J-S18005-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FELIX JUNIOR ENCARNACION,

                            Appellant               No. 1204 MDA 2015


                  Appeal from the PCRA Order June 11, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000568-2007


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 04, 2016

       Felix Junior Encarnacion appeals from the order entered June 11,

2015, denying his amended post-conviction relief petition filed pursuant to

the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541, et seq. PCRA

counsel has filed a no-merit brief and petitioned to withdraw under

Turner/Finley.1 We affirm, and grant the petition to withdraw.

       Appellant’s charges were premised upon his possession of, inter alia,

two large bags of heroin, one containing twelve grams and the other

containing 118 grams, as well as 1,150 smaller bags of heroin “packaged for

____________________________________________



1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

*
    Retired Senior Judge assigned to the Superior Court.
J-S18005-16



street delivery.” Police Criminal Complaint, 1/28/07, at 2. The PCRA court

summarized the relevant facts as follows:

            On January 28, 2007, [Appellant] was charged with
     Possession with Intent to Deliver a Controlled Substance and
     numerous related offenses. On June 21, 2007, he entered an
     open plea of guilty to all charges . . . On September 26, 2007,
     he was sentenced to eleven to twenty-five years’ incarceration.
     He filed an untimely Motion to Modify Sentence which [the court]
     denied by Order of October 23, 2007.

            On March 6, 2008, [Appellant’s] first Petition pursuant to
     the [PCRA] was filed. In that Petition, [Appellant] asserted that
     his guilty plea counsel was ineffective for failing to explain the
     guilty plea colloquy and the potential deportation consequences
     of his guilty plea. [The court] denied that Petition by Order
     dated July 25, 2008. On March 2, 2009, that Order was vacated
     by the Pennsylvania Superior Court and the matter was
     remanded for a hearing on the Petition. On July 30, 2009, [the
     court] conducted a hearing on [Appellant’s] PCRA claims. By
     Order of July 7, 2010, [the court] denied [Appellant’s] first PCRA
     petition.

            [Appellant] filed a Notice of Appeal of that Order on August
     4, 2010. In his Concise Statement of Matters Complained of on
     Appeal, [Appellant] asserted that his guilty plea counsel was
     ineffective for failing to explain the potential deportation
     consequences of his entering a guilty plea … By order of April 6,
     2011, the Superior Court vacated our July 7, 2010 order and
     again remanded. In its Order, the Superior Court … deferred
     ruling on the deportation issue and reinstated [Appellant’s] right
     to file a Post-Sentence Motion and pursue his right of direct
     appeal nunc pro tunc.

           On June 6, 2011, [Appellant] filed a Post-Sentence Motion.
     By Order of November 2, 2011, the Post-Sentence Motion was
     granted in part and denied in part. It was determined that
     [Appellant] would be resentenced as the sentence imposed was
     outside the guideline ranges. On January 18, 2012, he was
     resentenced to an aggregate eight years and four months’ to
     twenty years’ incarceration. He filed a Notice of Appeal of this
     Sentence on February 15, 2012 alleging that [the court] failed to

                                    -2-
J-S18005-16



       take various mitigating factors into account in imposing that
       sentence.

              While his appeal of the January 18, 2012 sentence was
       pending, [Appellant] filed another PCRA Petition on March 15,
       2012.     In his second Petition, [Appellant] raised claims of
       ineffective assistance of counsel for counsel’s alleged failure to
       explain the deportation consequences of his guilty plea. By Order
       of March 15, 2013, [the court] denied [Appellant’s] PCRA as [the
       court] found that Padilla [v. Kentucky, 559 U.S. 356 (2010)]
       was inapplicable to his case. On April 4, 2013, [Appellant] filed
       a Notice of Appeal of the Order denying his request for PCRA
       relief. On April 9, 2014, the Superior Court issued an order
       vacating [the court’s] Order of March 15, 2013 and finding all
       Orders pertaining to the withdrawal and appointment of counsel
       to be void ab initio.

             After conducting proceedings to apprise [Appellant] of his
       right regarding counsel, [current] PCRA counsel was appointed
       on September 25, 2014. [Appellant] was then granted leave to
       file an Amended PCRA Petition. On December 1[7], 2014,
       [Appellant] filed his Amended Petition in which he again asserted
       that his guilty plea counsel had failed to advise him of the
       deportation issues involved in his entry of his guilty plea.

PCRA Court Opinion, 6/11/15, at 1-4.

       Appellant became eligible for parole on May 28, 2015, and was

released to the custody of Immigration and Customs Enforcement. He was

subsequently deported to the Dominican Republic.2 On June 11, 2015, the

____________________________________________


2
  Despite being deported, Appellant is still subject to the terms of his parole,
and therefore, this Court may exercise jurisdiction over Appellant’s Petition
pursuant to 42 Pa.C.S. § 9543(a)(1)(i) (a petitioner is eligible for relief if he
can prove by a preponderance of the evidence that he has “been convicted
of a crime under the laws of the Commonwealth and is at the time relief is
granted . . . currently serving a sentence of imprisonment, probation or
parole for the crime”).



