J-S23033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
VERNON ANDREWS                              :
                                            :
                          Appellant         :
                                            :     No. 805 EDA 2015

                   Appeal from the PCRA Order March 6, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0013540-2011

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 03, 2016

        Appellant, Vernon Andrews, appeals from the order dismissing his first

Post Conviction Relief Act1 (“PCRA”) petition. He primarily contends that a

single sentence—“I know that if I am not a United States citizen, it is

possible I may be deported if I plead guilty to the crime(s) charged against

me”—in a written guilty plea colloquy is insufficient notice under Padilla v.

Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), that

he could be deported. We affirm in part, vacate in part, and remand to have

the PCRA court hold an evidentiary hearing clarifying plea counsel’s advice

regarding immigration consequences prior to or at the hearing.




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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     We adopt the facts and procedural history set forth in the PCRA court’s

opinion:

           FACTUAL HISTORY

              At approximately 12:15 pm on April 12, 2011, a team
           of officers from Homeland Security Investigation Task
           Force and an officer from the Philadelphia Police
           Department Narcotics Field Unit conducted undercover
           surveillance on the 5000 block of Aspen Street in
           Philadelphia. The officers observed as someone parked a
           blue Volvo outside 5025 Aspen Street, and the driver
           removed a heavy plastic trash bag from the trunk of the
           car and took it inside the residence. About one hour later
           [Appellant], Vernon Andrews, arrived in his Nissan Altima,
           went to the residence at 5025 Aspen Street and was
           handed a trash bag similar to the one previously seen
           being taken into the house, but seemingly lighter. Next,
           [Appellant] loaded the trash bag into his trunk and drove
           away.      When the police attempted to apprehend
           [Appellant], he exited his car and fled.

              The officers obtained a search warrant for [Appellant’s]
           car after K-9 dogs at the scene exhibited a positive
           reaction for drugs. Inside the car, officers found a large
           green plastic trash bag filled with five (5) large clear Ziploc
           bags containing a total of 4.86 pounds of marijuana.
           [Appellant’s] car registration and insurance card were also
           found inside the car[.]

              Later that night, the officers obtained and executed a
           search warrant for the property at 5025 Aspen Street.
           There, the officers recovered six (6) large marijuana-filled
           Ziploc bags weighing a total of more than 35 pounds,
           along with bale wrappers and two (2) boxes of freezer
           bags. [Appellant’s] co-conspirator, Marlon Carter, was
           then arrested inside the residence and identified as the
           man who brought the trash bag into the house earlier that
           day. . . .

           PROCEDURAL HISTORY




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           [Appellant] pled guilty before the Honorable Kenneth
        Powell, Jr. on September 12, 2012 to Possession With the
        Intent to Deliver (35 Pa. C.S. §780-113), an ungraded
        felony; and Criminal Conspiracy to Commit Possession
        With Intent to Deliver (18 Pa. C.S. §903), also an
        ungraded felony.       [That same day, Appellant] was
        sentenced on count one, Possession With Intent to Deliver,
        to 11½ to 23 months[’] incarceration, and three (3) years
        of consecutive probation. [Appellant] was sentenced on
        count two, Criminal Conspiracy to Commit Possession With
        Intent to Deliver, 2 to 11½ to 23 months[’] incarceration,
        and three (3) years of consecutive probation, concurrent to
        the sentence imposed on count one.

See PCRA Ct. Op., 8/3/15, at 1-3 (citations and quotation marks omitted).

We add that the court imposed the negotiated aggregate sentence of eleven-

and-one-half to twenty-three months’ imprisonment, followed by three

years’ probation. N.T. Guilty Plea & Sentencing Hr’g, 9/12/12, at 15-16.

