J-S36008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CARLOS S. CANTORAL

                            Appellant                 No. 1935 MDA 2015


                 Appeal from the PCRA Order October 15, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0003513-2012


BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                                FILED JULY 20, 2016

        Appellant, Carlos S. Cantoral, appeals from the October 15, 2015 order

denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. After careful consideration, we affirm.

        We summarize the procedural history of this case as follows.        On

January 13, 2012, Officer Timothy Fink, of the West Manchester Township

Police Department, charged Appellant with two counts of indecent assault

and one count of disorderly conduct1 in connection with a December 18,

2011 incident where Appellant approached a 15-year-old girl in the make-up

aisle of Target and squeezed or pinched her buttocks.             After some

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3126(a)(1), 3126(a)(4), and 5503(a)(4), respectively.
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continuances, Appellant waived his preliminary hearing and, on June 6,

2012, applied for admittance into the Accelerated Rehabilitative Disposition

(ARD) program. The District Attorney approved the application and filed a

motion for Appellant’s admission into the ARD program.             The trial court

admitted Appellant into the ARD program with special sex offender

conditions on August 24, 2012.           One special condition, of which Appellant

was advised, was that “[Appellant] shall be required to obtain approval

before leaving the jurisdiction of the Court and [Appellant] must secure

travel permission before leaving the state.”          ARD Order and Conditions,

8/24/12, at 2, ¶ 4. The U.S. Immigration and Customs Enforcement agency

contacted the clerk of courts, on November 8, 2012, requesting existing and

future documentation relative to Appellant’s case.

       Citing unauthorized travel by Appellant, the York County Office of

Adult Probation, on November 14, 2012, petitioned for Appellant’s removal

from the ARD program.2 In the meantime, Appellant retained new counsel,

who, on November 30, 2012, filed a motion on Appellant’s behalf to

withdraw from his ARD program and proceed to trial.3           After a hearing on

the Probation Department’s motion to remove, held on January 4, 2013, the

____________________________________________
2
  We note that Pennsylvania Rule of Criminal Procedure 318(A) directs that
motions charging a defendant with violation of the conditions of his ARD be
initiated by the attorney for the Commonwealth.
3
  Appellant was initially represented by Anthony Sangiamo, Esquire, and
subsequently by Matthew Menges, Esquire.


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trial court issued an order, filed January 31, 2013, removing Appellant from

the ARD program.4

       Appellant’s case eventually proceeded to a jury trial.   On January 8,

2015, the jury returned a verdict of guilty on the two indecent assault

counts and not guilty on the disorderly conduct charge. 5 On February 23,

2015, the trial court initially sentenced Appellant to six to twenty-three

months’ with the six months to be served on house arrest with electronic

monitoring.     The Commonwealth filed a post-sentence motion to modify

sentence, averring the sentence as structured was illegal.      Commonwealth
____________________________________________
4
  A transcript of the January 4, 2013 hearing is not contained in the certified
record, and it is unclear whether Appellant’s motion to withdraw from the
ARD program was also addressed at that time. It is also unclear whether
the trial court’s order was based on a finding of a violation or was a grant of
Appellant’s motion. The parties and the trial court advance the position that
Appellant’s removal was based on a grant of Appellant’s motion to withdraw.
See Commonwealth’s Brief at 5 (asserting,”[o]n January 4, 2013,
[Appellant] withdrew from the ARD program”); Appellant’s Brief at 4, 9, 13
(indicating no hearing on Appellant’s violation was held and that, on January
4, 2013, Appellant was permitted to withdraw from his ARD program); PCRA
Court Opinion, 2/2/16, at 4, 11 (indicating the PCRA court “took judicial
notice that Attorney Menges and the Commonwealth had agreed to allow the
Appellant to withdraw from ARD,” and that the allegation of Appellant’s
violation of his ARD remains undecided). However, a transcript from a
hearing held on January 22, 2013 indicates that the 22nd was the date set to
address Appellant’s motion to withdraw.              The attorney for the
Commonwealth opened the hearing as follows. “Your Honor, we’re here
today on [Appellant’s] motion to withdraw from ARD and compel discovery.
I believe the ARD portion of that motion would be moot at this point. On
January 4th of this year, he was removed from ARD for failure to abide by
the conditions.” N.T., 1/22/13, at 2 (emphasis added). Counsel for
Appellant acknowledged that was an accurate statement. Id.
5
  After an earlier bench trial, Appellant was granted a new trial based on the
inadequacy of the pretrial colloquies.


