J-S27034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 YVES D. JEUDY,                           :
                                          :
                    Appellant             :    No. 1678 EDA 2017

                 Appeal from the PCRA Order May 18, 2017
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0007194-2011

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                       FILED SEPTEMBER 06, 2018

      Appellant, Yves D. Jeudy, appeals from the May 18, 2017 Order entered

in the Philadelphia County Court of Common Pleas denying his first Petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. He challenges the effectiveness of plea counsel for failing to inform him

of the certainty of his deportation. After careful review, we affirm.

      The underlying facts are not relevant to the instant appeal. Briefly, on

September 4, 2010, Appellant fired a gun multiple times at the victim, striking

him in the ankle.    The Commonwealth charged Appellant with, inter alia,

Attempted Murder and related assault and firearms offenses.
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        On July 18, 2013, Appellant entered an open guilty plea to one count

each of Aggravated Assault and Possession of an Instrument of Crime.1 In

exchange, the Commonwealth nolle prossed several charges.2           Appellant

executed a written guilty plea colloquy, and the court conducted a thorough

colloquy in open court. In both colloquies, Appellant acknowledged the risk

of his deportation.

        The court accepted Appellant’s guilty plea as knowing and voluntary,

and imposed an aggregate term of three to six years’ incarceration, followed

by four years’ probation. Appellant did not appeal or challenge the validity of

his plea.

        On July 11, 2014, Appellant filed a pro se PCRA Petition, alleging

ineffective assistance of plea counsel regarding counsel’s advice about the

immigration consequences of his plea. He averred that because of counsel’s

deficient advice, his plea was not knowingly entered.        The PCRA court

appointed counsel, who subsequently filed an Amended PCRA Petition claiming

that Appellant’s plea counsel provided him “incorrect information regarding

the consequences of his plea on his immigration status.” Appellant’s Amended

PCRA Petition, 10/9/15, at 2.




____________________________________________


1   18 Pa.C.S. § 2702 and 18 Pa.C.S. § 907, respectively.

2 The trial court also stated that “[t]he case was demandatorized from a five
(5) year [mandatory] minimum[.]” PCRA Court Opinion, 11/13/17, at 1.

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      After providing notice to Appellant pursuant to Pa.R.Crim.P. 907, the

PCRA court dismissed Appellant’s Petition without a hearing on May 18, 2017.

      Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      Did the Appellant raise substantial issues of material fact to
      require that an evidentiary hearing be held prior to determination
      of the PCRA petition?

Appellant’s Brief at 9.

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).     We give no such deference, however, to the court’s legal

conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

      The   law   presumes   counsel   has   rendered   effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. There is

no right to a PCRA hearing; a hearing is unnecessary where the PCRA court

can determine from the record that there are no genuine issues of material

fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).


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      In order to succeed on a claim of ineffective assistance of counsel,

Appellant must demonstrate (1) that the underlying claim is of arguable merit;

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

ineffectiveness of counsel caused the appellant prejudice. Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003).        Appellant bears the burden of

proving each of these elements, and his “failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.”

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation

omitted).

      Further, “[a]llegations of ineffectiveness in connection with the entry of

a guilty plea will serve as a basis for relief only if the ineffectiveness caused

appellant to enter an involuntary or unknowing plea.” Fears, 86 A.3d at 806-

07 (citation omitted).

      Here, Appellant avers that his plea “counsel failed to advise [him] of the

immigration consequences of his plea[,]” and the “advice of counsel was

deficient and therefore [his] plea was not knowing and voluntary.” Appellant’s

Brief at 11, 16 (citing Padilla v. Kentucky, 559 U.S. 356 (2010)). He avers

that during the plea hearing “the court, while stating that no promises were

made, assured the Appellant that the expectation was that he would not be

deported.” Appellant’s Brief at 12.

      In Padilla, decided by the U.S. Supreme Court in March 2010, plea

counsel failed to advise Padilla of the deportation consequence of pleading


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guilty, and advised him that he did not need to worry about his immigration

status because he had been living legally in the United States for forty years.

