A blog of the Philadelphia Bar Association’s Criminal Justice Section

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The Superior Court of Pennsylvania en banc has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Claude DESCARDES, Appellee, 2014 WL 4696243, 2014 PA Super 210, 2836 EDA 2010 (Sept. 23, 2014). This was an appeal from the Court of Common Pleas of Montgomery County, Judge Smyth, Criminal Division, CP–46–CR–0000617–2006. The Judges were BENDER, FORD ELLIOTT, BOWES, PANELLA, DONOHUE, SHOGAN, LAZARUS, OLSON and WECHT.

After pleading guilty to insurance fraud in 2006 and serving a 1 year probationary sentence, Claude Descardes, a resident alien, left the country. Immigration officials denied him re-entry due to his felony conviction. Subsequently, Padilla v. Kentucky,559 U.S. 356 (2010), held that a criminal defense attorney has an affirmative duty to inform a defendant that the offense for which he pleads guilty will result in his removal from the country. Descardes filed a petition for a writ of coram nobisrelying on Padilla alleging that his guilty plea counsel was ineffective for failing to advise him of the adverse immigration consequences of his guilty plea. The trial court treated thecoram nobis petition as a petition pursuant to the Post Conviction Relief Act and granted him relief.

However, under the PCRA, a petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime” sur 42 PA. CONS.STAT.ANN. § 9543(a)(1)(i)-(iii). Descardes did not meet these eligibility requirements because he had completed serving his sentence. His assertion that his deportation constituted a sentence for purposes of the PCRA eligibility provisions was rejected by the Court en banc in this Opinion written by Judge Panella.

Descardes’s claim was one of ineffective assistance of plea counsel, a claim that is explicitly within the purview of the PCRA; however, it was predicated upon the Supreme Court’s holding in Padilla that the Sixth Amendment requires defense counsel to advise the defendant about the risk of deportation arising from a guilty plea. This particular claim of ineffective assistance of counsel did not exist until 2010 when the Supreme Court decided Padilla, which was years after Descardes completed his sentence. The time for pursuing a claim of ineffective assistance of counsel in a timely filed PCRA petition had long since expired. Under these circumstances, the Court found that this was one of the rare instances where the PCRA failed to provide a remedy for the claim.

Descardes properly sought relief, not through the PCRA, but by filing a petition for writ of coram nobis, which “provides a way to collaterally attack a criminal conviction for a person … who is no longer ‘in custody’ and therefore cannot seek habeas relief….” In Chaidez v. United States, 133 S.Ct. 1103 (2013), the petitioner had sought to avoid deportation by filing a writ ofcoram nobis to overturn her conviction by arguing that her attorney provided ineffective assistance by failing to advise her of the immigration consequences of pleading guilty.

Because Descardes’s specific ineffective assistance of counsel claim was not recognized until well after the time he had to file a timely PCRA petition, coram nobis review was available to him. Descardes was no longer in custody and thus the PCRA provided no relief, yet he continued to suffer the serious consequences of his deportation because of this state conviction. The trial court should have addressed his petition for a writ of coram nobis, not under the PCRA.

Nevertheless, Descardes was not entitled to relief even when his claim is addressed as a petition for writ of coram nobis. In Chaidez, the United States Supreme Court held that Padilla announced a new rule of constitutional law that is inapplicable on collateral review to a petitioner seeking a writ of coram nobis whose conviction had become final before Padilla.  Therefore, as Padilla does not apply retroactively, it could not serve as the basis for the collateral attack of Descardes’s conviction, which was final when Padilla was decided.

Attorney William J. Honig represented the Appellee.

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