     At the combined guilty plea and sentencing hearing, the court also

discussed the written guilty plea colloquy prior to sentencing.           Counsel

stated he reviewed the colloquy with Appellant, and Appellant confirmed he

reviewed the colloquy with counsel and had no questions. Id. at 2-3. Prior

to sentencing, Appellant again acknowledged reviewing the colloquy with

counsel and understood the contents, id. at 6-7, which included the

following statement in the middle of page three:

        RISK OF DEPORTATION (If an Alien)

        I know that if I am not a United states citizen, it is possible
        I may be deported if I plead guilty to the crime(s) charged
        against me.




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Guilty Plea Colloquy, 9/12/12, at 3 (emphasis in original).2 At the bottom of

page three, Appellant signed his name below the phrase “I HAVE READ ALL

OF THE ABOVE, OR MY LAWYER READ IT TO ME. I UNDERSTAND IT.

MY ANSWERS ARE ALL TRUE AND CORRECT.”                        Id. (emphasis in

original).

        At the combined guilty plea and sentencing hearing, the following

exchange transpired after the court accepted Appellant’s guilty plea but

before the court imposed sentence:

           [Appellant’s counsel]: . . . [Appellant] was arrested on
           October 19th of 2011. He has been in custody since that
           date. So with credit for time served, he is about 25 days
           from being paroled and --

           The court: So re-entry isn’t an issue as well?




2
    The federal equivalent is lengthier:

           [The defendant] recognizes that pleading guilty may have
           consequences with respect to his immigration status if he
           is not a citizen of the United States. Under federal law, a
           broad range of crimes are removable offenses. Removal
           and other immigration consequences are the subject of a
           separate proceeding, however, and the defendant
           understands that no one, including his own attorney or the
           district court, can predict to a certainty the effect of his
           conviction on his immigration status.            Defendant
           nevertheless affirms that he wants to plead guilty
           regardless of any immigration consequences that his plea
           may entail, even if the consequence is his automatic
           removal from the United States.

United States v. Fazio, 795 F.3d 421, 423 (3d Cir. 2015).




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           [Appellant’s counsel]: Right. He also has an immigration
           detainer, so at the end of his sentence -- I’m saying 25
           days. It’s not exactly that. But they’ll be taking him from
           there to one of to [sic] counties where they have space,
           and he will deal with the immigration matter.

           The court: Okay. . . .

Id. at 14-15. Appellant did not file a post-sentence motion. Appellant was

paroled on October 25, 2012.

        On January 18, 2013, the court docketed Appellant’s pro se PCRA

petition. Attached to the petition is an exhibit, specifically page three of a

U.S. Department of Homeland Security Form I862. The form specifies that

Appellant was convicted of the instant offense, and was also convicted on

May 13, 2009, of possession with intent to deliver 208.4 grams of

marijuana; he was sentenced to two years’ probation. Ex. 1 to Mot. for Post

Conviction Collateral Relief, 1/18/13.

        Counsel was appointed on December 3, 2013,3 and filed what was

essentially an amended PCRA petition on September 1, 2014. Following a

February 2, 20154 order that we construe as a Pa.R.Crim.P. 907 notice,5 the




3
    The record does not reveal the reason for the delay.
4
    The lapse of time is unexplained.
5
 Confusingly, the order denied Appellant’s PCRA petition but stated it mailed
a Rule 907 notice and continued the matter for a formal dismissal. Order,
2/12/15; see generally Pa.R.Crim.P. 907(1) (stating court should give
notice of intent to dismiss, followed by actual order of dismissal).




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court formally dismissed Appellant’s PCRA petition on March 6, 2015.6

Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b)

statement.

        Appellant raises the following issues:

           The Post-Conviction Relief Act Court erred in finding that
           trial counsel was effective despite the lack of evidence that
           [A]ppellant had been sufficiently advised of the
           immigration consequences of his guilty plea under Padilla
           v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed.
           2d 284 (2010).

           The Post-Conviction Relief Act Court erred in not finding
           that trial counsel was ineffective for failing to pursue
           suppression issues.

Appellant’s Brief at 4.

        For his first issue, Appellant claims plea counsel was ineffective

because counsel failed to discuss the immigration consequences. Id. at 15.

