Com. v. Foreus, J. ( 2017 )

J-S26002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JACQUES SHMELYN FOREUS
Appellant No. 1395 MDA 2016
Appeal from the PCRA Order July 20, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000007-2015
BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 23, 2017
Jacques Shmelyn Foreus appeals from the July 20, 2016 order denying
him PCRA relief. We affirm.
Based upon the following events, on November 23, 2014, Appellant
was charged with conspiracy and aggravated assault graded as second-
degree felonies. At approximately 10:30 p.m. on November 22, 2014,
Chambersburg police were called to the scene of an active fight on King
Street. Their investigation revealed that Appellant and his brother, John,
had assaulted Keemkwing Mathurin, III, with a deadly weapon by striking
him with a beer bottle. “Several witnesses advised [police] that both
subjects punched the victim several times in the head and then struck the
victim in the head with a beer bottle.” Affidavit of Probable Cause,
* Former Justice specially assigned to the Superior Court.
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11/23/14, at 1. Mr. Mathurin went to the emergency room and received
multiple stitches. During his interview with police, Mr. Mathurin confirmed
that his assailants were Appellant and John.
On February 12, 2015, Appellant pled guilty in this action to simple
assault graded as a second-degree misdemeanor. During that proceeding,
he simultaneously tendered a nolo contendere plea in another case, action
number 1664 of 2014, to riot graded as a third-degree felony. The plea
colloquy indicates that the riot offense was based on events occurring during
the night of May 20, 2014, and the morning of May 21, 2014, when
Chambersburg police were twice dispatched to a residence about noise
complaints. Appellant was with a group of five to seven people, became
confrontational with the police, and refused to disperse when ordered to do
so. People in the group tried to interfere when police arrested Appellant.
After entering his guilty/nolo contendere plea in the cases, Appellant
was sentenced to time served of seventy-seven days to eleven months
imprisonment, and was immediately paroled. On November 25, 2015,
Appellant filed a timely, counseled PCRA petition. In his PCRA petition,
Appellant averred the following. He is a citizen of Haiti and not the United
States of America, and plea counsel failed to advise him of the immigration
consequences of entering the plea in question. In July 2015, Appellant was
taken into custody by Immigration and Customs Enforcement and charged
with removability from the United States due to the convictions resulting
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from his February 12, 2015 guilty/nolo contendere plea. Appellant argued
that he was entitled to withdraw the guilty/nolo contendere plea under
Padilla v. Kentucky, 559 U.S. 356 (2010), wherein the United States
Supreme Court ruled that plea counsel is constitutionally ineffective if
counsel fails to inform a defendant of the immigration consequences of
entering a guilty plea to a crime.1
A hearing was held on the PCRA petition, but Appellant failed to
request that the proceeding be transcribed so that a transcript of the hearing
is not contained in the certified record. Nevertheless, that default does not
interfere with our ability to review this matter, and we do not need to order
transcription of the PCRA hearing. Specifically, the PCRA court, Appellant,
and the Commonwealth, in responding to Appellant’s request for PCRA relief,
were all in accord as to the substance of plea counsel’s testimony at that
proceeding. Counsel reported that he told Appellant that there might be
deportation consequences to entry of the guilty/nolo contendere plea but
counsel was not knowledgeable about immigration law. Counsel advised
Appellant that he should consult an immigration attorney before entering his
guilty/nolo contendere plea. Appellant acknowledged being told by plea
____________________________________________
1
We note that, “It is well established that a plea of nolo contendere is
treated as a guilty plea in terms of its effect upon a given case.”
Commonwealth v. V.G., 9 A.3d 222, 226 (Pa.Super. 2010).
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counsel to obtain the advice of a lawyer versed in immigration law. The
PCRA court concluded that plea counsel’s advice satisfied the mandates of
Padilla and denied relief. This appeal, wherein Appellant presents this
contention, followed:
Whether the trial court erred in denying Appellant's
Petition for Post Conviction Relief given that Appellant's counsel
was aware of Appellant’s noncitizen immigration status, had
represented over 20 other noncitizen defendants in prior criminal
guilty pleas, and simply advised Appellant to seek advice from
an immigration attorney, without himself ever conferring with
immigration counsel, prior to advising Appellant to plead guilty
[/nolo contendere]?
