Coram Nobis and PCRA for Ineffective Assistance Claim

Filed under: Criminal Law by Contributor @ November 26, 2014

In Commonwealth v. Descardes, 2014 WL 4696243, an en banc panel of the Pennsylvania Superior Court considered whether it was error to treat a resident alien’s coram nobis petition as a PCRA petition and held that the peculiar circumstances giving rise to this case merited treatment as one of the rare instances where a claim falls outside of the ambit of the PCRA.  Nevertheless, the Court held that the resident alien did not qualify for relief for ineffective assistance of counsel because his judgment had become final before the new rule on which he relied was handed down, and that decision was not retroactive.

Claude Descardes is a resident alien who plead guilty to insurance fraud and conspiracy charges in 2006.  As a result of his plea bargain, Descardes was sentenced to one year probation.  Descardes did not appeal from that judgment and sometime thereafter left the country.  He was denied re-entry due to his felony conviction.  An initial petition for relief was denied as untimely under the PCRA. In 2010, upset about this turn of events, Descardes filed a writ of coram nobis alleging that his plea counsel was ineffective for failing to inform him of the consequences of a guilty plea to his immigration status.  Descardes pointed to the United State Supreme Court case Padilla v. Kentucky, 559 U.S. 356, handed down that year, for the proposition that a criminal defense attorney has an affirmative duty to inform a defendant of the deportation consequences of a guilty plea.

In 2006, when Descardes pled guilty, his defense counsel was under no obligation, nor could he have expected to be under any obligation, to inform the defendant of the consequences resulting from a guilty conviction.   Padilla was not decided for four years after the Descardes judgment became final.  Applying retroactivity principles, the Court looked to Chaidez v. United States, 133 S.Ct. 1103, a federal coram nobis case holding that Padilla was not retroactive.  Thus, Descardes’ claim failed on the merits.  However, it should be pointed out that the Court was under no obligation to follow the federal retroactivity rule in this case, and made no attempt to cite Pennsylvania case law for the decision that federal collateral attack decisions are mandatory authority for the state to follow.

The en banc panel also considered whether the Montgomery County trial court properly treated the coram nobis petition as a PCRA petition and held that this was error.   Briefly, the writ of coram nobis is an ancient common law device for collaterally attacking a judgment of a court based on an error of fact.  Its usefulness has been greatly diminished in the criminal setting by statutory habeas (and has been extinguished completely, for example, in federal civil court under F.R.C.P. 60(b)), but still exists in criminal law in some extreme cases.

The Court pointed to the PCRA custodial requirement –that is, that the petitioner must still be serving a portion of his sentence–and held that deportation, while a “drastic measure” equivalent to banishment or exile, is not a criminal sanction.  Descardes had finished his sentence and was ineligible for PCRA relief.  Because the PCRA was designed to be the “sole means of obtaining collateral relief and encompass[] all other common law and statutory remedies” the Court had to consider whether this claim for ineffectiveness of counsel was subsumed and extinguished.

Noting that Descardes continues to suffer severe consequences (his inability to re-enter the country) and the fact that the Padilla decision was not decided until after the statutory time-limit for a PCRA petition had long passed, the Court allowed his claim in the form of the writ of coram nobis.  Still, as noted above, although the court could hear the arguable merits of Descardes’ claim, the non-retroactivity of Padilla barred any possible relief under this particular claim.

In a long and thorough dissent, Judge Bowes argued that no ineffectiveness of counsel claim was available in coram nobis cases and stated a fear that the bifurcated review the majority opinion established while following the federal model went well beyond the intent of Pennsylvania’s legislature and presented serious concerns about the finality of existing judgments.

Descardes is appealing as to the merits of whether Pennsylvania should blindly follow the United States Supreme Court’s dictates on retro-activity in the federal courts.  The Commonwealth, concerned about the floodgate of future prisoner litigation, is appealing as to whether the writ of coram nobis should be an available remedy outside of the PCRA scheme.

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