J. S30020/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
PATRICK U. THAXTER,                     :         No. 1495 EDA 2015
                                        :
                       Appellant        :


                 Appeal from the PCRA Order, April 21, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0007473-2009


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 05, 2016

     Patrick U. Thaxter appeals from the April 21, 2015 order entered in the

Court of Common Pleas of Philadelphia County that dismissed his petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”).   PCRA counsel has also filed an “application to withdraw as

counsel.” We affirm.

     The PCRA court set forth the following factual and procedural history:

                  On August 5, 2008, at approximately
            6:00 p.m., acting on information provided by a
            confidential source, Pennsylvania State Trooper
            Caldwell (first name not given) set up surveillance on
            the 600 block of East Church Lane in Philadelphia,
            with more troopers stationed in the area for backup.
            The information Trooper Caldwell had received was
            that someone would be delivering five pounds of
            marijuana on that block in a silver Honda Accord that
            evening. Guilty Plea Volume I, 01/11/2013, pp. 27-
            28.
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                After the surveillance was set up, [appellant]
          arrived on the block in a silver Honda Accord.
          Refusing to comply with the troopers’ attempts to
          stop the vehicle, [appellant] drove his car over a
          curb while trying to speed away. As a car pursuit
          ensued, [appellant] sped through several red lights
          and stop signs and drove the wrong way on one-way
          streets. Guilty Plea Volume I, 01/11/2013, p. 28.

                Lieutenant Ginaldi (first name not given), who
          was providing helicopter assistance to the officers on
          the ground, observed [appellant] throw a yellow bag
          out of the window of the Honda Accord on the
          6200 block of Beechwood Street.        The bag was
          subsequently recovered by Trooper Caldwell and
          sent to the Pennsylvania State Police Lima Regional
          Laboratory for testing. It was later determined that
          the bag contained approximately five pounds of
          marijuana. Guilty Plea Volume I, 01/11/2013, pp.
          28-29.

                After [appellant], who was the only person in
          the vehicle, was taken into custody, he gave a
          statement to Trooper Caldwell admitting that he was
          going to the location to deliver the marijuana. Guilty
          Plea Volume I, 01/11/2013, pp. 28-29.

                On January 11, 2013, [appellant], a citizen of
          Jamaica and a permanent resident of the United
          States[Footnote 1], entered a negotiated guilty plea
          before this court and was convicted of possession
          with intent to deliver [controlled] substances,
          recklessly   endangering    another     person,    and
          tampering with evidence. Also on January 11, 2013,
          this court sentenced [appellant] to a total of nine (9)
          years of reporting probation.[Footnote 2] At trial,
          [appellant] was represented by Louis Savino,
          Esquire.

                [Footnote 1] Guilty Plea Volume[] I,
                01/11/2013, p. 32.




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                [Footnote 2] The Commonwealth agreed
                to this demandatorized sentence. Guilty
                Plea Volume I, 01/11/2013, pp. 24-25.

                On January 9, 2014, [appellant] filed a timely
          pro se petition under the [PCRA].           Thereafter,
          J. Matthew Wolfe, Esquire, was appointed to
          represent [appellant]. On August 12, 2014, Attorney
          Wolfe filed an Amended PCRA Petition on
          [appellant’s] behalf arguing that [appellant’s] guilty
          plea counsel was ineffective for failure to advise him
          of the immigration consequences of his guilty plea.
          On December 19, 2014, the Commonwealth filed a
          Motion to Dismiss [appellant’s] PCRA Petition without
          a hearing.

                On April 10, 2015, [appellant] filed a counseled
          Second Amended PCRA Petition in which he averred
          that he did not understand the immigration
          consequences of his plea including the possibility of
          deportation.     On April 21, 2015, during the
          evidentiary hearing held in this matter, [appellant],
          through his counsel, requested and was granted this
          court’s permission to orally amend his Second
          Amended PCRA Petition to include an ineffectiveness
          claim for [appellant’s] guilty plea counsel’s failure to
          ascertain that [appellant] understood the deportation
          consequences of his plea.        [Appellant] was also
          permitted to present an oral motion to withdraw his
          guilty plea.[Footnote 3]          Commonwealth v.
          Patrick Thaxter [(]PCRA Hearing[)], 04/21/2015,
          p. 5.

                [Footnote 3] It follows, therefore, that
                [appellant’s] Second Amended PCRA
                Petition, combined with his oral motions
                made at the April 21, 2015 evidentiary
                hearing, raised essentially the same
                issues as his first Amended PCRA
                Petition.

                 Also on April 21, 2015, after conducting the
          hearing, this court denied [appellant’s] [PCRA
          petition] for lack of merit. On April 22, 2015, this


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               court issued a Notice Pursuant to Pennsylvania Rule
               of Criminal Procedure 908(E) advising [appellant]
               about his right to appeal this court’s decision to the
               Superior Court of Pennsylvania within thirty (30)
               days from the date of the Notice.

                     On May 20, 2015, [appellant] filed a timely
               Notice of Appeal.

PCRA court opinion, 9/21/15 at 1-3.

          At the outset, we note that Attorney Wolfe filed what he titled as an

“Anders1 brief” rather than a Turner/Finley2 no-merit letter. On an appeal

from the denial of a PCRA petition, a Turner/Finley letter is the appropriate

filing.    In reviewing Attorney Wolfe’s filing, however, counsel has filed a

Turner/Finley no-merit letter, but inadvertently titled it an Anders brief.

