J-S43029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEON GEORGE STEWART                        :
                                               :
                       Appellant               :   No. 1676 MDA 2018

           Appeal from the PCRA Order Entered September 10, 2018
      In the Court of Common Pleas of Berks County Criminal Division at
                       No(s): CP-06-CR-0002998-2016


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 22, 2019

       Leon George Stewart appeals from the Order entered on September 10,

2018, denying his Petition for collateral relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

       In March 2017, Appellant entered into a negotiated guilty plea to

Criminal Use of Communication Facility, Possession with Intent to Deliver, and

Conspiracy in exchange for five years of probation.1 N.T. Plea, 3/13/17, at 1-

10. Following a colloquy, the trial court accepted the plea and imposed the

agreed-upon sentence. Id. at 8-9.

       Appellant is a citizen of Jamaica. Id. at 5. During his oral colloquy,

Appellant’s plea counsel, Ms. Emily Cherniack, Esq., confirmed that Appellant

was aware that he faced potential consequences to his immigration status.
____________________________________________


1 18 Pa.C.S. § 7512(a); 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 903(a)(1),
respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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Id. at 5. In addition, Appellant testified that he understood his rights and

voluntarily determined to plead guilty. Id. at 4-5.

       Appellant attained a fourth-grade education; he speaks English but can

neither read nor write. Id. at 3. During his oral colloquy, Appellant testified

that plea counsel discussed a written colloquy with him. Id. at 3-4. Counsel

confirmed that she had read and explained its terms to Appellant. Id. at 3.

Appellant signed the written colloquy.           Id.   In relevant part, the colloquy

memorializes Appellant’s understanding that “by pleading guilty, I will be

subject to immigration review which will likely result in my deportation.”

Statement Accompanying Defendant’s Request to Enter a Guilty Plea,

3/13/17, at 2 ¶ 4.

       Appellant did not file a post-sentence Motion or appeal from the

Judgment of Sentence. However, in November 2017, Appellant challenged

the lawfulness of his guilty plea by filing a counseled Petition for collateral

relief. According to Appellant, plea counsel was ineffective because she did

not review the Commonwealth’s evidence with Appellant or explain the

consequences of his plea.2            Appellant’s PCRA Petition, 11/21/17, at 2

(unpaginated).

       In April 2018, the PCRA court held a hearing on Appellant’s Petition.

Appellant testified that plea counsel never discussed the case with him, his

chance of success at trial, or the terms of the written colloquy. N.T. PCRA,
____________________________________________


2United States Immigration and Customs Enforcement has detained Appellant
and scheduled him for deportation. PCRA Ct. Op., 2/28/19, at 1.

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4/30/18, at 10-14. Appellant further asserted that he did not wish to plead

guilty but that counsel directed him to do so. Id. at 14. In addition, according

to Appellant, counsel suggested that, if asked, Appellant should deny that

anyone had forced him to plead guilty. Id. Finally, Appellant testified that

plea counsel never explained to him how a plea could affect his immigration

status. Id. at 15-16.

       On cross-examination, Appellant conceded that his PCRA testimony was

at odds with his plea testimony. Id. at 21-23. Upon questioning from the

presiding judge, Appellant testified that he had not told the truth during the

plea hearing. Id. at 23.

       Plea counsel also testified at the hearing. According to plea counsel,

she specifically recalled discussing immigration consequences with Appellant

and his wife, in part because Appellant faced a felony drug charge. Id. at 28-

30, 36.    Moreover, according to plea counsel, Appellant’s case had been

continued on at least one occasion in order for Appellant to discuss his case

with an immigration attorney. Id. at 33.

       On cross-examination, plea counsel testified that she discussed the facts

of the case with Appellant but conceded that she did not review discovery with

him.   Id. at 37.    Plea counsel also explained that her representation of




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Appellant was limited to the plea process; therefore, according to counsel, she

did not advise Appellant regarding his chances at trial. Id. at 37.3

       Following the hearing, the PCRA court entered an order denying

collateral relief on the ground that Appellant had neither pleaded nor proved

that plea counsel’s performance had prejudiced him. PCRA Order, 9/10/18,

at 1 n.1.     Appellant timely appealed and filed a court-ordered Pa.R.A.P.

