Com. v. Perez, E.

J-A29003-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ESTELA PEREZ, :
:
Appellee : No. 2012 WDA 2013
Appeal from the Order entered November 25, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0009911-2008
BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 06, 2015
The Commonwealth of Pennsylvania (“the Commonwealth”) appeals
from the order entered on November 25, 2013 by the Allegheny County
Court of Common Pleas, Criminal Division, granting Estela Perez’s petition
filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-46. After careful review, we reverse the PCRA court’s order.
The relevant facts and procedural history of this case are summarized
as follows. On August 6, 2008, the Office of Attorney General (“OAG”)
arrested Perez and charged her with multiple counts of insurance fraud,1
theft by deception,2 attempt to commit theft by deception,3 and criminal
1
18 Pa.C.S.A. § 4117(a)(2).
2
18 Pa.C.S.A. § 3922(a)(1).
3
18 Pa.C.S.A. §§ 901(a), 3922(a)(1).
*Retired Senior Judge assigned to the Superior Court.
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conspiracy.4 These charges stem from nineteen insurance claims made by
Perez relating to automobile accidents that never occurred. Perez’s case was
set for trial on August 31, 2009, but she failed to appear and as a result, the
trial court issued a bench warrant for her arrest. In April 2012, Perez was
arrested on that bench warrant in Virginia and subsequently transported
back to Allegheny County. On August 28, 2012, Perez pled guilty to
insurance fraud, a third-degree felony, and theft by deception, a first-degree
misdemeanor, and all her remaining charges were nolle prossed. The trial
court sentenced Perez to ten years of probation and ordered her to pay
$46,617.43 in restitution. Perez did not file any post-sentence motions or a
direct appeal.
On March 20, 2013, Perez filed a timely PCRA petition in which she
claimed that her plea counsel rendered ineffective assistance of counsel for
failing to advise her of the potential immigration consequences of pleading
guilty to a felony pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010).
PCRA Petition, 3/20/13, ¶¶ 10-12. On July 1, 2013, Perez filed an amended
PCRA petition in which she added a claim that plea counsel was ineffective
for failing to investigate and discuss with her the defense of duress, averring
that she only participated in the schemes to defraud insurance companies to
avoid abuse by her husband. Amended PCRA Petition, 7/1/13, ¶¶ 15-24.
On August 21, 2013, the PCRA court held a hearing on Perez’s PCRA
4
18 Pa.C.S.A. § 903(a)(1).
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petition, with another hearing scheduled for November 25, 2013. However,
on November 25, 2013, due to a scheduling mix up, the Commonwealth did
not appear for the hearing. That same day, the PCRA court granted Perez’s
PCRA petition based on her Padilla claim and vacated her judgment of
sentence. The trial court noted in its order “a lack of prosecution” on the
part of the Commonwealth. See Trial Court Order, 11/25/13.
On December 23, 2013, the Commonwealth filed a timely notice of
appeal. On January 6, 2014, the PCRA court ordered the Commonwealth to
file a concise statement of the errors complained of on appeal pursuant to
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On January
10, 2014, the Commonwealth filed a timely rule 1925(b) statement.
On appeal, the Commonwealth raises the following issues for our
review and determination:
I. Did the PCRA [court] err by refusing to address
the issues set forth in the Commonwealth’s
concise statement of [the] errors complained
of on appeal and by justifying its grant of relief
by relying upon a new, alternative ground that
was never raised by [Perez]?
II. Did the PCRA court err in granting relief on the
grounds that [plea] counsel was ineffective for
failing to investigate and discuss the defense of
duress with [Perez]?
III. Did the PCRA court err in granting relief on the
grounds that there was a lack of prosecution
by [the Commonwealth] during post-conviction
proceedings?
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IV. Did the PCRA court err in granting relief on the
grounds that [plea] counsel was ineffective for
failing to advise [Perez] on the potential
immigration consequences associated with the
entry of her guilty plea?
