J-S18005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    PRIMALFI FRONETA MORALES                    :
                                                :
                       Appellant                :   No. 1648 MDA 2018

             Appeal from the PCRA Order Entered August 29, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0007549-2016


BEFORE:      BOWES, J., NICHOLS, J., and STEVENS,* P.J.E.

MEMORANDUM BY BOWES, J.:                       FILED: AUGUST 23, 2019

       Primalfi Froneta Morales appeals from the order that denied his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

       Appellant is a native of the Dominican Republic who obtained legal

status as a permanent resident of the United States. On March 30, 2017,

Appellant, with the assistance of an interpreter, pled guilty to delivering more

than five grams of heroin and was sentenced to six to twenty-three months of

imprisonment.1 At the conclusion of the plea/sentencing hearing, plea counsel



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1 Although English is Appellant’s second language, his counsel indicated that
all of his conversations with Appellant had been in English, that Appellant
speaks “fairly good English,” that Appellant’s wife was regularly present to
assist in translation “if there were ever any issues of concern.” N.T. Plea &
Sentence, 3/30/17, at 3. As such, counsel believed that Appellant “very much



*    Former Justice specially assigned to the Superior Court.
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stated “for the record, we have had a discussion with respect to what I believe

is the very real possibility of immigration consequences associated with this

particular plea, and my client understands that . . . .”2 N.T. Plea & Sentence,

3/30/17, at 8. His judgment of sentence became final on April 29, 2018, when

he failed to file a direct appeal.3

       Appellant filed a timely, counseled PCRA petition on March 28, 2018.

Therein, Appellant claimed that his plea was not knowing and voluntary

because (1) plea counsel failed to inform him that his conviction guaranteed

his “removal from the United States, loss of Lawful Permanent Resident

Status, and a lifetime bar from reentering the United States;” and (2) the trial

court failed to conduct a plea colloquy that sufficiently assured that Appellant

understood the immigration consequences of his plea.            PCRA Petition,

3/28/18, at ¶ 7.

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understood” the terms of the plea agreement. Id. Appellant, through the
interpreter, indicated that counsel’s representations were correct. Id.

2  The trial court amplified counsel’s statement about the impending
immigration consequences of Appellant’s conviction by concluding the hearing
with the following: “Mr. Trump’s watching. He’s coming for you. Thank you.
Good luck to you.” N.T. Plea & Sentence, 3/30/17, at 8.

3 See 42 Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at the conclusion
of direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration
of time for seeking the review.”) (emphasis added). The PCRA court
erroneously opined that Appellant’s failure to file a direct appeal caused his
judgment of sentence to become final on the day it was entered. See PCRA
Court Opinion, 9/4/18, at 2.



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       The PCRA court held a hearing on the petition at which Appellant, his

wife, and plea counsel testified. Appellant and his wife both testified that plea

counsel never spoke with Appellant about the immigration consequences of

his plea. N.T. PCRA Hearing, 7/23/18, at 9, 39. Appellant indicated that, had

he known that he would have been automatically deported as a result of his

plea,4 he would have gone to trial, as his life is in danger in the Dominican

Republic. Id. at 12. When confronted with plea counsel’s representation at

the close of the plea/sentencing hearing that Appellant was aware of the

immigration consequences of his plea, Appellant acknowledged that he had

failed to contradict counsel, but claimed that he “didn’t understand what was

going on that day,” and that, although he had an interpreter, he “didn’t

understand the immigration issues too well.”      Id. at 19-20.      However, he

acknowledged that he did not ask plea counsel to be more specific in his

opinions about immigration consequences. Id. at 20.

       Plea counsel, on the other hand, testified that he repeatedly informed

Appellant that deportation would be “a most likely consequence” of his

conviction. Id. at 24-25. The Commonwealth further offered into evidence a

letter plea counsel sent to Appellant that included the following:


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4The parties stipulated that, if called to testify, immigration attorney Raymond
G. Lahoud, Esquire, would have indicated that Appellant’s conviction “under
almost all circumstances” has “only one possible form of relief from automatic
deportation,” namely deferral or removal under the United Nations Convention
Against Torture. Summary of Testimony of Raymond G. Lahoud, Esquire,
7/30/18, at 4.

