J-S26040-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   Appellee             :
                                        :
        v.                              :
                                        :
MD ALL RABBY TOUKIR,                    :
                                        :
                   Appellant            :     No.   1432 EDA 2015

                    Appeal from a PCRA Order April 14, 2015,
             in the Court of Common Pleas of Montgomery County,
              Criminal Division, at No(s): CP-46-CR-0008379-2013

BEFORE: OLSON, STABILE, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED MAY 06, 2016

        Md All Rabby Toukir (Appellant) appeals from the order entered April

14, 2015, dismissing his petition filed pursuant to the Post Conviction Relief

Act (PCRA).1 We affirm.

        The pertinent factual and procedural history of this action has been

summarized by the PCRA court as follows.2

              [Appellant], a citizen of Bangladesh, came to the United
        States in 2007 and was granted a green card. A confidential


1
    42 Pa.C.S. §§ 9541-9546.
2
  The PCRA court began its recitation of the relevant facts and procedural
history by acknowledging that the “background is derived from allegations
contained in the affidavit of probable cause, which [Appellant] agreed in his
written guilty plea colloquy to have incorporated into the record, as well as
facts as found by [the PCRA court] at the PCRA hearing.” PCRA Court
Opinion, 7/10/2015, at n.1. The PCRA court noted that in doing so, it
credited the testimony of plea counsel and not the “interested testimony of
[Appellant] and his fiancé[e].” Id.


* Retired Senior Judge assigned to the Superior Court.
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     informant advised police in September 2013 that the then 20-
     year-old [Appellant] would be engaging in a drug deal at a
     convenience store in Towamencin Township, Montgomery
     County. Surveilling police subsequently observed [Appellant]
     engage in a hand-to-hand transaction with another man. The
     men were stopped by police and marijuana and currency were
     seized.   A consent search of [Appellant]’s vehicle revealed
     additional quantities of marijuana, drug paraphernalia and a
     bottle of liquor. [Appellant] was charged with possession of
     marijuana with intent to deliver, receipt in commerce,
     possession of drug paraphernalia[,] and possession of liquor by a
     person under 21.

           [Appellant] retained Edward Fabick, Esq., to represent
     him. Fabick advised [Appellant] on numerous occasions that the
     drug offenses carried a “high probability” of deportation. Fabick
     advised [Appellant] to consult with an immigration attorney.
     [Appellant]’s primary focus was not going to jail and it was
     Fabick who initiated any discussions about potential immigration
     consequences.

          Throughout his representation, Fabick advised that
     [Appellant]   might    avoid    prosecution, and    immigration
     consequences altogether, if he cooperated with law enforcement.
     [Appellant] did not want to pursue that strategy.         Fabick
     attempted to negotiate a plea agreement that would reduce the
     charges to a summary offense, such as disorderly conduct. The
     Commonwealth maintained its intention to pursue the felony
     possession with intent to deliver charge.

           Fabick    eventually   received    an   offer   from    the
     Commonwealth for [Appellant] to plead guilty to two counts of
     misdemeanor receipt in commerce in exchange for an aggregate
     sentence of six years of probation.         The Commonwealth
     indicated the offer would get no better. [Appellant], who did not
     want to go to trial and who wanted to avoid jail time, accepted
     the offer.

           [Appellant] pleaded guilty on July 2, 2014, to two counts
     of receipt in commerce and was sentence[d] to an aggregate
     term of six years of probation. In exchange, the Commonwealth
     did not pursue the possession with intent to deliver, drug
     paraphernalia and alcohol charges … [Appellant] did not file a
     direct appeal after his guilty plea.


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                On October 16, 2014, [Appellant], through new counsel,
         filed a PCRA petition. The petition alleged [Appellant] had been
         detained since August 7, 2014, by US Immigration and Customs
         Enforcement pending deportation. He claimed plea counsel had
         rendered ineffective assistance by allegedly misadvising him that
         his guilty plea would not subject him to immigration
         consequences. [Appellant] claimed that had he known of the
         immigration consequences of his plea, he would have attempted
         to negotiate a better deal or gone to trial.

                The Commonwealth filed a written response to the petition
         and [the PCRA court] held a hearing. The court denied the
         petition in an order dated April 14, 2015.

