him of the possible
immigration consequences of pleading guilty.
On October 19, 2015, the court held a hearing in which Appellee
testified remotely from a York County facility where he was being detained
while awaiting deportation. The same day, the court granted Appellee’s
petition, deemed his guilty plea withdrawn, vacated his judgment of
sentence, and released Appellee on his own recognizance. The
Commonwealth timely appealed.2
The Commonwealth raises one question for this Court’s review:
“Whether the [trial] court erred in granting [Appellee] relief because Padilla
. . . is not retroactive to judgements that became final before its holding and
therefore cannot be the basis for relief here . . . ?” (Commonwealth’s Brief,
2 On November 24, 2015, the Commonwealth filed a timely statement of errors complained of on appeal pursuant to the court’s order. See Pa.R.A.P. 1925(b). The court filed an opinion on December 23, 2015. See Pa.R.A.P. 1925(a).
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at 4). For the reasons discussed below, we conclude that the
Commonwealth’s issue has merit, albeit on slightly different grounds.
Our standard of review of this issue is de novo and our scope of review
is plenary. See Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa.
2016).
Before we address the Commonwealth’s issue, we must determine
whether we have jurisdiction to consider its merits. We find the
Pennsylvania Supreme Court’s decision in Descardes dispositive. In
Descardes, the High Court considered whether the appellee “was entitled to
seek review of his ineffectiveness of counsel claim, based on counsel’s failure
to advise him of the collateral consequences of his guilty plea, via a petition
for writ of coram nobis.” Id. at 494 (footnote omitted).
In August 2006, [a]ppellee, a Haitian national who held resident alien status in the United States, pled guilty to insurance fraud, a felony, and conspiracy to commit insurance fraud. Appellee 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.[A.] § 1227(a)(2)(A)(iii) (deportation is automatic upon a conviction for an aggravated felony). On November 30, 2006, [a]ppellee was sentenced to one year of probation and a fine, and did not appeal his judgment of sentence. He completed serving his probationary sentence in November 2007. In 2009, [a]ppellee left the United States on personal business and, when he attempted to reenter the country, United States immigration officials denied him reentry due to his felony convictions.
* * *
On May 26, 2010, [a]ppellee filed a . . . Petition for Writ of Error Coram Nobis based on the United States Supreme Court’s decision in Padilla . . . . In Padilla, which was decided on
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March 31, 2010, the [H]igh Court held that criminal defense counsel has an affirmative duty to inform a defendant that the offense to which he is pleading guilty will result in deportation[.] . . . The trial court treated [a]ppellee’s May 26 petition as a timely first PCRA petition, . . . vacated [a]ppellee’s conviction, and ordered that his plea of guilty be withdrawn.
Id. at 494-95 (record citation omitted).
On appeal, a panel of this Court determined that the trial court should
have treated the request for relief as a petition for writ of error coram nobis
because appellee had finished serving his sentence, and denied the petition
because Padilla does not apply retroactively. See Commonwealth v.
Descardes, 101 A.3d 105, 109 (Pa. Super. 2014). In addressing this
Court’s decision, the Supreme Court observed:
[The Supreme] Court has consistently held that, pursuant to the plain language of Section 9542 [of the PCRA], where a claim is cognizable under the PCRA, the PCRA is the only method of obtaining collateral review. See Commonwealth v. Turner, 622 Pa. 318, 80 A.3d 754, 770 (2013) (“The PCRA at Section 9542 subsumes the remedies of habeas corpus and coram nobis.”). It is equally well established that [a]ppellee’s claim of ineffective assistance of plea counsel, which is based on counsel’s failure to advise him of the collateral consequences of his plea, was cognizable under the PCRA. [See 42 Pa.C.S.A. §§ 9543(a)(2)(ii), (iii).]
