Opinion
J. S69026/16 No. 446 MDA 2016
01-25-2017
COMMONWEALTH OF PENNSYLVANIA v. KEVIN FORDE, APPELLANT
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 17, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000057-2010 BEFORE: STABILE, J., DUBOW, J., and PLATT, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge Assigned to the Superior Court.
Appellant Kevin Forde appeals from the Order dismissing his first Petition filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. He challenges the effectiveness of plea counsel for failing to inform him of the certainty of his deportation. We affirm.
Appellant was born in Guyana, South America, and has lived in the United States as a legal resident for most of his life. In December 2009, the Commonwealth charged Appellant with Simple Assault, Aggravated Assault, and Attempted Murder. The Commonwealth also filed a parole detainer. In addition, Appellant had a detainer from U.S. Immigration and Customs Enforcement ("ICE") as a result of a 2004 Simple Assault charge. Brian Platt, Esq., from the Dauphin County Public Defender's office, represented Appellant.
The simple assault charge arose from Appellant's entering the home of the mother of one of his children on December 5, 2009, and punching her several times as she slept. Two days later, the Aggravated Assault and Attempted Murder charges occurred as a result of Appellant's getting into a fist fight with another man, drawing a knife with a four-inch blade, and stabbing the man seven times, including four times in his back.
On October 25, 2010, Appellant pled guilty to one count each of Simple Assault and Aggravated Assault in exchange for the Commonwealth dropping the Attempted Murder charge, withdrawing the parole detainer, and recommending an aggregate sentence of five to ten years' incarceration. Prior to entering the negotiated plea, Appellant participated in a full colloquy, acknowledging that as a "potential collateral consequence" of pleading guilty, "there may be consequences including the potential for removal from the United States as a result of a conviction for a felony." N.T. Guilty Plea, 10/25/10, at 6-7. The court accepted Appellant's guilty plea as knowing and voluntary, and sentenced him in accordance with the plea agreement. Appellant did not appeal or challenge the validity of his plea.
On March 3, 2015, Appellant filed a pro se PCRA Petition, alleging ineffective assistance of plea counsel because he learned for the first time at a status hearing before an immigration judge on January 21, 2015, that he was subject to automatic deportation upon his release from incarceration. He averred that because of counsel's omission, his plea was not knowingly entered. The PCRA court appointed counsel, and Appellant filed a supplemental Petition asserting that his Petition falls within the PCRA's timeliness exception provided in Section 9545(b)(1)(ii).
The PCRA Court held an evidentiary hearing at which Appellant testified that he and Attorney Platt discussed "the immigration issue" prior to his entering the guilty plea, but "we didn't discuss that I was facing mandatory deportation." N.T. PCRA Hearing, 9/3/15, at 18. Attorney Platt testified that as soon as he learned that Appellant had an ICE detainer, he informed Appellant that there was "a real possibility that you could be deported." Id. at 25. He admitted that he had not explained to Appellant that he was subject to automatic or mandatory deportation, but stated that he never told Appellant that deportation "couldn't happen, [or] that it was an impossibility[.]" Id.
On February 17, 2016, the PCRA Court denied the Petition. Appellant timely appealed.
Appellant raises the following issue for our review:
Did the PCRA court err or abuse its discretion when it denied Appellant's petition for relief even though the court found that Appellant's plea counsel had failed to advise Appellant of the collateral consequence of his guilty plea to the offense of aggravated assault, that being presumptively mandatory deportation?Appellant's Brief at 4.
When reviewing the denial of PCRA Petition, "we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014) (internal quotation marks and citation omitted). "The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level." Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Credibility determinations made by the PCRA court are binding on this Court where there is support in the record for the determination. Commonwealth v. Timchak , 69 A.3d 765, 769 (Pa. Super. 2013).
Before addressing the merits of Appellant's claims, we must first determine whether we have jurisdiction to entertain the underlying PCRA Petition. Under the PCRA, any Petition "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or the expiration of time for seeking the review." 42 Pa.C.S. § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht , 994 A.2d 1091, 1093 (Pa. 2010).
