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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
HERNAND ALBERTO, : No. 1159 MDA 2017
:
Appellant :
Appeal from the PCRA Order, June 27, 2017,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0006074-2013
BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 21, 2018
Hernand Alberto appeals from the June 27, 2017 order entered in the
Court of Common Pleas of Lancaster County that dismissed his petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
(“PCRA”). We affirm.
The PCRA court set forth the following:
[Appellant] was charged with allegedly having
committed the offense of Possession with Intent to
Deliver a Controlled Substance [(heroin)], pursuant
to 35 [P.S.] § 780-113(a)(30) [(“PWID”)].
[Appellant] entered a guilty plea to said offense on
April 14, 2016. At such time, [appellant] was
represented by Cory J. Miller, Esquire. [Appellant]
was sentenced on April 14, 2016, pursuant to a
negotiated plea agreement, to serve a period of
incarceration of not less than six nor more than
twenty-three months, to be followed by two years of
probation on a split sentence basis. No direct appeal
was filed by [appellant].
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[Appellant] filed a timely [m]otion for [PCRA] [r]elief
on November 4, 2016. The Commonwealth filed an
[a]nswer thereto on December 15, 2016.
Accordingly, by Order dated December 15, 2016, the
court scheduled an evidentiary hearing to be held on
February 9, 2017. Subsequently, by Order dated
December 16, 2016, the court rescheduled said
hearing for March 17, 2017. Said evidentiary
hearing was held before the court and legal
memorandums were submitted by the parties.
PCRA court opinion and order, 6/27/17 at 1.
The record reflects that on June 27, 2017, the PCRA court entered an
order denying appellant PCRA relief. Appellant filed a timely notice of appeal
to this court. The PCRA court then ordered appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely complied. In response, and in order to comply with
Pa.R.A.P. 1925(a), the PCRA court entered an order on August 9, 2017,
wherein it attached its June 27, 2017 opinion that sets forth its reasons for
denying appellant PCRA relief.
Appellant raises the following issue for our review:
Under Padilla v. Kentucky, [559 U.S. 356 (2010),]
an attorney is constitutionally ineffective when he
fails to provide his noncitizen client with accurate
advice about the clear immigration consequences of
a guilty plea. In Pennsylvania, a PWID conviction
results in mandatory deportation for a noncitizen.
Did the PCRA court err in refusing to grant
[appellant] relief where his attorney failed to inform
him that a guilty plea to PWID heroin would expose
him to automatic deportation?
Appellant’s brief at 4.
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In PCRA appeals, our scope of review “is limited to the findings of the
PCRA court and the evidence on the record of the PCRA court’s hearing,
viewed in the light most favorable to the prevailing party.”
Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation
omitted). Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. Commonwealth v. Pitts, 981 A.2d
875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and
credibility determinations supported by the record. Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In contrast, we
review the PCRA court’s legal conclusions de novo. Id.
Appellant’s issue asserts ineffective assistance of guilty plea counsel.
In evaluating claims of ineffective assistance of
counsel, we presume that counsel is effective.
Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
435, 441 (Pa. 1999). To overcome this
presumption, Appellant must establish three factors.
First, that the underlying claim has arguable merit.
See Commonwealth v. Travaglia, 541 Pa. 108,
661 A.2d 352, 356 (Pa. 1995). Second, that counsel
had no reasonable basis for his action or inaction.
Id. In determining whether counsel’s action was
reasonable, we do not question whether there were
other more logical courses of action which counsel
could have pursued; rather, we must examine
whether counsel’s decisions had any reasonable
basis. See Rollins, 738 A.2d at 441;
Commonwealth v. (Charles) Pierce, 515 Pa. 153,
527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
must establish that he has been prejudiced by
counsel’s ineffectiveness; in order to meet this
burden, he must show that ‘but for the act or
omission in question, the outcome of the proceedings
would have been different.’” See Rollins, 738 A.2d
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at 441 (quoting Travaglia, 661 A.2d at 357). A
claim of ineffectiveness may be denied by a showing
that the petitioner’s evidence fails to meet any of
these prongs. Commonwealth v. (Michael)
Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
2001); Commonwealth v. Basemore, 560 Pa. 258,
744 A.2d 717, 738 n.23 (Pa. 2000);
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
693, 701 (Pa. 1998) (“If it is clear that Appellant has
not demonstrated that counsel’s act or omission
adversely affected the outcome of the proceedings,
the claim may be dismissed on that basis alone and
the court need not first determine whether the first
and second prongs have been met.”).
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).
Allegations of ineffective assistance of counsel in connection with a
guilty plea do not warrant relief unless counsel’s ineffectiveness caused an
involuntary, unknowing, or unintelligent plea. Commonwealth v. Escobar,
70 A.3d 838, 841 (Pa.Super. 2013), appeal denied, 86 A.3d 232 (Pa.
2014) (citation omitted). Where the defendant enters a plea on counsel’s
advice, its voluntary and knowing nature turns on whether counsel’s advice
fell within the range of competence demanded of attorneys in criminal cases.
Id. We will not disturb a PCRA court’s order unless it is unsupported by the
record or contains legal error. Id. “[C]ounsel must inform a noncitizen
defendant as to whether a plea carries a risk of deportation.” Id. citing
Padilla, 559 U.S. at 373.
