Com. v. Gonzalez, E.

J-S12028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELIAZAR GONZALEZ :
:
Appellant : No. 1546 MDA 2022
Appeal from the PCRA Order Entered October 6, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003065-2020
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 11, 2023
Eliazar Gonzalez (Appellant) appeals from the order entered in the Berks
County Court of Common Pleas, which dismissed his timely, first petition under
the Post-Conviction Relief Act (PCRA).1 Appellant seeks relief from his August
23, 2021, judgment of sentence, following his negotiated guilty plea to three
counts of possession with intent to deliver (PWID).2 Appellant asserts counsel
was ineffective at the time of his guilty plea and sentencing because counsel
purportedly misrepresented the immigration consequences of his plea
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
2 35 P.S. §§ 780-113(a)(30).
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agreement. Upon careful review, we affirm on the basis of the PCRA court
opinion.
On September 24, 2020, police officers executed a search warrant at a
residence located on North 11th Street in Reading, Pennsylvania, where
Appellant lived with his wife. See N.T., 8/23/21, at 5; N.T., 6/27/22, at 4,
30. The officers discovered 41 grams of cocaine, oxycodone pills, and
suboxone. See N.T., 8/23/21, at 5. Appellant is a resident but not a citizen
of the United States. Id. at 6.
Appellant was charged with three counts of PWID, possession of drug
paraphernalia, and possession of an instrument of crime.3 On August 23,
2021, at the conclusion of a hearing, Appellant entered a negotiated guilty
plea to three counts of PWID. The trial court sentenced Appellant to an
aggregate term of 11 1/2 months to 23 months’ incarceration in the county
prison.
Appellant did not file post-sentence motions or a direct appeal. Instead,
on April 25, 2022, he filed a PCRA petition, alleging plea counsel, Robert J.
Kirwan, Esquire, was ineffective because he failed to properly advise Appellant
that his convictions would result in deportation and as a result, his guilty plea
was unlawfully induced. See Appellant’s Motion for Post-Conviction Collateral
Relief, 4/25/22, at 2-7.
____________________________________________
3 35 P.S. §§ 780-113(a)(16), (a)(32), and 18 Pa.C.S. § 907(c).
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On June 27, 2022, the PCRA court held a hearing on the petition. At the
hearing, Attorney Kirwan, Appellant’s immigration counsel, Raymond G.
Lahoud, Esquire, and Appellant all testified. The PCRA court summarized their
testimony as follows:
1. On the date of the hearing on the [m]otion, June 27, 2022,
Attorney Kirwan had worked as an attorney for 32 years. He
estimated that approximately 90% of his practice had been in
criminal law. During that time, he had represented well over
2,000 to 3,000 individuals with immigration issues.
2. Attorney Kirwan has practiced criminal law exclusively over the
last five years.
3. Attorney Kirwan represented [Appellant] at his guilty plea and
sentencing hearing in this case.
4. Attorney Kirwan met with [Appellant] on four or five occasions
prior to the entry of [Appellant]’s guilty plea. When [Appellant]
visited Attorney Kirwan, he was accompanied by his daughter-in-
law, Maria Bravo. She interpreted the conversation between
[Appellant] and Attorney Kirwan from English to Spanish and
Spanish to English. Attorney Kirwan had known Ms. Bravo for
approximately 10-15 years.
5. Attorney Kirwan informed [Appellant] that the criminal case
against him would be difficult to win and was a weak case from a
defense perspective.
6. During Attorney Kirwan’s first meeting with [Appellant],
[Appellant] informed him that he was a citizen of Mexico and was
in the United States as a lawful permanent resident. Attorney
Kirwan was aware that [Appellant]was not a United States citizen.
7. Attorney Kirwan and [Appellant] discussed the deportation
consequences of a guilty plea. This discussion occurred during
their third and fourth meetings together and prior to [Appellant]’s
guilty plea. Attorney Kirwan informed [Appellant] that any drug
charge would subject him to automatic deportation. He told
[Appellant] that there were certain deportation waivers and
exceptions but none of them applied to [him].
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8. Attorney Kirwan told [Appellant] that he believed there was no
way he would be able to prevent deportation but, since he [was
not] an immigration lawyer, [Appellant] should consult with an
immigration attorney to see if there would be a way that he could
stay in the United States. Attorney Kirwan thought that an
immigration attorney may be able to find a loophole in the law.
9. [Appellant]’s immigration attorney, Attorney Lahoud, testified
that [Appellant]’s guilty plea subjected him to automatic
deportation unless he could show that he would be persecuted in
his home country based on his race, gender or political opinion.
Attorney Lahoud stated that [Appellant] does not qualify for this
exception.
10. Attorney Kirwan had no doubt that [Appellant] knew he would
be deported as a result of his guilty plea.
