J-S49040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GODFREY GILLINGS PANAM,

                        Appellant                   No. 259 MDA 2015


              Appeal from the PCRA Order of January 8, 2015
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0006493-2010


BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 20, 2015

      Appellant, Godfrey Gillings Panam, appeals from the order entered on

January 8, 2015 dismissing his petition filed pursuant to the Post Conviction

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

      We briefly summarize the facts and procedural history of this case as

follows.   On September 16, 2011, a jury convicted Appellant of simple

assault and endangering the welfare of a minor in connection with injuries

his 18-month-old son sustained in 2010. The trial court sentenced Appellant

to 11½ to 23 months of imprisonment, with a consecutive term of four

years’ probation. This Court affirmed Appellant’s judgment of sentence on

November 27, 2012.      See Commonwealth v. Panam, 63 A.3d 838 (Pa.

Super. 2012) (unpublished memorandum).          Our Supreme Court denied

further review on May 30, 2013. See Commonwealth v. Panam, 68 A.3d
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908 (Pa. 2013). Appellant filed a pro se PCRA petition on February 6, 2014.

On February 11, 2014, the PCRA court appointed counsel to represent

Appellant during collateral review.            Appointed counsel filed an amended

PCRA petition on October 1, 2014. On December 17, 2014, the PCRA court

sent Appellant notice pursuant to Pa.R.Crim.P. 907 indicating its intent to

deny relief without a hearing. Appellant responded on January 5, 2015. On

January 8, 2015, the PCRA court entered an order dismissing Appellant’s

PCRA petition. This timely appeal followed.1

       On appeal, Appellant presents the following issue for our review:

         Was it error for the PCRA court to dismiss Appellant’s PCRA
         petition without a hearing?

Appellant’s Brief at 4.

       Appellant argues that the PCRA court erred in declining to hold an

evidentiary hearing on his PCRA petition. Citing the United States Supreme

Court decision in Padilla v. Kentucky, 599 U.S. 356 (2010), Appellant

alleges that trial counsel was ineffective for failing to consult and address

deportation consequences resulting from his convictions at trial.        Id. at 8.

Appellant recognizes that “Padilla centered on trial counsel’s advice prior to

the entry of a guilty plea[,]” whereas Appellant was convicted by a jury. Id.
____________________________________________


1
   Appellant filed a notice of appeal on February 6, 2015. On February 9,
2015, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on February 27, 2015. The PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on April 8, 2015.



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at 9. Appellant claims that “[i]t stands to reason that if trial counsel has an

obligation to explain immigration risks prior to a guilty plea then trial counsel

should have the same obligation to explain immigration risks before deciding

to take the matter to trial.” Id. at 10.    Thus, Appellant urges this Court to

“expand the protections offered by [] Padilla to ensure that a criminal

defendant is always aware of the risks of deportation.” Id. at 9. Appellant

posits that “[h]ad trial counsel discussed or addressed [deportation], []

Appellant would have pursued a negotiated plea to an offense which did not

result in deportation.” Id. at 6.

        We begin by noting that “this Court's standard of review from the

grant or denial of post-conviction relief is limited to examining whether the

lower court's determination is supported by the evidence of record and

whether it is free of legal error.”    Commonwealth v. Walker, 110 A.3d

1000, 1003 (Pa. Super. 2015). Where, as here, a petitioner claims that he

received ineffective assistance of counsel, our Supreme Court has stated

that:

          A PCRA petitioner will be granted relief only when he
          proves, by a preponderance of the evidence, that his
          conviction or sentence resulted from the 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. Generally, counsel's performance is
          presumed to be constitutionally adequate, and counsel will
          only be deemed ineffective upon a sufficient showing by the
          petitioner. To obtain relief, a petitioner must demonstrate
          that counsel's performance was deficient and that the
          deficiency prejudiced the petitioner. A petitioner establishes


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           prejudice when he demonstrates that there is a reasonable
           probability that, but for counsel's unprofessional errors, the
           result of the proceeding would have been different. A
           properly pled claim of ineffectiveness posits that: (1) the
           underlying legal issue has arguable merit; (2) counsel's
           actions lacked an objective reasonable basis; and (3) actual
           prejudice befell the petitioner from counsel's act or
           omission.

Id., citing Commonwealth v. Johnson, 966 A.2d 523, 532–533 (Pa.

2009).

      This Court has previously summarized the decision in Padilla, as

follows:

           Jose Padilla, a Honduran native who had lived in the United
           States for more than 40 years, pled guilty to transportation
           of a large amount of marijuana, a deportable offense under
           8 U.S.C. § 1227(a)(2)(B)(i). Padilla claimed that counsel
           not only failed to advise him of the possibility of deportation
           prior to entering the plea, but also told him that he did not
           have to worry about immigration status since he had been
           in the country so long. Padilla relied on counsel's erroneous
           advice when he pleaded guilty to the drug charges, and
           alleged in his post-conviction petition that he would have
           gone to trial had he not received incorrect advice from his
           attorney.

           Noting the unique nature of deportation, the Padilla Court
           decided that, [t]he weight of prevailing professional norms
           supports the view that counsel must advise her client
           regarding the risk of deportation. The Court found that,
           although civil in nature, deportation is nevertheless
           intimately related to the criminal process and concluded
           that [t]he severity of deportation— the equivalent of
           banishment or exile, —only underscores how critical it is for
           counsel to inform her noncitizen client that he faces a risk of
           deportation. Ultimately, the Court in Padilla remanded the
           matter for a determination as to whether Padilla could
           demonstrate that he was prejudiced by counsel's incorrect
           advice.



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Commonwealth v. Wah, 42 A.3d 335, 339-340 (Pa. Super. 2012) (internal

citations and quotations omitted).

      Herein, Appellant did not enter a guilty plea and, thus, his reliance on

Padilla is misplaced.   Appellant chose to go to trial and a jury found him

guilty. Hence, Padilla is not applicable. Appellant has not cited, and our

independent review has not revealed, any case law extending Padilla to

cases where a jury finds the defendant guilty.      Moreover, while Appellant

argues he would have pled guilty to lesser charges that would not have

required his deportation, such a scenario is entirely speculative. Appellant

has not alleged and proven that the Commonwealth would have agreed to

Appellant’s hypothetical plea terms or that trial counsel could have advised

Appellant as he contends.    “The right to an evidentiary hearing on a post-

conviction petition is not absolute.” Commonwealth v. Jordan, 772 A.2d

1011, 1014 (Pa. Super. 2001) (citation omitted). “A PCRA court may decline

to hold a hearing if the petitioner's claim is patently frivolous and is without

a trace of support in either the record or from other evidence.” Id. Here,

having determined that Appellant’s claim is patently frivolous, an evidentiary

hearing was not warranted.      Accordingly, Appellant’s sole appellate claim

lacks merit.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2015




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