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Motion to Modify Sentence, 3/3/15, at 1-2, citing Commonwealth v.

DiMauro, 642 A.2d 507 (Pa. Super. 1994). The trial court, on March 26,

2015, modified Appellant’s sentence to two years of probation with the first

six months on electronically monitored house arrest.

       On September 15, 2015, Appellant filed a timely, counselled PCRA

petition, alleging ineffective assistance of prior counsel for failure to advise

him of the immigration consequences of a conviction at the time he was

contemplating withdrawing from the ARD program. The PCRA court held an

evidentiary hearing on October 9, 2015.          On October 15, 2015, the PCRA

court denied Appellant’s PCRA petition.          Appellant filed a timely notice of

appeal on November 2, 2015.6

       Appellant raises the following questions for our review.

              A.     Whether Appellant was denied the effective
              assistance of counsel because defense counsels
              failed to advise him of the immigration consequences
              of his criminal charges and the specific procedures
              and     potential   immigration   consequences    of
              withdrawing from the [ARD] program?

              B.     Whether defense counsels are per se
              ineffective when they fail to make inquiry into their
              client’s citizenship?

              C.    Whether under the [PCRA], if it is determined
              that the appellant received ineffective assistance of
____________________________________________
6
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Appellant, now facing deportation, filed on June
28, 2016, a motion before this Court requesting an advance decision in this
case. Our disposition of the matter renders Appellant’s motion moot.



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              counsel, the court may, as an appropriate remedy of
              relief, vacate a jury verdict and further order the
              appellant’s reinstatement into the ARD program[?]

Appellant’s Brief at 2.7

       We review the denial of a PCRA petition in accordance with the

following criteria. “Our standard of review of [an] order granting or denying

relief under the PCRA requires us to determine whether the decision of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.”           Commonwealth v. Melendez-

Negron, 123 A.3d 1087, 1090 (Pa. Super. 2015) (citation omitted).

              We view the findings of the PCRA court and the
              evidence of record in a light most favorable to the
              prevailing party. … The PCRA court’s credibility
              determinations, when supported by the record, are
              binding on this Court; however, we apply a de novo
              standard of review to the PCRA court’s legal
              conclusions.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal

quotation marks and citations omitted). In this case, Appellant claims both

of his prior attorneys were ineffective.

              To be entitled to relief on an ineffectiveness claim, [a
              claimant] must prove the underlying claim is of
____________________________________________
7
  Appellant has not divided his argument section to correspond with his
questions presented on appeal in accordance with Pennsylvania Rule of
Appellate Procedure 2119(a). Rather, Appellant advances a single argument
encompassing all of his issues. We therefore address Appellant’s issues in
the same manner.



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              arguable merit, counsel’s performance lacked a
              reasonable basis, and counsel’s ineffectiveness
              caused him prejudice. Commonwealth v. Pierce,
              567 Pa. 186, 786 A.2d 203, 213 (2001); see also
              Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
              973 (1987). Prejudice in the context of ineffective
              assistance of counsel means demonstrating there is
              a reasonable probability that, but for counsel’s error,
              the outcome of the proceeding would have been
              different. … Failure to establish any prong of the
              test will defeat an ineffectiveness claim.

Commonwealth v. Solano, 129 A.3d 1156, 1162-1163 (Pa. 2015), quoting

Commonwealth v. Keaton, 45 A.3d 1050, 1060-1061 (Pa. 2012) (some

citations and footnote omitted).8 “Trial counsel is presumed to be effective,

and a PCRA petitioner bears the burden of pleading and proving each of the

three factors by a preponderance of the evidence.”          Commonwealth v.

Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015) (citation omitted). “When

evaluating ineffectiveness claims, judicial scrutiny of counsel’s performance

must be highly deferential.        Counsel will not be deemed ineffective where

the strategy employed had some reasonable basis designed to effectuate his

or her client’s interests.” Id. at 1290.

       Appellant rests his claim of ineffective assistance of counsel on the

applicability of Padilla v. Kentucky, 559 U.S. 356 (2010), which held that

the risk of deportation, “because of its close connection to the criminal

process, [is] uniquely difficult to classify as either a direct or a collateral
____________________________________________
8
 The Pierce case articulated Pennsylvania’s three-part version of the two-
part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984).



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consequence.” Id. at 366.      Accordingly, the Court in Padilla held that

counsel’s failure to properly advise a client of such consequences is subject

to the analysis for effective representation under Strickland, noting “[t]he

weight of prevailing professional norms supports the view that counsel must

advise [his or] her client regarding the risk of deportation.”     Id. at 367

(citations omitted).   Furthermore, the Padilla Court held “there is no

relevant difference between an act of commission and an act of omission in

this context.” Id. at 370 (internal quotation marks and citation omitted).

      The Padilla case arose specifically in the context of counsel’s advice in

connection with a guilty plea, noting that “[b]efore deciding whether to plead

guilty, a defendant is entitled to the effective assistance of competent

counsel.” Id. at 364 (internal quotation marks and citations omitted). We

must first determine whether the holding in Padilla is applicable to a

defendant’s decisions regarding participation in an ARD program. Appellant

asserts that Padilla should apply in the instant case for the following

reasons.

            Defendants have a Sixth Amendment right to
            counsel, a right that extends to all stages of the
            criminal process including the plea-bargaining
            process. Missouri v. Frye, 132 S.Ct. 1399, 1405,
            182 L.Ed.2d 379 (2012); see also Padilla, [supra
            at 373]; Hill v. Lockhart, 474 U.S. 52, 57, 106
            S.Ct. 366 (1985); see McMann v. Richardson, 397
            U.S. 759, 771, 90 S.Ct. 1441 (1970) (defendants are
            “entitled to the effective assistance of competent
            counsel “during plea negotiations.”).     The ARD
            program is part of that process.


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Appellant’s Brief at 14.

      Neither the PCRA court nor the Commonwealth question this premise

and accept, without discussion, that Appellant was entitled to effective

assistance of counsel in connection with his decision to withdraw from the

ARD program. In agreement with Appellant, we note that Pennsylvania Rule

of Criminal Procedure 312 requires a hearing in the presence of a defendant

and his counsel to admit the defendant into an ARD program. Additionally,

Rule 318 requires a hearing in the presence of a defendant and his counsel

when contemplating removal of the defendant from an ARD program for

violation of its conditions.    Moreover, this Court has previously addressed

ineffective assistance of counsel issues in connection with a counsel’s

purported     failure     to   pursue   a     defendant’s   ARD   participation.

Commonwealth v. Brown, 504 A.2d 927                   (Pa. Super. 1986);     cf.

Commonwealth v. Chazin, 873 A.2d 732 (Pa. Super. 2005) (subjecting a

claim that counsel failed to adequately communicate a Commonwealth plea

offer to the Pierce effectiveness-of-counsel test), appeal denied, 887 A.2d

1239 (Pa. 2005).        Therefore, we conclude that a represented defendant’s

decisions surrounding his or her participation in an ARD program require

effective assistance of counsel and we proceed to review the PCRA court’s

determination that Appellant failed to meet his burden to establish

ineffective assistance of counsel.




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      Instantly, in addressing the first two prongs of the Pierce test, the

PCRA court determined that the evidence supported Appellant’s claim that

neither of his counsel advised him of the immigration consequences of a

conviction or of the advantages of successful completion of the ARD program

on his immigration status. PCRA Court Opinion, 2/2/16, at 10. Further, the

PCRA court determined that counsels’ actions “lacked any reasonable basis

where they did not perform a required duty.” Id. at 11. Accordingly, the

PCRA court found that “Appellant met the first two parts of the three-part

[Pierce] test for ineffectiveness.” Id.