11. Ms. Bravo passed away during Attorney Kirwan’s
representation of [Appellant]. One of [Appellant]’s family
members, Evilier Mendoza, accompanied [Appellant] at
subsequent meetings. Mr. Mendoza spoke fluent English and
Spanish. He interpreted the conversations between [Appellant]
and Attorney Kirwan from English to Spanish and Spanish to
English.
12. Attorney Kirwan met with [Appellant] twice to discuss the
Commonwealth’s plea offer. The offer made to [Appellant] was
for a state sentence, but Attorney Kirwan negotiated with the
Commonwealth and they agreed to a county sentence.
13. Attorney Kirwan reviewed the written guilty plea colloquy with
[Appellant] and gave him an explanation of each question he was
required to answer. Mr. Mendoza was present and interpreted the
conversation between Attorney Kirwan and [Appellant].
14. [Appellant] never told Attorney Kirwan that he had any mental
illness.
15. [Appellant] used the services of an interpreter during his oral
guilty plea colloquy.
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16. During the oral guilty plea colloquy, th[e trial c]ourt informed
[Appellant] that he would be subject to immigration review and
deported as a result of his guilty plea.
17. [Appellant] signed a written guilty plea colloquy stating that
he is not a United States citizen and that he understood that, by
pleading guilty, he would be deported. He also stated that this
was consistent with the advice received from his lawyer.
[Appellant] acknowledged that he initialed this portion of the
guilty plea colloquy, Attorney Kirwan reviewed the colloquy with
him and that he had no problem understanding Attorney Kirwan
with the assistance of Mr. Mendoza.
18. During the sentencing hearing, Attorney Kirwan stated that
there was a “very, very slim chance that [Appellant] would not be
deported.”
Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion for
Post-Conviction Collateral Relief, 10/6/22, at 3-6 (record citations omitted).
On October 6, 2022, the PCRA court denied Appellant’s petition.
Appellant then filed a timely, notice of appeal.4
Appellant presents the following six claims for our review:
Was [Appellant] deprived of effective assistance of counsel
at the time of his guilty plea and sentencing when said counsel
misrepresented the immigration consequences of [his] negotiated
plea?
Appellant’s Brief at 4.
____________________________________________
4 Appellant timely complied with the PCRA court’s directive to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On December
6, 2022, the PCRA court issued a statement in lieu of an opinion, in which it
incorporated its reasons for denying relief as set forth in its October 6, 2022,
Findings of Fact and Conclusions of Law. See Statement in Lieu of Opinion,
12/6/22, at 2.
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Appellant complains that Attorney Kirwan was ineffective because
counsel tendered “inaccurate advice” by stating there was a “very, very slim
chance” that Appellant would not be deported. See Appellant’s Brief at 21
(record citation & quotation marks omitted). Appellant states: “Attorney
Kirwan knew there were no statutory exceptions that would prevent [his]
deportation following a guilty plea to felony drug offenses, but continued to
tell [Appellant] that a slim chance existed.” Id. at 22. Moreover, Appellant
asserts that Attorney Kirwan’s “hope that immigration law changes in the
future is not a competent basis upon which to advise a client.” Id. He also
maintains that counsel “compounded his inaccurate advice by referencing so-
called ‘hardship exceptions’” when “the only recognized exception to
deportation premised on a conviction for a felony drug offense is a claim of
persecution in one’s home country on the basis of race, gender, or political
opinion.” Id. at 23 (record citations omitted).
Separately, Appellant contends that his “ability to comprehend Attorney
Kirwan’s inaccurate advice [was] in question [based on his] limited grasp on
the English language[.]” Appellant’s Brief at 24 (record citations omitted).5
____________________________________________
5 Appellant also alleges he was unable to understand Attorney Kirwan due to
his “reported mental and physical disabilities.” Appellant’s Brief at 24.
However, Appellant did not raise this assertion in his PCRA petition. See
Appellant’s Motion for Post-Conviction Collateral Relief, 4/25/22, at 1-7. As
such, this claim is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the
trial court are waived and cannot be raised for the first time on appeal."); see
also Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014) (concluding issue
(Footnote Continued Next Page)
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He states: “Neither the court, nor Attorney Kirwan inquired as to whether
[Appellant]’s disability or his use of medication affected his ability to
understand the guilty plea proceedings.” Id. (record citation omitted).
Lastly, he claims the court’s commentary at the time of his guilty plea
hearing “only served to further cloud the issue.” Appellant’s Brief at 24. He
points to the following statement made by the trial court: “And do you
understand that by pleading guilty, you will be subject to immigration review
which will result in your deportation?” N.T., 8/23/21, at 7. Appellant alleges
“there is no process known as immigration review” and he “understood this to
mean that officials from immigration would interrogate him and nothing more
— based on the preceding inaccurate advice of counsel.” Appellant’s Brief at
24-25 (record citation & internal quotation marks omitted). In support of his
argument, he references Padilla v. Kentucky, 559 U.S. 356 (2010),6
____________________________________________
not raised in a PCRA petition cannot be raised for the first time on appeal, but
is, rather, waived for appellate review purposes).