Pennsylvania courts may consider an untimely PCRA petition, however, if the petitioner pleads and proves one of three exceptions set forth in 42 Pa.C.S. § 9545(b)(1). Section 9454(b)(1)(ii), the section invoked by Appellant, provides that a petition for post-conviction relief may be reviewed if "the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence[.]" 42 Pa.C.S. § 9545(b)(1)(ii). A petitioner asserting a timeliness exception must raise the claim within 60 days of learning of the new facts. See , e.g., Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the claim had been timely raised within 60-day timeframe).
In the instant case, Appellant learned at a hearing before an immigration judge on January 21, 2015, that because of his 2010 aggravated assault conviction, his deportation would be automatic upon his upcoming release from prison. He filed his pro se PCRA petition within sixty days of learning of that consequence. See 42 Pa.C.S. § 9545(b)(1)(ii).
See 8 U.S.C. §§ 1101(a)(43)(F); 1227(A)(2); 1228(A)(3)(a) (providing for deportation of an alien convicted of an aggravated felony, an offense carrying a presumption of deportability on an expedited basis).
Although Appellant raised the claim within 60 days of his hearing before the immigration judge, it is arguable that Appellant could have learned of the mandatory nature of his deportation consequence "by the exercise of due diligence" so that his claim does not satisfy the requirements of Section 9545(b)(1)(ii). Appellant had some familiarity with the deportation possibility, not only because he was informed that there was a possibility of deportation in 2010, but also because he had an ICE detainer in connection with a 2004 crime. It is, thus, debatable that, even as an incarcerated individual, Appellant could have "ascertained with the exercise of due diligence" the fact that he would be subject to mandatory deportation.
Notwithstanding that observation, we consider whether Appellant's ineffectiveness claim has merit. In analyzing claims of ineffective assistance of counsel, we presume that counsel was effective unless the PCRA petitioner proves otherwise. Commonwealth v. Williams , 732 A.2d 1167, 1177 (Pa. 1999). In order to succeed on a claim of ineffective assistance of counsel, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused the appellant prejudice. Commonwealth v. Fulton , 830 A.2d 567, 572 (Pa. 2003). Appellant bears the burden of proving each of these elements, and his "failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels , 963 A.2d 409, 419 (Pa. 2009) (citation omitted).
Here, Appellant avers that pursuant to Padilla v. Kentucky , 559 U.S. 356 (2010), his plea counsel gave "insufficient advice to Appellant regarding the collateral consequence of a conviction for aggravated assault[.]" Appellant's Brief at 8. He avers that because the federal Immigration Code clearly lists an "aggravated felony" as a presumptively deportable offense, counsel should have advised Appellant that "his deportability was a virtual certainty," not that is was a "possibility." Id. at 8-9.
In Padilla , decided by the U.S. Supreme Court in March 2010, plea counsel failed to advise Padilla of the deportation consequence of pleading guilty, and advised him that he did not need to worry about his immigration status because he had been living legally in the United States for forty years. The U.S. Supreme Court reversed the denial of post-conviction relief, holding that in order "to ensure that no criminal defendant whether a citizen or not is left to the mercies of incompetent counsel[,] . . . counsel must inform her client whether his plea carries a risk of deportation." Padilla , supra at 374 (quotation marks and internal citation omitted). The Court recognized that immigration law can be complex and is a legal specialty of its own, so that a "criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear." Id. at 369. The Court then remanded the case for a determination of whether Padilla had been prejudiced by counsel's failure to inform his client of the risk of deportation.
Pennsylvania subsequently interpreted and applied the Padilla holding in a number of cases. Most relevant to this appeal, in Commonwealth v. Escobar , 70 A.3d 838 (Pa. Super. 2013), a case involving drug offenses that render an alien offender presumptively deportable, this Court interpreted the Padilla language, 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. . . .Id. at 842 (internal citations omitted). See also Commonwealth v. Wah , 42 A.3d 335 (Pa. Super. 2012) (rejecting ineffectiveness claim where counsel informed the defendant that there could be deportation consequences as a result of his plea and suggested that he consult with immigration counsel); Commonwealth v. McDermitt , 66 A.3d 810, 814 (Pa. Super. 2013) (holding that Padilla requires counsel to inform a non-citizen defendant of the risk of deportation, not that deportation is a certainty).
