J-A21012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 KEBLE MAITLAND                           :
                                          :
                   Appellant              :   No. 3354 EDA 2018

          Appeal from the PCRA Order Entered October 31, 2018
    In the Court of Common Pleas of Bucks County Criminal Division at
                     No(s): CP-09-CR-0005478-2016

BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 22, 2019

     Keble Maitland appeals from the order that denied his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

     The PCRA court summarized the history of this case as follows.

            After an investigation into a group of individuals involved in
     the trafficking of cocaine, crystal methamphetamine, marijuana,
     and heroin within Bucks and Philadelphia Counties, the
     investigation implicated Appellant as a part of this criminal
     organization as a drug trafficker. On June 19, 2017, Appellant
     entered an open guilty plea to one count of possession with intent
     to deliver. In the course of pleading guilty, Appellant completely
     filled out and endorsed a written guilty plea colloquy as well as
     placed an oral guilty plea colloquy on the record. This court
     accepted Appellant’s guilty plea as knowing, voluntary, and
     intelligent. Appellant did not seek to withdraw his guilty plea. On
     September 6, 2017, this court sentenced Appellant to a standard
     range sentence of not less than three (3) years to no more than
     six (6) years of incarceration on that sole count. On September
     15, 2017, Appellant filed a motion to reconsider sentence. On
     November 28, 2017, this court had a hearing on Appellant’s
     motion to reconsider sentence. At the conclusion of the hearing,
     this court granted Appellant’s motion to reconsider sentence and
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       imposed a new sentence of two and a half to five years of
       imprisonment. [Appellant] did not file a direct appeal.

              On May 2018, Appellant filed, through counsel, a PCRA
       petition alleging that trial counsel was ineffective for failing to
       consult with an immigration lawyer prior to his guilty plea colloquy
       and for allegedly failing to advise him of the risk of deportation if
       he pleaded guilty. On August 20, 2018, this court conducted an
       evidentiary hearing at which trial counsel, Ronald Elgart, Esquire,
       Appellant, and Appellant’s wife, Sydonie Maitland, testified. On
       October 31, 2018, after the consideration of the arguments of
       counsel, legal memoranda and testimony of witnesses, this court
       ordered that [Appellant]’s petition pursuant to the [PCRA] be
       denied. On November 19, 2018, Appellant entered a timely notice
       of appeal to the Superior Court.

PCRA    Court   Opinion,   2/21/19,    at    1-2   (footnotes   and   unnecessary

capitalization omitted).

       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, through

counsel, filed a document that was timely in light of the grant of extensions,

but was the opposite of concise. The PCRA court determined that the myriad

issues suggested in Appellant’s statement boil down to an allegation that the

PCRA court erred in concluding that Appellant was properly advised of the

immigration consequences of his plea such that it was entered knowingly,

intelligently, and voluntarily. Id. at 3. Accordingly, it authored a Rule 1925(a)

opinion addressing that claim of error.

       Appellant states the following questions for this court’s consideration:

       1.    Did [A]ppellant make a knowing, intelligent, and voluntary
       guilty plea and did [A]ppellant to his detriment and permanent
       harm (deportation upon completion of his state incarceration) rely
       upon the misleading, untruthful, ineffective, deceitful and


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      substandard legal advice and counsel from his criminal defense
      attorney in making the guilty plea?

      2.    Did the [PCRA] court commit reversible error in the court’s
      denial order of October 31, 2018 to [A]ppellant’s PCRA [petition]
      as well as the court[’]s factual and legal findings in the court’s
      opinion of February 19, 2019?

Appellant’s brief at 4 (unnecessary capitalization omitted).

      We begin with a review of the applicable law. “This Court’s standard of

review regarding an order denying a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of record and is

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.

2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA

court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684,

688 (Pa.Super. 2012).

      Counsel is presumed to be effective, and a PCRA petitioner bears the

burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112

(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal

claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s

decision to act (or not) lacked a reasonable basis designed to effectuate the

petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish

any prong is fatal to the claim. Id. at 113. Further, “[i]n the context of a

plea, a claim of ineffectiveness may provide relief only if the alleged

ineffectiveness caused an involuntary or unknowing plea.” Commonwealth

v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017).


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      Generally, “a defendant’s lack of knowledge of collateral consequences

of the entry of a guilty plea does not undermine the validity of the plea, and

counsel is therefore not constitutionally ineffective for failure to advise a

defendant of the collateral consequences of a guilty plea.” Commonwealth

v. Abraham, 62 A.3d 343, 350 (Pa. 2012).          However, the United States

Supreme Court has recognized that, because changes in immigration law

“have made removal nearly an automatic result for a broad class of noncitizen

offenders,” it is inappropriate “to divorce the penalty from the conviction in

the deportation context” in considering the constitutional right to effective

assistance of counsel.   Padilla v. Kentucky, 559 U.S. 356, 366 (2010).

Accordingly, “counsel must inform her client whether his plea carries a risk of

deportation.” Id. at 374.

      As for the extent of the information that counsel must provide, the High

Court indicated as follows:

             Immigration law can be complex, and it is a legal specialty
      of its own. Some members of the bar who represent clients facing
      criminal charges, in either state or federal court or both, may not
      be well versed in it. There will, therefore, undoubtedly be
      numerous situations in which the deportation consequences of a
      particular plea are unclear or uncertain. The duty of the private
      practitioner in such cases is more limited. When the law is not
      succinct and straightforward . . ., a criminal defense attorney need
      do no more than advise a noncitizen client that pending criminal
      charges may carry a risk of adverse immigration consequences.
      But when the deportation consequence is truly clear, as it was in
      this case, the duty to give correct advice is equally clear.