6 See Padilla, 559 U.S. at 374 (holding that failure of criminal defense
attorney to advise their non-citizen client of immigration consequences of
guilty plea constitutes constitutionally ineffective assistance of counsel).
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Commonwealth v. Escobar, 70 A.3d 838, 840 (Pa. Super. 2013),7 and
Commonwealth v. Velazquez, 216 A.3d 1146 (Pa. Super. 2019).8
Our standard regarding PCRA appeals is well-settled:
When reviewing the denial of a PCRA petition, an appellate court
must determine whether the PCRA court’s order is supported by
the record and free of legal error. Generally, a reviewing court is
bound by a PCRA court’s credibility determinations and its fact-
finding, so long as those conclusions are supported by the record.
However, with regard to a court’s legal conclusions, appellate
courts apply a de novo standard.
Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022) (footnotes &
quotation marks omitted).
Because Appellant’s claim concern ineffective assistance of counsel, we
also are guided by the following:
To prevail on a claim of ineffective assistance of counsel, a
PCRA petitioner must satisfy the performance and prejudice test
set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). This Court has recast
the two-part Strickland standard into a three-part test by
dividing the performance element into two distinct components.
To prove that counsel was ineffective, the petitioner must
demonstrate: (1) that the underlying claim has arguable merit;
(2) that no reasonable basis existed for counsel’s actions or failure
to act; and (3) that the petitioner suffered prejudice as a result of
____________________________________________
7 See Escobar, 70 A.3d at 842 (holding plea counsel effective where
defendant’s drug-related conviction, while a deportable offense, did not
guarantee deportation; therefore, counsel’s advice that there was a strong
risk of deportation was sufficient).
8 See Velazquez, 216 A.3d at 1151 (holding counsel’s representation of
defendant was constitutionally deficient where counsel made no assurance
that the specific charge to which defendant pleaded guilty was a deportable
offense).
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counsel’s error. To prove that counsel’s chosen strategy lacked a
reasonable basis, a petitioner must prove that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued. To satisfy the prejudice prong, a
petitioner must demonstrate that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel’s action or inaction. Counsel is presumed to be
effective; accordingly, to succeed on a claim of ineffectiveness the
petitioner must adduce sufficient evidence to overcome this
presumption.
Drummond, 285 A.3d at 634 (footnotes & quotation marks omitted). We
further note: “Failure to satisfy any prong of the test will result in rejection of
the appellant’s ineffective assistance of counsel claim.” Commonwealth v.
McGarry, 172 A.3d 60, 70 (Pa. Super. 2017) (citation omitted).
Upon our review of the record, the parties’ briefs, and the relevant case
law, we conclude the PCRA court thoroughly addressed and properly disposed
of Appellant’s arguments in its October 6, 2022, Findings of Fact and
Conclusions of Law. See Findings of Fact & Conclusions of Law in Disposition
of Appellant’s Motion for Post-Conviction Relief, 10/6/22, at 9-15 (concluding:
(1) Appellant did not establish Attorney Kirwan provided ineffective advice
regarding the deportation consequences of his guilty plea because (a)
Attorney Kirwan “informed [Appellant] that a guilty plea would result in his
deportation and advised him to consult with an immigration attorney,”9 (b)
Appellant “signed a written guilty plea colloquy where he acknowledged that
____________________________________________
9 See Findings of Fact & Conclusions of Law in Disposition of Appellant’s
Motion for Post-Conviction Relief at 9.
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he was not a United States citizen, understood he would be deported as a
result of his plea and confirmed that this information was consistent with the
advice provided by” counsel,10 (c) Appellant is bound by the statements he
made in the plea colloquies and at the oral plea colloquy, he “acknowledged
that Attorney Kirwan had reviewed the written guilty plea colloquy with him
and he had no problem understanding Attorney Kirwan with the assistance of
Mr. Mendoza[,]”11 and (d) Attorney Kirwan’s statement regarding Appellant’s
“slim chance of avoiding deportation was further evidence of his compliance
with the requirements of Padilla and Escobar[;]”12 (2) his claim that he was
unable to comprehend Attorney Kirwan’s advice because his limited
understanding of the English language was unavailing because at the oral plea
colloquy, Appellant utilized the services of an interpreter and stated that he
understood all of the questions being asked by the court and counsel and “he
had no problem understanding Attorney Kirwan through Mr. Mendoza[,]” and
therefore, he is bound by that statement;13 (3) his assertion that the court
____________________________________________
10 See id. at 9-10.
11
See id. at 10. See also Commonwealth v. Jamison, 284 A.3d 501, 506
(Pa. Super. 2022) (stating “defendant is bound by the statements which he
makes during his plea colloquy and cannot assert challenges to his plea that
contradict his statements when he entered the plea.”).