Appellant asserts that his possession with intent to distribute (“PWID”)

conviction is one of the enumerated crimes in 8 U.S.C. § 1227(a)(2)(B)(i) 7

that—according to Appellant—mandate deportation.          Id.   He contends his

counsel should have advised him that a guilty plea carried a substantial risk

of deportation but counsel only mentioned he had an immigration detainer

after the court accepted his plea. Id. at 15-16. Appellant notes that where

the immigration consequences are unclear, counsel “need only advise a

6
    The order is not in the certified record.
7
    We reproduce the statute, infra.




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client that there may be consequences.” Id. at 16. In his case, however,

Appellant asserts that PWID unambiguously calls for deportation and thus

plea counsel’s failure to advise lacked a reasonable basis. Id. at 16-17.

      In support of his argument, Appellant distinguishes three cases:

Commonwealth         v.    Escobar,    70    A.3d   838    (Pa.    Super.    2013);

Commonwealth v. McDermitt, 66 A.3d 810 (Pa. Super. 2013); and

Commonwealth v. Wah, 42 A.3d 335 (Pa. Super. 2012). Unlike counsel in

Escobar, Appellant alleges his plea counsel did not apprise him prior to or

during the plea hearing that he could be deported. Appellant’s Brief at 20.

A single sentence in a written guilty plea colloquy, Appellant insists, is not

advice of counsel.        Id. at 21.   With respect to McDermitt, Appellant

contends the defendant was already undergoing deportation and thus it was

unnecessary for counsel to inform the defendant.          Id. at 19.     Unlike the

McDermitt defendant, Appellant only knew about an immigration detainer

and thus claims an evidentiary hearing was necessary to obtain further

information, specifically “what [he] knew at the time of the plea, or from

whom he may have gained that information.”                Id.     Finally, Appellant

emphasizes that the defendant’s counsel in Wah questioned the defendant

extensively about his alien status and immigration consequences during the

colloquy.   Unlike Wah, Appellant states the only “advice” he received was

one sentence in a multi-page guilty plea colloquy.                  Id. at 17-18.




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Consequently, Appellant asserts that his guilty plea was unlawfully induced

and he would have elected to go to trial. We vacate and remand.

     “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).

        [C]ounsel is presumed to have provided effective
        representation unless the PCRA petitioner pleads and
        proves that: (1) the underlying claim is of arguable merit;
        (2) counsel had no reasonable basis for his or her conduct;
        and (3) [the petitioner] was prejudiced by counsel’s action
        or omission. To demonstrate prejudice, [the petitioner]
        must prove that a reasonable probability of acquittal
        existed but for the action or omission of trial counsel. A
        claim of ineffective assistance of counsel will fail if the
        petitioner does not meet any of the three prongs. Further,
        a PCRA petitioner must exhibit a concerted effort to
        develop his ineffectiveness claim and may not rely on
        boilerplate allegations of ineffectiveness.

Commonwealth       v.   Perry,   959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation and citations omitted).

     “As a general rule, a lawyer should not be held ineffective without first

having an opportunity to address the accusation in some fashion.”

Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010) (resolving

ineffectiveness claim with respect to trial strategy).8    Our Supreme Court



8
  The Colavita Court reviewed a Superior Court holding that trial counsel
was per se ineffective without ascertaining the reasoning for counsel’s
action. Colavita, 993 A.3d at 895. Our Supreme Court held this Court



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has made “clear this Court’s strong preference that counsel be heard from

before    being   found   ineffective.”     Id.   “The   ultimate   focus   of   an

ineffectiveness inquiry is always upon counsel, and not upon an alleged

deficiency in the abstract.” Id.

        In Escobar, our Court examined whether counsel was required to

inform the defendant that he would be deported for PWID.            The Escobar

Count recounted:

              Prior to the plea, [the defendant’s] counsel informed
           him it was “likely and possible” that deportation
           proceedings would be initiated against him. Also, [the
           defendant] signed a written plea colloquy containing two
           entries indicating [he] understood deportation was
           possible. Additionally, counsel’s PCRA testimony would
           eventually indicate counsel advised [the defendant], before
           he pled guilty, that he faced a substantial deportation risk.

