J-S49008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

JARDIAN CAOH,

                           Appellant                 No. 2505 EDA 2013


                 Appeal from the PCRA Order of August 28, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005412-2011


BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 23, 2014

      Appellant, Jardian Caoh, appeals from the order entered on August 28,

2013, denying relief on his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

      The facts of this case, as aptly summarized by the PCRA court, are as

follows:
               At approximately 7:30 p.m. on February 24, 2011,
           police conducted an undercover surveillance of the 2000
           block of West Seybert Street in Philadelphia. Over the
           course of one hour, police saw [Appellant] engaged in six
           drug sales.      In each case, the buyer approached
           [Appellant], engaged him in brief conversation and handed
           him U.S. currency. [Appellant] then went to a vacant lot on
           the north side of Seybert Street, bent down, picked up a
           clear plastic bag from a nearby tree, removed small items
           from it and handed the items to the buyer. Police stopped
           each individual that engaged in a transaction with
           [Appellant] and recovered various packets of crack cocaine.
           [Appellant] was arrested with $158[.00] on his person.

PCRA Court Opinion, 12/26/2013, at 2 (record citations omitted).
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        Procedurally, the case progressed as follows:

              On December 9, 2011, before the Honorable Carolyn
          Engel Temin, the now retired judge of the Court of Common
          Pleas, [Appellant] entered into a negotiated plea to the
          charges of possession with intent to deliver [a controlled
          substance] (PWID)1 and conspiracy.2 Accordingly, Judge
          Temin sentenced [Appellant] to three (3) to twenty-three
          (23) months of incarceration with immediate parole,


          [Appellant] filed an amended petition. On January 23,
          2013, the Honorable Denis P. Cohen, Judge of the Court of
          Common Pleas, granted an evidentiary hearing, which was
          held on July 23, 2013. On August 28, 2013, [the PCRA

          September 10, 2013, [Appellant] filed a notice of appeal.
          On September 11, 2013, [the PCRA] court issued [an order
          pursuant to Pa.R.A.P. 1925(b)]. On September 27, 2013,
          [Appellant] filed a statement of [errors complained of on
          appeal pursuant to Pa.R.A.P. 1925(b)]. [The PCRA court
          issued an opinion pursuant to Pa.R.A.P. 1925(a) on
          December 26, 2013].

Id. at 1-2 (superfluous capitalization omitted).

        On appeal, Appellant presents one issue for our review:


          I.
                intelligent[,] and voluntary when he was not informed
                due to ineffective advice of trial defense counsel, nor
                did he know, at the time that he tendered the guilty
                plea, that his deportation, because he was not a U.S.
                citizen, was mandatory because of the offenses to
                which he was pleading guilty?

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S.A. § 903(a)(1).



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           Appellant argues:

             Because he is not a U.S. citizen[,] the convictions, which
             involve drug distribution offenses, resulting from his guilty
             pleas require his deportation from the United States. When
             [Appellant] pleaded guilty to these offenses he was not
             notified by either the trial court[3] or defense counsel that


____________________________________________


3



PCRA and subject to 42 Pa.C.S.A. § 9543.             Eligibility for relief requires
                          resulted from:

    (i)         A violation of the Constitution of this Commonwealth or the
                Constitution or laws of the United States which, in the
                circumstances of the particular case, so undermined the truth-
                determining process that no reliable adjudication of guilt or
                innocence could have taken place.

    (ii)        Ineffective assistance of counsel which, in the circumstances of
                the particular case, so undermined the truth-determining
                process that no reliable adjudication of guilt or innocence could
                have taken place.


    (iii)       A plea of guilty unlawfully induced where the circumstances
                make it likely that the inducement caused the petitioner to plead
                guilty and the petitioner is innocent.


    (iv)        The improper obstruction by government officials of the
                petitioner's right of appeal where a meritorious appealable issue
                existed and was properly preserved in the trial court.


    (v)         Deleted.


(Footnote Continued Next Page)


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            because of his guilty pleas his deportation from the United
            States of America was mandatory. If he had known this, he
            would have not pleaded guilty.

                                                  Padilla v. Kentucky, 130 S. Ct.

1473 (2010) for this proposition. Id. at 8.

      This Court recently addressed a similar claim in Commonwealth v.

McDermitt, 66 A.3d 810 (Pa. Super. 2013). We begin with our well-settled

standard of review:

                   Our standard of review for an order denying post-
            conviction relief is whether the record supports the PCRA
            court's determination, and whether the PCRA court's
            determination is free of legal error. The PCRA court's
            findings will not be disturbed unless there is no support for
            the findings in the certified record.


            showing in order to succeed with [] a claim [that trial
            counsel was ineffective]: (1) that the underlying claim is of
            arguable merit; (2) that counsel had no reasonable strategic
            basis for his or her action or inaction; and (3) that, but for
                       _______________________
(Footnote Continued)

   (vi)        The unavailability at the time of trial of exculpatory evidence
               that has subsequently become available and would have
               changed the outcome of the trial if it had been introduced.