12 See id. at 10.
13 See id. at 13-14.
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failed to conduct a complete guilty plea by only stating that he would be
subject to an “immigration review” had no merit because (a) the court was
under no obligation to ensure that he was aware of the immigration
consequences of his guilty plea and (b) Appellant did not explain how this
statement had an impact on his guilty plea and therefore, he failed to establish
that he was prejudiced by this comment.14). Accordingly, we affirm on the
PCRA court’s well-reasoned basis disposing of Appellant’s allegations.
As such, we conclude the PCRA court properly denied Appellant relief on
his ineffective assistance of counsel claim, we affirm the October 6, 2022,
order. We further direct the parties to attach of copy of the PCRA court’s
October 6, 2022, Findings of Fact and Conclusions of Law to all future filings
of this memorandum.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/11/2023
____________________________________________
14 See id. at 14-15. See also Commonwealth v. Rachak, 62 A.3d 389,
395 (Pa. Super. 2012) (“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 . . . placed
the same responsibility on the courts.”).
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Circulated 08/02/2023 10:03 AM
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF BERKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
V. : No. CP-06-CR- 3065-2020
ELIAZAR GONZALEZ : Assigned to: M. Theresa Johnson, J.
Sara Moyer, Esquire
Attorney for Petitioner
Alisa Hobart, Esquire
Attorney for the Commonwealth
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN DISPOSITION OF THE
DEFENDANT'S MOTION FOR POST-CONVICTION COLLATERAL RELIEF
PROCEDURAL HISTORY
The defendant in the above-captioned case, Eliazar Gonzalez ("Gonzalez"), was charged
with possession with intent to deliver acontrolled substance (3counts), possession of acontrolled
substance (3counts), possession of drug paraphernalia and possessing instruments of crime arising
out of an incident alleged to have occurred on September 24, 2020. On August 23, 2021, Gonzalez
entered anegotiated guilty plea to three counts of possession with intent to deliver acontrolled
substance. He was sentenced to serve an aggregate sentence of 11'/Z months to 23 months in Berks
County Prison followed by 4years of probation. No appeal was filed.
On April 25, 2022, Gonzalez, by and through counsel, filed aMotion for Post-Conviction
Collateral Relief ("Motion"), pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A.
§9541 et seq. A hearing was held on June 27, 2022, regarding the Motion. At that time, Gonzalez,
Raymond Lahoud, Esquire ("Attorney Lahoud") and Gonzalez's guilty plea counsel, Robert
Kirwan, II, Esquire ("Attorney Kirwan"), were called to testify.
1
PCRA JURISDICTION AND TIMELINESS
The disposition of the Motion is governed by the PCRA and the corresponding decisional
law that has developed from the PCRA and its predecessor, the Post-Conviction Hearing Act.
The PCRA "provides for an action by which persons convicted of crimes they did not commit
and persons serving illegal sentences may obtain collateral relief." 42 Pa.C.S.A. § 9542. In order
to qualify for relief pursuant to the PCRA, apetitioner must plead and prove by apreponderance
of the evidence that he or she has been convicted of acrime under the laws of this
Commonwealth and is at the time relief is granted:
(i) currently serving asentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of asentence of death for the crime; or
(iii) serving asentence which must expire before the person may commence serving the
disputed sentence. 42 Pa.C.S.A. §9543(a)(1).
The petitioner must also prove by apreponderance of the evidence the existence of adefect in
his or her conviction or sentence as set forth in 42 Pa.C.S.A. §9543(a)(2) and that the allegation
of error has not been previously litigated or waived. 42 Pa.C.S.A. §9543(a)(2)(3).
A petitioner seeking PCRA relief must satisfy the PCRA's time requirements in filing his
or her petition. A PCRA petition must be filed within one ( 1) year of the date the judgment
becomes final unless the petitioner can prove the existence of one of the listed exceptions to this
requirement set forth in 42 Pa.C.S.A. §9545(b)(1)(i)-(iii). 42 Pa.C.S.A. § 9545(b)(1). The
exceptions to the PCRA one-year statute of limitations are as follows: 1) the claim was not raised
by the petitioner due to interference by government officials, 2) petitioner did not know the facts
upon which his claim rests and had no ability to learn of them, or 3) aconstitutional right has
been recognized by the United States Supreme Court or the Supreme C̀ourt of Penpsylvania and
2
it has been applied retroactively. Id. In the event an exception applies, apetitioner must file his
or her petition within one year from the date the claim could have been presented. 42 Pa.C.S.A.
§9545(b)(2).
[I]f aPCRA petition is not filed within one year of the date that the judgment of sentence
becomes final; or is not eligible for one of the three limited statutory exceptions to the
timeliness requirement; or is entitled to one of the exceptions, but the exception is not
asserted within [one year from] the date that the claim could have been brought; then the
court has no jurisdiction to address the substantive merits of the petition. Commonwealth
v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001) (citation omitted); 42 Pa.C.S.A.