. . . . As noted by Judge Bowes in her Concurring and Dissenting Opinion[] . . . :
By allowing [an a]ppellee to pursue coram nobis relief outside of the PCRA, the [Court would] give[] [a]ppellee greater post-conviction options in a situation where his ineffective assistance claim is untimely and he is ineligible for PCRA relief because he is no longer serving a sentence. [This would]
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serve[] as a judicial veto of the eligibility requirements of the PCRA and thus represent[] an unwarranted departure from the legislature’s clear statutory directives. Descardes, 101 A.3d at 116–17. Thus, [a]ppellee’s only method of obtaining collateral review was the PCRA.
[Hence], we conclude the Superior Court’s decision in the instant case is contrary to the decisions of th[e Supreme] 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, [a]ppellee’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 501-03 (most citations omitted) (emphasis added).
In this case, Appellee was sentenced to twenty-three months’
probation on December 1, 2009.
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J-S58008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
DAMIR BRGULJA,
Appellee No. 1978 MDA 2015
Appeal from the Order Entered October 19, 2015 in the Court of Common Pleas of Cumberland County Criminal Division at No.: CP-21-CR-0001515-2009
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 10, 2016
The Commonwealth appeals from the court’s grant of Appellee, Damir
Brgulja’s, petition for writ of error coram nobis. We vacate and remand.
We take the following facts from our independent review of the
certified record. On October 22, 2009, Appellee, a refugee from Bosnia-
Herzegovina, (see Petition for Writ of Error Coram Nobis, 10/06/15, at
Appendix 1A, Declaration of Appellee, at 1; id. at Appendix 1D, I-94
Departure Record), pleaded guilty to possession with intent to deliver a
controlled substance (PWID).1 On December 1, 2009, the trial court
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 35 P.S. § 780-113(a)(30). J-S58008-16
sentenced Appellee to twenty-three months of probation. Appellee did not
file a direct appeal.
On May 21, 2015, immigration authorities detained Appellee for
deportation because of his PWID conviction. (See id. at unnumbered page
3). On October 6, 2015, Appellee filed a petition for writ of error coram
nobis on the basis of Padilla v. Kentucky, 559 U.S. 356 (2010), arguing
that his counsel was ineffective for failing to advise him of the possible
immigration consequences of pleading guilty.
On October 19, 2015, the court held a hearing in which Appellee
testified remotely from a York County facility where he was being detained
while awaiting deportation. The same day, the court granted Appellee’s
petition, deemed his guilty plea withdrawn, vacated his judgment of
sentence, and released Appellee on his own recognizance. The
Commonwealth timely appealed.2
The Commonwealth raises one question for this Court’s review:
“Whether the [trial] court erred in granting [Appellee] relief because Padilla
. . . is not retroactive to judgements that became final before its holding and
therefore cannot be the basis for relief here . . . ?” (Commonwealth’s Brief,
2 On November 24, 2015, the Commonwealth filed a timely statement of errors complained of on appeal pursuant to the court’s order. See Pa.R.A.P. 1925(b). The court filed an opinion on December 23, 2015. See Pa.R.A.P. 1925(a).
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at 4). For the reasons discussed below, we conclude that the
Commonwealth’s issue has merit, albeit on slightly different grounds.
Our standard of review of this issue is de novo and our scope of review
is plenary. See Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa.
2016).
Before we address the Commonwealth’s issue, we must determine
whether we have jurisdiction to consider its merits. We find the
Pennsylvania Supreme Court’s decision in Descardes dispositive. In
Descardes, the High Court considered whether the appellee “was entitled to
seek review of his ineffectiveness of counsel claim, based on counsel’s failure
to advise him of the collateral consequences of his guilty plea, via a petition
for writ of coram nobis.” Id. at 494 (footnote omitted).
In August 2006, [a]ppellee, a Haitian national who held resident alien status in the United States, pled guilty to insurance fraud, a felony, and conspiracy to commit insurance fraud. Appellee 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.[A.] § 1227(a)(2)(A)(iii) (deportation is automatic upon a conviction for an aggravated felony). On November 30, 2006, [a]ppellee was sentenced to one year of probation and a fine, and did not appeal his judgment of sentence. He completed serving his probationary sentence in November 2007. In 2009, [a]ppellee left the United States on personal business and, when he attempted to reenter the country, United States immigration officials denied him reentry due to his felony convictions.
