Com. v. Serrano-Pena, B.

• Court: Superior Court of Pennsylvania
• Decided: August 30, 2024
• Docket: 1577 MDA 2023
• Status: Unpublished

Opinion

J-A19042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BENITO SERRANO-PENA : : Appellant : No. 1577 MDA 2023

Appeal from the PCRA Order Entered October 19, 2023 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0002174-2018

BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 30, 2024

Appellant, Benito Serrano-Pena, appeals from the October 19, 2023,

order entered in the Court of Common Pleas of Franklin County dismissing his

counseled “Petition to Vacate Sentence” under the ambit of the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9545. After a careful

review, we affirm.

The relevant facts and procedural history are as follows: The

Commonwealth charged Appellant with driving while under the influence

(“DUI”)-general impairment/incapable of driving safely-1st offense, DUI-

highest rate of alcohol (BAC .16+)-1st offense, disregard of traffic lane, and

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A19042-24

careless driving.1 On December 5, 2018, Appellant, who was represented by

counsel, entered a negotiated guilty plea to the charge of DUI-highest rate of

alcohol (BAC .16+)-1st offense, and in exchange, the Commonwealth agreed

to dismiss the remaining charges. Additionally, the parties’ plea agreement

provided Appellant would be sentenced to six months intermediate

punishment with the first 72 hours in the Franklin County Jail weekend

program. N.T., 12/5/18, at 3.

On January 9, 2019, Appellant proceeded to a sentencing hearing at

which the Commonwealth reminded the trial court that the parties had entered

into a plea agreement. N.T., 1/9/19, at 2. The trial court accepted the parties’

plea agreement and sentenced Appellant in accordance therewith to six

months intermediate punishment with the first 72 hours in the Franklin County

Jail weekend program. Id. at 3.

Appellant filed neither a timely post-sentence motion nor a direct

appeal. However, on June 22, 2023, he filed a counseled “Petition to Vacate

Sentence.” Therein, Appellant requested the lower court vacate his guilty plea

and resulting judgment of sentence as he was unaware of the immigration

consequences when he pled guilty. That is, Appellant, who immigrated to the

United States from El Salvador when he was a teenager via the federal

1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3309(1), and 3714(a), respectively.

-2- J-A19042-24

D.A.C.A.2 program, averred he is facing deportation due to his DUI conviction,

and at the time he pled guilty, he was unaware that he could be deported.

Thus, Appellant averred his guilty plea was unknowingly and involuntarily

entered and/or trial counsel was ineffective in failing to advise him properly of

the possible immigration consequences. Appellant admitted that he already

served all conditions of his judgment of sentence; however, he requested the

lower court vacate the guilty plea and judgment of sentence so that he cannot

be deported.

By order entered on September 21, 2023, the PCRA court indicated it

was treating Appellant’s “Petition to Vacate Sentence” under the ambit of the

PCRA. Specifically, the PCRA court concluded that Appellant’s claim was

cognizable under the PCRA. Moreover, the PCRA court provided Appellant with

notice of its intent to dismiss Appellant’s petition without an evidentiary

hearing on the basis that it was untimely filed and, additionally, Appellant was

ineligible for relief since he was no longer serving the sentence for the

challenged conviction.

On October 11, 2023, Appellant filed a counseled response to the PCRA

court’s notice of its intent to dismiss the PCRA petition. Therein, Appellant

averred the PCRA should not be the exclusive mechanism for him to challenge

the propriety of his guilty plea and trial counsel’s representation since he did

2 “D.A.C.A.” refers to the federal Deferred Action for Childhood Arrivals.

-3- J-A19042-24

not learn of the immigration consequences until well after he had already

served his sentence. Appellant did not dispute that, if his claim falls

exclusively under the PCRA, his petition is untimely, and he is otherwise

ineligible for relief because he completed his sentence.

By order entered on October 19, 2023, the PCRA court dismissed

Appellant’s “Petition to Vacate Sentence” under the ambit of the PCRA. This

timely, counseled appeal followed, and all Pa.R.A.P. 1925 requirements have

been met.

Appellant presents the following issue in his “Statement of Questions

Involved” (verbatim):

Did the trial court err by concluding that facts of record asserted by Appellant’s Petition to Vacate Sentence cannot be examined outside of the statutory confines of the Post Conviction Relief Act, 42 Pa.C.S.A. § 9543?

Appellant’s Brief at 6 (unnecessary bold and capitalization omitted)

(suggested answer omitted).

On appeal, Appellant avers the PCRA court erred in holding the PCRA

was the sole means for Appellant to obtain relief in this case. Appellant

contends that, when he pled guilty, he was unaware that there would be

“immigration consequences,” and, therefore, his plea was unknowingly and

involuntarily entered. Appellant’s Brief at 10. Further, he claims trial counsel

was ineffective in failing to advise him properly of the possible immigration

consequences. He indicates that he is not “complaining” about the sentence

he already served as a result of his plea agreement; however, he is

-4- J-A19042-24

“complaining” that he is facing deportation, and he was unaware of this

possible consequence when he pled guilty. See id. Appellant contends that

“he certainly would not have agreed to the plea if he had been aware of its

serious [immigration] ramifications to his life.” Id. at 11. He suggests that

he only recently learned of the immigration consequences, and the only “fair”

remedy is to vacate the plea and judgment of sentence outside the ambit of

the PCRA. Id.