§9545(b)(2).
In the case at bar, Gonzalez entered his guilty plea on August 23, 2021, and was ordered
to serve an aggregate sentence of 11 %Z months to 23 months in Berks County Prison followed by
4years of probation. Gonzalez's sentence became final on September 22, 2021. Gonzalez had
one year from the date his judgment of sentence became final, September 22, 2022, to file a
PCRA. petition. Gonzalez's Motion was timely as it was filed on April 25, 2022.
FINDINGS OF FACT
1. On the date of the hearing on the Motion, June 27, 2022, Attorney Kirwan had worked as
an attorney for 32 years. He estimated that approximately 90% of his practice had been
in criminal law. During that time, he had represented well over 2,000 to 3,000
individuals with immigration issues.
2. Attorney Kirwan has practiced criminal law exclusively over the last five years.
3. Attorney Kirwan represented Gonzalez at his guilty plea and sentencing hearing in this
case.
3
4. Attorney Kirwan met with Gonzalez on four or five occasions prior to the entry of
Gonzalez's guilty plea. When Gonzalez visited Attorney Kirwan, he was accompanied
by his daughter-in-law, Maria Bravo. She interpreted the conversation between Gonzalez
and Attorney Kirwan from English to Spanish and Spanish to English. Attorney Kirwan
had known Ms. Bravo for approximately 10-15 years.
5. Attorney Kirwan informed Gonzalez that the criminal case against him would be difficult
to win and was aweak case from adefense perspective.
6. During Attorney Kirwan's first meeting with Gonzalez, Gonzalez informed him that he
was acitizen of Mexico and was in the United States as alawful permanent resident.
Attorney Kirwan was aware that Gonzalez was not aUnited States citizen.
7. Attorney Kirwan and Gonzalez discussed the deportation consequences of aguilty plea.
This discussion occurred during their third and fourth meetings together and prior to
Gonzalez's guilty plea. Attorney Kirwan informed Gonzalez that any drug charge would
subject him to automatic deportation. He told Gonzalez that there were certain
deportation waivers and exceptions but none of them applied to Gonzalez.
8. Attorney Kirwan told Gonzalez that he believed there was no way he would be able to
prevent deportation but, since he wasn't an immigration lawyer, Gonzalez should consult
with an immigration attorney to see if there would be away that he could stay in the
United States. Attomey Kirwan thought that an immigration attorney may be able to find
aloophole in the law.
9. Gonzalez's immigration attorney, Attorney Lahoud, testified that Gonzalez's guilty plea
subjected him to automatic deportation unless he could show that he would be persecuted
4
in his home country based on his race, gender or political opinion. Attorney Lahoud
stated that Gonzalez does not qualify for this exception.
10. Attorney Kirwan had no doubt that Gonzalez knew he would be deported as aresult of
his guilty plea.
11. Ms. Bravo passed away during Attorney Kirwan's representation of Gonzalez. One of
Gonzalez's family members, Evilier Mendoza, accompanied Gonzalez at subsequent
meetings. Mr. Mendoza spoke fluent English and Spanish. He interpreted the
conversations between Gonzalez and Attorney Kirwan from English to Spanish and
Spanish to English.
12. Attorney Kirwan met with Gonzalez twice to discuss the Commonwealth's plea offer.
The offer made to Gonzalez was for astate sentence, but Attorney Kirwan negotiated
with the Commonwealth and they agreed to acounty sentence.
13. Attorney Kirwan reviewed the written guilty plea colloquy with Gonzalez and gave him
an explanation of each question he was required to answer. Mr. Mendoza was present
and interpreted the conversation between Attorney Kirwan and Gonzalez.
14. Gonzalez never told Attorney Kirwan that he had any mental illness.
15. Gonzalez used the services of an interpreter during his oral guilty plea colloquy.
16. During the oral guilty plea colloquy, this Court informed Gonzalez that he would be
subject to immigration review and deported as aresult of his guilty plea. Notes of
Testimony, Guilty Plea and Sentencing Hearing, August 23, 2021 ("N.T."), at 7.
17. Gonzalez signed awritten guilty plea colloquy stating that he is not aUnited States
citizen and that he understood that, by pleading guilty, he would be deported. Statement
Accompanying Defendant's Request to Enter aGuilty Plea, August 23, 2021, at 2. He
5
also stated that this was consistent with the advice received from his lawyer. Id.
Gonzalez acknowledged that he initialed this portion of the guilty plea colloquy, Attorney
Kirwan reviewed the colloquy with him and that he had no problem understanding
Attorney Kirwan with the assistance of Mr. Mendoza. N.T. at 7-8.
18. During the sentencing hearing, Attorney Kirwan stated that there was a "very, very slim
chance that [Gonzalez] would not be deported." N.T. at 9.