PCRA Court Opinion, 7/10/2015, at 1-4 (internal citations and footnotes

removed). This appeal followed. Both Appellant and the PCRA court have

complied with the directives of Pa.R.A.P. 1925.

         On appeal, Appellant presents for our consideration the following

issue:

         Whether the [PCRA Court] committed legal error in finding that
         plea counsel had provided effective assistance of counsel where
         plea counsel admitted under questioning that he had no
         knowledge of the requirements that Padilla v. Kentucky, 599
         U.S. 356 (2010)[,] imposes on counsel regarding the duty to
         inform a defendant of the immigration consequences of a
         [d]efendant’s guilty plea where deportation was a virtual
         certainty.

Appellant’s Brief at 4.

         In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).               This Court

grants great deference to the findings of the PCRA court if the record


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contains any support for those findings.       Commonwealth v. Boyd, 923

A.2d 513 (Pa. Super. 2007). If the record supports a post-conviction court’s

credibility   determination,   it   is    binding   on   the   appellate   court.

Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa. Super. 1999).                To

be entitled to relief under the PCRA, the petitioner must plead and prove by

a preponderance of the evidence that the conviction or sentence arose from

one or more of the errors enumerated in section 9543(a)(2) of the PCRA.

Such errors include the ineffectiveness of counsel.            See 42 Pa.C.S.

§ 9543(a)(2)(ii).3

      In reviewing the PCRA court’s denial of Appellant’s claims of ineffective

assistance of counsel, we bear in mind that counsel is presumed to be

effective.    Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).             To

overcome this presumption, Appellant bears the burden of proving the

following:

      Allegations of ineffectiveness in connection with the entry of a
      guilty plea will serve as a basis for relief only if the
      ineffectiveness caused the defendant to enter an involuntary or
      unknowing plea. Where the defendant enters his plea on the
      advice of counsel, the voluntariness of the plea depends on
      whether counsels’ advice was within the range of competence
      demanded of attorneys in criminal cases.
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citations and quotation marks omitted).




3
  Section 9543(a)(2)(ii) provides the following: “Ineffective assistance of
counsel which, in the circumstances of the particular case, so undermined


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        Keeping the above standards in mind, we now address Appellant’s

claim on appeal. Appellant contends that plea counsel, Attorney Fabick was

ineffective for failing to advise Appellant that deportation was “virtually

certain” due to the nature of the crime, to which he was pleading guilty.

Appellant’s Brief at 8.    Appellant further argues that plea counsel was

“virtually unfamiliar” with the details of the case law setting forth the duties

counsel has to his non-citizen client. Id. at 11. Appellant avers that, but for

plea counsel’s insufficient advice, he would have “chosen to negotiate

another plea bargain or go to trial if a plea that was immigration friendly

could not be reached.” Id. at 14.

        An attorney has the duty to inform his client of the immigration

consequences which may exist when pleading guilty.             See Padilla v.

Kentucky, 559 U.S. 356 (2010) (holding that the Sixth Amendment

requires that counsel inform a criminal defendant of the risk of deportation

occasioned by a plea). Specifically, Padilla held “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.” Id. at 374.




the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.” 42 Pa.C.S. § 9543 (a)(2)(ii).



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      Since Padilla, this Court has reviewed cases involving immigration

and deportation consequences while cognizant of the standard set forth by

the United States Supreme Court.         Specifically, in Commonwealth v.

Escobar, 70 A.3d 838 (Pa. Super. 2013),4 we stated:

      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 court’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.

Id. at 842 (citations omitted and emphasis added).5

      The PCRA court provided a detailed and reasoned analysis why it

denied Appellant’s post-conviction relief petition:

      Instantly, evidence credited by [the PCRA court] at the PCRA
      hearing demonstrated that plea counsel had been practicing as a

4
  Escobar involves the same statute that is at issue in the present case, and
is factually similar in that counsel in Escobar told his client that there was a
deportation risk in pleading guilty, but failed to tell his client that he would
be deported.
5
  This Court recognizes the factual differences between Padilla and the
instant case. In Padilla, counsel assured Padilla that his conviction would
not result in deportation. In this case, plea counsel testified, which the
PCRA court credited, that he told Appellant of the “high probability” of
deportation when pleading guilty. N.T.4/8/2015 at 10.


