J-A29003-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellant              :
                                          :
              v.                          :
                                          :
ESTELA PEREZ,                             :
                                          :
                   Appellee               : No. 2012 WDA 2013

              Appeal from the Order entered November 25, 2013,
                  Court of Common Pleas, Allegheny County,
               Criminal Division at No. CP-02-CR-0009911-2008

BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED FEBRUARY 06, 2015

       The Commonwealth of Pennsylvania (“the Commonwealth”) appeals

from the order entered on November 25, 2013 by the Allegheny County

Court of Common Pleas, Criminal Division, granting Estela Perez’s petition

filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-46. After careful review, we reverse the PCRA court’s order.

       The relevant facts and procedural history of this case are summarized

as follows.    On August 6, 2008, the Office of Attorney General (“OAG”)

arrested Perez and charged her with multiple counts of insurance fraud,1

theft by deception,2 attempt to commit theft by deception,3 and criminal



1
    18 Pa.C.S.A. § 4117(a)(2).
2
    18 Pa.C.S.A. § 3922(a)(1).
3
    18 Pa.C.S.A. §§ 901(a), 3922(a)(1).

*Retired Senior Judge assigned to the Superior Court.
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conspiracy.4 These charges stem from nineteen insurance claims made by

Perez relating to automobile accidents that never occurred. Perez’s case was

set for trial on August 31, 2009, but she failed to appear and as a result, the

trial court issued a bench warrant for her arrest. In April 2012, Perez was

arrested on that bench warrant in Virginia and subsequently transported

back to Allegheny County.       On August 28, 2012, Perez pled guilty to

insurance fraud, a third-degree felony, and theft by deception, a first-degree

misdemeanor, and all her remaining charges were nolle prossed. The trial

court sentenced Perez to ten years of probation and ordered her to pay

$46,617.43 in restitution. Perez did not file any post-sentence motions or a

direct appeal.

       On March 20, 2013, Perez filed a timely PCRA petition in which she

claimed that her plea counsel rendered ineffective assistance of counsel for

failing to advise her of the potential immigration consequences of pleading

guilty to a felony pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010).

PCRA Petition, 3/20/13, ¶¶ 10-12. On July 1, 2013, Perez filed an amended

PCRA petition in which she added a claim that plea counsel was ineffective

for failing to investigate and discuss with her the defense of duress, averring

that she only participated in the schemes to defraud insurance companies to

avoid abuse by her husband.      Amended PCRA Petition, 7/1/13, ¶¶ 15-24.

On August 21, 2013, the PCRA court held a hearing on Perez’s PCRA


4
    18 Pa.C.S.A. § 903(a)(1).


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petition, with another hearing scheduled for November 25, 2013. However,

on November 25, 2013, due to a scheduling mix up, the Commonwealth did

not appear for the hearing. That same day, the PCRA court granted Perez’s

PCRA petition based on her Padilla claim and vacated her judgment of

sentence. The trial court noted in its order “a lack of prosecution” on the

part of the Commonwealth. See Trial Court Order, 11/25/13.

     On December 23, 2013, the Commonwealth filed a timely notice of

appeal. On January 6, 2014, the PCRA court ordered the Commonwealth to

file a concise statement of the errors complained of on appeal pursuant to

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On January

10, 2014, the Commonwealth filed a timely rule 1925(b) statement.

     On appeal, the Commonwealth raises the following issues for our

review and determination:

           I.     Did the PCRA [court] err by refusing to address
                  the issues set forth in the Commonwealth’s
                  concise statement of [the] errors complained
                  of on appeal and by justifying its grant of relief
                  by relying upon a new, alternative ground that
                  was never raised by [Perez]?

           II.    Did the PCRA court err in granting relief on the
                  grounds that [plea] counsel was ineffective for
                  failing to investigate and discuss the defense of
                  duress with [Perez]?

           III.   Did the PCRA court err in granting relief on the
                  grounds that there was a lack of prosecution
                  by [the Commonwealth] during post-conviction
                  proceedings?




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             IV.     Did the PCRA court err in granting relief on the
                     grounds that [plea] counsel was ineffective for
                     failing to advise [Perez] on the potential
                     immigration consequences associated with the
                     entry of her guilty plea?

