Com. v. Weithers, G.

J-S38006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GLEN WIETHERS :

:

Appellant : No. 667 WDA 2020

Appeal from the PCRA Order Entered June 5, 2020

In the Court of Common Pleas of Allegheny County Criminal Division at No(s):

CP-02-CR-0008678-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GLEN WEITHERS :

:

Appellant : No. 668 WDA 2020

Appeal from the PCRA Order Entered June 5, 2020

In the Court of Common Pleas of Allegheny County Criminal Division at No(s):

CP-02-CR-0010644-2015

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 8, 2022

Appellant, Glen Weithers, a.k.a. Glen Wiethers, appeals from the order

dismissing his untimely petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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The facts underlying Appellant’s convictions in the cases listed at CP-

02-CR-0008678-2015 (“8678-15”) and CP-02-CR-0010644-2015 (“10644-

15”) are not germane to this appeal. At 8678-15, the Commonwealth

charged Appellant with two counts of driving under the influence of alcohol

(“DUI”), and one count of driving impaired with a DUI-suspended license. At

10644-15, the Commonwealth charged Appellant with one count each of

patronizing prostitutes, solicitation–patronizing prostitutes, possession of a

controlled substance, and driving with a DUI-suspended license. On March

29, 2016, Appellant entered a guilty plea in both cases. On that same day,

the trial court sentenced him to an aggregate term of 6 months’

intermediate punishment and a concurrent term of 3 years’ probation.1

Appellant did not file a direct appeal. Subsequently, according to Appellant,

“the federal government began removal proceedings against [Appellant] due

to criminal convictions that included the cases in this matter in January

2019[,]” and the “removal was affirmed in January 2020.” Appellant’s Brief

at 8.

Appellant filed a pro se PCRA petition at 10644-15 on October 8, 2019.

After obtaining current counsel, Appellant filed a motion for special relief

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1 We note that, absent a violation of his probation, Appellant was set to

complete his sentence by April of 2019. However, Appellant concedes that

he completed his sentence at 10644-2015 on September 25, 2017, and that

the trial court terminated his probation in the case at 8678-2015 on October

2, 2018. Appellant’s Brief at 8.

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docketed under both 10644-15 and 8678-15, acknowledging that he had

completed his sentence(s) at those docket numbers, but nevertheless

seeking “habeas corpus or coram nobis relief.” Id. at 9. The PCRA court

issued an order denying relief on June 5, 2020.

Appellant filed timely notices of appeal from that order in both cases

8678-15 and 10644-15, which this Court docketed at 667 WDA 2020 and

668 WDA 2020, respectively. By order dated August 21, 2020, this Court

sua sponte consolidated these appeals as captioned above.

Appellant now presents the following question for our review:

1. Does the Pennsylvania [PCRA] violate the United States

Constitution’s due process and equal protection provisions as

applied to petitioners who have completed their sentences but

would otherwise be eligible for PCRA relief:

a. Specifically: Through the Ninth Amendment, does the

United States Constitution’s protections of the rights to

due process and equal protection include the right to open

courts, the right to a remedy in court, habeas corpus

relief, and coram nobis relief?

Id. at 6.

Essentially, Appellant argues that his trial counsel provided ineffective

assistance of counsel (“IAC”) by failing to advise him of the immigration

consequences of his plea,2 in that “two of the counts to which he pleaded are

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2 In Padilla v. Kentucky, 559 U.S. 356, 374 (2010), the Supreme Court

held that the Sixth Amendment’s right to the effective assistance of counsel

requires counsel to “inform her client whether [a guilty] plea carries a risk of

deportation.”

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considered crimes of moral turpitude and removable under federal law.”

