J-S18005-16

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FELIX JUNIOR ENCARNACION,

Appellant No. 1204 MDA 2015

Appeal from the PCRA Order June 11, 2015

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0000568-2007

BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED MARCH 04, 2016

Felix Junior Encarnacion appeals from the order entered June 11, 

2015, denying his amended post-conviction relief petition filed pursuant to 

the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541, et seq. PCRA 

counsel has filed a no-merit brief and petitioned to withdraw under 

Turner/Finley.

1

 We affirm, and grant the petition to withdraw.

Appellant’s charges were premised upon his possession of, inter alia, 

two large bags of heroin, one containing twelve grams and the other 

containing 118 grams, as well as 1,150 smaller bags of heroin “packaged for 

____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 
J-S18005-16

- 2 -

street delivery.” Police Criminal Complaint, 1/28/07, at 2. The PCRA court 

summarized the relevant facts as follows: 

On January 28, 2007, [Appellant] was charged with 

Possession with Intent to Deliver a Controlled Substance and 

numerous related offenses. On June 21, 2007, he entered an 

open plea of guilty to all charges . . . On September 26, 2007, 

he was sentenced to eleven to twenty-five years’ incarceration. 

He filed an untimely Motion to Modify Sentence which [the court] 

denied by Order of October 23, 2007. 

On March 6, 2008, [Appellant’s] first Petition pursuant to 

the [PCRA] was filed. In that Petition, [Appellant] asserted that 

his guilty plea counsel was ineffective for failing to explain the 

guilty plea colloquy and the potential deportation consequences 

of his guilty plea. [The court] denied that Petition by Order 

dated July 25, 2008. On March 2, 2009, that Order was vacated 

by the Pennsylvania Superior Court and the matter was 

remanded for a hearing on the Petition. On July 30, 2009, [the 

court] conducted a hearing on [Appellant’s] PCRA claims. By 

Order of July 7, 2010, [the court] denied [Appellant’s] first PCRA 

petition. 

[Appellant] filed a Notice of Appeal of that Order on August 

4, 2010. In his Concise Statement of Matters Complained of on 

Appeal, [Appellant] asserted that his guilty plea counsel was 

ineffective for failing to explain the potential deportation 

consequences of his entering a guilty plea ... By order of April 6, 

2011, the Superior Court vacated our July 7, 2010 order and 

again remanded. In its Order, the Superior Court ... deferred 

ruling on the deportation issue and reinstated [Appellant’s] right 

to file a Post-Sentence Motion and pursue his right of direct 

appeal nunc pro tunc. 

On June 6, 2011, [Appellant] filed a Post-Sentence Motion. 

By Order of November 2, 2011, the Post-Sentence Motion was 

granted in part and denied in part. It was determined that 

[Appellant] would be resentenced as the sentence imposed was 

outside the guideline ranges. On January 18, 2012, he was 

resentenced to an aggregate eight years and four months’ to 

twenty years’ incarceration. He filed a Notice of Appeal of this

Sentence on February 15, 2012 alleging that [the court] failed to 
J-S18005-16

- 3 -

take various mitigating factors into account in imposing that 

sentence. 

While his appeal of the January 18, 2012 sentence was 

pending, [Appellant] filed another PCRA Petition on March 15, 

2012. In his second Petition, [Appellant] raised claims of 

ineffective assistance of counsel for counsel’s alleged failure to 

explain the deportation consequences of his guilty plea. By Order 

of March 15, 2013, [the court] denied [Appellant’s] PCRA as [the 

court] found that Padilla [v. Kentucky, 559 U.S. 356 (2010)] 

was inapplicable to his case. On April 4, 2013, [Appellant] filed 

a Notice of Appeal of the Order denying his request for PCRA 

relief. On April 9, 2014, the Superior Court issued an order 

vacating [the court’s] Order of March 15, 2013 and finding all 

Orders pertaining to the withdrawal and appointment of counsel 

to be void ab initio. 

After conducting proceedings to apprise [Appellant] of his 

right regarding counsel, [current] PCRA counsel was appointed 

on September 25, 2014. [Appellant] was then granted leave to 

file an Amended PCRA Petition. On December 1[7], 2014, 

[Appellant] filed his Amended Petition in which he again asserted 

that his guilty plea counsel had failed to advise him of the 

deportation issues involved in his entry of his guilty plea. 

PCRA Court Opinion, 6/11/15, at 1-4. 

Appellant became eligible for parole on May 28, 2015, and was 

released to the custody of Immigration and Customs Enforcement. He was 

subsequently deported to the Dominican Republic.2 On June 11, 2015, the 

____________________________________________

2 Despite being deported, Appellant is still subject to the terms of his parole, 

and therefore, this Court may exercise jurisdiction over Appellant’s Petition 

pursuant to 42 Pa.C.S. § 9543(a)(1)(i) (a petitioner is eligible for relief if he 

can prove by a preponderance of the evidence that he has “been convicted 

of a crime under the laws of the Commonwealth and is at the time relief is 

granted . . . currently serving a sentence of imprisonment, probation or 

parole for the crime”). 
J-S18005-16

- 4 -

PCRA court issued an order of court and opinion denying Appellant’s 

amended petition for post-conviction relief. Appellant filed a timely Notice of 

Appeal on July 7, 2015. 