Commonwealth’s Brief at 4.5

       We begin by addressing the Commonwealth’s first three issues in turn,

as each is the result of confusion stemming from the PCRA court’s initial Rule

1925(a)    opinion    in   this   case.     For     its   first   issue   on   appeal,   the

Commonwealth argues that the PCRA court erred by failing to address the

issues set forth in the Commonwealth’s Rule 1925(b) statement and by

justifying the grant of Perez’s PCRA petition on an alternative ground that

she never raised. Commonwealth’s Brief at 41-45. Our review of the PCRA

court’s original Rule 1925(a) opinion reveals that the PCRA court addressed

none of the issues raised in the Commonwealth’s Rule 1925(b) statement.

See Trial Court Opinion, 4/15/14, at 2-4.                     Rather, the PCRA court

determined that Perez was entitled to relief because she had received an

insufficient guilty plea colloquy.        See id.     Accordingly, because the PCRA

court did not address any of the issues in the Commonwealth’s Rule 1925(b)

statement, we remanded the case for the PCRA court to prepare a

supplemental Rule 1925(a) opinion. See Order, 11/6/14. The PCRA court

filed its supplemental Rule 1925(a) opinion addressing the issues set forth in

the Commonwealth’s Rule 1925(b) statement on December 17, 2014.


5
    We reordered the Commonwealth’s issues for ease of review.


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      Additionally, we must agree with the Commonwealth that a deficient

guilty plea colloquy cannot be the basis for the grant of PCRA relief in this

case, however, as Perez never raised the issue in her PCRA petition. See

Amended PCRA Petition, 7/1/13. To be eligible for relief under the PCRA, a

petitioner “must plead and prove by a preponderance of the evidence” that

he guilty plea was “unlawfully induced where the circumstances make it

likely that the inducement caused the petitioner to plead guilty and the

petitioner is innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii). Here, Perez neither

pleaded nor proved that she received an insufficient guilty plea colloquy.

      For its second issue on appeal, the Commonwealth argues that the

PCRA court erred in granting PCRA relief based on its determination that plea

counsel was ineffective for failing to investigate and discuss the defense of

duress with Perez.      Commonwealth’s Brief at 36-39.          However, the

Commonwealth raised this issue and filed its brief prior to the PCRA court’s

filing of a proper Rule 1925(a) opinion.   In its supplemental Rule 1925(a)

opinion, the trial court indicated that it did not base its decision to grant

PCRA relief on plea counsel’s failure to investigate or discuss with Perez the

defense of duress. See PCRA Court Opinion, 12/17/14, at 6. The trial court

determined that plea counsel had a reasonable strategic basis for not

pursuing the defense of duress.6 Id. Accordingly, this issue is moot. See


6
   The certified record reflects that plea counsel chose not pursue the
defense of duress because of Perez’s contradictory statements about the
automobile accidents actually occurring and then later that her husband


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Commonwealth v. Bricker, 41 A.3d 872, 881 (Pa. Super. 2012) (“An issue

before a court is moot if in ruling upon the issue the court cannot enter an

order that has any legal force or effect.”).

      For its third issue on appeal, the Commonwealth argues that the PCRA

court erred in granting PCRA relief based on its determination that there was

a   lack   of   prosecution   by   the   Commonwealth   during   post-conviction

proceedings.     Commonwealth’s Brief at 39-41.     Like its second issue, the

Commonwealth also raised this issue prior to the PCRA court’s filing of a

proper Rule 1925(a) opinion. In its supplemental Rule 1925(a) opinion, the

PCRA court also indicated that it did not base its decision to grant PCRA

relief on a lack of prosecution by the Commonwealth.         See PCRA Court

Opinion, 12/17/14, at 7. Accordingly, we conclude that this issue is likewise

moot. See Bricker, 41 A.3d at 881.

      For its final issue on appeal, the Commonwealth challenges the PCRA

court’s determination that plea counsel was ineffective for failing to advise

Perez on the potential immigration consequences associated with the entry

of her guilty plea. Commonwealth’s Brief at 24-36. “Our standard of review

of a trial court order granting or denying relief under the PCRA calls upon us

to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error.”       Commonwealth v.


forced her to make false automobile insurance claims. N.T., 8/21/13, at 46,
53. Plea counsel did not believe that any testimony Perez would provide
about the defense of duress would be credible. Id. at 46.


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Lippert, 85 A.3d 1095, 1100 (Pa. Super 2014), appeal denied, 95 A.3d 277

(Pa. 2014). “The PCRA court’s findings will not be disturbed unless there is

no support for the findings in the certified record.” Id.

