J-S52024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DAVID CHALOEUNPORN,

                         Appellant                  No. 2938 EDA 2013


           Appeal from the PCRA Order entered October 10, 2013,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-0004499-2007
                         & CP-51-CR-0004500-2007


BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED AUGUST 27, 2014



petition for relief under the Post-

sections 9541-46. We affirm.

      The pertinent facts and procedural history are as follows:              On

December 6, 2007, Appellant, a citizen of Cambodia, entered a guilty plea to

multiple sexual offenses involving two of his nieces, ages ten and thirteen.

On May 28, 2008, the trial court sentenced Appellant to an aggregate term

of seven and one-half to fifteen years of imprisonment, to be followed by a

twenty-five year probationary term. Appellant did not file a direct appeal.




*Former Justice specially assigned to the Superior Court.
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        Appellant filed a pro se PCRA petition on November 25, 2008.       On

September 6, 2009, PCRA counsel filed a motion to withdraw and a no-merit

letter pursuant to the dictates of Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc). On January 26, 2010, the PCRA court issued notice of its



Pa.R.Crim.P. 907.     By order entered February 16, 2010, the PCRA court

                                                        counsel to withdraw.

        Appellant filed a pro se appeal, and the PCRA court appointed present

counsel. However, the PCRA court subsequently requested that this Court

vacate its order and remand the case for further proceedings before a

different judge; we did so on February 18, 2011.         Commonwealth v.

Chaloeunporn,       24    A.3d   459    (Pa.   Super.   2011)    (unpublished

memorandum).

        Following remand, present counsel filed an amended PCRA petition on

October 14, 2011. The Commonwealth filed a motion to dismiss on June 25,

2013.      On September 11, 2013, the PCRA court issued Pa.R.Crim.P. 907



Appellant did not file a response. By order entered October 10, 2013, the

                                       amended PCRA petition.     This appeal



Pa.R.A.P. 1925(b) statement, the PCRA court did not file a Rule 1925(a)

opinion.

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      Appellant raises the following issue on appeal:

         I. Was [Appe
         and voluntary when he was not informed by [trial 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?




      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). We pay great



                                   Id.     Furthermore, 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.           One such error

involves the ineffectiveness of counsel.

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Id.

adequate, and counsel will only be deemed ineffective upon a sufficient


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                              Id. This requires the petitioner to demonstrate

that:    (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission.       Id. at 533.     A finding of

"prejudice" requires the petitioner to show "that there is a reasonable



proceeding would have been different."      Id.   Counsel cannot be deemed

ineffective for failing to pursue a meritless claim.      Commonwealth v.

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852

A.2d 311 (Pa. 2004).

        Appellant claims that inadequate advice from trial counsel caused him

to enter an invalid plea.     When asserting a claim of ineffectiveness of

counsel in the context of a guilty plea, a defendant must show that plea

                                                           Commonwealth v.

Johnson, 875 A.2d 328, 331 (Pa. Super. 2005). As this Court stated:


              Because a plea of guilty effectively waives all non-
          jurisdictional defects and defenses, after sentencing,
          allegations of ineffectiveness of counsel in this context
          provide a basis for withdrawal of the plea only where there
                                                      iveness, if any,
          and an unknowing or involuntary plea. The guilty plea
          hearing becomes the significant procedure under scrutiny.
          The focus of the inquiry is whether the accused was misled
          or misinformed and acted under that misguided influence
          when entering the guilty plea.




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Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations omitted).

      Further, this Court summarized:

        Our law presumes that a defendant who enters a guilty plea
        was aware of what he was doing. He bears the burden of
        proving otherwise.

                            *       *       *

            The long standing rule of Pennsylvania law is that a
        defendant may not challenge his guilty plea by asserting
        that he lied while under oath, even if he avers that counsel
        induced the lies. A person who elects to plead guilty is
        bound by the statements he makes in open court while
        under oath and may not later assert grounds for
        withdrawing the plea which contradict the statements he
        made at his plea colloquy.

                            *       *       *

        [A] defendant who elects to plead guilty has a duty to
        answer questions truthfully.     We [cannot] permit a
        defendant to postpone the final disposition of his case by
        lying to the court and later alleging that his lies were
        induced by the prompting of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      Appellant does not challenge his responses given to the trial court

during his guilty plea colloquy.   Rather, Appellant claims that although he

was informed prior to entering his guilty plea that there was a possibility he

may be deported, see

not informing [him] that the consequences of his guilty plea was mandatory




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      Appellant bases his ineffectiveness claim upon the United States

Supreme Court decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). In

Padilla, the high court held that the Sixth Amendment of the United States

Constitution requires that defense counsel inform a criminal defendant of the

risk of deportation, should he decide to enter a guilty plea.   However, as

acknowledged by the Commonwealth, the United States Supreme Court,

noting the difference in treatment of the issue by various federal district

                                         Padilla does not have retroactive

            Commonwealth v. Ghisoiu, 63 A.3d 1272, 1274 (Pa. Super.

2013), appeal denied, 74 A.2d 125 (Pa. 2013) (quoting Chiadez v. U.S.,

133 S.Ct. 1103, 1105 (2013). See also Commonwealth v. Abraham, 62

A.2d 343 (Pa. 2011) (noting the split in the treatment of Padilla claims by

the federal courts).

      Here, Appellant entered his guilty plea in 2007, the trial court

sentenced him in 2008, and he did not file a direct appeal. Therefore, his

judgment of sentence became final approximately two years before the

Padilla decision.      Appellant is thus unable to benefit from the Padilla

decision.

      Moreover, even if the Padilla decision applied, this Court has rejected

claims simila

given by counsel.      See, e.g., Ghisoiu, 63 A.3d at 1274 (concluding that

even if Padilla


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                                                see also Commonwealth v.

Escobar, 70 A.2d 838, 842 (Pa. Super. 2013) (concluding that trial counsel




Commonwealth v. McDermitt, 66 A.2d 810, 814 (Pa. Super. 2013)

               Padilla requires counsel to inform a defendant as to a risk of




Padilla decision, he is not entitled to the benefit of its holding. In addition,

the record demonstrates that Appellant was informed of the risk of



      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2014




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