Appellant’s Brief at 11 n.1. The PCRA court determined that it lacked

jurisdiction to entertain Appellant’s IAC claim under the PCRA statute

because Appellant’s sentence had expired, and the PCRA “limits relief to

those serving a sentence.” PCRA Court Opinion, 6/22/21, at 4.3

Appellant concedes that he is not entitled to relief under the PCRA,

acknowledging that “post-conviction relief is limited to people who are

currently serving a sentence of incarceration, probation, or parole, or are

challenging their completed sentence based on DNA evidence.” Appellant’s

Brief at 12; see id. (stating “the PCRA offers a remedy for petitioners who

are still serving a sentence, those who have completed their sentences are

statutorily barred from a judicial remedy”); and see 42 Pa.C.S. §

9543(a)(1)(i)-(iv) (limiting PCRA relief to parties who have not completed

their sentence, except for those who seek relief based on DNA evidence

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3 We also note that Appellant’s PCRA petition was untimely, as it was not

filed “within one year of the date the judgment of sentence becomes final[.]”

42 Pa.C.S. § 9545(b)(1). The PCRA’s time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007). Appellant appears to assert that his petition’s untimeliness

would have been excused pursuant to Section 9545(b)(1)(ii) as a newly-

discovered fact. See Appellant’s Brief at 12. However, the PCRA court did

not reach this question, and instead dismissed Appellant’s PCRA petition

solely based on his completion of the underlying sentence. Because

Appellant contends that he is entitled to relief outside the auspices of the

PCRA, we need not address this other procedural hurdle that potentially bars

consideration of the merits of his IAC claim under the PCRA.

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obtained under Section 9543.1(d)). Appellant further recognizes that “[o]ur

courts have consistently concluded that all claims that are cognizable under

the PCRA must be raised as such. Further, the language of the act states

the legislature’s intent to replace habeas corpus and coram nobis relief with

PCRA actions.” Appellant’s Brief at 12; see also 42 Pa.C.S. § 9542 (“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 and coram nobis.”). Indeed, Appellant further

concedes that, in Commonwealth v. Descardes, 136 A.3d 493 (Pa. 2015),

“the Pennsylvania Supreme Court concluded that claims like [Appellant]’s

are cognizable under the PCRA and that defendants who have completed

their sentences are not eligible for PCRA relief.” Appellant’s Brief at 13.

Nevertheless, Appellant contends that the Ninth Amendment to the

United States Constitution might “prohibit the limitations the PCRA has

placed on the right to coram nobis relief[,]” although Appellant admits that

“this Court has not issued an opinion addressing the question.” Id.

Appellant further argues that:

Historically, coram nobis was an avenue of relief for individuals

who had completed their sentences but still sought relief from

the consequences of their conviction. Commonwealth v.

Sheehan, [285 A.2d 465] (Pa. 1971). In fact, coram nobis still

survives to offer post-sentence completion relief to individuals in

federal court and Maryland. United States v. Johnson, 237 F.

3d 751 (6th Cir. 2001); 28 U.S.C. § 1651(a); State v. Rich, 454

Md. 448, 461 (Md. 2017). Thus, the right to a post-sentence

completion remedy should rightfully be acknowledged as one of

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the unenumerated rights retained by the people and protected

by the Fourteenth Amendment’s due process provisions as

applied to the states. U.S. Const., amend. XIV (“No state shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.”)[.]

It may be argued that individuals who have completed their

sentences have the option of pursuing a governor’s pardon and

that remedy is sufficient to serve the function coram nobis

formerly fulfilled. Pa. Const., art. IV, § 9. It should be noted

that the function of the governor’s pardon is that of an act of

mercy and not part of the right to a judicial remedy to reverse a

conviction or otherwise review the validity of a conviction.

Appellant’s Brief at 14-15.

Although Appellant posits a theoretical basis for providing relief outside

the PCRA, the historical remedy provided by a writ of coram nobis has been

subsumed into the PCRA, as explicitly stated in Section 9542. Thus,

Appellant is essentially challenging the constitutionality of the PCRA statute’s

replacement of the coram nobis remedy.

When faced with any constitutional challenge to legislation, we

proceed to our task by presuming constitutionality in part

because there exists a judicial presumption that our sister

branches take seriously their constitutional oaths. Indeed, a

legislative enactment will not be deemed unconstitutional unless

it clearly, palpably, and plainly violates the Constitution. “Any

doubts are to be resolved in favor of a finding of

constitutionality.” Payne v. Dept. of Corrections, … 871 A.2d

795, 800 ([Pa.] 2005). Accordingly, a party challenging the

constitutionality of a statute bears a very heavy burden of

persuasion.