2
Appellant’s brief at 4.
Initially, we note that this Court reviews the “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. Roane, 142 A.3d 79, 86
(Pa.Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444
(Pa. 2015)). “This Court grants great deference to the findings of the PCRA
court, and we will not disturb those findings merely because the record could
support a contrary holding. We will not disturb the PCRA court's findings
unless the record fails to support those findings.” Commonwealth v.
Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation omitted).
____________________________________________
2
We note our disapproval of the fact that the Commonwealth has failed to
fulfill its responsibility of filing a brief with this Court.
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In order to obtain relief based upon ineffective assistance of counsel,
the defendant must demonstrate: “(1) the underlying claim is of arguable
merit; (2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of counsel, there
is a reasonable probability that the outcome of the proceedings would have
been different.” Id. at 397-98. “A defendant is permitted to withdraw his
guilty plea under the PCRA if ineffective assistance of counsel caused the
defendant to enter an involuntary plea of guilty.” Id. at 397 (citation
omitted); accord Commonwealth v. Fears, 86 A.3d 795, 806–07 (Pa.
2014) (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 appellant to enter an involuntary or unknowing
plea.”).
Herein, Appellant complains that plea counsel’s advice was inadequate.
Specifically, he argues that it was insufficient that counsel warned him that
there might be immigration consequences to entering the guilty/nolo
contendere plea and told him to speak with an immigration lawyer before
entering it. He suggests that his guilty/nolo contendere plea is infirm under
Padilla because that decision requires plea counsel to research immigration
law and properly advise a client. Appellant maintains that he is subject to
automatic deportation due to entry of the guilty/nolo contendere plea and
plea counsel rendered ineffective assistance in not researching the
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immigration issue. Appellant’s brief at 9 (“The holding in Padilla was made
with intention of providing defense attorneys the proper incentive to
research immigration issues to discuss with their clients, and to ensure that
noncitizens ultimately receive advice tailored to their particular situation
whenever possible.”).
We disagree with Appellant’s assertion that the Padilla holding
requires a criminal attorney to learn immigration law and tailor advice
specifically to the client’s situation. We conclude that plea counsel’s advice
that it was a possibility that Appellant could be deported due to entry of the
plea, coupled with counsel’s admonition to consult with an immigration
lawyer, was sufficient to satisfy the mandates of Padilla in this case.
In Padilla, the defendant, a noncitizen, had been a legal resident of
the United States in excess of forty years. Padilla pled guilty to distributing
drugs. During his post-conviction proceeding, Padilla maintained that his
guilty plea was induced by ineffective assistance of plea counsel.
Specifically, plea counsel not only failed to advise Padilla that he faced
deportation due to entry of the plea, counsel actually informed him that he
did not need to concern himself about being deported since he had lived in
this country for such a long period. However, the plea in question was
entered to a crime that results in automatic deportation.
The state court refused to allow Padilla to withdraw his guilty plea,
reasoning that counsel does not render ineffective assistance under the Sixth
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Amendment by offering incorrect deportation advice because deportation is a
collateral consequence of a conviction. The United States Supreme Court
disagreed, holding that deportation is not a collateral consequence of
entering a guilty plea. It observed that the ability to remain in this country
is of great concern to a defendant and may be more important to him than
the potential jail term. The Padilla Court also reviewed the history of
federal immigration law and noted that deportation “as a consequence of a
criminal conviction” had a “close connection to the criminal process” and
could not be characterized as a mere collateral consequence of entry of a
plea. Padilla, 559 U.S. at 366.