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     criminal defense attorney for approximately a decade when he
     began representing [Appellant] in this case. He has represented
     non-American citizens in criminal matters and at the time of
     [Appellant]’s guilty plea knew that counsel had a duty to inform
     clients of potential immigration consequences.       While PCRA
     counsel attempted to make much at the hearing of plea
     counsel’s inability to cite with precision certain passages from
     Padilla, [plea counsel] testified the he was aware of the case
     and the duty it imposes on counsel. He testified, in particular,
     that:

           “I know that you have to inform them that there are
           consequences, immigration consequences, when
           they are taking a plea of guilty to anything that could
           cause an immigration issue. And in the case at
           hand, I had spoke to them about- - spoke to them,
           meaning your client now and my client at the time
           and his girlfriend, regularly that there were
           immigration consequences in this case.”

     Fabick told [Appellant] that if he were convicted of the charged
     drug crimes, there was a “high probability” that he would be
     deported.     Fabick testified candidly that he could not tell
     [Appellant] with one-hundred percent certainty that he would be
     deported, but he knew and made [Appellant] aware that if he
     were convicted of any of the drug crimes he faced a high
     probability of deportation. Fabick reviewed immigration statutes
     with the [Appellant] and told him that the drug offenses he had
     been charged with could cause removal. [Appellant’s] main goal
     in his criminal case, however, was to avoid jail time. [The PCRA
     court] did not credit the after-the-fact testimony that [Appellant]
     was most concerned about deportation. The credited evidence
     from the PCRA hearing demonstrated that [Appellant] did not
     want to go to jail and pleaded guilty in return for a probationary
     sentence despite being informed by plea counsel that he faced a
     high likelihood of deportation.

           [The PCRA court] also rejected [Appellant’s] assertion that
     plea counsel had an obligation to creatively negotiate an
     immigration-friendly deal.      The record demonstrates that,
     despite plea counsel’s best efforts, the Commonwealth was
     unwilling to negotiate an offer better than [Appellant] received.
     As for [Appellant’s] claim that he would have gone to trial but for
     plea counsel’s alleged misadvice, [the PCRA court] credited plea


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     counsel’s testimony that the Commonwealth’s case against
     [Appellant] was strong, [Appellant] did not want to go to trial
     and [Appellant] primarily wanted to avoid a jail sentence.

PCRA Court Opinion, 7/10/2015, at 7-8 (citations removed).

     We find the PCRA court’s decision is aligned with our previous holdings

and this Court’s interpretation of Padilla.6   Furthermore, the PCRA court’s

factual findings are binding upon this Court, as they are supported by the

record and based     upon   the   PCRA    court’s credibility determinations.

Commonwealth v. Spotz, 47 A.3d 63, 75 (Pa. 2012) (“The PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court….”).

     Moreover, while Appellant’s PCRA petition states that plea counsel

failed to provide Appellant accurate information regarding deportation risks,

Appellant’s brief to this Court does not deny that plea counsel addressed

these concerns with Appellant.7 Additionally, during Appellant’s guilty plea

hearing, plea counsel asked Appellant if he understood “that these two


6
  Appellant contends that our holding in Escobar “virtually nullifies the
protections provided by the U.S. Supreme Court in Padilla.” Appellant’s
Brief at 20. Not only do we disagree, but in making such an argument,
Appellant is requesting us to disregard and overrule a previous decision
made by a panel on this Court. That we cannot do. See Commonwealth
v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (“It is beyond the power of a
Superior Court panel to overrule a prior decision of the Superior Court.”).
7
  See Appellant’s Brief at 12 (“While plea counsel may have successfully
communicated to [Appellant] that there was a risk, the record
demonstrates that plea counsel fell short of advising [Appellant] that he
would almost certainly be deported if he pled guilty to receipt of
commerce.”) (emphasis added).


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offenses [he is] pleading [guilty to] could have some effects on [his] ability

to gain citizenship and [his] ability to retain that green card.” N.T., 7/2/2014

at 9.    Appellant responded “yes.”        Id.    This testimony, which Appellant

denied having occurred when questioned at his PCRA hearing, directly

contradicts Appellant’s testimony and averments within his PCRA petition

that plea counsel “stated there was no risk of deportation as [Appellant] was

a legal permanent resident of the United States.”                   PCRA Petition,

10/16/2014, at 8.

        Accordingly,   we   find   that   the    PCRA   court   properly   dismissed

Appellant’s petition, and as such, we affirm.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/6/2016




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