Com. v. Vasquez, R.

Opinion

J-S01015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAMON VASQUEZ, : : Appellant : No. 1132 MDA 2017

Appeal from the PCRA Order June 19, 2017 in the Court of Common Pleas of Berks County, Criminal Division at No(s): CP-06-CR-0004704-2013

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 21, 2018

Ramon Vasquez (“Vasquez”), pro se, appeals from the Order

dismissing his first Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On April 15, 2014, a jury found Vasquez guilty of flight to avoid

apprehension, trial or punishment, as well as two summary offenses. On

April 29, 2014, the trial court imposed an aggregate sentence of nine

months to two years in jail. This Court subsequently affirmed Vasquez’s

judgment of sentence.1 See Commonwealth v. Vasquez, 144 A.3d 208

(Pa. Super. 2016) (unpublished memorandum). Vasquez did not seek

allowance of appeal.

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1 The court of common pleas had previously granted Vasquez the right to file a direct appeal, nunc pro tunc, in response to a PCRA Petition that he filed in November 2014. J-S01015-18

Vasquez filed the instant pro se PCRA Petition on February 2, 2017,

after which the PCRA court appointed Vasquez counsel. Counsel thereafter

filed a “no-merit” letter requesting leave to withdraw as counsel, pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The PCRA court granted counsel permission to withdraw.

In May 2017, the PCRA court issued a Pa.R.Crim.P. 907 Notice of its

intent to dismiss Vasquez’s PCRA Petition without a hearing. In response,

Vasquez filed a pro se Petition for Writ of Coram Nobis (hereinafter, the

“Coram Nobis Petition”), which the PCRA court treated as a response to the

Rule 907 Notice. On June 19, 2017, the PCRA court entered an Order

dismissing Vasquez’s PCRA Petition.2 Thereafter, Vasquez filed the instant

timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

Vasquez now presents the following issue for our review: “Whether 42

Pa.C.S.[A.] § 954[3](a)(1)[,] as applied by the [PCRA] court[,] presents a

substantive liberty interest upon [Vasquez’s] actual innocence to collateral

civil and criminal consequences?” Brief for Appellant at 4.

To be eligible for PCRA relief, a petitioner must prove that, at the time

relief is granted, he or she is “currently serving a sentence of imprisonment,

2By a separate Order entered on June 19, 2017, the PCRA court denied the Coram Nobis Petition.

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probation or parole for the crime[.]” 42 Pa.C.S.A. § 9543(a)(1)(i). “Case

law has strictly interpreted the requirement that the petitioner be currently

serving a sentence for the crime to be eligible for relief.” Commonwealth

v. Plunkett, 151 A.3d 1108, 1109 (Pa. Super. 2016).

As our Supreme Court has explained,

[b]ecause individuals who are not serving a state sentence have no liberty interest in and therefore no due process right to collateral review of that sentence, the statutory limitation of collateral review to individuals serving a sentence of imprisonment, probation, or parole is consistent with the due process prerequisite of a protected liberty interest.

Commonwealth v. Turner, 80 A.3d 754, 766 (Pa. 2013).

In the instant case, the trial court sentenced Vasquez to nine months

to two years in jail. The effective date of Vasquez’s sentence was August

28, 2013. Thus, at the very latest, Vasquez’s sentence in the instant case

would have expired on August 28, 2015, approximately 1½ years prior to his

filing the instant PCRA Petition.3 Because Vasquez is not “currently serving”

a sentence for his underlying convictions, he is no longer eligible for relief

under the PCRA, see 42 Pa.C.S.A. § 9543(a)(1)(i), and the PCRA court thus

properly dismissed his Petition. Moreover, in light of our Supreme Court’s

above-mentioned reasoning in Turner, supra, there is no merit to

Vasquez’s claim that the PCRA court’s application of section 9543(a)(1)(i)

3 Vasquez asserted in his Coram Nobis Petition that he completed his sentence on April 29, 2015.

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“presents a substantive liberty interest upon [Vasquez’s] actual innocence to

collateral civil and criminal consequences[.]” Brief for Appellant at 4.

We additionally note that the PCRA court properly determined that

Vasquez is not entitled to coram nobis relief. “The PCRA … subsumes the

remedies of habeas corpus and coram nobis” where the PCRA provides a

remedy for the claim. Turner, 80 A.3d at 770; see also 42 Pa.C.S.A.

§ 9542 (providing that “[t]he 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 … coram nobis.”). Here, Vasquez

sought coram nobis relief based on a claim alleging that his prior counsel

were ineffective. Because such a claim is cognizable under the PCRA,

Vasquez is not entitled to coram nobis relief. See Turner, 80 A.3d at 770.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/21/2018

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