CONCLUSIONS OF LAW
Ineffective Assistance of Counsel -Generally
In order for aPCRA petitioner to succeed on an ineffective assistance of counsel claim,
the PCRA petitioner must demonstrate that: "( 1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner
suffered prejudice because of counsel's ineffectiveness." Commonwealth v. Chmiel, 30 A.3d
1111, 1127 (Pa. 2011) (citation omitted). "A failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim." Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.
2010) (citation omitted). "In order for [apetitioner] to prevail on aclaim of ineffective
assistance of counsel, he must show, by apreponderance of the evidence, ineffective assistance
of counsel which, 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. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted).
"A claim has arguable merit where the factual averments, if accurate, could establish
cause for relief. Whether the facts rise to the level of arguable merit is alegal determination."
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citation and quotation marks
omitted).
6
With regard to the second, reasonable basis prong, we do not question whether there were
other more logical courses of action which counsel could have pursued; rather, we must
examine whether counsel's decisions had any reasonable basis. We will conclude that
counsel's chosen strategy lacked areasonable basis only if Appellant proves that an
alternative not chosen offered apotential for success substantially greater than the course
actually pursued. To establish the third, prejudice prong, the petitioner must show that
there is areasonable probability that the outcome of the proceedings would have been
different but for counsel's ineffectiveness. We stress that boilerplate allegations and bald
assertions of no reasonable basis and/or ensuing prejudice cannot satisfy apetitioner's
burden to prove that counsel was ineffective.
Chmiel, supra at 1127-1128 (citations and quotation marks omitted).
"Appellant bears the burden of proving his counsel's ineffectiveness, for counsel's
stewardship is presumed to be effective." Commonwealth v. Thomas, 539 A.2d 829, 837 (Pa.
Super. 1988) (citation omitted). "[T]rial counsel cannot be found ineffective for electing not to
raise [a] meritless claim." Commonwealth v. Tilley, 595 A.2d 575, 588 (Pa. 1991) (citations
omitted).
"A criminal defendant has the right to effective counsel during aplea process as well as
during trial." Rathfon, supra at 369 (citation omitted). "The voluntariness of the plea depends
on whether counsel's advice was within the range of competence demanded of attorneys in
criminal cases." Commonwealth v. Lynch, 820 A.2d 728, 733 (Pa. Super. 2003) (citation and
alterations omitted). "Therefore, allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as abasis for relief only if the ineffectiveness caused appellant to enter an
7
involuntary or unknowing plea." Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super.
2008) (citation, alteration and quotation marks omitted).
Once adefendant has entered aplea of guilty, it is presumed that he was aware of what
he was doing, and the burden of proving involuntariness is upon him. Therefore, where
the record clearly demonstrates that aguilty plea colloquy was conducted, during which it
became evident that the defendant understood the nature of the charges against him, the
voluntariness of the plea is established.... Determining whether adefendant understood
the connotations of his plea and its consequences requires an examination of the totality
of the circumstances surrounding the plea.
Commonwealth v. Moser, 921 A.2d 526, 529 (
Pa. Super. 2007) (
citation omitted).
In order for adefendant to enter aknowing, intelligent and voluntary guilty plea, the
defendant must understand the nature of the charges to which he is pleading; there must be a
factual basis for the plea; the defendant must understand his right to have atrial by jury; the
defendant must understand he is presumed innocent until found guilty; the defendant must be
aware of the permissible ranges of sentences; and the defendant must be aware that the judge is
not bound by the plea agreement unless the judge accepts it. Commonwealth v. McCauley, 797
A.2d 920, 922 (Pa. Super. 2001) (citation omitted).
A defendant "is bound by [his or her] statements made during aplea colloquy, and may
not successfully assert claims that contradict such statements." Commonwealth v. Muhammad,
794 A.2d 378, 384 (
Pa. Super. 2002) (citation omitted). "[tis firmly established that aplea of
guilty generally amounts to awaiver of all defects and defenses except those concerning the
jurisdiction of the court, the legality of sentence, and the validity of the guilty plea." Dalberto,
supra at 18 (citations and emphasis omitted).
8
Ineffective Assistance of Counsel — Immigration Consequences of Gonzalez's Plea
Gonzalez claims that Attorney Kirwan was ineffective due to his failure to advise him of
the immigration consequences of his guilty plea.
In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme Court held
"that counsel must inform anoncitizen defendant as to whether aplea carries arisk of
deportation." Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. 2013) (citing Padilla,
supra).When the law [regarding deportation] is not succinct and straightforward..., acriminal
defense attorney need do no more than advise anoncitizen client that pending criminal
charges may carry arisk of adverse immigration consequences. But when the deportation
consequence is truly clear— the duty to give correct advice is equally clear. Padilla,
supra at 369.
"it is quintessentially the duty of counsel to provide her client with available advice about an
issue like deportation and the failure to do so clearly satisfies the first prong of
the Strickland analysis." Padilla, supra at 371 (citation and quotation marks omitted).
