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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
GEORGE JOSHUA HALLEY,                     :       No. 1167 MDA 2015
                                          :
                         Appellant        :


                 Appeal from the Order Entered June 22, 2015,
               in the Court of Common Pleas of Schuylkill County
                Criminal Division at No. CP-54-CR-0001095-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 05, 2016

        George Joshua Halley appeals from the June 22, 2015 order that

dismissed his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”),    42   Pa.C.S.A.   §§ 9541-9546,   following    his   convictions   for

possession with     intent to   deliver   (“PWID”) and possession of drug

paraphernalia.1

        On April 28, 2012, appellant was originally charged by the Pottsville

Bureau of Police with one count each of PWID (cocaine), possession of a

controlled substance (cocaine), and possession of drug paraphernalia.




* Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30) and 35 P.S. § 780-113(a)(32), respectively.
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        On August 16, 2013, appellant submitted a general plea to the

charges. He later moved to withdraw the plea which the Court of Common

Pleas of Schuylkill County granted on December 12, 2013. On January 30,

2014, appellant entered another general plea.            When appellant appeared

before the trial court, the trial court asked him the following question: “So

you understand that it’s possible, and perhaps in some cases likely, that you

would risk deportation as a result of your conviction.           Do you understand

that?”     (Notes of testimony, 1/30/14 at 4.)       Appellant replied, “Yes, sir.”

(Id. at 5.) The trial court accepted the guilty plea. (Id. at 8.) On April 1,

2014, appellant was sentenced to an aggregate term of 9 to 23½ months on

the    possession   with   intent   to   deliver   and   the   possession    of   drug

paraphernalia.2

        On March 19, 2015, appellant moved for relief pursuant to the PCRA.3

Appellant alleged that he was eligible for relief in the form of a new trial

primarily due to ineffective assistance of counsel.            Specifically, appellant

alleged:

                    My Public Defender Ms. Andrea Thompson
              knew I was not a U.S. citizen and only a lawful
              permanent resident – Ms. Thompson advised me that
              she had asked someone and my plea of guilty to
              possession with intent to distribute crack cocaine
              would not lead to my deportation because I have a
              U.S. citizen child. This is the reason I pled guilty.


2
    The possession of a controlled substance merged with the PWID.
3
    No direct appeal was filed.


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              ....
              My conviction for Possession with Intent to Distribute
              . . . rendered me removable from the United States
              with no form of relief available. I am not a US
              Citizen and am only a lawful permanent resident. I
              was informed of this while in immigration custody by
              my immigration attorney.

              ....
              Ms. Thompson provided ineffective assistance of
              counsel by not properly advising me on the
              immigration consequences of my plea violating my
              6th Amendment right to effective assistance of
              counsel.

Motion for post conviction collateral relief, 3/19/15 at 3 (citation omitted). 4

        The PCRA court conducted a hearing on June 22, 2015.            Appellant

testified that he became aware of the risk of deportation when he read the

plea colloquy.     He explained that he had lived in the United States for

approximately 20 years with permanent resident status.                 (Notes of

testimony, 6/22/15 at 5.) He testified that when he first asked his attorney,

Andrea Thompson (“Attorney Thompson”), about whether a conviction would

lead to deportation, she responded that “she wasn’t aware and she was

going to find out from somebody.”           (Id. at 6.)       As a result of this

uncertainty, appellant withdrew his initial plea.     (Id.)    Appellant reported

that Attorney Thompson subsequently told him that:

              she spoke to somebody and the person told her as
              long as I have a US citizen daughter, I would not be
              deported. I would be detained in ICE [United States
              Immigration and Customs Enforcement] in York


4
    Jeffrey M. Markosky, Esquire was appointed counsel for appellant.


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              County and then they would release me because I
              have a US citizen daughter.

Id. at 7. According to appellant, Attorney Thompson did not tell appellant

with whom she consulted. Appellant reported that he was satisfied with this

advice. (Id.) Appellant then entered his guilty plea. He became aware that

he would be deported when the United States Immigration and Customs

Enforcement detained him and he learned that he was subject to mandatory

deportation based on his conviction. (Id. at 8.) Appellant explained that if

he had known that his conviction would lead to mandatory deportation, he

would not have submitted a guilty plea and would have taken his “chances

at trial.”   (Id. at 9.)   When the PCRA court questioned him as to why he

submitted the plea when the trial court asked him if he understood that

deportation was a possibility and he answered that he did, appellant stated,

“Miss Andrea Thompson assured me that it was just a standard warning and

that because I have a US citizen daughter I believe that I wouldn’t have

been deported.” (Id. at 9-10.) On cross-examination, appellant admitted

that   through    Attorney    Thompson   he      tried   to   negotiate   with   the

Commonwealth to drop the felony charge so that he would not be deported

and that he withdrew the initial plea because he feared deportation. (Id. at

10-11.)      He reiterated that Attorney Thompson told him that he would

“absolutely” not be deported. (Id. at 11.)

