Com. v. Rudoi, R.

J. S20018/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT RUDOI, : No. 738 EDA 2016
:
Appellant :
Appeal from the PCRA Order, March 4, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007126-2013
BEFORE: BOWES, J., OTT, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2017
Robert Rudoi appeals from the March 4, 2016 order entered in the
Court of Common Pleas of Philadelphia County that denied his petition filed
pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546.1 We affirm.
The trial court set forth the following:
On or about May 10, 2013, Appellant [] was
arrested and charged with several violations of the
Pennsylvania Criminal Code; specifically, Aggravated
Assault – per [18 Pa.C.S.A. §] 2702(A); Simple
Assault – per section 2701(A) and Reckless
1 In his notice of appeal, appellant appeals from the March 20, 2014
judgment of sentence and the March 4, 2016 order denying his PCRA
petition. As set forth in this memorandum, appellant abandoned his
direct-appeal claims and advanced one claim of ineffective assistance of
counsel under the PCRA. We, therefore, directed the prothonotary to amend
the caption of this appeal to reflect that appellant is appealing from the
March 4, 2016 PCRA order.
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Endangerment – per section 2705. On January 10,
2014, a bench trial was held before this Court. At
said time, Appellant was represented by
John Konchak, Esquire, Assistant Public Defender
(“Trial Counsel”) and the Commonwealth was
represented by Tracie Gaydos, Esquire, Assistant
District Attorney (“Gaydos”). At the conclusion of
this trial, this Court found Appellant guilty [of],
inter alia, Aggravated Assault. On March 20, 2014,
Appellant was sentenced to eighteen (18) to
thirty-six (36) months of incarceration plus ten (10)
years’ probation, the first two (2) years reporting.
Appellant, due to the nature of the crime was not
RRRI eligible. This Court additionally ordered
Appellant to pay twenty-one thousand one hundred
and six dollars and six cents ($21,106.06) in
restitution.
On September 19, 2014, and during
Appellant’s period of incarceration related to this
Court’s sentence, Appellant was interviewed by
Immigration and Customs Enforcement agents
(“ICE”). On said date, Appellant was issued a Notice
to Appear or charging document alleging that he was
convicted of an aggravated felony as defined in the
Immigration and Nationality Act. On June 3, 2015,
Appellant was ordered removed from the United
States by Immigration Judge Walter Durling.
I.J. Durling reasoned and the Board of Immigration
Appeals affirmed that the charge of Aggravated
Assault was a crime of violence and therefore an
aggravated felony.
On March 19, 2015, Appellant filed a
Post-Conviction Relief Act[2] (“PCRA”) petition with
this Court. The PCRA motion alleged various claims
of ineffectiveness on the part of Appellant’s Trial
Counsel, Attorney Konchak; specifically, but not
limited to, Trial Counsel’s failure to investigate
Appellant’s birth place and status in the United
States and failure to advise Appellant of the
consequences of going to trial. Specifically, the
2 42 Pa.C.S.A. §§ 9541-9546.
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consequences of being possibly deported if Appellant
was found guilty at trial. On March 4, 2016, this
Court denied Appellant’s PCRA Motion in part and
granted it in part by reinstating Appellant’s appeal
rights.
Appellant timely appealed the Judgment of
Conviction and Sentence entered on March 20, 2014,
and the PCRA Ruling entered on March 4, 2016. This
Court filed an Order for Counsel to file [a] Concise
Statement of Errors Complained of on Appeal on or
before April 18, 2016, pursuant to Pennsylvania
Rules of Appellate Procedure 1925(b). On March 29,
2016, Appellant filed a Statement of Matters
Complained of on Appeal pursuant to Pennsylvania
Rule[] of Appellate Procedure 1925(b).
On March 16, 2016, the Court Reporter, Digital
Recording and Interpreter Administration of the First
Judicial District of Pennsylvania sent a letter to
Appellant’s counsel, Mr. Savino, notifying Counsel
that the Court Reporter is no longer employed with
their office and the notes pertaining to this case have
not been located. On April 18, 2016, the Superior
Court entered an Order that in light of the fact that
the March 20, 2014, notes of testimony referenced in
Appellant’s “Motion for Emergent Remand to Trial
Court and to Hold Appellate Proceedings in
Ebeyonce [sic] in Order to Reconstruct Trial Record
for Appeal,” are unavailable, it was Ordered that the
parties prepare a statement in absence of transcript
with respect to the unbailable [sic] transcript. This
Court is now in possession of the March 20, 2014
Notes of Testimony.
Trial court opinion, 8/19/16 at 1-3. The trial court then filed its
Rule 1925(a) opinion on August 19, 2016.
At the outset, we note that in his Rule 1925(b) statement, appellant
raised four claims. On appeal, appellant has abandoned three of those
claims and raises the following issue for our review: “Did the PCRA court err
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by partially denying appellant PCRA relief?” (Appellant’s brief at 3.)
Specifically, appellant claims his entitlement to PCRA relief because his trial
counsel was ineffective for failing to “ascertain[] whether appellant was a
United States citizen” and because “trial counsel never addressed the
immigration consequences of losing at trial.” (Id. at 12.)
