J-S18028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCOS ANTONIO BETANCOURT                  :
    GANIER                                     :
                                               :   No. 1432 MDA 2018
                       Appellant               :

              Appeal from the PCRA Order Entered August 1, 2018
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0003303-2016

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

MEMORANDUM BY NICHOLS, J.:                     FILED: MAY 2, 2019

        Appellant Marcos Antonio Betancourt Ganier appeals from the order

denying his first Post Conviction Relief Act1 (PCRA) petition.         Appellant

contends his plea counsel was ineffective for failing to advise him that a guilty

plea would result in deportation. We affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

opinion.2 See PCRA Ct. Op., 10/25/18, at 2. Of note, Appellant, who was



____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.
2 We recognize that on July 18, 2017, Appellant was sentenced to nine to
twenty-three months’ imprisonment with two days of credit for time served.
Order, 7/21/17. Appellant was still serving his sentence as of July 12, 2018,
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represented by plea counsel, pleaded guilty to delivery of a controlled

substance.3 At the guilty plea hearing, Appellant’s immigration status was not

addressed.

        Appellant did not take a direct appeal,4 but filed the instant timely first

PCRA petition, asserting that plea counsel was ineffective for failing to advise

him of the deportation consequences of his plea. The PCRA court appointed

PCRA counsel. Following a hearing, the PCRA court denied Appellant’s petition

on August 1, 2018.

        Appellant timely appealed. The PCRA court did not order Appellant to

comply with Pa.R.A.P. 1925(b). The PCRA court filed a Rule 1925(a) decision

holding, among other things, that it found Appellant’s plea counsel credibly

testified that he advised Appellant he may be subject to deportation. PCRA

Ct. Op. at 5.

        Appellant raises the following issue:

        Did the trial court err in failing to grant . . . Appellant leave to
        withdraw his plea of guilt[y] to the subject crime [because the
        plea] was unlawfully induced through ineffective assistance, under
        Padilla v. Kentucky, [130 S. Ct. 1473 (2010)], where the record
        does not support that trial counsel provided advice concerning the

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the date of the PCRA evidentiary hearing. No party has alerted this Court that
Appellant is no longer serving his sentence.
3   35 P.S. § 780-113(a)(30).
4 We note that the trial court did not comply with Rule 704(C), which requires
the court to determine on the record that the defendant has been advised of
his post-sentence and appellate rights.


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        consequences of the plea and was, as a result, not knowingly,
        voluntarily, intelligently and knowingly tendered?

Appellant’s Brief at 4.

        In support, Appellant argues that the PCRA court erred in concluding

that plea counsel advised him of the deportation consequences from a guilty

plea.     Appellant’s Brief at 13.   He asserts that he first learned of these

consequences when he met Immigration and Customs Enforcement agents in

prison.     Id.   Appellant contends that if he had known that he would be

deported, he would have consulted with an immigration lawyer. Id. at 14.

He challenges plea counsel’s testimony at the PCRA hearing as contradictory

and vague. Id. at 14-15. Appellant maintains that plea counsel should have

advised him that he definitively would be deported and not that there was a

possibility of deportation. Id. at 15.

        “Our standard of review of a [PCRA] court order granting or denying

relief under the PCRA calls upon us to determine whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error.” Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citation and internal quotation marks omitted). “We defer to the PCRA court’s

factual findings and credibility determinations supported by the record.          In

contrast,    we    review   the   PCRA   court’s   legal   conclusions   de   novo.”

Commonwealth v. Becker, 192 A.3d 106, 112 (Pa. Super. 2018) (citation

omitted).




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      [I]n order to obtain relief based on [an ineffective assistance of
      counsel] claim, a petitioner must establish: (1) the underlying
      claim has arguable merit; (2) no reasonable basis existed for
      counsel’s actions or failure to act; and (3) petitioner suffered
      prejudice as a result of counsel’s error such that there is a
      reasonable probability that the result of the proceeding would
      have been different absent such error.

Barndt, 74 A.3d at 192 (citation omitted).

