J-S82033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                          :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                             :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 CHAKIR ERRAFAQ                           :
                                          :   No. 896 WDA 2017
                    Appellant             :

                 Appeal from the PCRA Order May 19, 2017
     In the Court of Common Pleas of Butler County Criminal Division at
                      No(s): CP-10-CR-0002400-2014


BEFORE:    BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:                FILED APRIL 9, 2018

      Respectfully, I take judicial notice that on January 10, 2018, Governor

Tom Wolf signed a statewide disaster declaration recognizing the seriousness

Pennsylvania residents face from illegal drugs, specifically opioids.

      Granting additional rights to a resident-alien convicted felon who has

sold opioids and preventing his deportation in this case jeopardizes the safety

of our Pennsylvania citizens, flies in the face of Pennsylvania policy on opioids,

and insults all law-abiding American citizens. The detainment and deportation

should proceed.




____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-S82033-17


        The Majority concludes Appellant met the newly-discovered facts

exception to the PCRA1 timeliness requirements. See 42 Pa.C.S.A. §

9545(b)(1)(ii). Specifically, the Majority finds Appellant met the exception by

pleading he was not aware of the possible deportation consequences of

entering his guilty plea on May 7, 2015, until ICE2 took him into custody on

January 19, 2017. Thus, the Majority remands for a hearing on Appellant’s

underlying claim that guilty plea counsel was ineffective in advising him to

plead guilty without informing him that he could be deported.

        Appellant was satisfied with his plea and now makes a mockery of our

legal system by claiming no one alerted him to the potential adverse

immigration consequences. For example, there is no indication Appellant even

informed his guilty plea counsel of his immigration status, and, thus, Appellant

uses our legal system to short-circuit valid, existing immigration laws to delay

what should be his inevitable deportation.

        Appellant, who is a citizen of Morocco and a resident-alien of the United

States, pled guilty to selling opioids and rightfully is facing deportation. The

PCRA court properly concluded that Appellant did not exercise due diligence

in discovering the alleged new fact (possible deportation).




____________________________________________


1   Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

2   ICE refers to the United States Immigration and Customs Enforcement.

                                           -2-
J-S82033-17


      As the PCRA court found, “nothing in [Appellant’s] petition supports the

notion that he could not have discovered the deportation consequences, or

the possible deportation consequences, of his conviction through the exercise

of due diligence during the time for filing a [timely PCRA] petition.” PCRA

Court Opinion, filed 3/27/17, at 5. The PCRA court’s determination is free of

legal error.    See Commonwealth v. Weatherill, 24 A.3d 435, 438

(Pa.Super. 2011).

      It is axiomatic that ignorance of the law is no excuse, and Appellant’s

claim that it is unreasonable for a layperson to be aware of the law should be

rejected.

      For our Court to agree with Appellant and set such a policy will lead to

a plethora of illegitimate claims to set aside a knowing, voluntary, and

intelligent guilty plea.

        Thus, I would affirm the PCRA court’s order denying Appellant’s PCRA

petition on the basis it was untimely filed, and would direct the detainment

and deportation to proceed.

      The learned PCRA judge’s decision should be upheld. I respectfully

dissent.




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