       Matthew     Archambeault     (“Attorney     Archambeault”),        appellant’s

immigration attorney, testified that a conviction for possession with intent to


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distribute crack cocaine resulted in mandatory deportation unless the

convicted individual could prove that his home country would torture him

upon his return. (Id. at 13-14.) After he initially met with appellant and

appellant told him his situation and what Attorney Thompson allegedly told

him,     Attorney    Archambeault     testified   that   he    sent   a   letter 5   to

Attorney Thompson which outlined what appellant told him; specifically, that

Attorney Thompson told him that he would not be deported because he had

a minor child who was a United States citizen.             Attorney Archambeault

testified that shortly after he mailed the letter, Attorney Thompson

telephoned him and stated, “Look, that’s exactly what happened. I got your

letter. It’s exactly what happened. I feel really bad about it and . . . she

said I don’t know anything about immigration law and she expressed regret

about her advice.” (Id. at 15.)

        Shenaya Johnson (“Johnson”), appellant’s girlfriend and the mother of

his child, testified that appellant asked Attorney Thompson at the courthouse

before they went into a meeting if there were a chance of appellant getting

deported. Attorney Thompson replied, “no because you have a daughter in

the U[.]S.” (Id. at 20.)

        Attorney Thompson testified regarding her representation of appellant.

Regarding      advice   she   gave    appellant   concerning    the   possibility    of

deportation, Attorney Thompson testified:


5
    This letter is not part of the record before this court.


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                I recall having discussions about his immigration
                status and whether the felonies would cause a
                deportation and I didn’t know immigration law very
                well. But I remember having conversations. I do
                recall telling him that he should speak to an
                immigration lawyer to get the best advice possible. I
                don’t recall ever telling him any guarantees on
                anything. We had a conversation about the potential
                of deportation. That he could be deported based on
                the felony and my recollection is, based on my
                previous experience, that he may have had an
                appeal issue or may have been able to argue to stay
                based on the fact that he had a daughter that was
                born in the United States and if my memory serves,
                his daughter had like just been born within that year
                that this case was going on, she was a baby. She
                was just a few months or weeks old at the time that
                we were having these discussions.

Id. at 25-26.

        Attorney Thompson testified that she advised appellant to consult an

immigration attorney and that she did not recall whether Johnson was

present when she made that recommendation. (Id. at 26-27.) She denied

that she ever told Attorney Archambeault that she had told appellant that he

would     not    be   deported.      (Id.   at   27.)   On   cross-examination,

Attorney Thompson admitted that she did not believe that she consulted an

immigration attorney with respect to appellant.         She admitted that she

attempted to get the felony charge of PWID dropped in part because of

deportation issues. (Id. at 30-31.)

        By order dated June 22, 2015, the PCRA court denied the petition for

post-conviction relief. The PCRA court determined:




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          When [appellant] entered his Plea on Possession
          With Intent to Deliver it was before this member of
          the Court on January 30, 2014. He was specifically
          informed by the Court that “Deportation is a
          collateral consequence if you are a non-citizen of the
          United States.” . . . . Moreover, [appellant] informed
          the Court that he was a non-citizen and was told
          that, “that you risk deportation” after which he
          testified that he understood this. . . .

          The Court finds attorney Thompson’s testimony to be
          credible and rejects [appellant’s], Ms. Johnson/s [sic]
          and attorney Archambeault’s to the contrary as not
          credible. (It is noted that the letter forming the
          basis of attorney Archambeault’s testimony was
          never produced.)

          It is apparent that [appellant] was aware of the
          deportation consequences of his guilty plea in 2013.
          It was the reason he withdrew his original plea.
          Moreover, he was informed by the Court about
          deportation consequences at the time he entered his
          guilty plea. In Padilla v. Kentucky, 559 U.S. 356
          (2010), the U.S. Supreme Court reversed a
          conviction and remanded the case where a
          defendant was not informed of the deportation
          consequence of his guilty plea by his Public Defender
          attorney. However, Justice Alito and Chief Justice
          Roberts concurred with the majority only because in
          that case Defendant’s attorney had misled him
          regarding the deportation consequences of a
          conviction. The concurring Justices’ [sic] indicated
          that defendant’s Criminal Public Defender must
          advise defendant that a criminal conviction may have
          adverse immigration consequences and that if the
          alien wants advice on this issue, the alien should
          consult an attorney. Moreover, in this case the
          [appellant] was advised by the Court of the
          deportation consequences of his plea at the time it
          was entered and subsequent to the time of his
          discussion with this attorney regarding deportation
          consequences.