Padilla, 559 U.S. at 356. The U.S. Supreme Court reversed the denial of

post-conviction relief, holding that in order “to ensure that no criminal

defendant—whether a citizen or not—is left to the mercies of incompetent

counsel[,] . . . counsel must inform her client whether his plea carries a risk

of deportation.” Id. at 374 (citation and quotation marks omitted).

      The Court recognized that immigration law can be complex and is a legal

specialty of its own, so that 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 369. The Court then remanded the case for a determination of

whether Padilla had been prejudiced by counsel’s failure to inform his client of

the risk of deportation.

      Pennsylvania courts subsequently interpreted and applied the Padilla

holding in a number of cases. See, e.g., Commonwealth v. Escobar, 70

A.3d 838, 841-42 (Pa. Super. 2013) (holding that Padilla requires “counsel

to inform a noncitizen defendant that there is a risk of deportation, not that

deportation is a certainty.”); Commonwealth v. Wah, 42 A.3d 335, 339-41

(Pa. Super. 2012) (rejecting ineffectiveness claim where counsel informed the

defendant that there could be deportation consequences as a result of his plea


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and   suggested    that    he   consult       with   immigration   counsel);   and

Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super. 2013) (holding

that Padilla requires counsel to inform a non-citizen defendant of the risk of

deportation, not that deportation is a certainty).

      Here, the PCRA court determined that Appellant knew and understood

when he pleaded guilty that deportation was a possible consequence of his

conviction. See PCRA Court Opinion, dated 11/13/17, at 1-3. The PCRA court

ultimately concluded that Appellant had not proven that plea counsel had

provided ineffective assistance. The PCRA court opined as follows:

      Transcripts of a guilty plea colloquy on July 18, 2013 between
      [Appellant] and the Honorable Chris R. Wogan are clear that
      [Appellant] was warned that a guilty plea may affect his
      immigration status, that chances are he would remain in the U.S,
      but critically, there were no promises this would happen.

                                 *        *      *

      In addition to this oral colloquy, [Appellant] signed a written guilty
      plea colloquy containing [a warning about the risk of deportation.]

                                 *        *      *

      [Appellant’s] signature and his printed name are handwritten on
      the document containing the above warning.

      The two colloquies, oral and written, are dispositive. [Appellant]
      was advised and he was satisfied with his lawyer. There is no due
      process violation under [Padilla] as the constitutional
      requirement is that a defendant be aware of a risk of deportation,
      not that the risk is a certainty. [Escobar, 70 A.3d at 841-42].

PCRA Court Opinion, 11/13/17, at 1-3 (footnote and block quotations

omitted). We agree with the PCRA Court’s legal analysis.


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       Prior to entering the plea, Appellant completed a written colloquy and

participated in a full colloquy in open court.          In the written plea colloquy,

Appellant acknowledged the following warning by signing his name: “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.” Written Plea Colloquy, dated 7/18/13, at 3.

       During the colloquy in court, Appellant acknowledged that (1) he was a

citizen   of   another    country;     (2)     he   discussed   “possible   immigration

repercussions” with his plea counsel; (3) no one made any promises about

whether he would remain in the United States; and (4) he was satisfied with

his legal representation.           N.T., 7/18/13, at 11-12.           Appellant also

acknowledged reviewing and signing the written colloquy with counsel’s

assistance. Id. at 5.

       Based on our review, we conclude that the record supports the PCRA

court’s determination that Appellant entered his guilty plea voluntarily,

knowingly, and intelligently, and that plea counsel properly informed

Appellant, as required by Padilla, that his guilty plea carried a risk of

deportation.3 Accordingly, we affirm the denial of PCRA relief.

       Order affirmed.


____________________________________________


3Moreover, Appellant is bound by his statements made at the plea colloquy
under oath, and “he may not now assert[] grounds for withdrawing the plea
which contradict the statements.” Commonwealth v. Willis, 68 A.3d 997,
1009 (Pa. Super. 2013) (citation omitted).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/18




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