Com. v. Pacheco-Morales, D. (judgment order)

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J-S70011-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee v. DANIEL PACHECO-MORALES Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1079 MDA 2017 Appeal from the PCRA Order February 28, 2017 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000385-2002, CP-67-CR-0000586-1997, CP-67-CR-0001947-1998, CP-67-CR-0004350-1996 BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J. JUDGMENT ORDER BY GANTMAN, P.J.: FILED NOVEMBER 14, 2017 Appellant, Daniel Pacheco-Morales, appeals pro se from the order entered in the York County Court of Common Pleas, which dismissed his first petition for collateral relief (labeled a petition for writ of coram nobis), per the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On October 21, 1996, Appellant entered a guilty plea at docket CP-67-CR0004350-1996, to possession with intent to deliver a controlled substance (“PWID”) and conspiracy. The court sentenced Appellant on February 12, 1997, to an aggregate term of 6 to 18 months’ imprisonment. On May 21, 1997, Appellant entered a guilty plea at docket CP-67-CR-000586-1997, to PWID and conspiracy. The court sentenced Appellant at that docket on June 30, 1997, to an aggregate term of 11½ to 23 months’ imprisonment, J-S70011-17 concurrent to the sentence at docket No. 4350-1996. On June 18, 1998, Appellant entered a guilty plea to PWID at docket CP-67-CR-0001947-1998. The court sentenced Appellant that day to 15 to 30 months’ imprisonment. On June 6, 2007, a jury convicted Appellant of PWID, at docket CP-67-CR0000385-2002. The court sentenced Appellant at that docket on July 18, 2007, to 24 to 48 months’ imprisonment. On November 4, 2016, Appellant filed a pro se petition for writ of coram nobis, challenging his convictions and/or sentences at all of these dockets. The court treated Appellant’s filing as a PCRA petition, and denied relief by order dated February 28, 2017, and entered March 1, 2017. Appellant timely filed a pro se notice of appeal on March 27, 2017. That same date, Appellant also filed a motion for appointment of counsel in the PCRA court; the court did not rule on the motion. No Pa.R.A.P. 1925(b) statement was ordered or filed. Preliminarily, any petition for post-conviction collateral relief will generally be considered a PCRA petition if the petition raises issues cognizable under the PCRA. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for same purpose). Additionally, a PCRA petitioner must be currently serving a sentence of imprisonment, probation or parole for the conviction at issue to be eligible for PCRA relief. 42 Pa.C.S.A. § 9543(a)(1)(i). See also Commonwealth v. Williams, 977 A.2d 1174 -2- J-S70011-17 (Pa.Super. 2009), appeal denied, 605 Pa. 700, 990 A.2d 730 (2010) (explaining petitioner must be serving sentence of imprisonment, probation, or parole for crime at issue to be eligible for PCRA relief; once sentence is completed, petitioner is ineligible for PCRA relief, regardless of whether he was serving his sentence when he filed petition). Further: This [C]ourt has held that the failure to appoint counsel for a [first-time] petitioner under the PCRA who has served his sentence is harmless error, and that a remand for appointment of counsel is not appropriate, as a remand would be futile under such a circumstance. The purpose for appointing counsel for a first-time petitioner, even where the petition appears to be untimely filed, is for the petitioner to attempt to establish an exception to the oneyear time limitation. Obviously, where the petitioner is no longer serving a sentence of imprisonment, probation or parole, establishing such an exception is a legal impossibility, as the statute no longer applies. The law does not require the performance of a futile act. Commonwealth v. Hart, 911 A.2d 939, 942 (Pa.Super. 2006) (internal citations omitted). Instantly, Appellant filed his first pro se petition for collateral relief on November 4, 2016, which he labeled a petition for writ of coram nobis. In his petition, Appellant challenged the validity of his guilty pleas at docket Nos. 4350-1996, 586-1997, and 1947-1998; and he attacked the legality of his sentence at docket No. 385-2002. These claims are cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(iii), (vii) (recognizing challenges under PCRA to validity of guilty plea and legality of sentence). Thus, the court properly treated Appellant’s prayer for relief as a PCRA petition. See -3- J-S70011-17 Peterkin, supra. Appellant contends he is entitled to collateral relief because he is currently serving a federal sentence in an unrelated case and was designated a “career offender” in that case as a result of his state convictions, which enhanced his federal sentence. Significantly, however, Appellant concedes he is no longer serving a sentence at any of the referenced state dockets. relief. Consequently, Appellant is ineligible for PCRA See 42 Pa.C.S.A. § 9543(a)(1)(i); Williams, supra. Further, the court’s failure to appoint counsel for Appellant where he is ineligible for PCRA relief amounts to harmless error.1 See Hart, supra. Accordingly, we affirm.2 Order affirmed. ____________________________________________ 1 The PCRA court’s failure to issue appropriate notice per Pa.R.Crim.P. 907 similarly amounts to harmless error under these circumstances and does not require a remand. See generally Hart, supra. The order denying PCRA relief lists only docket No. 385-2002. We direct the York County Clerk of Courts to enter the court’s order denying PCRA relief at each of the relevant dockets. 2 -4- J-S70011-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/14/2017 -5-

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