Commonwealth’s Brief at 4.5
We begin by addressing the Commonwealth’s first three issues in turn,
as each is the result of confusion stemming from the PCRA court’s initial Rule
1925(a) opinion in this case. For its first issue on appeal, the
Commonwealth argues that the PCRA court erred by failing to address the
issues set forth in the Commonwealth’s Rule 1925(b) statement and by
justifying the grant of Perez’s PCRA petition on an alternative ground that
she never raised. Commonwealth’s Brief at 41-45. Our review of the PCRA
court’s original Rule 1925(a) opinion reveals that the PCRA court addressed
none of the issues raised in the Commonwealth’s Rule 1925(b) statement.
See Trial Court Opinion, 4/15/14, at 2-4. Rather, the PCRA court
determined that Perez was entitled to relief because she had received an
insufficient guilty plea colloquy. See id. Accordingly, because the PCRA
court did not address any of the issues in the Commonwealth’s Rule 1925(b)
statement, we remanded the case for the PCRA court to prepare a
supplemental Rule 1925(a) opinion. See Order, 11/6/14. The PCRA court
filed its supplemental Rule 1925(a) opinion addressing the issues set forth in
the Commonwealth’s Rule 1925(b) statement on December 17, 2014.
5
We reordered the Commonwealth’s issues for ease of review.
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Additionally, we must agree with the Commonwealth that a deficient
guilty plea colloquy cannot be the basis for the grant of PCRA relief in this
case, however, as Perez never raised the issue in her PCRA petition. See
Amended PCRA Petition, 7/1/13. To be eligible for relief under the PCRA, a
petitioner “must plead and prove by a preponderance of the evidence” that
he guilty plea was “unlawfully induced where the circumstances make it
likely that the inducement caused the petitioner to plead guilty and the
petitioner is innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii). Here, Perez neither
pleaded nor proved that she received an insufficient guilty plea colloquy.
For its second issue on appeal, the Commonwealth argues that the
PCRA court erred in granting PCRA relief based on its determination that plea
counsel was ineffective for failing to investigate and discuss the defense of
duress with Perez. Commonwealth’s Brief at 36-39. However, the
Commonwealth raised this issue and filed its brief prior to the PCRA court’s
filing of a proper Rule 1925(a) opinion. In its supplemental Rule 1925(a)
opinion, the trial court indicated that it did not base its decision to grant
PCRA relief on plea counsel’s failure to investigate or discuss with Perez the
defense of duress. See PCRA Court Opinion, 12/17/14, at 6. The trial court
determined that plea counsel had a reasonable strategic basis for not
pursuing the defense of duress.6 Id. Accordingly, this issue is moot. See
6
The certified record reflects that plea counsel chose not pursue the
defense of duress because of Perez’s contradictory statements about the
automobile accidents actually occurring and then later that her husband
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Commonwealth v. Bricker, 41 A.3d 872, 881 (Pa. Super. 2012) (“An issue
before a court is moot if in ruling upon the issue the court cannot enter an
order that has any legal force or effect.”).
For its third issue on appeal, the Commonwealth argues that the PCRA
court erred in granting PCRA relief based on its determination that there was
a lack of prosecution by the Commonwealth during post-conviction
proceedings. Commonwealth’s Brief at 39-41. Like its second issue, the
Commonwealth also raised this issue prior to the PCRA court’s filing of a
proper Rule 1925(a) opinion. In its supplemental Rule 1925(a) opinion, the
PCRA court also indicated that it did not base its decision to grant PCRA
relief on a lack of prosecution by the Commonwealth. See PCRA Court
Opinion, 12/17/14, at 7. Accordingly, we conclude that this issue is likewise
moot. See Bricker, 41 A.3d at 881.
For its final issue on appeal, the Commonwealth challenges the PCRA
court’s determination that plea counsel was ineffective for failing to advise
Perez on the potential immigration consequences associated with the entry
of her guilty plea. Commonwealth’s Brief at 24-36. “Our standard of review
of a trial 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.
forced her to make false automobile insurance claims. N.T., 8/21/13, at 46,
53. Plea counsel did not believe that any testimony Perez would provide
about the defense of duress would be credible. Id. at 46.