Id. at 1483 (footnote omitted).




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      The immigration statute at issue in Padilla, the same one implicated by

Appellant’s plea, provides: “Any alien who at any time after admission has

been convicted of a violation of (or a conspiracy or attempt to violate) any law

or regulation of a State, the United States or a foreign country relating to a

controlled substance . . ., other than a single offense involving possession for

one’s own use of 30 grams or less of marijuana, is deportable.” 8 U.S.C.

§ 1227(a)(2)(B)(i).   There was arguable merit to Padilla’s claim because,

although he had pled guilty to possession of a large amount of marijuana, his

counsel not only failed to make him aware of the implications of 8 U.S.C.

§ 1227(a)(2)(B)(i) on his plea, but advised Padilla that “he did not have to

worry about immigration status since he had been in the country so long.”

Padilla, supra at 359.

      However, this Court has held that to give “correct” advice to a defendant

facing PWID charges, counsel does not have to advise his client that he will

definitely be deported following a guilty plea. Rather, counsel’s obligation is

satisfied upon informing the defendant that he is deportable, faces “a

substantial risk of deportation,” and/or that deportation proceedings “likely”

would be initiated against him. Commonwealth v. Escobar, 70 A.3d 838,

840 (Pa.Super. 2013). Moreover, while counsel has an obligation to discuss

immigration consequences with a client, there is no requirement that a trial

court delve into a defendant’s understanding of immigration consequences in

conducting a guilty plea colloquy. Commonwealth v. Rachak, 62 A.3d 389,


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395 (Pa.Super. 2012) (reproducing the PCRA court opinion) (“While the United

States Supreme Court has recognized that lawyers have a responsibility to

inform clients of potential immigration consequences before entering a guilty

plea, it has not, as of this date, placed the same responsibility on the courts.”).

      In the instant case, Attorney Elgart testified that he was aware that

Appellant’s immigration status was an issue from the time Appellant was

referred to him by another lawyer, and that immigration was an issue raised

at his first meeting with Appellant “and every subsequent meeting.”            N.T.

PCRA Hearing, 8/20/18, at 15-16. Attorney Elgart informed Appellant and his

wife at their first meeting that they needed “to seek out their own immigration

counsel,” and provided them with the names of some. Id. at 16-17. Attorney

Elgart did his own research on the issue, and “made it very clear to [Appellant

that] if you go down on the felony drug conviction, you’re gone. You will be

deported. Or you’ll be subject to deportation.” Id. at 22-23. Attorney Elgart

“tried a lot of imaginative plea offers,” such as agreeing to “an obscene jail

sentence”   if   the   charges   were    reduced   to    misdemeanors,   but   the

Commonwealth would not agree.           Id. at 45, 68.    He never told Appellant

“anything other than this will result in your deportation.” Id. at 56.

      Additionally, before the trial court accepted the guilty plea, Appellant

signed a written plea colloquy that, just above his signature line, indicates an

affirmative answer to the question: “Do you understand that if you are not a

United States citizen a guilty plea may result in action by the federal


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immigration enforcement agencies up to and including deportation?” PCRA

Petition, 5/17/18, at Exhibit D, page 8. Attorney Elgart testified not only did

he read this question and confirm Appellant’s understanding before Appellant

signed the form, but he specifically recalled that he and Appellant “looked at

each other on that last question because, again, that was the paramount issue

in the case.” N.T. PCRA Hearing, 8/20/18, at 33.

      The PCRA court credited Attorney Elgart’s testimony.           PCRA Court

Opinion, 2/21/19, at 7-8.     Moreover, as the PCRA court noted, Appellant

admitted that he knew that a guilty plea would affect his immigration status.

Id. at 7-8 (citing N.T. PCRA Hearing, 8/20/18, at 108). See also N.T. PCRA

Hearing, 8/20/18, at 86 (Appellant’s wife indicating that, from the first

meeting with Attorney Elgart, they “were under the impression that if

[Appellant] did get in trouble of any kind . . . that would affect his immigration

status”); id. at 107 (Appellant testifying to same). The PCRA court did not

credit Appellant’s contradictory evidence that he had no idea that his guilty

plea could result in deportation as a result of his guilty plea. See PCRA Court

Opinion, 2/21/19, at 8; N.T. PCRA Hearing, 8/20/18, at 137.

      Appellant’s arguments to this Court for reversing the PCRA court’s

decision hinge on Appellant’s belief that he was “by far the more credible

witness at the PCRA [h]earing.”      Appellant’s brief at 14.    As documented

above, the PCRA court’s credibility findings are supported by the record, and,

thus, may not be disturbed by this Court.       See, e.g., Commonwealth v.


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Medina, 92 A.3d 1210, 1214 (Pa.Super. 2014) (en banc) (“The PCRA court's

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

Court.”).    Consequently, Appellant’s claim that the PCRA court erred in

denying his claim that Attorney Elgert caused Appellant to enter an involuntary

plea is meritless.

       Therefore, because Appellant has failed to meet his burden of convincing

this Court that the PCRA court erred and that relief is due, we affirm the order

denying his PCRA petition.

       Order affirmed.1

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/19




____________________________________________


1 Appellant filed a Motion for permission to Supplement Brief in this Court on
September 16, 2019. Therein, he requested leave to file a brief addressing
this Court’s decision in Commonwealth v. Velazquez, ___ A.3d ___, 2019
PA Super 243 (Pa.Super. August 15, 2019). In that case, this Court affirmed
the grant of PCRA relief where plea counsel affirmatively misled Velazquez by
specifically informing him that the crime to which he pled guilty was not a
deportable offense. No such factual scenario is present in this case given the
PCRA court’s duly-made factual finding. As such, we deny Appellant’s motion.

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