In this case, Gonzalez believes that Attorney Kirwan was ineffective due to his failure to
advise him that his guilty plea would result in the loss of any protected status as well as his
removal and permanent bar from the United States. Gonzalez points to Attorney Kirwan's
statement that there was a "very, very slim chance" that Gonzalez would not be deported as
evidence of his ineffectiveness. However, this Court disagrees.
Here, Attorney Kirwan informed Gonzalez that aguilty plea would result in his
deportation and advised him to consult with an immigration attorney. Gonzalez signed awritten
guilty plea colloquy where he acknowledged that he was not aUnited States citizen, understood
9
he would be deported as aresult of his plea and confirmed that this information was consistent
with the advice provided by Attorney Kirwan. During the oral guilty plea colloquy, Gonzalez
was questioned about the written guilty plea colloquy. He acknowledged that Attorney Kirwan
had reviewed the written guilty plea colloquy with him and he had no problem understanding
Attorney Kirwan with the assistance of Mr. Mendoza. Gonzalez is bound by the statements he
made in the plea colloquies and may not successfully assert claims that contradict them. See
Muhammad, supra.In support of his argument that Attorney Kirwan was ineffective, Gonzalez points out that
Attorney Kirwan said, during sentencing, that there was a "very, very slim chance that
[Gonzalez] would not be deported" even though Gonzalez's deportation was guaranteed N.T. at
9. However, in Escobar, supra, the Superior Court interpreted Padilla as requiring "counsel to
inform anoncitizen defendant that there is arisk of deportation, not that deportation is a
certainty." Escobar, supra at 841 (citation omitted). Here, Attorney Kirwan satisfied his
obligation to Gonzalez when he informed him of his deportation risk. The statement Attorney
Kirwan made during the sentencing hearing regarding Gonzalez's slim chance of avoiding
deportation was further evidence of his compliance with the requirements of Padilla and
Escobar. Therefore, Gonzalez's claim lacks arguable merit. He is not entitled to relief.
Ineffective Assistance of Counsel -Gonzalez's Guilty Plea Colloquv
Gonzalez argues that Attorney Kirwan was ineffective when he failed to review
Gonzalez's written guilty plea colloquy with him using acertified interpreter. The guilty plea
colloquy was written in English, but Gonzalez avers that his primary language is Spanish and he
had difficulty understanding the English language. Gonzalez claims that he was unable to read
the guilty plea colloquy.
10
At Gonzalez's guilty plea and sentencing hearing, Gonzalez utilized the services of an
interpreter. During that hearing, the following exchanges took place:
ATTY. LEHMAN: If Imay refer you to the written colloquy Judge Johnson is holding
(indicating), did you have achance to go over that colloquy with
your attorney?
GONZALEZ: Yes.
ATTY. LEHMAN: And did you have achance to answer all of those questions with
your attorney through the use of an interpreter?
GONZALEZ: Uh-huh, yes.
ATTY. LEHMAN: And have all of those questions been answered truthfully?
GONZALEZ: Yes.
ATTY. LEHMAN: And was that your signature on each of those three pages?
GONZALEZ: Yes.
THE COURT: The guilty plea paperwork that you completed, did you understand
all of the questions?
GONZALEZ: Yes.
THE COURT: Do you have any questions about anything you're doing here
today?
GONZALEZ: Ijust have to pay for my mistake.
THE COURT: Are you pleading guilty to the charges as stated by the Assistant
District Attorney because you are guilty?
GONZALEZ: Yes.
11
THE COURT: And is anybody forcing you to plead guilty?
GONZALEZ: No.
THE COURT: And, sir, just to also go over here, you have checked off that you
are not acitizen of the United states; is that correct?
GONZALEZ: I'm just aresident.
THE COURT: But you are not acitizen, right?
GONZALEZ: No.
THE COURT: And do you understand that by pleading guilty, you will be subject
to immigration review which will result in your deportation?
GONZALEZ: Yes, yes.
THE COURT: Mr. Kirwan, do you want to ask him any other questions with
respect to that issue?
ATTY. KIRWAN: Mr. Gonzalez, on Paragraph No. 4 (indicating) where it talks about
your immigration, is that your signature -- or your initials
(indicating)?
GONZALEZ: Yes.
ATTY. KIRWAN: Now, would you acknowledge to the Court that you and Imet with
Evilier (phonetic) Mendoza in my office on at least two occasions?
GONZALEZ: Yes.
ATTY. KIRWAN: And did Igo over this colloquy with Evilier and yourself --
GONZALEZ: Yes.
ATTY. KIRWAN: -- sentence by sentence, paragraph by paragraph? And Igave a
copy --
12
GONZALEZ: Um-hum, yes.
ATTY. KIRWAN: I'm sorry. Igave acopy to take with you after the first meeting so
you could review it at your convenience?
GONZALEZ: Yes.
