J-A21039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

MARC VINCENT

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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. 

____________________________________________

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 noncitizen 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 

authority7in 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 

____________________________________________

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