Since Padilla, this court has reviewed cases involving immigration and
deportation consequences in light of the standard set forth by the United
States Supreme Court. Specifically, in Escobar, a case involving drug
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offenses that render an alien offender presumptively deportable, we
interpreted Padilla, as follows:
We do acknowledge that parts of the Padilla opinion
contain language arguably supporting the notion that
plea counsel in some cases may have a duty to
provide a rather certain indication of deportation.
For example, at one point, the Padilla court agreed
competent counsel would have told Padilla he was
“subject to automatic deportation.” At another
point, the court indicated the instant deportation
statute “commands” deportation for virtually all drug
convictions. The opinion likewise observes that
deportation for certain convictions is “practically
inevitable.”
Even still, we think the [C]ourt’s overall emphasis
was that the deportation statute in question makes
most drug convicts subject to deportation in the
sense that they certainly become deportable, not in
the sense that plea counsel should know and state
with certainty that the federal government will, in
fact, initiate deportation proceedings.
Ultimately, when announcing its holding, the Padilla
[C]ourt opined, “[W]e now hold that counsel must
inform [the] client whether [the] plea carries a risk
of deportation.” Id. at 1486. Here, counsel did
advise Escobar his plea carried a risk of deportation.
In fact, counsel told Escobar deportation proceedings
were likely. Present counsel’s advice was within the
range of competence demanded of attorneys in
criminal cases.
Escobar, 70 A.3d at 842 (internal citations omitted).
Here, the record demonstrates that appellant was informed that his
guilty plea carried the risk of deportation. In his 75-question written guilty
plea colloquy, appellant acknowledged, among other things, that he was not
a United States citizen and that he understood that there may be
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immigration consequences as a result of his guilty plea. (Guilty plea
colloquy and post-sentence rights, 4/14/16 at 1.)1 The colloquy further
demonstrates that (1) it was appellant’s decision to plead guilty;
(2) appellant read all of the written guilty plea colloquy and understood it;
(3) appellant had sufficient time to review the colloquy with his attorney;
(4) appellant understood all of the information in the colloquy; and
(5) appellant was aware of the consequences of his guilty plea. (Id. at
4, 6.)
Additionally, the oral guilty plea colloquy reveals that the following
took place:
THE COURT: [] In reviewing the colloquy, sir, I see
here that you are not a United States citizen.
[APPELLANT]: Yeah.
THE COURT: You are a citizen of?
[APPELLANT]: Dominican Republic.
THE COURT: Do you understand, as a result of your
plea, there may be immigration consequences which
could include possibly your deportation?
[APPELLANT]: I understand that.
THE COURT: And understanding that, do you still
wish to present your guilty plea here today?
[APPELLANT]: Yeah.
1 At the March 17, 2017 PCRA evidentiary hearing, the PCRA court admitted
appellant’s April 14, 2016 written guilty plea colloquy and post-sentence
rights form into evidence as Commonwealth’s exhibit 1. (Notes of
testimony, 4/14/16 at 58.)
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....
MR. MILLER: Briefly, Your Honor.
First of all, as far as his immigration status,
I’ve known [appellant] since the beginning of his
preliminary hearing. We discussed this issue. I’ve
encouraged him to reach out to an immigration
attorney if he had some concerns. I don’t believe
he’s done that.
Obviously, I think there are immigration
consequences from something like this. I think the
way the colloquy is written is in a best-case scenario,
and I am concerned about [appellant’s] situation.
But as he pointed out, it is what it is.
THE COURT: Is that correct, sir? You understand
that to be the situation?
[APPELLANT]: Yeah, I understand that, sir.
Notes of testimony, 4/14/16 at 7-9.2
With respect to the PCRA evidentiary hearing, the PCRA court
summarized guilty plea counsel’s testimony as follows:
[Appellant’s] claims are further refuted by the
testimony of [appellant’s guilty plea counsel], Cory J.
Miller, Esquire, presented at the evidentiary hearing
held on March 17, 2017, which the court finds as
being wholly credible in nature. Attorney Miller
testified that he discussed the possible immigration
consequences of [appellant’s] guilty plea with
[appellant] and explained to [appellant] that he was
charged with a felony that “would and could” lead to
immigration consequences. Although Attorney Miller
did not specifically recall whether he actually referred
2At the March 17, 2017 PCRA evidentiary hearing, the PCRA court admitted
appellant’s April 14, 2016 oral guilty plea colloquy into evidence as
appellant’s exhibit 1. (Notes of testimony, 4/14/16 at 58.)
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[appellant] to an immigration attorney,
Attorney Miller testified that he generally would have
referred [appellant] to a local immigration attorney,
such as Troy Mattes, Esquire[,] to discuss the
ramifications of a conviction on [appellant’s]
immigration status. Attorney Miller further testified
that while he did not recall if he specifically told
[appellant] that the felony conviction that he was
pleading to was going to result in certain
deportation, he would have discussed the
immigration consequences of a guilty plea to this
particular offense with [appellant].
Trial court opinion, 6/27/17 at 9 (citations to notes of testimony omitted).
Based on the record before us and viewed in the light most favorable
to the Commonwealth, we find that the record supports the PCRA court’s
determination that appellant entered his guilty plea voluntarily, knowingly,
and intelligently and that guilty plea counsel informed appellant, a
noncitizen, that his guilty plea carried a risk of deportation. Accordingly,
guilty plea counsel’s advice was within the range of competence demanded
of attorneys in criminal cases. Consequently, appellant’s ineffectiveness
claim necessarily fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2018
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Com. v. Alberto, H.
Combined Opinion