Com. v. Vincent, M.

J-A21039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MARC VINCENT : No. 1647 EDA 2020
Appeal from the Order Entered August 17, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006690-2018
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 30, 2022
The Commonwealth appeals from the order entered on August 17, 2020,
in the Philadelphia County Court of Common Pleas, granting Marc Vincent
(Appellee) relief under the Post Conviction Relief Act (PCRA),1 and allowing
him to withdraw his guilty plea. On appeal, the Commonwealth argues the
PCRA court erred in allowing Appellee to withdraw his guilty plea where: (1)
Appellee did not preserve the claim before the court; (2) the standard guilty
plea colloquy provided to Appellee was not defective nor did it violate due
process; and (3) plea counsel was not ineffective for failing to object to the
standard colloquy given to Appellee. For the reasons below, we reverse the
order granting PCRA relief.
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1 42 Pa.C.S. §§ 9541-9546.
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Briefly, we glean the underlying facts of this case from the PCRA court
opinion:
On February 26, 2019, [Appellee] pled guilty to rape [and
unlawful contact with a minor2] as [felonies] of the first degree for
raping his adopted daughter “KV” [(Victim)] beginning in 2015
while she was 14 [years old]. This occurred on numerous
occasions and by the time [Victim] was 15 [years old,] she was
pregnant and had an abortion at the women’s center in Bucks
County[, Pennsylvania]. It was reported and prosecution ensued.
During this time, [Appellee] had pending an application for
US citizenship. [Appellee] was granted US citizenship on February
9, 2018. [The] granting of his citizenship was prior to his guilty
plea but . . . was pending during the time when the illegal sexual
conduct was ongoing. On the form for citizenship there [was] a
question asking if [Appellee was] engaged in any ongoing criminal
activity which [Appellee] denied.
PCRA Ct. Op., 10/7/21, at 1 (unpaginated).
Appellee’s written guilty plea colloquy included the following provision:
Risk Of Deportation (If an Alien)
I know that if I am not a United States citizen, it is possible I may
be deported if I plead guilty to the crime(s) charged against me.
Appellee’s Written Guilty Plea Colloquy, 2/26/19, at 3 (unpaginated) (some
capitalization omitted). At the guilty plea hearing, the trial court confirmed
Appellee read, understood, and freely signed the written colloquy. See N.T.
Guilty Plea, 2/26/19, at 5-6. The court then stated:
I do not know your status as a U.S. citizen, because I’m not
allowed to ask. But if you are not this will lead to deportation. . . .
Id. at 8.
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2 18 Pa.C.S. §§ 3121(a)(1), 6318(a)(1).
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Pursuant to the plea agreement, the court sentenced Appellee to an
aggregate term of two and one half to five years’ incarceration, followed by
five years’ probation. Appellant was also required to report for lifetime
registration as a tier three sexual offender under Sex Offender Registration
and Notification Act (SORNA).3 Five months after Appellee was sentenced, he
was indicted by a federal grand jury for unlawful procurement of naturalization
and false statements in relation to naturalization4 “based upon the same
conduct to which [he pled] guilty[.]” PCRA Ct. Op. at 2 (unpaginated).
Appellee did not file post-sentence motions or a direct appeal, but
instead, on March 10, 2020, he filed a Motion to Withdraw Guilty Plea Nunc
Pro Tunc, which the trial court treated as a first timely PCRA petition. In this
petition, Appellee alleged: (1) he was “erroneously advised that only a non-
citizen could face” deportation based on a guilty plea; (2) the standard guilty
plea colloquy he was given was “legally inaccurate as written[;]” and (3) based
on this “obvious defect[,]” he did not knowingly or voluntarily enter his guilty
plea. Appellee’s Motion to Withdraw Guilty Plea Nunc Pro Tunc, 3/10/20, at
1, 3 (emphasis omitted). Appellee also averred the following:
[Appellee] is not challenging [c]ounsel’s stewardship of the plea
under the 6th Amendment, since this was principally an error with
respect to the judicial advisals which in turn were based on the
. . . objectively erroneous [guilty plea colloquy]. However, should
the [PCRA c]ourt find that counsel was under an obligation to
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3 42 Pa.C.S. §§9799.51-9799.75.
4 18 U.S.C. §§ 1425, 1015(a).
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enter a contemporaneous objection at the time of the plea,
preserving the issue for appellate review, then a [PCRA claim]
would be pursued prior to the one-year filing deadline.
Id. at 2 n.1.
On May 17, 2020, the Commonwealth filed a motion to dismiss the
petition asserting: (1) Appellee’s claim must be viewed under the confines of
the PCRA; (2) his claim is waived because he failed to object during the
colloquy, or raise the issue in a post-sentence motion or on direct appeal; (3)
any claim of counsel’s ineffectiveness was underdeveloped; and (4) all of the
information given to Appellee during his colloquy was accurate.