We further note that appellant did not file a response to Attorney Wolfe’s

“application to withdraw as counsel.”      Therefore, we must now determine

whether we agree with counsel’s assessment that the issue appellant wishes

to raise on appeal lacks merit.

          The sole issue for our review is whether appellant’s plea counsel was

ineffective for failing to inform him about the deportation consequences

associated with his guilty plea.     We agree with counsel’s assessment that

appellant’s claim lacks merit.




1
    Anders v. California, 386 U.S. 738 (1967).
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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     In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed   in     the   light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.       Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).      We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.         Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).             In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

     Appellant’s issue asserts ineffective assistance of plea counsel.

              In evaluating claims of ineffective assistance of
              counsel, we presume that counsel is effective.
              Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
              435, 441 (Pa. 1999).            To overcome this
              presumption, Appellant must establish three factors.
              First, that the underlying claim has arguable merit.
              See Commonwealth v. Travaglia, 541 Pa. 108,
              661 A.2d 352, 356 (Pa. 1995). Second, that counsel
              had no reasonable basis for his action or inaction.
              Id. In determining whether counsel’s action was
              reasonable, we do not question whether there were
              other more logical courses of action which counsel
              could have pursued; rather, we must examine
              whether counsel’s decisions had any reasonable
              basis.       See Rollins, 738 A.2d at 441;
              Commonwealth v. (Charles) Pierce, 515 Pa. 153,
              527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
              must establish that he has been prejudiced by
              counsel’s ineffectiveness; in order to meet this
              burden, he must show that ‘but for the act or
              omission in question, the outcome of the proceedings
              would have been different.’” See Rollins, 738 A.2d


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            at 441 (quoting Travaglia, 661 A.2d at 357). A
            claim of ineffectiveness may be denied by a showing
            that the petitioner’s evidence fails to meet any of
            these prongs.       Commonwealth v. (Michael)
            Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
            2001); Commonwealth v. Basemore, 560 Pa. 258,
            744     A.2d    717,    738      n.23    (Pa.    2000);
            Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
            693, 701 (Pa. 1998) (“If it is clear that Appellant has
            not demonstrated that counsel’s act or omission
            adversely affected the outcome of the proceedings,
            the claim may be dismissed on that basis alone and
            the court need not first determine whether the first
            and second prongs have been met.”).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

      Allegations of ineffective assistance of counsel in connection with a

guilty plea do not warrant relief unless counsel’s ineffectiveness caused an

involuntary, unknowing, or unintelligent plea. Commonwealth v. Escobar,

70 A.3d 838, 841 (Pa.Super. 2013), appeal denied, 86 A.3d 232 (Pa.

2014) (citation omitted).   Where the defendant enters a plea on counsel’s

advice, its voluntary and knowing nature turns on whether counsel’s advice

fell within the range of competence demanded of attorneys in criminal cases.

Id. We will not disturb a PCRA court’s order unless it is unsupported by the

record or contains legal error.    Id. “[C]ounsel must inform a noncitizen

defendant as to whether a plea carries a risk of deportation.”        Id. citing

Padilla v. Kentucky, 559 U.S. 356 (2010).

      Here, the record reflects that plea counsel was not called to testify at

the PCRA hearing, but that the prosecution and defense stipulated as

follows:


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           [THE COMMONWEALTH]:            [Plea counsel] would
           testify that he had discussions with [appellant] about
           deportation; that he was aware -- that [plea counsel]
           was     aware    that   [appellant]   faced   possible
           deportation; that the choice, to him, seemed to be
           between one year in prison and deportation or nine
           years’ probation and deportation, that it was a lesser
           of two evils; and that he fully explained everything
           to [appellant] before his plea, and that he believed
           that [appellant] understood everything, as he
           advised the Court.

           [DEFENSE COUNSEL]: I would stipulate that that is
           what [plea counsel] would testify to were he called
           to testify.

Notes of testimony, 4/21/15 at 35.

     The PCRA court aptly summarized the most relevant portions of

appellant’s testimony at the PCRA hearing as follows:

                 Although at the beginning of the evidentiary
           hearing in this matter [appellant] contended that he
           would not have pleaded guilty had he known that his
           guilty plea was going to cause adverse immigration
           consequences, he subsequently conceded that his
           attorney, in fact, advised him of the risk of
           deportation. [Id. at 7, 10, 27.] [Appellant] also
           conceded that he knew there existed a possibility
           that he would be deported. He noted, however, that
           he was unaware of the deportation’s certainty:

                 Q.:   Isn’t it true that you knew that
                       there was a chance you could get
                       deported, but you did not think it
                       would happen?

                 ...

                 A.:   I knew there was a chance, but I
                       didn’t know I was going to get
                       deported.



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            [Id. at 28.]

PCRA court opinion, 9/21/15 at 10-11.

      Based on the record before us and viewed in the light most favorable

to the Commonwealth, we find that the PCRA court had ample support for its

determination that appellant entered his guilty plea voluntarily, knowingly,

and intelligently and that guilty plea counsel informed appellant, a

noncitizen, that his guilty plea carried a risk of deportation because appellant

testified that he knew there was “a chance” of deportation and because the

parties stipulated that plea counsel would have testified that he advised

appellant of the deportation risk of his plea. (Notes of testimony, 4/21/15 at

28, 35.)    Consequently, appellant’s ineffectiveness claim lacks arguable

merit and necessarily fails.

      Finally, after our own independent review of the record in this case, we

can discern no other issues of arguable merit.       Therefore, we will grant

Attorney Wolfe’s petition to withdraw and affirm the order dismissing

appellant’s PCRA petition.

      Order affirmed. PCRA counsel is granted permission to withdraw.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2016




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