                                           -3-
J-S18005-16



PCRA court issued an order of court and opinion denying Appellant’s

amended petition for post-conviction relief. Appellant filed a timely Notice of

Appeal on July 7, 2015.

         On appeal, PCRA counsel filed a petition to withdraw as counsel and a

Turner/Finley brief directing this Court’s attention to two issues of possible

merit:

   I.      Whether the PCRA court erred in finding that Appellant
           received  information     regarding possible deportation
           consequences of a guilty plea[?]

   II.     Whether the PCRA court erred in finding the Appellant’s
           testimony not as credible and granting excessive weight to
           Judge Charles Jones’s testimony[?]

Turner/Finley brief, at 4.

         As a preliminary matter, we must address whether PCRA counsel has

met the requirements of Turner/Finley.             The Turner/Finley decisions

provide     the   manner   for   post-conviction   counsel   to   withdraw   from

representation. The holdings of those cases mandate an independent review

of the record by competent counsel before a PCRA court or appellate court

can authorize an attorney’s withdrawal. Counsel must then file a “no-merit”

letter detailing the nature and extent of his review and list each issue the

petitioner wishes to have examined, explaining why those issues are

meritless.    Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.Super.

2014) (citations omitted). Counsel is required to contemporaneously serve

upon his client his no-merit letter and application to withdraw along with a

                                       -4-
J-S18005-16



statement that if the court granted counsel’s withdrawal request, the client

may proceed pro se or with a privately retained attorney.       Freeland, 106

A.3d at 774 (citations omitted).

      The PCRA court, or an appellate court if the no-merit letter is filed

before it, see Turner, supra, then must conduct its own independent

evaluation of the record. Only if it agrees with counsel that the petition lacks

merit, will counsel be permitted to withdraw.

      Here, we find that counsel has substantially complied with the

requirements of Turner/Finley and their progeny.         Counsel detailed her

review of the record and her conclusion that Appellant’s claims are meritless.

Counsel also notified Appellant, and furnished him with a copy of her no-

merit letter, advising him of his right to proceed pro se or to retain private

counsel.

      We now turn to this appeal to determine whether it is indeed

meritless.   The 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 from legal error. Commonwealth v.

Wah, 42 A.3d 335, 335 (Pa.Super. 2012) (citations omitted).          The PCRA

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

findings in the certified record. Id.

      Appellant first contends he received ineffective assistance of counsel

because he was not advised of the possible deportation consequences of a

                                        -5-
J-S18005-16



guilty plea. To establish ineffectiveness of counsel, a PCRA petitioner must

show the underlying claim has arguable merit, counsel’s actions lacked any

reasonable    basis,   and   counsel’s   actions   prejudiced   the   petitioner.

Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa.Super. 2013) (citations

omitted). The failure to satisfy any prong of the test for ineffectiveness will

cause the claim to fail. Commonwealth v. Rush, 838 A.2d 651 (Pa. 2003).

      Instantly, we find the court had ample support in the record for its

determination that Appellant received instruction and counsel regarding the

possible deportation consequences of a guilty plea.        The court credited

testimony by Appellant’s plea counsel that he was aware of Appellant’s

status as a non-citizen. The court noted testimony by plea counsel and his

court interpreter that it was his customary practice to provide advice

regarding deportation consequences to all his non-citizen clients, even

before the Padilla decision, supra. PCRA Court Opinion, 6/11/15, at 9; see

also, N.T., 6/19/12, at 9, 14-15; id. at 21.

      In addition, Appellant’s pre-sentence report included information

regarding his expired green card and potential immigration detainer.         The

court reasoned that Appellant’s failure to raise an issue with this information

prior to sentencing indicated he had been apprised of the risk of deportation

before entering his plea. When supported by the record, the PCRA court’s

credibility determinations and factual findings are binding on this court.

Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014). As such, we find

                                     -6-
J-S18005-16



Appellant’s first contention lacks arguable merit and his claim of ineffective

assistance of counsel fails. Escobar, supra; Rush, supra.

      Appellant next contends the PCRA court erred by not crediting his

testimony and granting excessive weight to guilty plea counsel’s testimony.

We reiterate, when supported by the record, the PCRA court’s credibility

determinations and factual findings are binding on this court.           Bardo,

supra. As noted above, the PCRA court had ample support for its credibility

determinations and factual findings when it found that Appellant did, in fact,

receive information regarding the possible deportation consequences of a

guilty plea. Thus, Appellant’s final contention is also without merit.

      PCRA counsel has complied with Turner/Finley.         We have reviewed

the record, and we are convinced that no meritorious appellate issues exist.

Accordingly, we affirm the denial of PCRA relief and grant the petition to

withdraw.

      Petition of Kelli M. Knerr, Esquire, to withdraw as counsel granted.

Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016


                                     -7-
