Com. v. Halley, G. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GEORGE JOSHUA HALLEY, : No. 1167 MDA 2015
:
Appellant :
Appeal from the Order Entered June 22, 2015,
in the Court of Common Pleas of Schuylkill County
Criminal Division at No. CP-54-CR-0001095-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 05, 2016
George Joshua Halley appeals from the June 22, 2015 order that
dismissed his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, following his convictions for
possession with intent to deliver (“PWID”) and possession of drug
paraphernalia.1
On April 28, 2012, appellant was originally charged by the Pottsville
Bureau of Police with one count each of PWID (cocaine), possession of a
controlled substance (cocaine), and possession of drug paraphernalia.
* Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30) and 35 P.S. § 780-113(a)(32), respectively.
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On August 16, 2013, appellant submitted a general plea to the
charges. He later moved to withdraw the plea which the Court of Common
Pleas of Schuylkill County granted on December 12, 2013. On January 30,
2014, appellant entered another general plea. When appellant appeared
before the trial court, the trial court asked him the following question: “So
you understand that it’s possible, and perhaps in some cases likely, that you
would risk deportation as a result of your conviction. Do you understand
that?” (Notes of testimony, 1/30/14 at 4.) Appellant replied, “Yes, sir.”
(Id. at 5.) The trial court accepted the guilty plea. (Id. at 8.) On April 1,
2014, appellant was sentenced to an aggregate term of 9 to 23½ months on
the possession with intent to deliver and the possession of drug
paraphernalia.2
On March 19, 2015, appellant moved for relief pursuant to the PCRA.3
Appellant alleged that he was eligible for relief in the form of a new trial
primarily due to ineffective assistance of counsel. Specifically, appellant
alleged:
My Public Defender Ms. Andrea Thompson
knew I was not a U.S. citizen and only a lawful
permanent resident – Ms. Thompson advised me that
she had asked someone and my plea of guilty to
possession with intent to distribute crack cocaine
would not lead to my deportation because I have a
U.S. citizen child. This is the reason I pled guilty.
2
The possession of a controlled substance merged with the PWID.
3
No direct appeal was filed.
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....
My conviction for Possession with Intent to Distribute
. . . rendered me removable from the United States
with no form of relief available. I am not a US
Citizen and am only a lawful permanent resident. I
was informed of this while in immigration custody by
my immigration attorney.
....
Ms. Thompson provided ineffective assistance of
counsel by not properly advising me on the
immigration consequences of my plea violating my
6th Amendment right to effective assistance of
counsel.
Motion for post conviction collateral relief, 3/19/15 at 3 (citation omitted). 4
The PCRA court conducted a hearing on June 22, 2015. Appellant
testified that he became aware of the risk of deportation when he read the
plea colloquy. He explained that he had lived in the United States for
approximately 20 years with permanent resident status. (Notes of
testimony, 6/22/15 at 5.) He testified that when he first asked his attorney,
Andrea Thompson (“Attorney Thompson”), about whether a conviction would
lead to deportation, she responded that “she wasn’t aware and she was
going to find out from somebody.” (Id. at 6.) As a result of this
uncertainty, appellant withdrew his initial plea. (Id.) Appellant reported
that Attorney Thompson subsequently told him that:
she spoke to somebody and the person told her as
long as I have a US citizen daughter, I would not be
deported. I would be detained in ICE [United States
Immigration and Customs Enforcement] in York
4
Jeffrey M. Markosky, Esquire was appointed counsel for appellant.
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County and then they would release me because I
have a US citizen daughter.
Id. at 7. According to appellant, Attorney Thompson did not tell appellant
with whom she consulted. Appellant reported that he was satisfied with this
advice. (Id.) Appellant then entered his guilty plea. He became aware that
he would be deported when the United States Immigration and Customs
Enforcement detained him and he learned that he was subject to mandatory
deportation based on his conviction. (Id. at 8.) Appellant explained that if
he had known that his conviction would lead to mandatory deportation, he
would not have submitted a guilty plea and would have taken his “chances
at trial.” (Id. at 9.) When the PCRA court questioned him as to why he
submitted the plea when the trial court asked him if he understood that
deportation was a possibility and he answered that he did, appellant stated,
“Miss Andrea Thompson assured me that it was just a standard warning and
that because I have a US citizen daughter I believe that I wouldn’t have
been deported.” (Id. at 9-10.) On cross-examination, appellant admitted
that through Attorney Thompson he tried to negotiate with the
Commonwealth to drop the felony charge so that he would not be deported
and that he withdrew the initial plea because he feared deportation. (Id. at
10-11.) He reiterated that Attorney Thompson told him that he would
“absolutely” not be deported. (Id. at 11.)