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 court opined, "We now hold that counsel must inform the client whether the plea carries a risk of deportation."
In the instant case, the record is clear that Appellant was informed that his plea carried a risk of deportation. His plea colloquy outlining the terms of his negotiated plea agreement demonstrated this fact:
Commonwealth: Now there are potential collateral to a guilty plea. It is my understanding that you are a foreign national.N.T. Guilty Plea at 6-7.
Defendant: Yes.
Commonwealth: And do you understand that there may be consequences including the potential for removal from the United States as a result of a conviction for a felony:
Defendant: Yes.
Commonwealth: Now knowing that, you still wish to enter the pleas of guilty, right?
Defendant: Yes.
Appellant's counsel then provided some background information on Appellant since he had waived the presentence investigation, stating, inter alia, "[w]e have discussed the immigration issue and he is aware of the consequences that he is facing regarding that issue." Id. at 9.
At the PCRA hearing, Appellant acknowledged that he knew that there was a chance he would be deported, and provided some inconsistent statements about his conversations with plea counsel on the topic. He testified that plea counsel had told him that it was not likely he would be deported because he had been in the country so long and was, at that time, married and had children. See N.T. PCRA Hearing, 9/3/15, at 6. Plea counsel testified that he had informed Appellant, upon discovering the ICE detainer, that "there is a possibility that you could be deported if you are convicted of any or all of these offenses or if you plead guilty. . . .I didn't advise him that it was any type of automatic or mandatory deportation so that is true." Id., at 24-25. Counsel denied ever telling Appellant that deportation "couldn't happen" or "that it was an impossibility." Id. at 25. He also testified that he was aware of Padilla when it was decided in March 2010, and he would advise "in every case" where he had a client with an immigration detainer "that there is a possibility of deportation." Id. at 25-27.
The PCRA court determined that counsel's testimony was more credible than Appellant's, and that Appellant knew and understood when he pled guilty that deportation was a possible consequence of his conviction. See PCRA Court Opinion, dated 2/1716, at 6. After providing a comprehensive analysis of applicable statutory and case law, the PCRA court ultimately concluded that Appellant had not proven that plea counsel had provided ineffective assistance. The court opined:
Because I believe the deportation consequence in this case was truly clear, and the immigration law succinct and straightforward, counsel's duty was to provide [Appellant] correct advice, which this court would interpret to require he advise [Appellant] that at the least, his deportation upon conviction was a near certainty or that he would be conclusively presumed deportable. I would thus have held that counsel's advising of the mere possibility of deportation to have been ineffective.
* * *
This court is bound, however, by the Superior Court holdings[.] As such, I am constrained to hold that because counsel's advice was not deficient under Wah , McDermitt , and Escobar , [supra,] [Appellant] has not established counsel was ineffective and[,] as such, his plea was voluntary, knowing and intelligent.PCRA Ct. Op., at 19-20 (heading omitted).
We agree with the PCRA Court's legal analysis and adopt it as our own. See id. at 5 - 20. In addition, our review of the record supports the PCRA court's determination and we conclude its Opinion is free of legal error. Accordingly, we affirm the denial of PCRA relief.
We note further that Appellant does not allege that he is innocent of the crimes to which he pled guilty or that, but for counsel's omission, he would have taken his chances at trial on all three charges, including the attempted murder charge. He has, thus, not satisfied the prejudice prong of the ineffectiveness test. See Fulton , supra. --------
The parties are directed to annex a copy of the PCRA court's February 17, 2016 Opinion to all future filings.
Order affirmed.
Judge Stabile joins the memorandum.
Judge Platt concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/25/2017
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