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             As I have mentioned to you on several prior occasions, it is
      my belief that any plea to the existing criminal offenses will result
      in a felony conviction, a period of County incarceration and most
      likely future deportation proceedings.        While the issue of
      deportation would be decided at a later venue, it is my opinion
      that a drug conviction of this nature would be extremely
      problematic with your efforts to maintain residence in this country.
      I base this upon your status as a permanent resident who was
      born in the Dominican.

Id. at 28.    Plea counsel indicated that Appellant and his wife regularly

responded to letters he sent to Appellant’s mailing address, and that neither

this letter, nor any correspondence mailed to Appellant, was returned as

undeliverable. Id. at 26-27.     Plea counsel also testified to the following. He

tried to negotiate a plea that would not have carried adverse immigration

consequences, but the Commonwealth refused.              Id. at 25-26.     He also

informed Appellant that he “wish[ed] there was a way [he] could figure out

where [Appellant] could stay in the country, but . . . if [Appellant went] to

trial, [he was] going to get . . . a significantly worse sentence . . . and still be

deported based upon the evidence that was available.”           Id. at 30.    Even

though they “talked about it and it was sad,” plea counsel saw “no option or

angle to pursue” to avoid deportation. Id. at 31.

      The PCRA court credited the testimony of plea counsel, held that

Appellant failed to establish that he was entitled to relief, and denied the

petition by order of August 29, 2018. Appellant filed a timely notice of appeal,

and both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents this Court with the following questions:


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      1.    Whether the PCRA court erred by failing to vacate the
            [Appellant]’s guilty plea and sentence, where his counsel
            failed to properly advise [Appellant] that his plea of guilty
            to this offense made him subject to virtually automatic and
            permanent deportation, where consequences of his guilty
            plea could easily have been determined from reading the
            removal statute, his deportation was presumptively
            mandatory, and his counsel’s advice was incorrect on the
            issue?

      2.    Whether The PCRA court erred by failing to vacate
            [Appellant]’s guilty plea and sentence, where the sentencing
            court failed to conduct a complete guilty plea colloquy, to
            insure that [Appellant]’s guilty plea was knowingly and
            voluntarily made; failed to insure that [Appellant] was
            aware of the immigration consequences of his guilty plea
            and sentence; and failed to insure that [Appellant] was
            aware that he, a Lawful Permanent Resident of the United
            States of America, would, as a direct consequence of the
            plea and sentence before this court, lose his Lawful
            Permanent Resident Status in the United States and be
            deported to his native country, with a permanent ban from
            any attempt to lawfully reenter the United States of America
            in any status?

Appellant’s brief at 4-5 (unnecessary capitalization omitted).

      We begin with a review of the applicable law. “This Court’s 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 of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.

2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA

court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684,

688 (Pa.Super. 2012).

      Counsel is presumed to be effective, and a PCRA petitioner bears the

burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112

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(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal

claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s

decision to act (or not) lacked a reasonable basis designed to effectuate the

petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish

any prong is fatal to the claim. Id. at 113. Further, “[i]n the context of a

plea, a claim of ineffectiveness may provide relief only if the alleged

ineffectiveness caused an involuntary or unknowing plea.” Commonwealth

v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017).

         We turn first to Appellant’s claim that plea counsel was ineffective in

failing to correctly advise him that deportation was a virtually-certain

consequence of his guilty plea. Generally, “a defendant’s lack of knowledge

of collateral consequences of the entry of a guilty plea does not undermine

the validity of the plea, and counsel is therefore not constitutionally ineffective

for failure to advise a defendant of the collateral consequences of a guilty

plea.”     Commonwealth v. Abraham, 62 A.3d 343, 350 (Pa. 2012).

