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

seal_colorBy Burt Rose

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In Commonwealth versus Claude Descardes, 2014 WL 4696243, the Superior Court of Pennsylvania sitting en banc was presented with a claim of ineffective assistance of guilty plea counsel for the failure to warn the defendant in 2006 of automatic deportation consequences as set forth in Padilla v. Kentucky, 559 US 356 (2010). Judge Panella, writing for the Court, held that since Padilla does not apply retroactively, the defendant is not entitled to relief.

However, Judge Panella wrote that the defendant’s claim should have been considered as a valid petition for a writ of Coram Nobis and not as an untimely PCRA petition.

The defendant was no longer in custody and was not serving a sentence at the time he filed his petition in 2010. He could not rely on any PCRA exception since Padilla had not been decided when he could have filed a PCRA petition and it has not been approved for retroactive application. However, his claim of ineffective assistance of counsel, not being cognizable under the PCRA, could be entertained through a writ of Coram Nobis since the defendant continues to suffer serious consequences from the conviction in light of his deportation.

It would appear from this ruling that a defendant who is otherwise barred from collateral relief under the postconviction relief act, because he is no longer in custody, he is not currently serving a sentence and he is relying on a new rule of law which is not retroactive, can still have his day in court, even though he is making an ineffective assistance of counsel claim, by filing a petition for a writ of Coram Nobis. He just needs a better claim than Mr. Descardes had.

William Honig, Esq. was counsel for the Appellant.


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