The United States Supreme Court also noted that the immigration law
clearly provided for automatic removal for the offense to which Padilla pled
guilty, stating that “the terms of the relevant immigration statute are
succinct, clear, and explicit in defining the [automatic] removal consequence
for Padilla's conviction.” Id. at 368. The Nation’s High Court recognized that
deportation law can be nuanced and may not be entirely clear as to whether
a defendant will be removed from the county due to commission of the
crime. The Padilla Court outlined:
Immigration law can be complex, and it is a legal specialty
of its own. Some members of the bar who represent clients
facing criminal charges, in either state or federal court or both,
may not be well versed in it. There will, therefore, undoubtedly
be numerous situations in which the deportation consequences
of a particular plea are unclear or uncertain. The duty of the
private practitioner in such cases is more limited. When the law
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is not succinct and straightforward . . . a criminal defense
attorney need do no more than advise a noncitizen client that
pending criminal charges may carry a risk of adverse
immigration consequences. But when the deportation
consequence is truly clear, as it was in this case, the duty to give
correct advice is equally clear.
Id. at 369 (footnote omitted).
Clearly, this language does not impose a mandatory duty on defense
counsel to learn the specifics of immigration law and “research immigration
issues,” as suggested by Appellant. Appellant’s brief at 9. Instead, only
when the immigration law is truly clear that the offense will result in
automatic deportation must the defendant be so advised. On the other
hand, where the law is not succinct and straightforward, plea counsel merely
must warn a client that there are immigration consequences to a criminal
conviction.
In the present case, the critical problem with Appellant’s argument is
that he makes no effort to examine the pertinent immigration law and
establish that his guilty/nolo contendere plea to the offenses of simple
assault and riot clearly, succinctly, and explicitly mandated removal, as did
the conviction examined in Padilla. Thus, under that United States
Supreme Court decision, Appellant only had to be advised that there were
possible immigration consequences flowing from entry of the plea. While
Appellant claims that he was not informed by plea counsel that his
guilty/nolo contendere plea carried immigration consequences, this claim is
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contradicted by his concession that he was told to consult with an
immigration lawyer. Simply put, if there were no immigration consequences
to entering the plea in question, then there would have been absolutely no
need for Appellant to obtain advice from an attorney knowledgeable in
immigration law. Appellant thus, by his own concession herein, knew that
there was a possibility of deportation from entry of the guilty/nolo
contendere plea.
Our decision in Commonwealth v. Wah, 42 A.3d 335 (Pa.Super.
2012), is controlling. Therein, Wah entered a negotiated guilty plea to
forgery and Medicaid fraud by illegally receiving funds in excess of $10,000.
He was a citizen of Liberia and was aware that his guilty plea could affect his
immigration status as a legal resident alien. Federal immigration law
provides for deportation for commission of an aggravated felony where the
loss exceeded $10,000.
Wah averred that he was facing mandatory and automatic removal
from this country due to entry of the plea, and that he was entitled to
withdraw his guilty plea under Padilla. This Court in Wah observed that
plea counsel had advised Wah, before entry of the plea, that immigration
consequences could flow from the plea’s entry and that Wah should consult
an immigration lawyer. We concluded plea counsel’s warning was sufficient
to satisfy the mandates of Padilla and that Wah’s plea was not induced by
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ineffective assistance of counsel in connection with the proffered immigration
advice.
Wah maintained that plea counsel had a non-delegable duty to
ascertain the immigration law, and that a cursory review of the immigration
statutes would have revealed that his plea to Medicaid fraud in an amount
greater than $10,000 would be deemed an aggravated felony and subject
him to automatic removal from the country. We rejected that position,
noting that it was not clear whether Medicaid fraud was an “aggravated
felony,” as outlined in the applicable federal statutes.
The Wah Court therefore found “that counsel acted within the range of
professionally competent assistance when he recommended that appellant
seek the advice of an expert in immigration law if he desired to know the
specific consequences of his guilty plea.” Id. at 341; accord
Commonwealth v. Ghisoiu, 63 A.3d 1272, 1273–74 (Pa.Super. 2013)
(finding that plea counsel was not ineffective under Padilla where defendant
was told entry of guilty plea could carry immigration consequences and to
seek advice from immigration lawyer). Herein, Wah and Ghisoiu apply,
and counsel did not ineffectively induce Appellant’s plea because counsel
informed Appellant that there might be immigration consequences to entry
of the guilty/nolo contendere plea and to consult with an immigration
lawyer. The PCRA court therefore did not abuse its discretion in denying
relief under Padilla.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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