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            In this case [appellant] had been advised of the
            deportation risk by attorney Thompson and the
            Court, yet entered the plea nonetheless. He was
            advised to seek the services of an immigration
            attorney prior to entering the plea, but choose [sic]
            not to do so until after the U.S. Immigration Agency
            detained him.      For this Court to find now that
            [appellant] did not understand the deportation
            consequences of his plea would fly in the face of the
            record made of proceedings before the Court
            especially at the time of his latest plea. Such a
            holding would render meaningless the colloquy which
            courts’ [sic] are required to conduct.

PCRA court opinion, 6/22/15 at 2-3 (citations omitted).

      Appellant raises the following issue on appeal:

            Whether the Appellant should have been allowed to
            withdraw his guilty pleas after sentencing due to the
            fact that he was given incorrect legal advice by his
            attorney regarding the collateral consequences of
            deportation, and then entered the guilty plea based
            upon this incorrect advice with the result being
            mandatory deportation?

Appellant’s brief at 5.

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, 609 Pa.
            442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
            A PCRA court’s credibility findings are to be accorded
            great deference, and where supported by the record,
            such determinations are binding on a reviewing
            court. Id. at 305 (citations omitted). To obtain
            PCRA relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one or more of the errors
            enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,


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            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic or tactical decision by counsel[.]”            Id.
            § 9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [appellant] could
            have had review as a matter of right has ruled on
            the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
            issue is waived if [appellant] could have raised it but
            failed to so before trial, at trial, . . . on appeal or in a
            prior state postconviction proceeding.”                  Id.
            § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

      The PCRA also permits relief when a conviction is the result of

“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.”       Id. at

§ 9543(a)(2)(ii).   For cases in which a claim of trial error is being raised

under the guise of an ineffective assistance of counsel claim, this court has

issued the following warning:

            PCRA claims are not merely direct appeal claims that
            are made at a later stage of the proceedings,
            cloaked in a boilerplate assertion of counsel’s
            ineffectiveness. In essence, they are extraordinary
            assertions that the system broke down. To establish
            claims of constitutional error or ineffectiveness of
            counsel, the petitioner must plead and prove by a
            preponderance of evidence that the system failed
            (i.e., for an ineffectiveness or constitutional error
            claim, that in the circumstances of his case, including
            the facts established at trial, guilt or innocence could
            not have been adjudicated reliably), that his claim
            has not been previously litigated or waived, and
            where a claim was not raised at an earlier stage of
            the proceedings, that counsel could not have had a


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            rational strategic or tactical reason for failing to
            litigate these claims earlier.

Commonwealth v. Rivers, 786 A.2d 923, 929 (Pa. 2001).

      In Padilla v. Kentucky, 569 U.S. 356 (2010), the United States

Supreme Court held that Jose Padilla, who was convicted on various

drug-related charges, was denied effective assistance of counsel when

counsel failed to inform him that a guilty plea made him subject to

mandatory deportation.

      In Commonwealth v. Ghisoiu, 63 A.3d 1272 (Pa.Super. 2013), this

court determined that in a situation where an attorney advised his client that

a plea could have immigration consequences and advised him to consult an

immigration attorney, the attorney’s assistance was not ineffective.

      Here, appellant argues that he received ineffective assistance of

counsel because Attorney Thompson advised him that he would not be

deported if he were convicted of PWID crack cocaine because he had a minor

child who was a United States citizen. As a result, appellant entered a guilty

plea. He argues that he should have been informed that when he entered a

guilty plea, deportation was a certainty and not a possibility.

      Appellant’s argument is flawed.     He argues his version of the facts

rather than the facts found by the PCRA court, the fact-finder.    The PCRA

court found Attorney Thompson credibly testified that she advised appellant

to get advice from an immigration attorney and only stated that it was a

possibility that the fact that he had a minor child who was a United States


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citizen might preclude deportation. Appellant also ignores the fact that he

was informed by the trial court that he risked deportation if he were

convicted.   The PCRA court found that appellant was warned of the

immigration consequences of his plea and was advised to consult with an

immigration attorney.     The trial court’s questioning of appellant and

Attorney Thompson’s testimony support these findings.   The PCRA court is

the fact-finder and when supported by the record are binding on the

reviewing court.    Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011).

Similar to Ghisoiu, appellant was advised that there could be deportation

consequences with a conviction.     The PCRA court did not err when it

determined that appellant’s claim of ineffective assistance of counsel was

without merit.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2016




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