Escobar, 70 A.3d at 840 (citation omitted).

        The PCRA court granted the defendant relief because it believed

deportation would actually result from his plea; the court reasoned

           that Section 1227(a)(2)(B)(i)[9] made it clear that [the
           defendant’s] PWID conviction would necessarily render him



erred by “finding counsel ineffective based upon a theory not presented to
the PCRA court or on appeal.” Id. at 898.
9
    8 U.S.C. § 1227(a)(2)(B)(i). The statute states:

           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 (as
           defined in section 802 of Title 21), other than a single



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         deportable, [and thus,] the court reasoned counsel’s
         advice was not sufficiently definite. That is, the PCRA
         court determined that, while counsel did advise [the
         defendant] about the risk of deportation to some extent,
         the advice was inadequate because it did not state with
         certainty that [the defendant] would be deported.

                                 *     *      *

         The PCRA court essentially interpreted the words “the duty
         to give correct advice is equally clear” to mean that,
         because the instant statute clearly made [the defendant]
         deportable by virtue of his drug conviction, counsel was
         required to tell [the defendant] that he would, in fact, be
         deported.

Id. at 840-41.

      The Superior Court reversed the PCRA court’s grant of relief, reasoning

as follows:

            We do not agree that giving “correct” advice necessarily
         means counsel, when advising [the defendant] about his
         deportation risk, needed to tell [the defendant] he
         definitely would be deported. It is true that 8 U.S.C. §
         1227(a)(2)(B)(i) does lead to the conclusion that [the
         defendant’s] PWID conviction certainly made him
         deportable. However, whether the U.S. Attorney General
         and/or other personnel would necessarily take all the steps
         needed to institute and carry out [the defendant’s] actual
         deportation was not an absolute certainty when he pled.
         Given that [the defendant] did know deportation was
         possible, given that counsel advised him there was a
         substantial risk of deportation, and given that counsel told
         [the defendant] it was likely there would be deportation



         offense involving possession for one’s own use of 30 grams
         or less of marijuana, is deportable.

Id. (emphasis added).




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         proceedings instituted against him, we find counsel’s
         advice was, in fact, correct.

                                 *     *      *

            In reaching our result, we are mindful that the Padilla
         court specifically considered 8 U.S.C. § 1227(a)(2)(B), the
         same immigration/deportation statute at issue in the
         present case. When it did so, the court concluded that the
         statute clearly made Padilla “eligible for deportation” and
         that “his deportation was presumptively mandatory.”
         Padilla, 130 S. Ct. at 1483 (emphasis added). These
         remarks by the court were consonant with the terms of the
         statute indicating most drug convictions render a
         defendant deportable. We do not read the statute or the
         court’s words as announcing a guarantee that actual
         deportation proceedings are a certainty such that counsel
         must advise a defendant to that effect.

Id. at 841 (second emphasis added); see McDermitt, 66 A.3d at 814.

      In McDermitt, the defendant argued:

         that his plea was involuntary because counsel ineffectively
         gave him inadequate advice as to his deportation risk,
         informing [him] that his conviction rendered him merely
         “deportable.”     According to [the defendant], counsel
         needed to inform him not just that his conviction carried a
         risk of deportation, but that he actually would be deported.

McDermitt, 66 A.3d at 814.

      The McDermitt Court rejected that argument: “Clearly, Padilla

requires counsel to inform a defendant as to a risk of deportation, not as to

its certainty.”   Id.   The Court also observed that “[m]oreover, even if

Padilla required such information, it was not necessary in this case. At the

time of his plea, [the defendant] was already undergoing deportation and

was well aware that he would be deported.”        Id. (emphasis added).   The



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McDermitt Court thus affirmed the dismissal of the defendant’s PCRA

petition.

