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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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