By way of background, appellant filed a PCRA petition, and the trial
court conducted an evidentiary hearing. Following that hearing, the trial
court entered an order granting, in part, and denying, in part, appellant’s
PCRA petition. The trial court partially granted PCRA relief by reinstating
appellant’s direct-appeal rights after finding trial counsel ineffective for
failing to file a direct appeal after appellant directed him to do so. (Order of
court, 3/4/16; see also notes of testimony, 3/4/15 at 9-11.) In so doing,
the trial court advised appellant that he could appeal his judgment of
sentence and that part of the order denying PCRA relief to this court in a
single appeal or two appeals. (Id. at 13-14.) Although appellant’s notice of
appeal to this court states that he is appealing from the March 20, 2014
judgment of sentence and the March 4, 2016 order that denied him PCRA
relief, appellant chose to abandon his direct appeal claims and advance his
ineffective assistance of counsel claims. Therefore, appellant takes his
appeal from the March 4, 2016 order denying his PCRA petition.
We limit our review of a PCRA court’s decision to examining whether
the record supports the PCRA court’s findings of fact and whether its
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conclusions of law are free from legal error. Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s
findings and the evidence of record in a light most favorable to the prevailing
party. Id.To be entitled to PCRA relief, the defendant bears the burden of
establishing, by a preponderance of the evidence, that his conviction or
sentence resulted from one or more of the circumstances enumerated in
42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i)
and (ii); see also Mason, 130 A.3d at 618 (citations omitted).
Counsel is presumed effective, and in order to
overcome that presumption a PCRA petitioner must
plead and prove that: (1) the legal claim underlying
the ineffectiveness claim has arguable merit;
(2) counsel’s action or inaction lacked any
reasonable basis designed to effectuate petitioner’s
interest; and (3) counsel’s action or inaction resulted
in prejudice to petitioner. With regard to reasonable
basis, the PCRA court does not question whether
there were other more logical courses of action
which counsel could have pursued; rather, [the
court] must examine whether counsel’s decisions
had any reasonable basis. Where matters of
strategy and tactics are concerned, [a] finding that a
chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an
alternative not chosen offered a potential for success
substantially greater than the course actually
pursued. To demonstrate prejudice, a petitioner
must show that there is a reasonable probability
that, but for counsel’s actions or inactions, the result
of the proceeding would have been different. Failure
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to establish any prong of the [] test will defeat an
ineffectiveness claim.
Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).
Here, the record reflects that the Defender Association of Philadelphia,
of which Attorney Konchak3 is a member, was appointed to represent
appellant. Attorney Konchak testified that an attorney no longer employed
by the Defender Association first interviewed appellant seven days after his
arrest. (Notes of testimony, 12/10/15 at 8, 12.) At the hearing,
Attorney Konchak produced appellant’s “write-up sheet,” which is a form
that the Defender Association uses to obtain biographical information during
a client’s initial interview. Appellant’s “write-up sheet” listed “Philadelphia”
as appellant’s birthplace and stated that appellant had been in Philadelphia
for his “lifetime.” (Id. at 10-11.) The record further reflects that
Attorney Konchak received a copy of appellant’s pretrial service investigation
report at the time of appellant’s arraignment. (Id. at 22.) The report listed
appellant’s place of birth as Philadelphia, Pennsylvania, United States of
America, as did appellant’s Philadelphia police criminal history. (Id. at 24,
26.) Attorney Konchak further testified that appellant never told him that he
was born in Brazil. (Id. at 28.) Attorney Konchak testified that he did not
learn that appellant was born in Brazil until after appellant’s conviction. (Id.
3 The record demonstrates that Attorney Konchak has been licensed to
practice law in this Commonwealth since 1976. (Notes of testimony,
12/10/15 at 21.)
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at 11-12.) Counsel explained that he had no reason to consider immigration
or collateral consequences prior to trial because:
[t]o the best of [counsel’s] knowledge[, appellant]
lived in Philadelphia, he sounds like a Philadelphian,
he looks like a Philadelphian. The [write-up sheet]
indicated he was born in Philadelphia, he lived here
his whole life. The court – as you see wrote the
same notation on [its] paperwork at the time of his
preliminary arraignment when he was arrested
saying he was born in Philadelphia. I had no reason
to suspect otherwise to the best of my recollection.
Id. at 14. Indeed, during appellant’s direct examination, the following took
place:
Q. Did [Attorney Konchak] ever ask you about
your citizenship or where you were born?
A. No.
Q. Did you ever think to mention anything to him?
A. No.
Id. at 49.
Attorney Konchak also testified that had he known appellant was a
Brazilian national, he would have attempted to negotiate the felony
aggravated assault down to a simple assault to avoid deportation
consequences, but he did not think that would be successful. (Id. at
18-19.) He also testified that had he known of appellant’s immigration
status, he would have considered and discussed with appellant the option of
proceeding to a jury trial, as opposed to a bench trial. (Id. at 20-21.) The
record, however, demonstrates that Attorney Konchak had no reason to
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know appellant’s immigration status. Therefore, the record supports the
trial court’s factual determination that trial counsel’s failure to realize and
inquire as to appellant’s immigration status did not constitute ineffective
assistance of counsel because trial counsel “made the best choice for his
client with the information he was given.” (Trial court opinion, 8/19/16
at 9.) Accordingly, because appellant is unable to establish that his
ineffectiveness claim has arguable merit, it necessarily fails and renders
moot appellant’s claim that “trial counsel never addressed the immigration
consequences of losing at trial.”
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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