      A “claim for ineffective assistance of counsel in connection with advice

rendered regarding whether to plead guilty is cognizable under the PCRA

pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).”       Commonwealth v. Barndt,

74 A.3d 185, 191 (Pa. Super. 2013).           In reviewing an allegation of

ineffective assistance of counsel, we begin with the assumption that counsel

was effective. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

Our Supreme Court has stated that in order “[t]o merit relief based on an

ineffectiveness claim under the PCRA, a petitioner must show that such

ineffectiveness ‘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.’” Commonwealth v. Collins, 957 A.2d

237, 244 (Pa. 2008) (quoting 42 Pa.C.S.A. § 9543(a)(2)(ii)). This standard

requires “a petitioner to prove that: (1) the underlying claim is of arguable

merit; (2) counsel’s performance lacked a reasonable basis; and (3) the

ineffectiveness of counsel caused the petitioner prejudice.”       Id.    Our

Supreme Court has held that to demonstrate prejudice in an ineffective

assistance of counsel claim, “the petitioner must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”        Commonwealth v.



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King, 57 A.3d 607, 613 (Pa. 2012). The failure by the petitioner “to satisfy

any one of the three prongs of the test for ineffectiveness requires rejection

of the claim.” Collins, 957 A.2d at 244.

      Our Court has explained ineffectiveness claims in the context of the

entry of a guilty plea as follows:

            The right to the constitutionally effective assistance
            of counsel extends to counsel’s role in guiding his
            client with regard to the consequences of entering
            into a guilty plea.

                  Allegations of ineffectiveness in connection
                  with the entry of a guilty plea will serve as a
                  basis for relief only if the ineffectiveness
                  caused the defendant to enter an involuntary
                  or unknowing plea. Where the defendant
                  enters his plea on the advice of counsel, the
                  voluntariness of the plea depends on whether
                  counsel’s advice was within the range of
                  competence demanded of attorneys in criminal
                  cases.

            Thus, to establish prejudice, the defendant must
            show that there is a reasonable probability that, but
            for counsel’s errors, he would not have pleaded
            guilty and would have insisted on going to trial. The
            reasonable probability test is not a stringent one; it
            merely refers to a probability sufficient to undermine
            confidence in the outcome.

Barndt, 74 A.3d at 192 (quotations and citations omitted).

      Importantly, when the defendant is a noncitizen, the United States

Supreme Court has held that counsel must inform him or her as to whether

a plea carries a risk of deportation.   Padilla v. Kentucky, 559 U.S. 356,

374 (2010). The Supreme Court explained,



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             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 … the duty to give correct
             advice is equally clear.

Id. at 369 (footnote omitted).     This Court has held that Padilla requires

counsel to inform a defendant as to a risk of deportation, but not as to its

certainty.   Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super.

2013); see also Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa.

Super. 2013) (holding that plea counsel’s advice that defendant’s guilty plea

would render him “deportable” was not ineffective).

      Here, the Commonwealth argues that the trial court erred in

determining plea counsel was ineffective under Padilla.        Commonwealth’s

Brief at 28-35. The Commonwealth asserts that Perez was fully aware of the

risks associated with pleading guilty in this case.      Id.   Additionally, the

Commonwealth contends that plea counsel properly advised Perez regarding

the potential immigration consequences of pleading guilty by advising her to

seek the counsel of an immigration attorney.       Id.    The Commonwealth

asserts that this case is governed by Commonwealth v. Wah, 42 A.3d 335

(Pa. Super. 2012). Id. at 32-26.

      In Wah, the appellant alleged that plea counsel was ineffective for

failing to advise him of the specific immigration consequences of pleading

guilty to Medicaid fraud in an amount in excess of $10,000. Wah, 42 A.3d



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at 337, 340. This Court determined that counsel in that case acted within

the range of professionally competent assistance because the appellant was

aware that there could be deportation consequences associated with his

guilty plea and because counsel suggested that the appellant seek the

advice of an immigration attorney. Id. at 340-41. Our Court explained:

              In this case, appellant was removable as an
              “aggravated felon” based upon his conviction of a
              crime involving fraud or deceit in which the loss to
              the victim exceeded $10,000.              8 U.S.C. §
              1227(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43)(M)(i).
              Certainly, this matter is more complex than the
              statute at issue in Padilla, which mandates removal
              for virtually all controlled substances convictions.
              We find that counsel acted within the range of
              professionally competent assistance when he
              recommended that appellant seek the advice of an
              expert in immigration law if he desired to know the
              specific consequences of his guilty plea.