* * *
On May 26, 2010, [a]ppellee filed a . . . Petition for Writ of Error Coram Nobis based on the United States Supreme Court’s decision in Padilla . . . . In Padilla, which was decided on
-3- J-S58008-16
March 31, 2010, the [H]igh Court held that criminal defense counsel has an affirmative duty to inform a defendant that the offense to which he is pleading guilty will result in deportation[.] . . . The trial court treated [a]ppellee’s May 26 petition as a timely first PCRA petition, . . . vacated [a]ppellee’s conviction, and ordered that his plea of guilty be withdrawn.
Id. at 494-95 (record citation omitted).
On appeal, a panel of this Court determined that the trial court should
have treated the request for relief as a petition for writ of error coram nobis
because appellee had finished serving his sentence, and denied the petition
because Padilla does not apply retroactively. See Commonwealth v.
Descardes, 101 A.3d 105, 109 (Pa. Super. 2014). In addressing this
Court’s decision, the Supreme Court observed:
[The Supreme] Court has consistently held that, pursuant to the plain language of Section 9542 [of the PCRA], where a claim is cognizable under the PCRA, the PCRA is the only method of obtaining collateral review. See Commonwealth v. Turner, 622 Pa. 318, 80 A.3d 754, 770 (2013) (“The PCRA at Section 9542 subsumes the remedies of habeas corpus and coram nobis.”). It is equally well established that [a]ppellee’s claim of ineffective assistance of plea counsel, which is based on counsel’s failure to advise him of the collateral consequences of his plea, was cognizable under the PCRA. [See 42 Pa.C.S.A. §§ 9543(a)(2)(ii), (iii).]
. . . . As noted by Judge Bowes in her Concurring and Dissenting Opinion[] . . . :
By allowing [an a]ppellee to pursue coram nobis relief outside of the PCRA, the [Court would] give[] [a]ppellee greater post-conviction options in a situation where his ineffective assistance claim is untimely and he is ineligible for PCRA relief because he is no longer serving a sentence. [This would]
-4- J-S58008-16
serve[] as a judicial veto of the eligibility requirements of the PCRA and thus represent[] an unwarranted departure from the legislature’s clear statutory directives. Descardes, 101 A.3d at 116–17. Thus, [a]ppellee’s only method of obtaining collateral review was the PCRA.
[Hence], we conclude the Superior Court’s decision in the instant case is contrary to the decisions of th[e Supreme] 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, [a]ppellee’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 501-03 (most citations omitted) (emphasis added).
In this case, Appellee was sentenced to twenty-three months’
probation on December 1, 2009. On October 6, 2015, nearly six years later,
and well after his sentence expired, Appellee filed a petition for writ of error
coram nobis asserting ineffective assistance of counsel in failing to inform
him about the immigration consequences of his guilty plea on the basis of
Padilla. (See Petition for Writ of Error Coram Nobis, 10/06/15, at
unnumbered pages 1, 3). As observed by our Supreme Court in
Descardes, this claim fits squarely within the parameters of the PCRA. See
Descardes, supra at 502-03; see also 42 Pa.C.S.A. §§ 9543(a)(2)(ii), (iii).
Therefore, the court should have treated Appellee’s request for relief as a
PCRA petition, and dismissed it for lack of jurisdiction because Appellee no
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longer was serving his sentence, and therefore was not eligible for PCRA
relief. See Descardes, supra at 501-03; see also 42 Pa.C.S.A. §
9543(a)(1)(i). Hence, because the trial court acted without jurisdiction, we
are constrained to vacate its order granting Appellee’s petition for writ of
error coram nobis.
Order vacated and case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/10/2016
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