J-A30045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JERMAINE LAJANUE KERR                      :
                                               :
                       Appellant               :   No. 1076 MDA 2018

            Appeal from the PCRA Order Entered December 4, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0003601-2016


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED JANUARY 31, 2020

        Jermaine Lajanue Kerr (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        On August 10, 2016, Appellant, then a legal permanent resident of the

United States, and native of Jamaica, pled guilty to possession with intent to

deliver marijuana; driving under the influence, first offense; and driving while

operating privileges suspended or revoked.1 The same day, the trial court

sentenced Appellant to 3 to 23 months’ confinement.

        On May 30, 2017, Appellant filed pro se a timely PCRA petition, which

he refiled on August 18, 2017.            After the second filing, the PCRA court

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 Pa.C.S. 780-113 § A30; 75 Pa.C.S. § 3802; 75 Pa.C.S. § 1543A.
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appointed George H. Margetas, Esq. to represent Appellant. On November 8,

2017, a PCRA hearing was held, at which time Appellant acknowledged the

entry of a negotiated plea, but testified that his former counsel, Clasina

Houtman, Esq., did not counsel him that his guilty plea could resort in

deportation. 11/8/18 N.T. at 7-8. On December 1, 2017, a second PCRA

hearing was held, at which the PCRA court, sua sponte, called Ms. Houtman

to testify. On December 4, 2017, the PCRA court denied Appellant’s petition.

On April 30, 2018, in response to Appellant’s complaint that an appeal had

not been lodged, the PCRA court issued an order reinstating appellate rights

nunc pro tunc; following a counsel abandonment hearing, new counsel was

appointed, and on June 28, 2018 Appellant filed his appeal to this Court. 2

       On appeal, Appellant presents the following issue for our review:

         Did the PCRA Court err in denying Appellant’s PCRA Petition
         when it deemed Trial Counsel to be credible regarding her
         failure to warn Appellant of the immigration consequences of
         his negotiated felony guilty plea which is ineffective
         assistance of counsel pursuant to Padilla v. Kentucky, 559
         U.S. 356 (2010).

Appellant’s Brief at 4 (footnote and suggested answer omitted).

       In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is both supported by the record and free of legal error.

Commonwealth v. Fears, 86 A.2d 795, 803 (Pa. 2014). An appellant must

establish, by a preponderance of the evidence, that his conviction or sentence

____________________________________________


2Appellant filed a statement of errors complained of on appeal on July 20,
2018 and the PCRA court filed its 1925(a) opinion on May 16, 2019.

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resulted from one or more of the enumerated errors in 42 Pa.C.S. §

9543(a)(2). Id. Appellant argues that the PCRA court erred in dismissing his

ineffectiveness of counsel claims as they related to his guilty plea, asserting

that the PCRA court erred in denying his claim that he did not enter a knowing,

voluntary, and intelligent plea when counsel failed to inform him that he could

face deportation by pleading guilty.3 The Commonwealth asserts, however,

that the record clearly demonstrates that Ms. Houtman, Appellant’s plea

counsel, disclosed the possibility of immigration complications to him prior to

pleading.4 Commonwealth’s Brief at 10.

       In deciding ineffectiveness of assistance of counsel claims, we begin

with   the    presumption       that    counsel   rendered   effective   assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

that presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,

with prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.” Id. (citations omitted).

____________________________________________


3 We note that Appellant’s counsel in this appeal indicated in her brief that
subsequent to the entry of his guilty plea, Appellant was, in fact, deported.
Appellant’s Brief at 10, n.12. We note further that on June 20, 2019, counsel
advised this Court that on June 17, 2019, she learned that Appellant had been
removed from the United States and deported to Jamaica.

4 The United States Supreme Court has held that counsel must inform a
noncitizen defendant whether a plea carries a risk of deportation. Padilla v.
Kentucky, 559 U.S. 356, 374 (2010).

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If a petitioner fails to prove any of these prongs, the claim is subject to

dismissal. Bomar, 104 A.3d at 1188. Ineffective assistance of counsel in

connection with a guilty plea will serve as a basis for PCRA relief only if the

ineffectiveness caused the defendant to enter an involuntary or unknowing

plea.    Commonwealth v. Velazquez, 216 A.3d 1146, 1149 (Pa. Super.

2019). Here, Appellant’s claim of ineffective assistance lacks arguable merit.

The only claim of ineffective assistance is that counsel allegedly failed to

advise Appellant of the immigration consequences of his plea.         The PCRA

court, however, found that counsel did fully advise Appellant.

        In rejecting Appellant’s claims, the PCRA court stated:

          [Appellant’s plea counsel] was initially examined by the Court
          and testified on the relevant issue regarding [Appellant’s]
          immigration status. [She] testified that in fact she discussed
          the potential consequences of convictions and [Appellant’s]
          immigration status.
                                              ---
          [Appellant’s plea counsel] went further than what is required
          by the Court in Padilla in advising [Appellant] that, in fact,
          in her opinion there would be immigration consequences as
          a result of his pleas of guilty and that furthermore, based on
          convictions in another case, that he would already face
          deportation for that conviction. Therefore, the effort here
          was to reduce his potential sentence, recognizing that
          immigration was a probability. [Appellant’s] plea counsel
          testified that she had this discussion with [Appellant] on
          numerous occasions and, in fact, referred to her notes of
          interviews to refresh her recollection and provide further
          support for her testimony. She was cross-examined by both
          counsel and except for some limited rebuttal offered from
          [Appellant], no additional witnesses were called.




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Trial Court Opinion, December 4, 2017 at 6-7. The Trial Court concluded that

Appellant’s plea counsel’s testimony was more credible than that of Appellant,

who merely stated that he was never advised of the implications created by

the Padilla decision. Id. at 8. In its 1925(a) opinion, the trial court reiterated

that it found Appellant’s plea counsel’s testimony to be “candid and credible,”

and noted that it found Appellant’s testimony to be “understandably, self-

serving and, ultimately, incredible.” Trial Court 1925(a) Opinion at 4, n.1. We

must view the findings of the PCRA court and the evidence of record in a light

most favorable to the prevailing party, and its credibility determinations, if

supported by the record, are binding on this Court.         Commonwealth v.

Mason, 130 A.3d 601, 617 (Pa. 2015); Commonwealth v. Green, 168 A.3d

173, 175 (Pa. Super. 2017).

      Based on our review of the record on appeal, we conclude that the PCRA

court did not err in dismissing Appellant’s PCRA petition. The record supports

the PCRA court’s credibility determinations, and we find no abuse of discretion

in determining that Appellant’s guilty plea was knowing, voluntary and

intelligent.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/31/2020




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