Matthew Archambeault (“Attorney Archambeault”), appellant’s
immigration attorney, testified that a conviction for possession with intent to
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distribute crack cocaine resulted in mandatory deportation unless the
convicted individual could prove that his home country would torture him
upon his return. (Id. at 13-14.) After he initially met with appellant and
appellant told him his situation and what Attorney Thompson allegedly told
him, Attorney Archambeault testified that he sent a letter 5 to
Attorney Thompson which outlined what appellant told him; specifically, that
Attorney Thompson told him that he would not be deported because he had
a minor child who was a United States citizen. Attorney Archambeault
testified that shortly after he mailed the letter, Attorney Thompson
telephoned him and stated, “Look, that’s exactly what happened. I got your
letter. It’s exactly what happened. I feel really bad about it and . . . she
said I don’t know anything about immigration law and she expressed regret
about her advice.” (Id. at 15.)
Shenaya Johnson (“Johnson”), appellant’s girlfriend and the mother of
his child, testified that appellant asked Attorney Thompson at the courthouse
before they went into a meeting if there were a chance of appellant getting
deported. Attorney Thompson replied, “no because you have a daughter in
the U[.]S.” (Id. at 20.)
Attorney Thompson testified regarding her representation of appellant.
Regarding advice she gave appellant concerning the possibility of
deportation, Attorney Thompson testified:
5
This letter is not part of the record before this court.
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I recall having discussions about his immigration
status and whether the felonies would cause a
deportation and I didn’t know immigration law very
well. But I remember having conversations. I do
recall telling him that he should speak to an
immigration lawyer to get the best advice possible. I
don’t recall ever telling him any guarantees on
anything. We had a conversation about the potential
of deportation. That he could be deported based on
the felony and my recollection is, based on my
previous experience, that he may have had an
appeal issue or may have been able to argue to stay
based on the fact that he had a daughter that was
born in the United States and if my memory serves,
his daughter had like just been born within that year
that this case was going on, she was a baby. She
was just a few months or weeks old at the time that
we were having these discussions.
Id. at 25-26.
Attorney Thompson testified that she advised appellant to consult an
immigration attorney and that she did not recall whether Johnson was
present when she made that recommendation. (Id. at 26-27.) She denied
that she ever told Attorney Archambeault that she had told appellant that he
would not be deported. (Id. at 27.) On cross-examination,
Attorney Thompson admitted that she did not believe that she consulted an
immigration attorney with respect to appellant. She admitted that she
attempted to get the felony charge of PWID dropped in part because of
deportation issues. (Id. at 30-31.)
By order dated June 22, 2015, the PCRA court denied the petition for
post-conviction relief. The PCRA court determined:
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When [appellant] entered his Plea on Possession
With Intent to Deliver it was before this member of
the Court on January 30, 2014. He was specifically
informed by the Court that “Deportation is a
collateral consequence if you are a non-citizen of the
United States.” . . . . Moreover, [appellant] informed
the Court that he was a non-citizen and was told
that, “that you risk deportation” after which he
testified that he understood this. . . .
The Court finds attorney Thompson’s testimony to be
credible and rejects [appellant’s], Ms. Johnson/s [sic]
and attorney Archambeault’s to the contrary as not
credible. (It is noted that the letter forming the
basis of attorney Archambeault’s testimony was
never produced.)
It is apparent that [appellant] was aware of the
deportation consequences of his guilty plea in 2013.
It was the reason he withdrew his original plea.
Moreover, he was informed by the Court about
deportation consequences at the time he entered his
guilty plea. In Padilla v. Kentucky, 559 U.S. 356(2010), the U.S. Supreme Court reversed a
conviction and remanded the case where a
defendant was not informed of the deportation
consequence of his guilty plea by his Public Defender
attorney. However, Justice Alito and Chief Justice
Roberts concurred with the majority only because in
that case Defendant’s attorney had misled him
regarding the deportation consequences of a
conviction. The concurring Justices’ [sic] indicated
that defendant’s Criminal Public Defender must
advise defendant that a criminal conviction may have
adverse immigration consequences and that if the
alien wants advice on this issue, the alien should
consult an attorney. Moreover, in this case the
[appellant] was advised by the Court of the
deportation consequences of his plea at the time it
was entered and subsequent to the time of his
discussion with this attorney regarding deportation
consequences.