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Lippert, 85 A.3d 1095, 1100 (Pa. Super 2014), appeal denied, 95 A.3d 277
(Pa. 2014). “The PCRA court’s findings will not be disturbed unless there is
no support for the findings in the certified record.” Id.
A “claim for ineffective assistance of counsel in connection with advice
rendered regarding whether to plead guilty is cognizable under the PCRA
pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).” Commonwealth v. Barndt,
74 A.3d 185, 191 (Pa. Super. 2013). In reviewing an allegation of
ineffective assistance of counsel, we begin with the assumption that counsel
was effective. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
Our Supreme Court has stated that in order “[t]o merit relief based on an
ineffectiveness claim under the PCRA, a petitioner must show that such
ineffectiveness ‘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.’” Commonwealth v. Collins, 957 A.2d
237, 244 (Pa. 2008) (quoting 42 Pa.C.S.A. § 9543(a)(2)(ii)). This standard
requires “a petitioner to prove that: (1) the underlying claim is of arguable
merit; (2) counsel’s performance lacked a reasonable basis; and (3) the
ineffectiveness of counsel caused the petitioner prejudice.” Id. Our
Supreme Court has held that to demonstrate prejudice in an ineffective
assistance of counsel claim, “the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Commonwealth v.
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King, 57 A.3d 607, 613 (Pa. 2012). The failure by the petitioner “to satisfy
any one of the three prongs of the test for ineffectiveness requires rejection
of the claim.” Collins, 957 A.2d at 244.
Our Court has explained ineffectiveness claims in the context of the
entry of a guilty plea as follows:
The right to the constitutionally effective assistance
of counsel extends to counsel’s role in guiding his
client with regard to the consequences of entering
into a guilty plea.
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.
Thus, to establish prejudice, the defendant must
show that there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial. The
reasonable probability test is not a stringent one; it
merely refers to a probability sufficient to undermine
confidence in the outcome.
Barndt, 74 A.3d at 192 (quotations and citations omitted).
Importantly, when the defendant is a noncitizen, the United States
Supreme Court has held that counsel must inform him or her as to whether
a plea carries a risk of deportation. Padilla v. Kentucky, 559 U.S. 356,
374 (2010). The Supreme Court explained,
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When the law 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 … the duty to give correct
advice is equally clear.
Id. at 369 (footnote omitted). This Court has held that Padilla requires
counsel to inform a defendant as to a risk of deportation, but not as to its
certainty. Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super.
2013); see also Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa.
Super. 2013) (holding that plea counsel’s advice that defendant’s guilty plea
would render him “deportable” was not ineffective).
Here, the Commonwealth argues that the trial court erred in
determining plea counsel was ineffective under Padilla. Commonwealth’s
Brief at 28-35. The Commonwealth asserts that Perez was fully aware of the
risks associated with pleading guilty in this case. Id. Additionally, the
Commonwealth contends that plea counsel properly advised Perez regarding
the potential immigration consequences of pleading guilty by advising her to
seek the counsel of an immigration attorney. Id. The Commonwealth
asserts that this case is governed by Commonwealth v. Wah, 42 A.3d 335
(Pa. Super. 2012). Id. at 32-26.
In Wah, the appellant alleged that plea counsel was ineffective for
failing to advise him of the specific immigration consequences of pleading
guilty to Medicaid fraud in an amount in excess of $10,000. Wah, 42 A.3d
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at 337, 340. This Court determined that counsel in that case acted within
the range of professionally competent assistance because the appellant was
aware that there could be deportation consequences associated with his
guilty plea and because counsel suggested that the appellant seek the
advice of an immigration attorney. Id. at 340-41. Our Court explained:
In this case, appellant was removable as an
“aggravated felon” based upon his conviction of a
crime involving fraud or deceit in which the loss to
the victim exceeded $10,000. 8 U.S.C. §
1227(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43)(M)(i).