      Lastly, in Wah, the defendant contended “plea counsel was ineffective

for failing to advise him of the immigration consequences of pleading guilty

to a loss amount in excess of $10,000.”        Wah, 42 A.3d at 337.         The

defendant claimed that he faced automatic deportation because the amount

of restitution exceeded $10,000. Id. If plea counsel had continued the case

for several weeks, the defendant asserted his interim restitution payments

would have brought the amount owed below the automatic deportation

threshold of $10,000. Id. at 337-38.

      The Wah Court rejected the defendant’s ineffective assistance claim

because “in contrast to Padilla, counsel not only advised [the defendant]

that there could be deportation consequences as a result of his plea, but also

suggested that he seek the advice of an immigration attorney.” Id. at 340.

The Wah Court did not hold an extensive colloquy was required regarding

potential immigration consequences.    The Wah Court also did not address

whether a single written statement was sufficient to comply with Padilla.

      After careful consideration, the totality of the circumstances in the

instant case warrants a remand to determine the merits of Appellant’s claim

and whether he was prejudiced, as set forth below. Instantly, unlike counsel

in Escobar, McDermitt, and Wah, the record is silent as to whether

Appellant’s plea counsel advised Appellant beyond discussing the guilty plea



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colloquy. Cf. Escobar, 70 A.3d at 840; McDermitt, 66 A.3d at 814; Wah,

42 A.3d at 340. Similar to the defendant in Escobar, however, Appellant

was convicted of PWID and signed a written plea colloquy containing an

entry that deportation was possible.     See Guilty Plea Colloquy at 3; cf.

Escobar, 70 A.3d at 840.       But the Escobar Court rejected Appellant’s

argument that counsel was obligated to advise the defendant that he would

actually be deported.    See Escobar, 70 A.3d at 840-41.         The Escobar

Court, however, did not address whether a single written sentence was

sufficient.   The McDermitt Court similarly rejected Appellant’s argument

that counsel should advise the defendant “that he actually would be

deported.”    See McDermitt, 66 A.3d at 814.       McDermitt, however, like

Escobar, did not address the sufficiency of a guilty plea colloquy.      Wah,

likewise, did not review the guilty plea colloquy given plea counsel’s specific

advice to consult with an immigration attorney. See Wah, 42 A.3d at 340.

      In sum, to the extent Appellant argues that counsel should have

advised him that he would be deported, this Court has repeatedly rejected

that argument. See Escobar, 70 A.3d at 840; McDermitt, 66 A.3d at 814.

But whether Appellant’s plea counsel advised him he was deportable is an

open question, notwithstanding the sole sentence in the guilty plea

colloquy.10 Given the absence of any evidentiary hearing, and because our


10
   We express no views on the weight that should be given to a single
sentence within, or the entirety of, a guilty plea colloquy.



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Supreme Court has expressed a strong preference to hear from PCRA

counsel, see Colavita, 993 A.2d at 895, we believe it prudent to vacate and

remand for an evidentiary hearing at which PCRA counsel can testify about

the advice.

        In support of his last issue, Appellant contends the affidavit of

probable cause does not explain the six-month delay before his arrest.

Appellant’s Brief at 22-23. He asserts that the affidavit does not reflect how

the affiant obtained the information that led to his arrest.       Id. at 23.

Appellant’s argument, however, spans slightly more than one page, cites no

law, and lacks legal analysis.        Accordingly, we find it waived.    See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (holding,

“where an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”).     The order

below is affirmed with respect to Appellant’s challenge to the affidavit of

probable cause, affirmed as to Appellant’s claim that counsel should have

advised him that deportation was mandatory,11 and vacated with respect to

Appellant’s challenge regarding whether counsel should have advised him

about the deportation consequences regardless of the single sentence in a

guilty plea colloquy.


11
     This holding presumes counsel did, in fact, provide advice.




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      Order affirmed in part and vacated in part.   Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2016




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