However, the United States Supreme Court has recognized that, because

changes in immigration law “have made removal nearly an automatic result

for a broad class of noncitizen offenders,” it is inappropriate “to divorce the

penalty from the conviction in the deportation context” in considering the

constitutional right to effective assistance of counsel. Padilla v. Kentucky,

559 U.S. 356, 366 (2010). Accordingly, it held that “counsel must inform her

client whether his plea carries a risk of deportation.” Id. at 374.


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      As detailed above, plea counsel in the instant case testified that he

repeatedly advised Appellant that his plea not only carried a risk of

deportation, but that deportation proceedings “most likely” would follow. The

PCRA court accepted plea counsel’s representations as true, and concluded

that this advice was sufficient to comply with his duty under Padilla. See

PCRA Court Opinion, 9/4/18, at 4.

      Appellant argues that plea counsel’s representations concerning the

immigration consequences of his plea failed to satisfy Padilla. Appellant’s

argument is based upon the following language in the Padilla decision:

             Immigration law can be complex, and it is a legal specialty
      of its own. Some members of the bar who represent clients facing
      criminal charges, in either state or federal court or both, may not
      be well versed in it. There will, therefore, undoubtedly be
      numerous situations in which the deportation consequences of a
      particular plea are unclear or uncertain. The duty of the private
      practitioner in such cases is more limited. 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, as it was in
      this case, the duty to give correct advice is equally clear.

Padilla, supra at 1483 (footnote omitted).

      The immigration statute at issue in Padilla, the same one implicated by

Appellant’s plea, provides: “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 . . ., other than a single offense involving possession for




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one’s own use of 30 grams or less of marijuana, is deportable.” 8 U.S.C.

§ 1227(a)(2)(B)(i).

      Contending that this statute provides clear consequences to Appellant’s

guilty plea to delivery of heroin, he argues that the information counsel

provided to him was “misleading” and “incorrect.”      Appellant’s brief at 26.

Appellant argues as follows:

      Taken as a whole, it indicated at most that deportation may occur,
      possibly could occur, or was even likely; however, nowhere was
      [Appellant] advised that he was subject to automatic deportation,
      that the deportation statute commands deportation, that
      deportation for his conviction would be practically inevitable, and
      that upon his deportation [Appellant] would be barred from re-
      entry, all concepts articulated as accurate in the Padilla decision.

Id. at 26-27.

      This Court rejected Appellant’s argument in Commonwealth v.

Escobar, 70 A.3d 838, 840 (Pa.Super. 2013).          In that case, “Escobar’s

counsel informed him it was ‘likely and possible’ that deportation proceedings

would be initiated against him” prior to Escobar’s entry of a guilty plea to

possession with intent to deliver cocaine.     Id. at 340.    After deportation

proceedings were initiated against him based upon his conviction, Escobar

filed a PCRA petition claiming that his counsel had been ineffective in not

properly advising him of the immigration consequences of his plea. The PCRA

court agreed, holding Escobar’s plea was invalid due to counsel’s failure to

supply sufficient advice. On appeal, this Court disagreed.




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       This Court “acknowledge[d] that parts of the Padilla opinion contain

language arguably supporting the notion that plea counsel in some cases may

have a duty to provide a rather certain indication of deportation.” Id. at 842.

However, elsewhere “the [C]ourt concluded that the statute clearly made

Padilla ‘eligible for deportation’ and that ‘his deportation was presumptively

mandatory.’” Id. at 842 (quoting Padilla, supra at 1483) (emphasis added

in Escobar decision). Further, the express holding of Padilla is limited to

stating that counsel must inform a defendant whether the “‘plea carries a risk

of deportation.’” (quoting Padilla, supra at 1486).

       Therefore, this Court reversed the grant of PCRA relief to Escobar,

explaining as follows:

             We do not agree that giving “correct” advice necessarily
       means counsel, when advising Escobar about his deportation risk,
       needed to tell Escobar he definitely would be deported. It is true
       that 8 U.S.C. § 1227(a)(2)(B)(i) does lead to the conclusion that
       Escobar’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 Escobar’s actual deportation was not an absolute
       certainty when he pled. Given that Escobar did know deportation
       was possible, given that counsel advised him there was a
       substantial risk of deportation, and given that counsel told Escobar
       it was likely there would be deportation proceedings instituted
       against him, we find counsel’s advice was, in fact, correct.

