Com. v. Andrews, V.

J-S06019-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VERNON ANDREWS : : Appellant : No. 1444 EDA 2017 Appeal from the PCRA Order April 24, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013540-2011 BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 06, 2018 Vernon Andrews appeals from the order denying his petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We conclude that Andrews is ineligible for PCRA relief because he is no longer serving a sentence of incarceration, parole, or probation and that application of this eligibility requirement to Andrews did not violate his Fourteenth Amendment right to due process. Therefore, we affirm. On September 12, 2012, Andrews pled guilty to possession with intent to deliver a controlled substance, 35 P.S. § 780-113(a)(30), and criminal conspiracy, 18 Pa.C.S.A. § 903. The trial court sentenced Andrews to 11½ to 23 months’ incarceration followed by three years’ probation. Andrews did not appeal. On January 18, 2013, Andrews filed a pro se PCRA petition. Counsel filed an amended petition on September 1, 2014. On March 6, 2015, the J-S06019-18 PCRA court denied the petition. Andrews appealed and this Court remanded for an evidentiary hearing to clarify Andrews’ claim that trial counsel was ineffective for failing to advise him of the immigration consequences of his guilty plea. Commonwealth v. Andrews, No. 805 EDA 2015, unpublished memorandum at 1, 14 (Pa.Super. filed June 3, 2016). After remand, the Commonwealth filed a letter brief, arguing the PCRA court should dismiss the petition because Andrews completed serving the probationary period of his sentence on September 27, 2016. Andrews filed a response arguing, among other things, that he had a liberty interest protected under the Due Process Clause because of the collateral consequence of deportation. Letter Br., filed Feb. 5, 2017, at 2.1 The PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907 and subsequently denied the petition. Andrews filed a timely notice of appeal. Andrews raises the following issue on appeal: Must a petition for post conviction relief be denied because the defendant is no longer subject to imprisonment, probation or parole in Pennsylvania when the defendant is subject to deportation from the United States? Andrews’ Br. at 4. Our standard of review from the denial of a PCRA petition “is limited to examining whether the PCRA court’s determination is supported by the ____________________________________________ 1 On February 10, 2017, the Commonwealth filed a reply. -2- J-S06019-18 evidence of record and whether it is free of legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). To be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that he or she has been convicted of a crime and that he or she ...

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