Commonwealth’s Motion to Dismiss, 5/17/20, at 5-8. Appellee filed a letter
response in which he stated:
[I]t was agreed that the [PCRA c]ourt would be compelled to treat
the [m]otion as a PCRA [petition] challenging plea counsel’s
failure to object to the defective advisal . . . since the [PCRA c]ourt
did not have jurisdiction under the rules to allow for the
withdrawal of a guilty plea at this juncture.
Letter from Appellee’s Counsel to PCRA court, 5/28/20, at 1-2 (unpaginated).5
After an August 17, 2020, evidentiary hearing, the PCRA court entered
an order granting relief and allowed Appellee to withdraw his guilty plea. The
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5 Upon review of the record, there is no support for Appellee’s assertion that
“it was agreed” to view his claim under the confines of ineffective assistance
of counsel. Nor does Appellee allege whether the agreement was between
himself and the PCRA court, the Commonwealth, or all parties. Neither the
PCRA court nor the Commonwealth addresses or disputes any such
agreement.
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court stated the “totality of the circumstances” supported relief. See N.T.
PCRA H’rg, 8/17/20, at 5-7. The Commonwealth filed this timely appeal.6
On appeal, the Commonwealth raises the following claims:
I. Did [Appellee] waive his PCRA claim that his plea was
involuntary by failing to raise it in a post-sentence motion
or on direct appeal, thus rendering the PCRA court’s grant
of relief on it error?
II. Did the standard plea colloquy as delivered comport with
the requirements of due process, where it accurately
conveyed the law, including, inter alia, potential
immigration consequences of the plea?
III. Could plea counsel have been ineffective for not objecting
to the standard plea colloquy?
Commonwealth’s Brief at 4.
When reviewing an order granting or denying PCRA relief,
[we must] determine whether the PCRA court’s findings of fact are
supported by the record, and whether its conclusions of law are
free from error. The scope of our review is limited to the findings
of the PCRA court and the evidence of record, which we view in
the light most favorable to the party who prevailed before that
court. The PCRA court’s factual findings and credibility
determinations, when supported by the record, are binding upon
this Court. However, we review the PCRA court’s legal
determinations de novo.
Commonwealth v. Orner, 251 A.3d 819, 824 (Pa. Super. 2021) (en banc),
quotation marks and citations omitted), appeal denied, 308 MAL 2021 (Oct.
26, 2021).
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6 The Commonwealth complied with the PCRA court’s order to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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In its first issue, the Commonwealth argues Appellee waived any claim
that his plea was involuntary when he did not raise it before the trial court
and as such, the PCRA court’s review of the claim was legal error.
Commonwealth’s Brief at 13. In the alternative, the Commonwealth maintains
Appellee was aware he was potentially subject to denaturalization when he
lied on his citizenship paperwork because he “signed his name, multiple times,
to affirm under penalty of perjury that all of the information” in the paperwork
was true and correct. Id. at 14. Thus, the Commonwealth insists that
Appellee “repeatedly affirmed his understanding of . . . potential ramifications
before he pled guilty in this case[.]” Id.Regarding a challenge to the validity of a guilty plea, a defendant must
preserve this claim by objecting during the plea colloquy, at sentencing, or in
a post-sentence motion. Commonwealth v. Monjaras-Amaya, 163 A.3d
466, 468-69 (Pa. Super. 2017). Failure to preserve this claim results in
waiver. Id.; Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”). Further:
[U]pon entry of a guilty plea, a defendant waives all claims and
defenses other than those sounding in the jurisdiction of the court,
the validity of the plea, and what has been termed the legality of
the sentence imposed[.]
Commonwealth v. Prieto, 206 A.3d 529, 533-34 (Pa. Super. 2019) (citation
and quotation marks omitted).
Here, the PCRA court acknowledges Appellee did not challenge the
validity of his plea prior to filing his PCRA petition. PCRA Ct. Op. at 3.
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However, the court maintains Appellee did not waive this claim and is entitled
to relief under 42 Pa.C.S. § 9544(b). That is, due to “the unique nature of the
issue at hand[,]” the court found Appellee “was not aware of the consequences
to his immigration status.” Id. at 3-4. We disagree.
Appellee did not raise a claim regarding his defective plea colloquy at
any time before filing his first PCRA petition, a requirement to properly
preserve this claim, and thus it is subject to waiver. See Pa.R.A.P. 302(a);
Monjaras-Amaya, 163 A.3d at 468-69. The PCRA court, therefore,
committed legal error in granting relief and we must reverse. See Orner,
251 A.3d at 824. Further, the PCRA court did not provide any relevant
authority7 in support of its contention, but instead simply stated Appellee was
entitled to relief because of the “unique” situation. PCRA Ct. Op. at 4. While
we do not dispute the present facts are uncommon, the record does not
support a finding of relief. See Orner, 251 A.3d at 824. Appellee’s challenge
to the validity of his plea is waived.