      In considering whether Appellant established the third prong of the

Pierce test, i.e., that he suffered prejudice as a result of counsel’s failure to

advise him of the immigration consequences of withdrawing from the ARD

program, the PCRA court considered the testimony received at the October

9, 2015 hearing on Appellant’s PCRA petition.     The PCRA court summarized

that testimony as follows.

                   During his testimony, [] Appellant stated that
            it never occurred to him that he might be deported
            as a consequence of the criminal charges he faced in
            the instant case and none of his counselors
            addressed this issue.      Appellant admitted that a
            probation officer explained to him that his movement
            would be restricted to a certain area. [] Appellant
            further testified that he was informed by a probation
            officer that his charges would not be expunged at
            the end of the ARD program.           Based upon this
            information, [] Appellant testified that he spoke with
            [Attorney] Sangiamo who offered that if [] Appellant
            wanted off of ARD then he simply needed to sign
            papers and Attorney Sangiamo would take care of

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              the matter. [] Appellant also told this Court that
              Attorney Sangiamo knew [] Appellant was a truck
              driver and that [] Appellant should continue on about
              his business in violation of the ARD restrictions on
              travel.

                     [] Appellant testified that he did not believe
              Attorney Sangiamo was a competent attorney and
              that he informed [Attorney] Sangiamo that he would
              be seeking different counsel. Appellant stated that
              he was informed by his probation officer that he had
              not been removed from the program. We heard
              testimony from [] Appellant that if he had known
              that Attorney Sangiamo had not accomplished
              Appellant’s removal from ARD then [] Appellant
              would have complied with the rules of the program.
              Finally, [] Appellant informed this Court that neither
              Attorney Sangiamo, nor Attorney [] Menges,
              explained any immigration consequences to []
              Appellant.[9]

                                               …

                     Probation Officer Cindy Sweitzer was called to
              testify at the PCRA Hearing and she began by stating
              that, on the day [] Appellant was placed onto ARD,
              she was called upon to speak with [] Appellant
              because he had stated that he would not be
              complying with the sex offender conditions including
              the one about leaving the county. Officer Sweitzer
              clarified that [] Appellant understood the conditions;
              however, [] Appellant was “quite angry about [the

____________________________________________
9
  Attorney Menges also testified at the hearing. He testified that he first met
with Appellant on or about October 15, 2012. Appellant related that he was
concerned about remaining on the ARD program if the charges would not
thereafter be expunged. Appellant also expressed concern about the need
to comply with the travel conditions of the ARD, which he felt would
jeopardize his employment as a truck driver.         Nevertheless, Attorney
Menges averred he was unaware that Appellant was actually not in
compliance when he prepared and filed Appellants motion to withdraw from
the ARD program. PCRA Court Opinion, 2/2/16, at 5-6.


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            conditions]” and stated that he would not comply
            with them.

                  Within thirty days of his intake for ARD, Officer
            Sweitzer met with [] Appellant again and he
            indicated that he was still driving outside of the
            County of York, Pennsylvania.         Officer Sweitzer
            informed    Appellant    that    this  behavior    was
            inappropriate and that he should speak to his
            attorney. At the conclusions of both the initial ARD
            intake meeting and the second meeting, following
            the explaining of conditions, [] Appellant stated that
            he would not comply because he felt that the
            conditions were unfair.

                  Officer Sweitzer conducted a third meeting
            with [] Appellant approximately two weeks after the
            second meeting and during this meeting [] Appellant
            informed Officer Sweitzer that he was still travelling
            to other states and he maintained that he would
            continue to do so. Further, [] Appellant informed
            Officer Sweitzer that he wanted to be removed from
            the ARD program. The probation officer informed []
            Appellant that the docketing information available to
            her indicated [] Appellant was still on ARD and that
            [] Appellant could not self-remove himself. …

                   … It was only at [their] fourth meeting that []
            Appellant informed Officer Sweitzer that he did not
            believe he was in the ARD program anymore. []
            Appellant went on to tell Officer Sweitzer that
            whether he was in the program or not he was going
            to keep driving out of York County. Finally, while the
            violation was filed in November, [] Appellant was
            aware in October that the violation was being filed.