1925(b) Statement. The PCRA court issued a responsive Opinion.

       Appellant raises the following issues on appeal:

       1. Whether the PCRA court erred in denying Appellant collateral
          relief where plea counsel was ineffective for not properly
          apprising Appellant of the immigration consequences of his
          plea; and

       2. Whether the PCRA court erred in denying Appellant collateral
          relief where plea counsel was ineffective for not reviewing with
          Appellant the evidence against him or providing him with
          discovery.

See Appellant’s Br. at 25, 37.4

       Appellant contends that the PCRA court erred in denying him relief. Id.

at 25, 37. We review an order granting or denying a petition for collateral
____________________________________________


3 In July 2016, Attorney John J. McMahon, Jr. entered an appearance as
Appellant’s counsel of record. See Criminal Docket, No. CP-06-CR-0002998-
2016, at 7. According to plea counsel, she handled in-court appearances but
deferred to counsel of record to discuss trial strategy with Appellant. N.T.
PCRA at 37-38. Counsel of record did not testify at the PCRA hearing.

4 In his Statement of the Questions Involved, Appellant identifies eight issues.
See Appellant’s Br. at 5-8. In his Argument, however, Appellant concedes
that issues two through eight “essentially raise the same allegations of
ineffective assistance.” Id. at 37. Thus, Appellant has divided his Argument
into two sections. See id. at 25, 37; see also Pa.R.A.P. 2116(a), 2119(a).

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relief to determine whether the PCRA court’s decision is supported by the

evidence of record and free of legal error. Commonwealth v. Jarosz, 152

A.3d 344, 350 (Pa. Super. 2016) (citing Commonwealth v. Fears, 86 A.3d

795, 803 (Pa. 2014)). We will not disturb the findings of the PCRA court unless

there is no support for those findings in the record. Commonwealth v. Wah,

42 A.3d 335, 338 (Pa. Super. 2012).

      Appellant asserts that plea counsel was ineffective.           We presume

counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).

To overcome this presumption, “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) (citing Commonwealth v. Cox, 983 A.2d

666, 678 (Pa. 2009). “Prejudice means that, absent counsel's conduct, there

is a reasonable probability the outcome of the proceedings would have been

different.” Id. A claim will be denied if the petitioner fails to meet any one of

these prongs.    See Jarosz, 152 A.3d at 350 (citing Commonwealth v.

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

      “[A] criminal defendant's right to effective counsel extends to the plea

process, as well as during trial.” Wah, 42 A.3d at 338 (citations omitted).

Under the PCRA, “[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

[the petitioner] to enter an involuntary or unknowing plea.” Fears, 86 A.3d

at 806–07 (citation omitted). “Where the defendant enters his plea on the

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advice of counsel, the voluntariness of the plea depends on whether counsel's

advice was within the range of competence demanded of attorneys in criminal

cases.” Wah, 42 A.3d at 338-399 (citations omitted).

     “[T]o establish prejudice, the defendant must show that there is a

reasonable probability that, but for counsel's errors, he would not have

pleaded guilty and would have insisted on going to trial.” Commonwealth

v. Brandt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations and internal

quotation marks omitted).    This is not a stringent requirement.    Id.   The

reasonable probability test refers to “a probability sufficient to undermine

confidence in the outcome.” Id. (citations omitted).

     In his first issue, Appellant asserts plea counsel was per se ineffective

because she failed to provide appropriate immigration advice. Appellant’s Br.

at 27. According to Appellant, the PCRA court erred as a matter of law when

it required a showing of prejudice in support of Appellant’s claim. See id. at

27-28 (citing Padilla v. Kentucky, 559 U.S. 356 (2010)). Rather, Appellant

suggests, proper disposition of his claim required only an evaluation of plea

counsel’s credibility. Id. In other words, the only question before the PCRA

court was whether plea counsel had advised Appellant that his guilty plea

would lead to his deportation. According to Appellant, counsel’s testimony

was questionable, inconsistent, and suspect. See id. at 29, 31, 36 (reviewing

counsel’s testimony and challenging her credibility).     Therefore, Appellant

concludes, he is entitled to withdraw his plea and requests that we remand

this matter for further proceedings. See id. at 36, 46.