Certainly, this matter is more complex than the
statute at issue in Padilla, which mandates removal
for virtually all controlled substances convictions.
We find 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.
We agree with the Commonwealth that Wah governs this case. Here,
Perez was aware that her guilty plea in this case carried with it the risk of
deportation:
The Court: Did you know at the time you were doing
this plea you very well could be separated from your
children as a result of your status?
[Perez]: Yes
THE COURT: So you knew when you did the plea
that your plea could result in you being deported and
you would not be with your children?
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[Perez]: But I thought that was the only option
because they was telling me I didn’t have any other
options to go to or to go by.
THE COURT: So if I understand you correctly, you
are saying that you understood that you could
possibly be separated from your children as a result
of the plea, but the reason why you took the plea is
because you were informed that you had no
alternative or you had no positive alternative than
just to plead and take the consequences from the
district attorney because your defense attorney had
led you to believe that your situation was hopeless,
there was no defense or anything else that you could
say that would allow you to possibly be extricated or
vindicated or that you would not be found guilty?
[Perez]: Right.
N.T., 8/21/13, at 32-33.
Additionally, the record reflects that plea counsel advised Perez to
seek the counsel of an immigration attorney:
Q. When did you become aware of her
immigration status?
A. From the very beginning.
Q. How so? How did you become aware?
A. She told me.
Q. What did she tell you?
A. The initial -- I had numerous discussions with
the prior Attorney General, Deputy Attorney
General Scott Robinette, tried to convince him
to allow [Perez] to plead to a misdemeanor
rather than a felony because either from the
very beginning or shortly thereafter she did not
want to plead to the felony because of the
immigration issue. Mr. Robinette would not
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bend. We had a trial scheduled before Judge
Mariani where I discussed the possibility of
either a non-jury trial, jury trial or a plea with
[Perez] and she did not want to do a non-jury
trial, Judge Mariani could not do a jury trial
that day and she didn’t want to do a plea
because of the possibility that pleading to a
felony could result in her deportation.
* * *
A. She did not want to plead to the felony
because she did not want to take the risk that
it might cause deportation.
Q. Did you advise her as to the risk of
deportation?
A. No. I told her that I did not know what the
possibility or what ramifications were of a plea
to a felony with respect to deportation. I
advised her at that time and I advised her --
because there were several postponements
and then there was a period of time when she
was unavailable, but throughout the period of
time I advised her that I could not tell her
what the outcome of a plea to a felony would
be and that she should discuss that with an
immigration attorney that after she discussed
that with an immigration attorney[,] then she
could make a decision.
Id. at 46-48.
Therefore, as in Wah, Perez was aware that there was a risk of
deportation associated with pleading guilty, and plea counsel advised her to
seek the advice of an immigration attorney to learn the specific ramifications
of pleading guilty. See id. at 32-33, 46-48. Therefore, we conclude that
plea counsel’s actions were within the range of professionally competent
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assistance and that the PCRA court erred in determining that plea counsel
was ineffective.
Both the PCRA court and Perez make much of the fact that plea
counsel answered “no” to the question of “[d]id you advise [Perez] as to the
risk of deportation?” See Supplemental Trial Court Opinion, 12/17/14, at 1-
2; Perez’s Brief at 5. However, in doing so, the PCRA court and Perez
overlook the context of this single answer. Counsel’s testimony, as a whole,
indicates that Perez was clearly aware that pleading guilty in this case
carried with it the risk of deportation and that plea counsel advised her to
seek the advice of an immigration attorney regarding the consequences of
pleading guilty. See N.T., 8/21/13, at 32-33, 46-48. Furthermore, Perez
cannot now, having testified at the PCRA hearing that she was apprehensive
about pleading guilty specifically because of the risk of deportation, argue
that her guilty plea was unknowing or involuntary and that plea counsel was
ineffective for his failure to apprise her of that risk.
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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