Id. at 341.

     We agree with the Commonwealth that Wah governs this case. Here,

Perez was aware that her guilty plea in this case carried with it the risk of

deportation:

              The Court: Did you know at the time you were doing
              this plea you very well could be separated from your
              children as a result of your status?

              [Perez]: Yes

              THE COURT: So you knew when you did the plea
              that your plea could result in you being deported and
              you would not be with your children?




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           [Perez]: But I thought that was the only option
           because they was telling me I didn’t have any other
           options to go to or to go by.

           THE COURT: So if I understand you correctly, you
           are saying that you understood that you could
           possibly be separated from your children as a result
           of the plea, but the reason why you took the plea is
           because you were informed that you had no
           alternative or you had no positive alternative than
           just to plead and take the consequences from the
           district attorney because your defense attorney had
           led you to believe that your situation was hopeless,
           there was no defense or anything else that you could
           say that would allow you to possibly be extricated or
           vindicated or that you would not be found guilty?

           [Perez]: Right.

N.T., 8/21/13, at 32-33.

     Additionally, the record reflects that plea counsel advised Perez to

seek the counsel of an immigration attorney:

           Q.    When did you become            aware    of   her
                 immigration status?

           A.    From the very beginning.

           Q.    How so? How did you become aware?

           A.    She told me.

           Q.    What did she tell you?

           A.    The initial -- I had numerous discussions with
                 the prior Attorney General, Deputy Attorney
                 General Scott Robinette, tried to convince him
                 to allow [Perez] to plead to a misdemeanor
                 rather than a felony because either from the
                 very beginning or shortly thereafter she did not
                 want to plead to the felony because of the
                 immigration issue. Mr. Robinette would not


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                  bend. We had a trial scheduled before Judge
                  Mariani where I discussed the possibility of
                  either a non-jury trial, jury trial or a plea with
                  [Perez] and she did not want to do a non-jury
                  trial, Judge Mariani could not do a jury trial
                  that day and she didn’t want to do a plea
                  because of the possibility that pleading to a
                  felony could result in her deportation.

                                *      *     *

            A.    She did not want to plead to the felony
                  because she did not want to take the risk that
                  it might cause deportation.

            Q.    Did you advise       her   as   to   the   risk   of
                  deportation?

            A.    No. I told her that I did not know what the
                  possibility or what ramifications were of a plea
                  to a felony with respect to deportation. I
                  advised her at that time and I advised her --
                  because there were several postponements
                  and then there was a period of time when she
                  was unavailable, but throughout the period of
                  time I advised her that I could not tell her
                  what the outcome of a plea to a felony would
                  be and that she should discuss that with an
                  immigration attorney that after she discussed
                  that with an immigration attorney[,] then she
                  could make a decision.

Id. at 46-48.

      Therefore, as in Wah, Perez was aware that there was a risk of

deportation associated with pleading guilty, and plea counsel advised her to

seek the advice of an immigration attorney to learn the specific ramifications

of pleading guilty.   See id. at 32-33, 46-48. Therefore, we conclude that

plea counsel’s actions were within the range of professionally competent



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assistance and that the PCRA court erred in determining that plea counsel

was ineffective.

      Both the PCRA court and Perez make much of the fact that plea

counsel answered “no” to the question of “[d]id you advise [Perez] as to the

risk of deportation?” See Supplemental Trial Court Opinion, 12/17/14, at 1-

2; Perez’s Brief at 5.     However, in doing so, the PCRA court and Perez

overlook the context of this single answer. Counsel’s testimony, as a whole,

indicates that Perez was clearly aware that pleading guilty in this case

carried with it the risk of deportation and that plea counsel advised her to

seek the advice of an immigration attorney regarding the consequences of

pleading guilty.   See N.T., 8/21/13, at 32-33, 46-48.     Furthermore, Perez

cannot now, having testified at the PCRA hearing that she was apprehensive

about pleading guilty specifically because of the risk of deportation, argue

that her guilty plea was unknowing or involuntary and that plea counsel was

ineffective for his failure to apprise her of that risk.

      Order reversed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/6/2015



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