   (vii)       The imposition of a sentence greater than the lawful maximum.


   (viii)      A proceeding in a tribunal without jurisdiction.

42 Pa.C.S.A. § 9543(a)(2). Here, Appellant argues that trial counsel was
ineffective for failing to inform him of mandatory deportation. Such a claim
is cognizable under the PCRA. However, an allegation that the trial court
similarly erred is not. Appellant has not asserted his innocence to invoke 42
Pa.C.S.A. § 9343(a)(2)(iii). Hence, we confine our appellate review to
           s claim that trial counsel was ineffective.



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        the errors and omissions of counsel, there is a reasonable
        probability that the outcome of the proceedings would have
        been different. The failure to satisfy any prong of this test
        will cause the entire claim to fail. Finally, counsel is
        presumed to be effective, and appellant has the burden of
        proving otherwise.

Commonwealth v. McDermitt, 66 A.3d 810, 813 (Pa. Super. 2013)

(internal citations omitted).

      In McDermitt

because counsel ineffectively gave him inadequate advice as to his

deportation risk, informing [McDermitt] that his conviction rendered him

                       Id.                                         sel needed

to inform him not just that his conviction carried a risk of deportation, but

                                       Id. Thus, McDermitt, like Appellant

herein, argued that Padilla required disclosure that deportation was certain.

We rejected such assertion, relying on the plain language of Padilla:

        It is our responsibility under the Constitution to ensure that
        no criminal defendant whether a citizen or not is left to
        the mercies of incompetent counsel.           To satisfy this
        responsibility, we now hold that counsel must inform her
        client whether his plea carries a risk of deportation.
        Our longstanding Sixth Amendment precedents, the
        seriousness of deportation as a consequence of a criminal
        plea, and the concomitant impact of deportation on families
        living lawfully in this country demand no less.

McDermitt, 66 A.3d at 814 citing Padilla, 130 S. Ct. at 1486 (internal

                                                                         Padilla

requires counsel to inform a defendant as to a risk of deportation, not as to

its certainty    McDermitt, 66 A.3d at 814 (emphasis added).



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       In this case, the PCRA court held an evidentiary hearing wherein

Appellant and trial counsel testified. Appellant testified that trial counsel told




The Commonwealth entered into the record a written plea colloquy signed by

Appellant prior to guilty plea. Id. at 13. The relevant portion of the written

plea colloquy stated:


         RISK OF DEPORTATION (If an Alien)

         I know that if I am not a United States citizen, it is possible
         I may be deported if I plead guilty to the crime(s) charged
         against me.

Id. at 13, Exhibit C at 3. Appellant claimed that he did not read it and it

was not explained to him by trial counsel. Id. at 14-17. He further testified

that when the trial court subsequently conducted an oral colloquy, he lied

when he said he read the written colloquy and that trial counsel had

explained it to him.4 Id. at 17-18.



____________________________________________


4

defendant may not challenge his guilty plea by asserting that he lied while
under oath, even if he avers that counsel induced the l   Commonwealth
v. Pollard
person who elects to plead guilty is bound by the statements he makes in
open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
           Id.



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      Trial counsel testified that he read the written plea colloquy to

Appellant prior to entering the guilty plea. Id. at 22. Trial counsel read the

portion of the written plea colloquy pertaining to deportation to Appellant



colloquy was explained.       Id. at 23.   Trial counsel denied telling Appellant

that he would not be deported because he had a Green Card. Id. at 30.

      The PCRA court found trial counsel credible.         PCRA Court Opinion,



[Appellant] about the possible risk of deportation even without knowing

[Appellant] was an alien, and did not misrepresent to [Appellant] any

                                                              Id.   It concluded

that trial counsel provided effective representation. Id. at 8.

      Based upon our standard of review, we agree with the PCRA court.

The re

not disturb those findings.    Padilla requires counsel to inform his client of a

risk of deportation before pleading guilty. McDermitt, 66 A.3d at 814;

Padilla, 130 S. Ct. at 1486.        Trial counsel was not required to explain

deportation in certain terms.       McDermitt, 66 A.3d at 814.        Here, trial

counsel read Appellant the written plea colloquy including a disclaimer that

the risk of deportation was a possible consequence of pleading guilty.

Appellant signed the written colloquy and then confirmed with the trial court

that he understood the contents of the written colloquy, trial counsel had




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representation.     See N.T., 12/09/2011, at 6-8, 30.   Based on all of the



of counsel claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




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