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      In support of its decision, the PCRA court accurately set forth the law as

it relates to Appellant’s claim.   See PCRA Ct. Op., 2/28/19, at 2-4; PCRA

Order, 9/10/18, at 1 n.1. It is a petitioner’s burden to plead and prove both

that counsel’s performance was constitutionally deficient and that counsel’s

deficient representation prejudiced him.       See supra; see also, e.g.,

Commonwealth v. Velazquez, --- A.3d ---, 2019 PA Super 243 (filed August

15, 2019).

      It is inaccurate to assert, as Appellant has done, that the United States

Supreme Court eliminated the prejudice requirement from ineffectiveness

claims where criminal defense counsel has provided deficient immigration

advice. Quite to the contrary, in Padilla, the Court set forth its traditional

requirements.     See Padilla, 559 U.S. at 366 (citing Strickland v.

Washington, 466 U.S. 668 (1984)).          Clearly, the Court recognized the

potential for prejudice.   See, e.g., id. at 368 (“We too have previously

recognized that preserving the client’s right to remain in the United States

may be more important to the client than any potential jail sentence.”

(emphasis added; punctuation modified; citation omitted)).       However, the

Court did not presume prejudice attached.        Following its analysis of the

constitutional requirements for adequate representation where there is a risk

of deportation, the Court remanded for a specific finding on prejudice:

      Whether Padilla is entitled to relief on his claim will depend on
      whether he can satisfy Strickland’s second prong, prejudice, a
      matter we leave to the Kentucky courts to consider in the first
      instance.


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Id. at 369, see also id. at 374 (reiterating the prejudice requirement).

       Thus, we reject the legal premise of Appellant’s argument. Appellant’s

failure to establish prejudice—that he would not have pleaded guilty if counsel

had provided him with appropriate immigration advice—is fatal to his claim.

Escobar, 70 A.3d at 841; Brandt, 74 A.3d at 192.5

       Similarly, Appellant’s second claim fails as well. According to Appellant,

plea counsel’s representation was clearly deficient because she failed to

explain the evidence against him, discuss the elements of the crimes charged,

review discovery materials, or explore potential legal defenses.             See

generally Appellant’s Br. at 37-45.6 In light of these allegations, but without

citation to legal authority, Appellant concludes that it was “patently unfair” for

the PCRA court to require that he demonstrate prejudice. Appellant’s Br. at

45. This claim is without legal merit. Escobar, 70 A.3d at 841; Brandt, 74

A.3d at 192.


____________________________________________


5 In light of our disposition, we need not reach Appellant’s credibility challenge
to plea counsel’s testimony. We note, however, that the PCRA court made no
specific credibility findings. See generally PCRA Ct. Op., PCRA Order.

6 Appellant’s assertions are misleading. For example, plea counsel conceded
that she did not review discovery materials with Appellant but asserted that
counsel of record retained that responsibility, as well as a responsibility to
discuss trial strategy. See N.T. PCRA at 37-38. Further, Appellant repeatedly
asserts that the PCRA court found plea counsel’s representation to be
deficient. Appellant’s Br. at 41, 42, 43-44. This is inaccurate. While the court
recognized that Appellant “raised legitimate concerns” regarding counsel’s
representation, the court did not make a specific finding or legal conclusion.
PCRA Ct. Op. at 4. Rather, the court focused its analysis on Appellant’s failure
to plead and prove prejudice. Id.

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     In support of its decision, the PCRA court summarized as follows:

     In short, [Appellant] failed to prove by a preponderance of the
     evidence that he would have declined the offer of probation and
     risked incarceration in a county or state facility if he had a fuller
     picture of the facts of the case and specific immigration
     consequences.

PCRA Ct. Op. at 5. We defer to the PCRA court, as the record supports this

finding. Wah, 42 A.3d at 338. Accordingly, no relief is due Appellant.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2019




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