Com. v. Stewart, L.

J-S43029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEON GEORGE STEWART :
:
Appellant : No. 1676 MDA 2018
Appeal from the PCRA Order Entered September 10, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002998-2016
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 22, 2019
Leon George Stewart appeals from the Order entered on September 10,
2018, denying his Petition for collateral relief filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In March 2017, Appellant entered into a negotiated guilty plea to
Criminal Use of Communication Facility, Possession with Intent to Deliver, and
Conspiracy in exchange for five years of probation.1 N.T. Plea, 3/13/17, at 1-
10. Following a colloquy, the trial court accepted the plea and imposed the
agreed-upon sentence. Id. at 8-9.
Appellant is a citizen of Jamaica. Id. at 5. During his oral colloquy,
Appellant’s plea counsel, Ms. Emily Cherniack, Esq., confirmed that Appellant
was aware that he faced potential consequences to his immigration status.
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1 18 Pa.C.S. § 7512(a); 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 903(a)(1),
respectively.
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* Former Justice specially assigned to the Superior Court.
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Id. at 5. In addition, Appellant testified that he understood his rights and
voluntarily determined to plead guilty. Id. at 4-5.
Appellant attained a fourth-grade education; he speaks English but can
neither read nor write. Id. at 3. During his oral colloquy, Appellant testified
that plea counsel discussed a written colloquy with him. Id. at 3-4. Counsel
confirmed that she had read and explained its terms to Appellant. Id. at 3.
Appellant signed the written colloquy. Id. In relevant part, the colloquy
memorializes Appellant’s understanding that “by pleading guilty, I will be
subject to immigration review which will likely result in my deportation.”
Statement Accompanying Defendant’s Request to Enter a Guilty Plea,
3/13/17, at 2 ¶ 4.
Appellant did not file a post-sentence Motion or appeal from the
Judgment of Sentence. However, in November 2017, Appellant challenged
the lawfulness of his guilty plea by filing a counseled Petition for collateral
relief. According to Appellant, plea counsel was ineffective because she did
not review the Commonwealth’s evidence with Appellant or explain the
consequences of his plea.2 Appellant’s PCRA Petition, 11/21/17, at 2
(unpaginated).
In April 2018, the PCRA court held a hearing on Appellant’s Petition.
Appellant testified that plea counsel never discussed the case with him, his
chance of success at trial, or the terms of the written colloquy. N.T. PCRA,
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2United States Immigration and Customs Enforcement has detained Appellant
and scheduled him for deportation. PCRA Ct. Op., 2/28/19, at 1.
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4/30/18, at 10-14. Appellant further asserted that he did not wish to plead
guilty but that counsel directed him to do so. Id. at 14. In addition, according
to Appellant, counsel suggested that, if asked, Appellant should deny that
anyone had forced him to plead guilty. Id. Finally, Appellant testified that
plea counsel never explained to him how a plea could affect his immigration
status. Id. at 15-16.
On cross-examination, Appellant conceded that his PCRA testimony was
at odds with his plea testimony. Id. at 21-23. Upon questioning from the
presiding judge, Appellant testified that he had not told the truth during the
plea hearing. Id. at 23.
Plea counsel also testified at the hearing. According to plea counsel,
she specifically recalled discussing immigration consequences with Appellant
and his wife, in part because Appellant faced a felony drug charge. Id. at 28-
30, 36. Moreover, according to plea counsel, Appellant’s case had been
continued on at least one occasion in order for Appellant to discuss his case
with an immigration attorney. Id. at 33.
On cross-examination, plea counsel testified that she discussed the facts
of the case with Appellant but conceded that she did not review discovery with
him. Id. at 37. Plea counsel also explained that her representation of
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Appellant was limited to the plea process; therefore, according to counsel, she
did not advise Appellant regarding his chances at trial. Id. at 37.3
Following the hearing, the PCRA court entered an order denying
collateral relief on the ground that Appellant had neither pleaded nor proved
that plea counsel’s performance had prejudiced him. PCRA Order, 9/10/18,
at 1 n.1. Appellant timely appealed and filed a court-ordered Pa.R.A.P.