Initially, we must determine whether the PCRA court properly concluded

the PCRA is the exclusive method for Appellant’s challenges in the case sub

judice.

Our scope and standard of review when reviewing the denial of a PCRA

petition are well-settled:

[O]ur scope of review is limited by the parameters of the [PCRA]. Our standard of review permits us to consider only whether the PCRA court’s determination is supported by the evidence of record and whether it is free from legal error. Moreover, in general we may affirm the decision of the [PCRA court] if there is any basis on the record to support the [PCRA] court’s action[.]

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa.Super. 2005)

(quotations and citations omitted).

Section 9542 of the PCRA provides:

This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. 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

-5- J-A19042-24

and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction. Except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases.

42 Pa.C.S.A. § 9542 (emphasis added). “The 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.”

Commonwealth v. Hall, 565 Pa. 92, 771 A.2d 1232, 1235 (2001) (emphasis

in original). “Issues that are cognizable under the PCRA must be raised in a

timely PCRA petition….Regardless of how a petition is titled, courts are to treat

a petition filed after a judgment of sentence becomes final as a PCRA petition

if it requests relief contemplated by the PCRA.” Commonwealth v. Hagan,

306 A.3d 414, 421-22 (Pa.Super. 2023) (quotation marks, quotations, and

citations omitted).

In the case sub judice, Appellant’s assertion that the lower court erred

in treating his petition as a PCRA petition fails as a matter of law. Controlling

precedent holds that Appellant’s claim unquestionably falls within the

framework of the PCRA, and, thus, the PCRA is the exclusive means for

Appellant’s issue. See Commonwealth v. Descardes, 635 Pa. 395, 136

A.3d 493 (2016) (holding the petitioner’s claim regarding trial counsel’s failure

to advise him of possible deportation consequences of plea could have been

raised in a PCRA petition, and, thus, the petitioner was not entitled to relief

-6- J-A19042-24

via a writ of coram nobis); Commonwealth v. Ramirez-Contreras, --- A.3d

---, 2024 WL 3589230 (Pa.Super. filed 7/31/24) (addressing under the PCRA

the petitioner’s claim that his guilty plea was involuntarily entered where he

was unaware of the possible deportation consequences). Accordingly, there

is no merit to Appellant’s assertion that his claim falls outside the ambit of the

PCRA.

Moreover, inasmuch as the PCRA is the sole means for Appellant to

obtain relief, we note that Appellant does not dispute that he has completed

his sentence. That is, he is no longer serving “a sentence of imprisonment,

probation or parole for the crime [or] awaiting execution of a sentence of

death for the crime[.]” 42 Pa.C.S.A. § 9543(a)(1)(i)-(ii). Accordingly,

Appellant is ineligible for relief under the PCRA, including claims related to

whether his plea was voluntarily entered and/or trial counsel was ineffective

for failing to advise him of the possible deportation consequences of his plea.

See Descardes, supra (holding where the petitioner was no longer serving

his sentence, and was thus ineligible for PCRA relief, the courts lacked

jurisdiction to entertain the petition raising claims regarding trial counsel’s

failure to advise the petitioner about the mandatory consequence of

deportation). See also Commonwealth v. Cardenas-Torres, 355 MDA

2022, 287 A.3d 843 (Table) (Pa.Super. filed 10/11/22) (unpublished

-7- J-A19042-24

memorandum)3 (holding the petitioner, who alleged trial counsel erred in

failing to advise him of the immigration ramifications of his guilty plea, was

ineligible for PCRA relief since he was no longer serving his sentence for the

conviction at issue).

Finally, and in any event, we note Appellant’s first counseled PCRA

petition is facially untimely.

Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. The most recent amendments to the PCRA, effective January 16, 1996, provide a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)

(citations omitted).

In the case sub judice, Appellant does not dispute that his instant

petition, filed on June 22, 2023, was not filed within one year from the date

his judgment of sentence became final, i.e., on February 8, 2019, thirty days

after he failed to file a direct appeal to this Court. See 42 Pa.C.S.A. §

9545(b)(3); Pa.R.A.P. 903(a). Further, although under limited circumstances

a petitioner may invoke a timeliness exception under which the late filing of a

3 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).

-8- J-A19042-24

petition will be excused,4 Appellant does not present or develop any argument

related to the timeliness exceptions.5 Instead, he contends the PCRA court

erred in treating his “Petition to Vacate Sentence” as a PCRA petition subject

to the eligibility and timeliness requirements. As indicated supra, the PCRA

court did not err in this regard.

For all of the foregoing reasons, we affirm.

Affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 8/30/2024

4 If a PCRA petition is untimely filed, the jurisdictional time-bar can only be

overcome if the petitioner alleges and proves one of the three statutory exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v. Spotz, 642 Pa. 717, 171 A.3d 675, 678 (2017). The three narrow statutory exceptions to the one-year time-bar are as follows: “(1) interference by government officials in the presentation of the claim; (2) newly[-]discovered facts; and (3) an after-recognized constitutional right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012) (quoting 42 Pa.C.S.A. § 9545(b)(1)(i-iii)).

5 To the extent Appellant contends it is not “fair” or “equitable” that he is subject to the PCRA’s time bar, we note “[t]here is no generalized equitable exception to the jurisdictional one-year time bar pertaining to post-conviction petitions.” Commonwealth v. Brown, 596 Pa. 354, 943 A.2d 264, 267 (2008).

-9-