Commonwealth v. Garcia, 2011 PA Super 124 (Pa. Super. 2011)

Opinion by Stevens, P.J.

In 2002, Garcia -- a native of the Dominican Republic - pleaded guilty to delivery of a controlled substance, and was sentenced to three years of probation.  He violated his probation and, in 2009, he was sentenced ninety-one days to twenty-four months in prison.  In 2010, more than eight years after his judgment of sentence became final, he filed a post-conviction relief act petition alleging that his trial counsel was ineffective for failing to inform him that, as a result of his drug-conviction, he would face mandatory removal from the United States.  This, he claimed, violated the Supreme Court of the United States' then recent decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010).  The trial court denied relief, and Garcia appealed.

First, the Superior Court noted that Garcia's petition was filed more than one-year after his judgment of sentence became final.  This would be fatal to his claim unless he could prove that it fell within one of the three exception to the Post Conviction Relief Act's time-bar: (1) the delay was the result of government interference, (2) the petition was filed after the discovery of new evidence, or (3) the petition was filed after the Supreme Court articulated a new constitutional right, that was made retroactive.  The defendant invoked the new constitutional right exception.

In order to successfully show that a new constitutional right entitled him to relief, the Superior Court noted that Garcia would have to prove:

that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or th[e Pennsylvania] Supreme Court after the time provided in this section. Second, it provides that the right “has been held”by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” constitutional right and that the right“has been held” by that court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has already occurred, i.e., “that court” has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.

The Court then considered the Padilla decision, and determined that it did not articulate a "new" constitutional right - instead, it merely applied the existing right to effective assistance of counsel to immigration cases.   Because the right recognized in Padilla was not new, that case did not toll the Post Conviction Relief Act's statute of limitations, and Garcia's untimely petition failed.

Read the Opinion.