1925(b) Statement. The PCRA court issued a responsive Opinion.
Appellant raises the following issues on appeal:
1. Whether the PCRA court erred in denying Appellant collateral
relief where plea counsel was ineffective for not properly
apprising Appellant of the immigration consequences of his
plea; and
2. Whether the PCRA court erred in denying Appellant collateral
relief where plea counsel was ineffective for not reviewing with
Appellant the evidence against him or providing him with
discovery.
See Appellant’s Br. at 25, 37.4
Appellant contends that the PCRA court erred in denying him relief. Id.
at 25, 37. We review an order granting or denying a petition for collateral
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3 In July 2016, Attorney John J. McMahon, Jr. entered an appearance as
Appellant’s counsel of record. See Criminal Docket, No. CP-06-CR-0002998-
2016, at 7. According to plea counsel, she handled in-court appearances but
deferred to counsel of record to discuss trial strategy with Appellant. N.T.
PCRA at 37-38. Counsel of record did not testify at the PCRA hearing.
4 In his Statement of the Questions Involved, Appellant identifies eight issues.
See Appellant’s Br. at 5-8. In his Argument, however, Appellant concedes
that issues two through eight “essentially raise the same allegations of
ineffective assistance.” Id. at 37. Thus, Appellant has divided his Argument
into two sections. See id. at 25, 37; see also Pa.R.A.P. 2116(a), 2119(a).
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relief to determine whether the PCRA court’s decision is supported by the
evidence of record and free of legal error. Commonwealth v. Jarosz, 152
A.3d 344, 350 (Pa. Super. 2016) (citing Commonwealth v. Fears, 86 A.3d
795, 803 (Pa. 2014)). We will not disturb the findings of the PCRA court unless
there is no support for those findings in the record. Commonwealth v. Wah,
42 A.3d 335, 338 (Pa. Super. 2012).
Appellant asserts that plea counsel was ineffective. We presume
counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).
To overcome this presumption, “a PCRA petitioner must show the underlying
claim has arguable merit, counsel's actions lacked any reasonable basis, and
counsel's actions prejudiced the petitioner.” Commonwealth v. Escobar, 70
A.3d 838, 841 (Pa. Super. 2013) (citing Commonwealth v. Cox, 983 A.2d
666, 678 (Pa. 2009). “Prejudice means that, absent counsel's conduct, there
is a reasonable probability the outcome of the proceedings would have been
different.” Id. A claim will be denied if the petitioner fails to meet any one of
these prongs. See Jarosz, 152 A.3d at 350 (citing Commonwealth v.
Daniels, 963 A.2d 409, 419 (Pa. 2009)).
“[A] criminal defendant's right to effective counsel extends to the plea
process, as well as during trial.” Wah, 42 A.3d at 338 (citations omitted).
Under the PCRA, “[a]llegations of ineffectiveness in connection with the entry
of a guilty plea will serve as a basis for relief only if the ineffectiveness caused
[the petitioner] to enter an involuntary or unknowing plea.” Fears, 86 A.3d
at 806–07 (citation omitted). “Where the defendant enters his plea on the
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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.” Wah, 42 A.3d at 338-399 (citations omitted).
“[T]o 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.” Commonwealth
v. Brandt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations and internal
quotation marks omitted). This is not a stringent requirement. Id. The
reasonable probability test refers to “a probability sufficient to undermine
confidence in the outcome.” Id. (citations omitted).
In his first issue, Appellant asserts plea counsel was per se ineffective
because she failed to provide appropriate immigration advice. Appellant’s Br.
at 27. According to Appellant, the PCRA court erred as a matter of law when
it required a showing of prejudice in support of Appellant’s claim. See id. at
27-28 (citing Padilla v. Kentucky, 559 U.S. 356 (2010)). Rather, Appellant
suggests, proper disposition of his claim required only an evaluation of plea
counsel’s credibility. Id. In other words, the only question before the PCRA
court was whether plea counsel had advised Appellant that his guilty plea
would lead to his deportation. According to Appellant, counsel’s testimony
was questionable, inconsistent, and suspect. See id. at 29, 31, 36 (reviewing
counsel’s testimony and challenging her credibility). Therefore, Appellant
concludes, he is entitled to withdraw his plea and requests that we remand
this matter for further proceedings. See id. at 36, 46.