On appeal, PCRA counsel filed a petition to withdraw as counsel and a 

Turner/Finley brief directing this Court’s attention to two issues of possible 

merit: 

I. Whether the PCRA court erred in finding that Appellant 

received information regarding possible deportation 

consequences of a guilty plea[?]

II. Whether the PCRA court erred in finding the Appellant’s 

testimony not as credible and granting excessive weight to 

Judge Charles Jones’s testimony[?]

Turner/Finley brief, at 4. 

As a preliminary matter, we must address whether PCRA counsel has 

met the requirements of Turner/Finley. The Turner/Finley decisions 

provide the manner for post-conviction counsel to withdraw from 

representation. The holdings of those cases mandate an independent review 

of the record by competent counsel before a PCRA court or appellate court 

can authorize an attorney’s withdrawal. Counsel must then file a “no-merit” 

letter detailing the nature and extent of his review and list each issue the 

petitioner wishes to have examined, explaining why those issues are 

meritless. Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.Super. 

2014) (citations omitted). Counsel is required to contemporaneously serve 

upon his client his no-merit letter and application to withdraw along with a 
J-S18005-16

- 5 -

statement that if the court granted counsel’s withdrawal request, the client 

may proceed pro se or with a privately retained attorney. Freeland, 106 

A.3d at 774 (citations omitted). 

The PCRA court, or an appellate court if the no-merit letter is filed 

before it, see Turner, supra, then must conduct its own independent 

evaluation of the record. Only if it agrees with counsel that the petition lacks 

merit, will counsel be permitted to withdraw. 

Here, we find that counsel has substantially complied with the 

requirements of Turner/Finley and their progeny. Counsel detailed her 

review of the record and her conclusion that Appellant’s claims are meritless. 

Counsel also notified Appellant, and furnished him with a copy of her nomerit letter, advising him of his right to proceed pro se or to retain private 

counsel. 

We now turn to this appeal to determine whether it is indeed 

meritless. The standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free from legal error. Commonwealth v. 

Wah, 42 A.3d 335, 335 (Pa.Super. 2012) (citations omitted). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Id. 

Appellant first contends he received ineffective assistance of counsel 

because he was not advised of the possible deportation consequences of a 
J-S18005-16

- 6 -

guilty plea. To establish ineffectiveness of counsel, 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) (citations 

omitted). The failure to satisfy any prong of the test for ineffectiveness will 

cause the claim to fail. Commonwealth v. Rush, 838 A.2d 651 (Pa. 2003). 

Instantly, we find the court had ample support in the record for its 

determination that Appellant received instruction and counsel regarding the 

possible deportation consequences of a guilty plea. The court credited 

testimony by Appellant’s plea counsel that he was aware of Appellant’s 

status as a non-citizen. The court noted testimony by plea counsel and his 

court interpreter that it was his customary practice to provide advice 

regarding deportation consequences to all his non-citizen clients, even 

before the Padilla decision, supra. PCRA Court Opinion, 6/11/15, at 9; see 

also, N.T., 6/19/12, at 9, 14-15; id. at 21. 

In addition, Appellant’s pre-sentence report included information 

regarding his expired green card and potential immigration detainer. The 

court reasoned that Appellant’s failure to raise an issue with this information 

prior to sentencing indicated he had been apprised of the risk of deportation 

before entering his plea. When supported by the record, the PCRA court’s 

credibility determinations and factual findings are binding on this court. 

Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014). As such, we find 
J-S18005-16

- 7 -

Appellant’s first contention lacks arguable merit and his claim of ineffective 

assistance of counsel fails. Escobar, supra; Rush, supra. 

Appellant next contends the PCRA court erred by not crediting his 

testimony and granting excessive weight to guilty plea counsel’s testimony. 

We reiterate, when supported by the record, the PCRA court’s credibility 

determinations and factual findings are binding on this court. Bardo, 

supra. As noted above, the PCRA court had ample support for its credibility 

determinations and factual findings when it found that Appellant did, in fact, 

receive information regarding the possible deportation consequences of a 

guilty plea. Thus, Appellant’s final contention is also without merit. 

PCRA counsel has complied with Turner/Finley. We have reviewed 

the record, and we are convinced that no meritorious appellate issues exist. 

Accordingly, we affirm the denial of PCRA relief and grant the petition to 

withdraw. 

Petition of Kelli M. Knerr, Esquire, to withdraw as counsel granted. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/4/2016