      Allegations of ineffectiveness in connection with the entry of a
      guilty plea will serve as a basis for relief only if the ineffectiveness
      caused the defendant to enter an involuntary or unknowing plea.
      Where the defendant enters his plea on the 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.

Id. (citation omitted).

      In Commonwealth v. Wah, 42 A.3d 335 (Pa. Super. 2012), this Court

summarized Padilla as follows:

      the United States Supreme Court held that counsel must inform
      his client whether his plea carries a risk of deportation. The
      Padilla Court rejected Kentucky state law holding that the risk of
      deportation concerns only collateral matters outside the scope of
      representation required by the Sixth Amendment, and therefore,
      failure to advise a defendant of possible deportation consequences
      is not cognizable as a claim for ineffective assistance of counsel.
      Padilla had the effect of abrogating similar case law in
      Pennsylvania, notably Commonwealth v. Frometa, 520 Pa.
      552, 555 A.2d 92 (1989) (holding that deportation is a collateral
      consequence of a guilty plea and failure to explain it to a
      defendant is irrelevant to whether the guilty plea was knowing and
      voluntary).

Wah, 42 A.3d at 339 (emphasis added).

      In Commonwealth v. Escobar, 70 A.3d 838 (Pa. Super. 2013), the

defendant argued that because his drug conviction made him deportable, plea


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counsel was required to tell him “that he would, in fact, be deported.”

Escobar, 70 A.3d at 841. The PCRA court agreed and granted the defendant

relief. Id. at 840. The Escobar Court reversed, explaining

      whether the U.S. Attorney General and/or other personnel would
      necessarily take all the steps needed to institute and carry out
      [the defendant’s] actual deportation was not an absolute certainty
      when he pled. Given that [the defendant] did know deportation
      was possible, given that counsel advised him there was a
      substantial risk of deportation, and given that counsel told [the
      defendant] it was likely there would be deportation proceedings
      instituted against him, we find counsel’s advice was, in fact,
      correct.

Id. at 841.

      Instantly, the PCRA court summarized plea counsel’s testimony at the

PCRA hearing as follows:

      [Plea counsel] testified that he has been an attorney for fifteen
      years and his primary practice area is criminal defense. [Plea
      counsel] had been retained prior to the preliminary hearing and
      he was aware that [Appellant] was not a citizen of the United
      States. [Plea counsel] knew that a guilty plea to the charges filed
      against [Appellant] could subject him to deportation.

      . . . Prior to pleading guilty, [plea counsel] advised [Appellant]
      that he could be subject to deportation. [Plea counsel] testified
      that he refers all criminal clients facing possible deportation to a
      local immigration attorney. He also testified that he would have
      followed his normal practice in this case.

PCRA Ct. Op. at 4.     Further, as noted above, the PCRA court found plea

counsel’s testimony credible. Id. at 5.

      We add that plea counsel testified: “I didn’t cite the [Immigration] Act.

But I’m sure I said that it could subject [Appellant] to potential deportation.

I know that there is a list of offenses of [sic] crimes that could subject

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[Appellant] to this.”   N.T. PCRA Hr’g, 7/12/18, at 18.     Plea counsel later

reiterated that he notified Appellant that he could be subject to deportation.

Id. at 20. However, plea counsel conceded that he did not explicitly inform

Appellant that a guilty plea would absolutely result in his deportation. Id. at

28.

      Instantly, our review of the record establishes that the PCRA court’s

credibility determinations and findings of fact are supported by the record.

See Becker, 192 A.3d at 112.       To the extent Appellant argues that plea

counsel should have advised him that deportation was a certainty, we

disagree.   See Escobar, 70 A.3d at 841.       As in Escobar, Appellant was

advised that he could be subject to deportation, and whether Appellant would

actually be deported was uncertain at the time he entered his guilty plea. See

id. Therefore, having found no abuse of discretion or error of law, we affirm

the order denying Appellant’s PCRA petition. See Barndt, 74 A.3d at 191-

92.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2019

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