Com. v. Reyes, M.

J-S59002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MAURICIO ARRIAZA-REYES, :
:
Appellant : No. 881 EDA 2013
Appeal from the PCRA Order Entered March 5, 2013,
In the Court of Common Pleas of Chester County,
Criminal Division, at No. CP-15-CR-0000353-2011.
BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 25, 2014
Appellant, Mauricio Arriaza-Reyes, appeals pro se from the order
entered on March 5, 2013, that denied his petition for collateral relief filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546. We affirm.
On August 19, 2011, Appellant entered a negotiated guilty plea to four
counts of possession of a controlled substance with intent to deliver
(“PWID”) and one count of criminal conspiracy. The trial court accepted
Appellant’s guilty pleas and sentenced him to an aggregate term of twelve
and one-half to twenty-five years of incarceration. Appellant subsequently
filed an untimely direct appeal that this Court quashed in an order filed on
June 22, 2012.
_______________________
*Retired Senior Judge assigned to the Superior Court.
J-S59002-14
On July 2, 2012, Appellant filed a timely PCRA petition, and the PCRA
court appointed counsel. On August 9, 2012, counsel filed a Turner/Finley1
no-merit letter and a petition to withdraw. Pursuant to Pa.R.Crim.P. 907, on
December 6, 2012, the PCRA court sent notice to Appellant of its intent to
dismiss the PCRA petition without a hearing. On January 29, 2013,
Appellant filed objections to the PCRA court’s notice of intent to dismiss. On
March 5, 2013, the PCRA court dismissed Appellant’s PCRA petition. 2 This
timely appeal followed.
On appeal, Appellant raises two issues for this Court’s consideration:
I. Whether plea counsel rendered ineffective assistance of
counsel for failing to advise Appellant of [the] immigration
consequences of pleading guilty to felony drug charges?
II. Whether PCRA counsel rendered ineffective assistance of
counsel for failing to raise trial counsel’s ineffectiveness?
Appellant’s Brief at 4 (full capitalization omitted).
1
See Commonwealth v. Turner, 5544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (setting forth
the procedure for counsel to withdraw from representing a petitioner in
PCRA matters).
2
In an order filed on May 16, 2013, the PCRA court explained that it had
inadvertently failed to specifically grant counsel’s petition to withdraw when
it dismissed Appellant’s PCRA petition in the March 5, 2013 order. Order,
5/16/13, at n.1. Accordingly, in an abundance of caution, the PCRA court
held a hearing to determine if Appellant was entitled to the appointment of
new counsel. Id. After finding that Appellant was not entitled to the
appointment of counsel, the PCRA court concluded that Appellant’s issues in
his PCRA petition were meritless, and the PCRA court permitted counsel to
withdraw. Id.-2-
J-S59002-14
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
In order to succeed on a claim of ineffective assistance of counsel, an
appellant must demonstrate: (1) that the underlying claim is of arguable
merit; (2) that counsel’s performance lacked a reasonable basis; and
(3) that the ineffectiveness of counsel caused the appellant prejudice.
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Additionally, we
have explained that trial counsel cannot be deemed ineffective for failing to
pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc).
Here, Appellant first argues that, pursuant to the holding in Padilla v.
Kentucky, 559 U.S. 356 (2010), plea counsel was ineffective for failing to
advise him regarding the consequences that pleading guilty to felony drug
charges would have on his immigration status. Appellant’s Brief at 12. We
conclude that this claim is meritless.
-3-
J-S59002-14
In Padilla, the United States Supreme Court held that counsel’s failure
to advise a client in a criminal case about the possible immigration
consequences of a guilty plea constituted a denial of the right to counsel.
Padilla, 559 U.S at 374. In the case at bar, however, there was no such
failure by plea counsel.
The record reveals the following exchange at the guilty plea hearing:
THE COURT: [Appellant], I accept your pleas. I find them to be
knowing, intelligent and voluntarily entered.[3]
MR. OST-PRISCO [Attorney for the Commonwealth]: Excuse me,
Your Honor, before we go any further can we review on the
record whether he understands how the proceeding may affect
his status in the country?
THE COURT: Yes. I think we talked about this before the
last time we met. But when someone has immigration status
that means they are not supposed to be in this country or
someone has a certain type of tentative immigration status.
Convictions of charges such as these are very serious which
affects one’s immigration status. So if perchance you’re here
illegally this will lead to -- I can’t imagine why it would not lead
3
Part of Appellant’s claim is that the trial court accepted his guilty plea,
chronologically, seconds prior to being informed of the ramifications that
pleading guilty could have on his immigration status. Appellant’s Brief at 13.
We conclude that this timing claim is meritless. The record reveals that
counsel had already advised Appellant of the immigration issues connected
with pleading guilty before the plea proceedings began. N.T., 8/9/11, at 14.
Thus, while the notes of testimony reflect that the immigration issue was
discussed on the record moments after Appellant entered his plea, the
record also supports the conclusion that this discussion was not the first time
that Appellant was so advised. Counsel stated unequivocally on the record
that Appellant had been advised of the ramifications that pleading guilty
could have on his immigration status prior to the entry of his plea, and the
trial court indicated that the immigration issue had been discussed
previously as well. Id. at 13, 14.
-4-
J-S59002-14
to your deportation. And you should be aware that this guilty
plea will affect your immigration status if you presently have a
status that is anything less than legal and permanent.
Miss Thompson, have you reviewed with him his
immigration issue?
MS. THOMPSON [Defense Counsel]: Yes, Your Honor.
[Appellant] has an immigration detainer and
because these charges are punishable by more than a
year in jail they’re deportable offenses so it is most likely
that he would be deported upon the completion of his
sentence.
And we also discussed the fact that he will have to serve at
least the minimum of his sentence, twelve and a half years
before he would be deported and I believe he understands that.
THE COURT: Do you have any questions about that, sir?
[Appellant]: No, thank you.
THE COURT: He has entered his pleas. At this time you have the
right to speak to the Court if there is anything you would like to
say before I impose your sentence. You don’t have to speak. You
may speak.
[Appellant]: No, thank you. I do not wish to say anything. Thank
you.
N.T., 8/19/11, at 13-15 (footnote and emphasis added).
Upon review, we conclude that Appellant’s argument is meritless. The
trial court and plea counsel discussed the fact that Appellant had, prior to
entering the courtroom, been advised of the possible consequences a guilty
plea could have on his immigration status. The trial court reiterated the
importance of this advice, and plea counsel again discussed the possibility of
-5-
J-S59002-14
deportation following a guilty plea. Accordingly, we conclude that Appellant
was advised of the possible consequences a guilty plea could have on his
immigration status pursuant to Padilla, and there is no merit to his claim of
ineffective assistance of plea counsel.
In his next issue on appeal, Appellant argues that PCRA counsel was
ineffective in failing to raise plea counsel’s failure to advise Appellant of the
immigration consequences a guilty plea could have. However, as noted
above, we concluded that Appellant was advised on the immigration
consequences of his guilty plea. Thus, Appellant’s underlying claim is
meritless, and Appellant’s plea counsel cannot be deemed ineffective for
failing to raise a meritless argument. Commonwealth v. Keaton, 82 A.3d
419, 426 (Pa. 2013).
For the reasons set forth above, we conclude that the PCRA court
committed no error. Accordingly, Appellant is entitled to no relief, and we
affirm the order dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
-6-