Though Appellee’s claims are waived, both he and the PCRA court
compare the present facts to Padilla v. Kentucky, 559 U.S. 356 (2010), and
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7 The PCRA court cited 42 Pa.C.S. § 9544(b) in support of its position, but this
provision is irrelevant to support a grant of relief as it states that under the
PCRA, “an issue is waived if the petitioner could have raised it but failed to do
so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S. § 9544(b). The PCRA court seems to
ignore that preservation of a claim challenging the validity of a plea must be
raised prior to the filing of a PCRA petition. See Monjaras-Amaya, 163 A.3d
at 468-69.
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contend it is either partially or fully applicable. Appellee argued the trial
court was required to advise him on potential consequences to naturalized
citizens. Appellee’s Motion to Withdraw Guilty Plea Nunc Pro Tunc, at 1, 4.
The PCRA court maintains Padilla is “partially applicable” because Appellee
was in the process of obtaining naturalized citizenship during the commission
of his crimes. PCRA Ct. Op. at 6 (unpaginated). It states that if plea counsel
knew Appellee lied on his naturalization forms prior to the guilty plea colloquy,
then Appellee would be entitled to relief under Padilla. Id.
The Commonwealth contends Appellee’s reliance is misplaced. Further,
the Commonwealth avers Appellee’s guilty plea colloquy was not defective.
Commonwealth’s Brief at 17. It highlights that contrary to Appellee’s claims,
the guilty plea colloquy did not state that “‘only’ a non-citizen can face
deportation based on a guilty plea[,]” but instead was silent as to the
consequences a naturalized citizen may face. See id. The Commonwealth
maintains that it is the responsibility of counsel, not the courts, to advise a
defendant about potential immigration consequences after pleading guilty.
Id. at 17, 19-21 citing Commonwealth v. Rachak, 62 A.3d 389, 395 (Pa.
Super. 2012) (holding that while the United States Supreme Court has
“recognized that lawyers have a responsibility to inform clients of potential
immigration consequences before entering a guilty plea, it has not, as of this
date, placed the same responsibility on the courts.”).
Moreover, we conclude Padilla is distinguishable on its facts. In that
case, the defendant, a lawful permanent resident of the United States for over
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40 years, was facing deportation after pleading guilty to drug related crimes.
Padilla, 559 U.S. at 359. In a post-conviction proceeding, the defendant
alleged his counsel failed to advise him of immigration consequences and
stated he “did not have to worry about immigration status since he had been
in the country so long.” Id. (internal quotation marks and citation omitted).
After following his counsel’s advice, the defendant entered a guilty plea which
made his deportation “virtually mandatory.” Id. The defendant asserted that
if he knew of this consequence, he would have “insisted on going to trial[.]”
Id.The Supreme Court of Kentucky denied the defendant relief without an
evidentiary hearing, stating “the Sixth Amendment’s guarantee of effective
assistance of counsel does not protect a criminal defendant from erroneous
advice about deportation because it is merely a ‘collateral’ consequence” of
conviction. Padilla, 559 U.S. at 359-60 (citation omitted). The United States
Supreme Court granted certiorari to decide whether the defendant’s counsel
“had an obligation to advise him that the offense to which he was pleading
guilty would result in his removal from this country.” Id. at 360. The Court
held “constitutionally competent counsel would have advised [the defendant]
that his conviction for drug distribution made him subject to automatic
deportation[,]” but whether the defendant was entitled to relief depended on
whether he had been prejudiced, which the Court did not address. Id. The
Court opined that “advice regarding deportation” falls under what the Sixth
Amendment requires of counsel, stating further:
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There will . . . 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 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 366, 369 (citation omitted). The Supreme Court viewed the claim
through the purview of counsel’s ineffectiveness and made no comment
regarding any potential duty of a trial court to inform a defendant of
immigration consequences.
The present case is not analogous to Padilla. The record does not
reveal, nor does Appellee allege, that plea counsel gave him incorrect advice
prior to entering his guilty plea. Further, Appellee maintains that the error
was on the part of the trial court. Padilla only addressed counsel’s failure
to advise a defendant of the immigration consequences of a guilty plea. To
expand this holding and analysis to require trial courts to provide a detailed
explanation of the potential immigration consequences of a plea, is simply not
supported by the Supreme Court’s analysis. Additionally, Appellee’s federal
indictment sought to revoke his citizenship while deportation proceedings
were pending - it did not require “automatic deportation” as was the case in
Padilla. Significantly, the indictment did not seek to impose penalties for the
underlying crimes of his guilty plea, but rather for lying on his
naturalization forms. Thus, we agree with the Commonwealth that
Appellee’s reliance on Padilla is misplaced.
