J-S43032-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EMANUEL HARMAN : : Appellant : No. 118 WDA 2018 Appeal from the Order December 21, 2017 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001769-2008 BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J. MEMORANDUM BY NICHOLS, J.: FILED AUGUST 24, 2018 Appellant Emanuel Harman appeals from the order dismissing as untimely his first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that his guilty plea was defective in light of the decision in Padilla v. Kentucky, 559 U.S. 356 (2010). We affirm. The PCRA court summarized the relevant factual and procedural history of this case as follows: [Appellant] is a native of South Sudan and a citizen of Sudan. [Appellant] was admitted to the United States at Chicago, IL on or about July 25, 2003 as a refugee. On November 10, 2005, [Appellant]’s status was adjusted to a lawful permanent resident of the United States. On January 5, 2009, [Appellant] ple[d] guilty to Theft by Unlawful Taking, 18 § Pa.C.S.A. 3921(a), and Receiving Stolen Property, 18 § Pa.C.S.A. 3925(a). On March 2, 2009, [Appellant] was sentenced to 60 months of probation. [Appellant did not take a direct appeal]. On August 23, 2010, [Appellant] was revoked and resentenced to the same 60 months of county probation. On January 4, 2013, [Appellant] was again revoked and then J-S43032-18 resentenced to 9 to 23.5 months’ incarceration at the Erie County Prison with 119 days credit for time served followed by 3 years of county probation. [Appellant did not appeal from the January 4, 2013 revocation sentence.] On or about September 20, 2016, [Appellant] received a form I- 862 Notice to Appear (“I-862”) stating he was required to appear before an Immigration Judge. The I-862 stated [Appellant] is subject to removal from the United States pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("Act"), as amended, in that, at any time after admission, [Appellant] was convicted of an aggravated felony as defined in section 101(a)(43)(G) of the Act, a law relating to a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [of] at least 1 year was imposed. Specifically, the I-862 stated [Appellant] was convicted on March 2, 2009 for the offense of Theft by Unlawful Taking for which a term of 60 months of probation was originally sentenced on March 2, 2009. [Appellant] was then resentenced on January 4, 2013 to a term of 9 to 23.5 months of incarceration. [Appellant] was also convicted on March 2, 2009 for the offense of Receiving Stolen Property which a term of 60 months of probation was originally sentenced on March 2, 2009. [Appellant] was then resentenced on January 4, 2013 to merge with Count 3 - Theft by Unlawful Taking for sentencing purposes. Pa.R.Crim.P. 907 Notice, 11/17/17, ...
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