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In support of its decision, the PCRA court accurately set forth the law as
it relates to Appellant’s claim. See PCRA Ct. Op., 2/28/19, at 2-4; PCRA
Order, 9/10/18, at 1 n.1. It is a petitioner’s burden to plead and prove both
that counsel’s performance was constitutionally deficient and that counsel’s
deficient representation prejudiced him. See supra; see also, e.g.,
Commonwealth v. Velazquez, --- A.3d ---, 2019 Pa. Super. 243 (filed August
15, 2019).
It is inaccurate to assert, as Appellant has done, that the United States
Supreme Court eliminated the prejudice requirement from ineffectiveness
claims where criminal defense counsel has provided deficient immigration
advice. Quite to the contrary, in Padilla, the Court set forth its traditional
requirements. See Padilla, 559 U.S. at 366 (citing Strickland v.
Washington, 466 U.S. 668 (1984)). Clearly, the Court recognized the
potential for prejudice. See, e.g., id. at 368 (“We too have previously
recognized that preserving the client’s right to remain in the United States
may be more important to the client than any potential jail sentence.”
(emphasis added; punctuation modified; citation omitted)). However, the
Court did not presume prejudice attached. Following its analysis of the
constitutional requirements for adequate representation where there is a risk
of deportation, the Court remanded for a specific finding on prejudice:
Whether Padilla is entitled to relief on his claim will depend on
whether he can satisfy Strickland’s second prong, prejudice, a
matter we leave to the Kentucky courts to consider in the first
instance.
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Id. at 369, see also id. at 374 (reiterating the prejudice requirement).
Thus, we reject the legal premise of Appellant’s argument. Appellant’s
failure to establish prejudice—that he would not have pleaded guilty if counsel
had provided him with appropriate immigration advice—is fatal to his claim.
Escobar, 70 A.3d at 841; Brandt, 74 A.3d at 192.5
Similarly, Appellant’s second claim fails as well. According to Appellant,
plea counsel’s representation was clearly deficient because she failed to
explain the evidence against him, discuss the elements of the crimes charged,
review discovery materials, or explore potential legal defenses. See
generally Appellant’s Br. at 37-45.6 In light of these allegations, but without
citation to legal authority, Appellant concludes that it was “patently unfair” for
the PCRA court to require that he demonstrate prejudice. Appellant’s Br. at
45. This claim is without legal merit. Escobar, 70 A.3d at 841; Brandt, 74
A.3d at 192.
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5 In light of our disposition, we need not reach Appellant’s credibility challenge
to plea counsel’s testimony. We note, however, that the PCRA court made no
specific credibility findings. See generally PCRA Ct. Op., PCRA Order.
6 Appellant’s assertions are misleading. For example, plea counsel conceded
that she did not review discovery materials with Appellant but asserted that
counsel of record retained that responsibility, as well as a responsibility to
discuss trial strategy. See N.T. PCRA at 37-38. Further, Appellant repeatedly
asserts that the PCRA court found plea counsel’s representation to be
deficient. Appellant’s Br. at 41, 42, 43-44. This is inaccurate. While the court
recognized that Appellant “raised legitimate concerns” regarding counsel’s
representation, the court did not make a specific finding or legal conclusion.
PCRA Ct. Op. at 4. Rather, the court focused its analysis on Appellant’s failure
to plead and prove prejudice. Id.
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In support of its decision, the PCRA court summarized as follows:
In short, [Appellant] failed to prove by a preponderance of the
evidence that he would have declined the offer of probation and
risked incarceration in a county or state facility if he had a fuller
picture of the facts of the case and specific immigration
consequences.
PCRA Ct. Op. at 5. We defer to the PCRA court, as the record supports this
finding. Wah, 42 A.3d at 338. Accordingly, no relief is due Appellant.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2019
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