Stilp v. Commonwealth, 905 A.2d 918, 938–39 (Pa. 2006) (some citations

omitted).

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Appellant has simply failed to meet his heavy burden of persuasion

that the PCRA’s subsummation of the historical right of coram nobis is

unconstitutional. Appellant does not cite any persuasive, much less

controlling, legal authority suggesting the unconstitutionality of the PCRA on

this basis.

To the contrary, our Supreme Court has held that “[t]he 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” and that no “other statutory or common law

remedy ‘for the same purpose’ is intended to be available; instead, such

remedies are explicitly ‘encompassed’ within the PCRA.” Commonwealth

v. Hall, 771 A.2d 1232, 1235 (Pa. 2001). Furthermore, the Court noted

that it had “repeatedly and uniformly given effect to this plain language

contained in the PCRA.” Id.

Later, in Descardes, our Supreme Court rejected a similar claim. In

that case, the Superior Court initially held that coram nobis relief was

available where the petitioner’s PCRA petition was untimely without

exception, despite having a potentially meritorious claim based on Padilla,

which had been decided after Descardes was able to file a timely PCRA

petition. See Commonwealth v. Descardes, 101 A.3d 105, 109 (Pa.

Super. 2014), vacated, 136 A.3d 493 (Pa. 2016). The Superior Court found

that

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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 should be available to

him. Descardes is no longer in custody, thus the PCRA provides

no relief, but he continues to suffer the serious consequences of

his deportation because of his state conviction. The trial court

should have addressed his petition for a writ of coram nobis, not

under the PCRA, but as a coram nobis petition.

Id.

Our Supreme Court reversed, stating that

the Superior Court’s decision in the instant case is contrary to

the decisions of this Court which hold that, where a petitioner’s

claim is cognizable under the PCRA, the PCRA is the only method

of obtaining collateral review. As a result, [Descardes’s] PCRA

petition should have been dismissed because, as he was no

longer incarcerated at the time it was filed, he was ineligible for

PCRA relief, and, thus, both the PCRA court and the Superior

Court lacked jurisdiction to entertain the petition.

Descardes, 136 A.3d at 503.

While the Descardes Court did not specifically address the issue as a

challenge to the PCRA’s constitutionality under the Ninth Amendment, the

Court clearly rejected the logic underlying such a claim, and expressed no

reservations as to the power of the legislature to subsume the historical

remedy of coram nobis into the PCRA despite the PCRA’s timeliness and

sentence-serving procedural hurdles. Furthermore, as conceded by

Appellant, “Ninth Amendment case law has suggested that the amendment

is not an independent source of substantive rights[.]” Appellant’s Brief

at 13 (emphasis added).

For these reasons, Appellant has not met his high burden of

demonstrating the unconstitutionality of the PCRA based on its

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subsummation of the writ of coram nobis.4 Accordingly, we conclude that

the PCRA court did not err in determining that it lacked jurisdiction to

entertain Appellant’s IAC claim.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/8/2022

____________________________________________

4 We note that Appellant did not develop an independent argument with

respect to his claim that his petition should have been heard as a writ of

habeas corpus. In a footnote, Appellant acknowledges that, “where a

sentence has been completed, the appropriate remedy had historically been

a writ of coram nobis. However, in some cases, some actions were styled as

requests for habeas corpus relief.” Appellant’s Brief at 12 n.2. He then

states that, “[g]oing forward, for the sake of clarity and brevity, Counsel will

refer to coram nobis relief exclusively, but does not intend to abandon any

parallel claim for habeas corpus relief.” Id. To the extent that Appellant

presents an identical argument for habeas corpus relief, we reject such a

claim for the reasons set forth, supra. However, to the extent that Appellant

attempts to raise claim for habeas corpus relief on any other basis, any such

claim has been waived for lack of development.

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