Id. at 4-8 (citations and footnotes omitted).

      The PCRA court indicated it “found Officer Sweitzer credible and much

of the Appellant’s testimony incredible.”       Id. at 11.   The PCRA court

concluded that, given Appellant’s recalcitrance regarding compliance with


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the travel restrictions of the ARD program from the beginning of his

enrollment, and his “consistent refusal to abide by the dictates of the ARD

program, … Appellant would be found in violation and removed from the

program” on that basis.   Id. at 11-12. The PCRA court further concluded

that “[d]ue to the very serious nature of the crime Appellant was accused of,

the condition that he remain in the county was fundamentally important and

not a violation    we   would be    prepared to    overlook.”    Id.   at 12.

Consequently, the PCRA court concluded that Appellant did not establish

prejudice from counsels’ deficient performance in failing to advise him of the

immigration consequence of his decision to withdraw from the ARD program,

because Appellant would be removed from the ARD program anyway. Id.

      Appellant counters that the PCRA court’s reasoning is flawed for two

reasons. Appellant’s Brief at 22. First, Appellant argues his non-compliance

was a result of counsels’ ineffectiveness, because if he had fully understood

the consequences of doing so, he would not have resisted the conditions

imposed by ARD program. To this point, the PCRA court asserts as follows.

            For Appellant to succeed on this point, we must
            believe that if [] Appellant had only known how
            much more serious the ramifications of his failure to
            complete ARD successfully were then he would have
            been compliant. We do not believe this to be true
            and it was not true in actuality.

PCRA Court Opinion, 2/2/16, at 12. Second, Appellant asserts that even if

found in violation, removal from an ARD program is not mandatory. Id. at




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24. “There is no obligation to remove someone from ARD for merely trying

to maintain employment and continue working.” Id. at 27-28.

      “Termination of ARD participation is charged to the sound discretion of

the trial court. On appeal we will only reverse an ARD termination where the

court abused its discretion or committed an error of law.” Commonwealth

v. Lebo, 713 A.2d 1158, 1161 (Pa. Super. 1998) (citations and footnote

omitted), appeal denied, 737 A.2d 741 (Pa. 1999).

      Our review of the record discloses support for the PCRA court’s factual

findings.   Accordingly, we are bound by those findings and Appellant’s

argument that the PCRA court “gave undue deference to Officer Sweitzer” is

unavailing. See Mason, supra. Here the PCRA court found that Appellant

was unwilling to accept the conditions of his ARD program at his first

meeting with Officer Sweitzer.   PCRA Court Opinion, 2/2/16, at 11.      Had

Appellant expressed his reservation at the ARD hearing, he would not have

been admitted into the program.     See Pa.R.Crim.P. 317 (providing “[i]f a

defendant refuses to accept the conditions required by the judge, the judge

shall deny the motion for [ARD]”) (emphasis added).         In Chazin, the

appellant raised a claim of ineffective assistance of counsel in his PCRA

petition based on Counsel’s failure to properly advise him about a time-

limited plea agreement offer. Chazin, supra at 735. After acknowledging

that counsel should have properly advised the appellant, we nevertheless

held that the appellant failed to demonstrate prejudice where the evidence


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indicated the trial court would have rejected the agreement if it had been

presented to it. Id. at 737-738.

     We conclude that the case at bar is analogous to Chazin. Here, the

evidence supports the PCRA court’s finding that Appellant would still be

removed from the ARD program based on his non-compliance, which the

PCRA court determined was distinct from his awareness or non-awareness of

his immigration consequences.      We perceive no abuse of discretion in the

PCRA court’s determination that Appellant will not be continued in the ARD

program. See Lebo, supra. Based on the foregoing, we discern no abuse

of discretion in the PCRA court’s denial of PCRA relief.    Accordingly, we

affirm the PCRA court’s October 15, 2015 order.

     Order affirmed. Motion denied as moot.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2016




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