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We also agree with the Commonwealth’s assertion that Appellee’s guilty
plea colloquy was not defective. Commonwealth Brief at 17. The PCRA court
found that while the colloquy “was legally accurate . . . it did not fully
encompass the potential issues that would arise from” Appellee’s plea. PCRA
Ct. Op. at 4. Though the PCRA court correctly observed that the colloquies
did not “fully encompass” the potential ramifications of Appellee’s immigration
status, this is not a basis for relief. PCRA Ct. Op. at 4. Affirming on the trial
court’s opinion in Rachak, this Court agreed, explaining:
[Padilla] did not saddle courts with the responsibility of
determining if every defendant before them is a United States
citizen before accepting a guilty plea. Just as the court is ignorant
of a defendant’s criminal history and whether or not a guilty plea
will result in a parole or probation violation, it is ignorant of a
defendant’s citizenship status and whether or not a guilty plea will
result in deportation. While the United States Supreme Court has
recognized that lawyers have a responsibility to inform clients of
potential immigration consequences before entering a guilty plea,
it has not, as of this date, placed the same responsibility on the
courts.
Rachak, 62 A.3d at 395. Thus, we conclude the colloquy provided by the trial
court was proper and provides no basis for relief.
Last, we address Appellee’s assertion that plea counsel provided
ineffective assistance of counsel.8 See Appellee’s Brief at 13-15. Appellee
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8 Preliminarily, we note Appellee specifically did not assert a claim of
ineffective assistance of counsel in his PCRA petition. See Appellee’s Motion
to Withdraw Guilty Plea Nunc Pro Tunc, at 2 n.1 (stating his “is not challenging
[c]ounsel’s stewardship . . . under the [Sixth] Amendment, since this was
principally an error with” the trial court). It was not until his response to the
Commonwealth’s motion to dismiss that Appellee attempted to raise an
(Footnote Continued Next Page)
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asserts counsel was per se ineffective for failing to object to the “plainly
deficient” guilty plea colloquies. Id. at 14. He avers there is no reasonable
basis for this failure and as such he was “prejudice[d] per se.” Id. at 15. The
Commonwealth disagrees, stating Appellee did not demonstrate that plea
counsel knew or should have known “any of the facts underlying [his] current
federal indictment” at the time of the guilty plea, and without any offer of
proof suggesting so, his claim must fail. Commonwealth Brief at 25. The
Commonwealth insists that expecting plea counsel to inquire as to whether
Appellee became a naturalized citizen through fraudulent means does not fall
within the “range of competence demanded of attorneys in criminal cases.”
Id. at 25-26 (citation omitted).
To succeed on a claim of ineffective assistance, an appellant must plead
and prove the following:
(1) that the underlying issue has arguable merit; (2) counsel’s
actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel’s act or failure to act. The failure
to meet any of these aspects of the ineffectiveness test results in
the claim failing.
Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015) (citation
and quotation marks omitted).
The PCRA court found that while Appellee’s ineffectiveness claim had
“some merit,” his claim still could not succeed because he failed to establish
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ineffectiveness claim. See Letter, 5/28/20, at 1-2 (whereupon Appellee
alleges “it was agreed” to address his claims as ineffective assistance of
counsel).
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the final two prongs of the ineffectiveness test. PCRA Ct. Op. at 5. We agree
to the extent that his claim must fail. Appellee rests his entire claim on the
notion that the guilty plea colloquy was defective and legally inaccurate, and
therefore counsel was obligated to object during its recitation. As discussed
above, the standard colloquy provided to Appellee did not contain any
inaccurate information and the trial court was not required to inquire or
provide advice regarding Appellee’s specific immigration status. See Rachak,
62 A.3d at 395. We cannot expect counsel to object to a standard plea
colloquy, especially where the claimed “defect” contained within could not
possibly be known to counsel under these specific circumstances. For this
reason, Appellee’s claim lacks arguable merit and counsel was not ineffective.
See Barnett, 121 A.3d at 540. Further, we note Appellee did not call plea
counsel to testify at his PCRA hearing. Without evidence that counsel had no
reasonable basis for not objecting during sentencing, we cannot allow
Appellee’s claim to succeed. See id.
We recognize the efforts of the trial court to provide relief where it
believes fair amongst these uncommon facts, however, we are constrained by
our function as an error correcting court to analyze this matter under the
confines of the PCRA. Appellee was not placed at a disadvantage because of
his guilty plea, but rather because of his own choice to lie on his naturalization
forms. This is not a basis for relief. Because we conclude the PCRA court
erred in granting Appellee relief, we reverse the order on appeal.
Order reversed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2022
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