ATTY. KIRWAN: Did you have any problem understanding what Iwas saying to you
through the use of Evilier (phonetic)?
GONZALEZ: No.
ATTY. KIRWAN: I'm satisfied, Your Honor, that for the record Igave acopy of the
executed agreement at the end. And at our prior meeting, Igave
him acopy without his signature on it and directed him to take it
with him to go over at his convenience however he wanted to or
consult with an immigration lawyer. And then he came back a
number of weeks later. And he signed the final copy of this
agreement Saturday morning, afew days ago. I'm satisfied that he
understood what he was signing. His English is not very good. But
I'm confident that Miguel, who is present in the courtroom,
interpreted accurately and correctly to him.
N.T. at 3-4, 6-8.
Here, Gonzalez stated that he reviewed the written guilty plea colloquy with Attorney
Kirwan using the services of the interpreter. He stated that he understood all of those questions
and that he answered them truthfully. He confirmed that Attorney Kirwan reviewed each
sentence and paragraph with him and provided acopy for him to take along and review
separately. Gonzalez stated that he had no problem understanding Attorney Kirwan through Mr.
13
Mendoza. When this Court specifically asked Gonzalez if he understood all of the questions in
his guilty plea colloquy, Gonzalez responded with "yes." As set forth in Muhammad, supra,
Gonzalez is bound by his statements confirming that he understood his written guilty plea
colloquy and cannot successfully assert claims that contradict them. His claim lacks arguable
merit.
Regarding Gonzalez's claim that Attorney Kirwan should have used acertified
interpreter to review the written guilty plea colloquy, no relief is due. Gonzalez stated that he
understood everything in his written guilty plea colloquy and that he reviewed that document
with Attorney Kirwan and Mr. Mendoza. He had no problems understanding Attorney Kirwan
through Mr. Mendoza. This Court notes that acertified court interpreter was present during
Gonzalez's guilty plea and sentencing hearing. Therefore, this Court finds that Gonzalez has
failed to demonstrate how the outcome of his guilty plea and sentencing hearing would have
been different if acertified interpreter was present with Attorney Kirwan to review the written
guilty plea colloquy with Gonzalez and, accordingly, has failed to establish the requisite element
of prejudice. He is not entitled to relief.
Guilty Plea Colloquy
Gonzalez argues that this Court failed to conduct acomplete guilty plea colloquy and,
therefore, his plea was not knowingly and voluntarily made. Specifically, Gonzalez claims that
this Court failed to ensure that Gonzalez was aware of the immigration consequences of his
guilty plea and sentence but, instead, told Gonzalez that he would be subject to immigration
review which will result in his deportation. Gonzalez states that there is no formal process
known as "immigration review" and that it was the Court, not Attorney Kirwan, that provided
this information to Gonzalez.
14
As to Gonzalez's claim that this Court failed to make sure that he was aware of the
immigration consequences of his plea and sentence, this Court directs Gonzalez to the following
statement by the Superior Court in Commonwealth v. Rachak, 62 A.3d 389, 395 (Pa. Super.
2012):
Although Padilla effectively ended the categorization of immigration consequences as
"collateral," it did not saddle courts with the responsibility of determining if every
defendant before them is aUnited States citizen before accepting aguilty plea. Just as the
court is ignorant of adefendant's criminal history and whether or not aguilty plea will
result in aparole or probation violation, it is ignorant of adefendant's citizenship status
and whether or not aguilty plea will result in deportation. While the United States
Supreme Court has recognized that lawyers have aresponsibility to inform clients of
potential immigration consequences before entering aguilty plea, it has not, as of this
date, placed the same responsibility on the courts.
Rachak, supra at 395. Therefore, this Court was under no obligation to ensure that Gonzalez
was aware of the immigration consequences of his guilty plea. His claim lacks arguable merit.
Gonzalez also states that this Court told him that he would be subject to "immigration
review" and deported but that there is no formal process known as "immigration review."
However, Gonzalez has failed to establish how this had any impact on his guilty plea. To
establish prejudice, Gonzalez must demonstrate how the outcome of his guilty plea and
sentencing hearing would have been different if this Court had not made that statement. He has
failed to do so. He is not entitled to relief.
1 This Court notes that the United States Department of Justice created the Executive Office for Immigration
Review on January 9, 1983, and it is the primary mission of that office to adjudicate immigration cases by fairly,
15
CONCLUSION
For the foregoing reasons, this Court concludes that Gonzalez has failed to demonstrate
any basis upon which to grant relief under the PCRA and, therefore, the Motion must be
DENIED.
expeditiously, and uniformly interpreting and administering the Nation's immigration laws.
https://www.justice.gov/eoir/about-office (last visited on September 22, 2022) (emphasis added). Under delegated
authority from the Attorney General, the Executive Office for Immigration Review conducts immigration court
proceedings, appellate reviews, and administrative hearings. Id.
16