Id. at 841 (emphasis in original).5

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5By contrast, although Padilla had pled guilty to possession of a large amount
of marijuana, his counsel not only failed to make him aware of the implications
of 8 U.S.C. § 1227(a)(2)(B)(i) on his plea, but advised Padilla that “he did not



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       In the instant case, plea counsel’s advice was no less correct than that

provided in Escobar. He informed Appellant that deportation would be “a

most likely consequence” of his plea, that the conviction would result in “most

likely future deportation proceedings,” and that it “would be extremely

problematic with your efforts to maintain residence in this country.”     N.T.

PCRA Hearing, 7/23/18, at 24-25, 28.               Given that even Appellant’s

immigration expert opined that deportation would result from his conviction

in “almost all circumstances,” Summary of Testimony of Raymond G. Lahoud,

Esquire, 7/30/18, at 4 (emphasis added), plea counsel’s advice to Appellant

was, in fact, correct. As such, we have no reason to disturb the PCRA court’s

denial of Appellant’s Padilla-based claim.

       With his remaining issue, Appellant claims that his plea was involuntary

because the trial court did not ensure that Appellant understood that he would

be deported as a result of the plea. Appellant’s brief at 30-31. Appellant

properly acknowledges that the issue of whether a plea colloquy must include

inquiry into the defendant’s understanding of the immigration consequences

of his plea was before this Court in Commonwealth v. Rachak, 62 A.3d 389

(Pa.Super. 2012), and was not resolved in Appellant’s favor. In that case,

Rachak waived his right to counsel and pled guilty to drug offenses. He later

filed a PCRA petition in which he claimed his plea was not knowing and


____________________________________________


have to worry about immigration status since he had been in the country so
long.” Padilla v. Kentucky, 559 U.S. 356, 359 (2010).

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voluntary because he was unaware of the immigration consequences of his

plea. The PCRA court denied relief on the bases that it is not the trial court’s

responsibility to determine a defendant’s immigration status when accepting

a plea, and the trial court’s colloquy of Rachak covered all areas mandated by

Pa.R.Crim.P. 590. Id. at 391.

      While this Court concluded that Rachak waived a challenge to the

voluntariness of his plea by not pursing it on direct appeal, we alternatively

held that the PCRA court opinion “accurately addressed every facet of

[Rachak]’s petition, correctly explained the inapplicability of the United States

Supreme Court’s decision in Padilla . . . ,”   and affirmed the denial of PCRA

relief on the basis of the PCRA court’s opinion. Id. at 391-92. See also id.

at 395 (reproducing the PCRA court opinion) (“While the United States

Supreme Court has recognized that lawyers have a responsibility to inform

clients of potential immigration consequences before entering a guilty plea, it

has not, as of this date, placed the same responsibility on the courts.”).

      Appellant attempts to distinguish Rachak by citing Rachak’s pro se

status and noting that the trial court in the instant case was aware that

Appellant was from the Dominican Republic. See Appellant’s brief at 31-33.

We are not persuaded that a different result is warranted. First, Appellant

does not explain why this claim is not waived for failure to raise it on direct

appeal.   See Rachak, supra at 391 (“While Appellant focuses on the

voluntariness of his guilty plea, that issue should have been raised on direct


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appeal; it was not. Therefore the issue is waived.”) (footnote omitted) (citing

42 Pa.C.S. § 9543(a)(3)). Moreover, the facts that Appellant was represented

by counsel at his plea hearing, that counsel advised the court that Appellant

was aware of the immigration consequences of the plea, and that Appellant

did not contradict counsel, offer less reason for the court to have conducted

an immigration-related colloquy than was present in Rachak. Hence, even

were the issue not waived by his failure to raise it on direct appeal, Appellant

has offered no authority to support his claim that the trial court had an

obligation to inquire into his awareness of the immigration consequences of

his plea under any circumstances.

      Therefore, because Appellant has failed to meet his burden of convincing

this Court that the PCRA court erred and that relief is due, we affirm the order

denying his PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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