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In this case [appellant] had been advised of the
deportation risk by attorney Thompson and the
Court, yet entered the plea nonetheless. He was
advised to seek the services of an immigration
attorney prior to entering the plea, but choose [sic]
not to do so until after the U.S. Immigration Agency
detained him. For this Court to find now that
[appellant] did not understand the deportation
consequences of his plea would fly in the face of the
record made of proceedings before the Court
especially at the time of his latest plea. Such a
holding would render meaningless the colloquy which
courts’ [sic] are required to conduct.
PCRA court opinion, 6/22/15 at 2-3 (citations omitted).
Appellant raises the following issue on appeal:
Whether the Appellant should have been allowed to
withdraw his guilty pleas after sentencing due to the
fact that he was given incorrect legal advice by his
attorney regarding the collateral consequences of
deportation, and then entered the guilty plea based
upon this incorrect advice with the result being
mandatory deportation?
Appellant’s brief at 5.
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
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id. § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[.]” Id.
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter of right has ruled on
the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to so before trial, at trial, . . . on appeal or in a
prior state postconviction proceeding.” Id.
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
The PCRA also permits relief when a conviction is the result of
“ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process, that no
reliable adjudication of guilt or innocence could have taken place.” Id. at
§ 9543(a)(2)(ii). For cases in which a claim of trial error is being raised
under the guise of an ineffective assistance of counsel claim, this court has
issued the following warning:
PCRA claims are not merely direct appeal claims that
are made at a later stage of the proceedings,
cloaked in a boilerplate assertion of counsel’s
ineffectiveness. In essence, they are extraordinary
assertions that the system broke down. To establish
claims of constitutional error or ineffectiveness of
counsel, the petitioner must plead and prove by a
preponderance of evidence that the system failed
(i.e., for an ineffectiveness or constitutional error
claim, that in the circumstances of his case, including
the facts established at trial, guilt or innocence could
not have been adjudicated reliably), that his claim
has not been previously litigated or waived, and
where a claim was not raised at an earlier stage of
the proceedings, that counsel could not have had a
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rational strategic or tactical reason for failing to
litigate these claims earlier.
Commonwealth v. Rivers, 786 A.2d 923, 929 (Pa. 2001).
In Padilla v. Kentucky, 569 U.S. 356 (2010), the United States
Supreme Court held that Jose Padilla, who was convicted on various
drug-related charges, was denied effective assistance of counsel when
counsel failed to inform him that a guilty plea made him subject to
mandatory deportation.
In Commonwealth v. Ghisoiu, 63 A.3d 1272 (Pa.Super. 2013), this
court determined that in a situation where an attorney advised his client that
a plea could have immigration consequences and advised him to consult an
immigration attorney, the attorney’s assistance was not ineffective.
Here, appellant argues that he received ineffective assistance of
counsel because Attorney Thompson advised him that he would not be
deported if he were convicted of PWID crack cocaine because he had a minor
child who was a United States citizen. As a result, appellant entered a guilty
plea. He argues that he should have been informed that when he entered a
guilty plea, deportation was a certainty and not a possibility.
Appellant’s argument is flawed. He argues his version of the facts
rather than the facts found by the PCRA court, the fact-finder. The PCRA
court found Attorney Thompson credibly testified that she advised appellant
to get advice from an immigration attorney and only stated that it was a
possibility that the fact that he had a minor child who was a United States
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citizen might preclude deportation. Appellant also ignores the fact that he
was informed by the trial court that he risked deportation if he were
convicted. The PCRA court found that appellant was warned of the
immigration consequences of his plea and was advised to consult with an
immigration attorney. The trial court’s questioning of appellant and
Attorney Thompson’s testimony support these findings. The PCRA court is
the fact-finder and when supported by the record are binding on the
reviewing court. Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011).
Similar to Ghisoiu, appellant was advised that there could be deportation
consequences with a conviction. The PCRA court did not err when it
determined that appellant’s claim of ineffective assistance of counsel was
without merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2016
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