J-S18028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARCOS ANTONIO BETANCOURT 

GANIER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1432 MDA 2018

Appeal from the PCRA Order Entered August 1, 2018

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0003303-2016

BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED: MAY 2, 2019

Appellant Marcos Antonio Betancourt Ganier appeals from the order 

denying his first Post Conviction Relief Act1 (PCRA) petition. Appellant 

contends his plea counsel was ineffective for failing to advise him that a guilty 

plea would result in deportation. We affirm.

We adopt the facts and procedural history set forth in the PCRA court’s 

opinion.2 See PCRA Ct. Op., 10/25/18, at 2. Of note, Appellant, who was 

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 We recognize that on July 18, 2017, Appellant was sentenced to nine to 

twenty-three months’ imprisonment with two days of credit for time served. 

Order, 7/21/17. Appellant was still serving his sentence as of July 12, 2018, 
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represented by plea counsel, pleaded guilty to delivery of a controlled 

substance.3 At the guilty plea hearing, Appellant’s immigration status was not 

addressed. 

Appellant did not take a direct appeal,4 but filed the instant timely first 

PCRA petition, asserting that plea counsel was ineffective for failing to advise 

him of the deportation consequences of his plea. The PCRA court appointed 

PCRA counsel. Following a hearing, the PCRA court denied Appellant’s petition 

on August 1, 2018. 

Appellant timely appealed. The PCRA court did not order Appellant to 

comply with Pa.R.A.P. 1925(b). The PCRA court filed a Rule 1925(a) decision 

holding, among other things, that it found Appellant’s plea counsel credibly 

testified that he advised Appellant he may be subject to deportation. PCRA 

Ct. Op. at 5.

Appellant raises the following issue:

Did the trial court err in failing to grant . . . Appellant leave to 

withdraw his plea of guilt[y] to the subject crime [because the 

plea] was unlawfully induced through ineffective assistance, under 

Padilla v. Kentucky, [130 S. Ct. 1473 (2010)], where the record 

does not support that trial counsel provided advice concerning the 

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the date of the PCRA evidentiary hearing. No party has alerted this Court that 

Appellant is no longer serving his sentence. 

3 35 P.S. § 780-113(a)(30).

4 We note that the trial court did not comply with Rule 704(C), which requires 

the court to determine on the record that the defendant has been advised of 

his post-sentence and appellate rights.
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consequences of the plea and was, as a result, not knowingly, 

voluntarily, intelligently and knowingly tendered?

Appellant’s Brief at 4. 

In support, Appellant argues that the PCRA court erred in concluding 

that plea counsel advised him of the deportation consequences from a guilty 

plea. Appellant’s Brief at 13. He asserts that he first learned of these 

consequences when he met Immigration and Customs Enforcement agents in 

prison. Id. Appellant contends that if he had known that he would be 

deported, he would have consulted with an immigration lawyer. Id. at 14. 

He challenges plea counsel’s testimony at the PCRA hearing as contradictory 

and vague. Id. at 14-15. Appellant maintains that plea counsel should have 

advised him that he definitively would be deported and not that there was a 

possibility of deportation. Id. at 15. 

“Our standard of review of a [PCRA] court order granting or denying 

relief under the PCRA calls upon us to determine whether the determination 

of the PCRA court is supported by the evidence of record and is free of legal 

error.” Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) 

(citation and internal quotation marks omitted). “We defer to the PCRA court’s 

factual findings and credibility determinations supported by the record. In 

contrast, we review the PCRA court’s legal conclusions de novo.” 

Commonwealth v. Becker, 192 A.3d 106, 112 (Pa. Super. 2018) (citation 

omitted).
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[I]n order to obtain relief based on [an ineffective assistance of 

counsel] claim, a petitioner must establish: (1) the underlying 

claim has arguable merit; (2) no reasonable basis existed for 

counsel’s actions or failure to act; and (3) petitioner suffered 

prejudice as a result of counsel’s error such that there is a 

reasonable probability that the result of the proceeding would 

have been different absent such error.

Barndt, 74 A.3d at 192 (citation omitted).

Allegations of ineffectiveness in connection with the entry of a 

guilty plea will serve as a basis for relief only if the ineffectiveness 

caused the defendant to enter an involuntary or unknowing plea. 

Where the defendant enters his plea on the 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.

Id. (citation omitted).

In Commonwealth v. Wah, 42 A.3d 335 (Pa. Super. 2012), this Court 

summarized Padilla as follows:

the United States Supreme Court held that counsel must inform 

his client whether his plea carries a risk of deportation. The 

Padilla Court rejected Kentucky state law holding that the risk of 

deportation concerns only collateral matters outside the scope of 

representation required by the Sixth Amendment, and therefore, 

failure to advise a defendant of possible deportation consequences 

is not cognizable as a claim for ineffective assistance of counsel. 

Padilla had the effect of abrogating similar case law in 

Pennsylvania, notably Commonwealth v. Frometa, 520 Pa. 

552, 555 A.2d 92 (1989) (holding that deportation is a collateral 

consequence of a guilty plea and failure to explain it to a 

defendant is irrelevant to whether the guilty plea was knowing and 

voluntary). 

Wah, 42 A.3d at 339 (emphasis added). 

In Commonwealth v. Escobar, 70 A.3d 838 (Pa. Super. 2013), the 

defendant argued that because his drug conviction made him deportable, plea 
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counsel was required to tell him “that he would, in fact, be deported.” 

Escobar, 70 A.3d at 841. The PCRA court agreed and granted the defendant 

relief. Id. at 840. The Escobar Court reversed, explaining

whether the U.S. Attorney General and/or other personnel would 

necessarily take all the steps needed to institute and carry out 

[the defendant’s] actual deportation was not an absolute certainty 

when he pled. Given that [the defendant] did know deportation 

was possible, given that counsel advised him there was a 

substantial risk of deportation, and given that counsel told [the 

defendant] it was likely there would be deportation proceedings 

instituted against him, we find counsel’s advice was, in fact, 

correct.

Id. at 841.

Instantly, the PCRA court summarized plea counsel’s testimony at the

PCRA hearing as follows:

[Plea counsel] testified that he has been an attorney for fifteen 

years and his primary practice area is criminal defense. [Plea 

counsel] had been retained prior to the preliminary hearing and 

he was aware that [Appellant] was not a citizen of the United 

States. [Plea counsel] knew that a guilty plea to the charges filed 

against [Appellant] could subject him to deportation.

. . . Prior to pleading guilty, [plea counsel] advised [Appellant] 

that he could be subject to deportation. [Plea counsel] testified 

that he refers all criminal clients facing possible deportation to a 

local immigration attorney. He also testified that he would have 

followed his normal practice in this case.

PCRA Ct. Op. at 4. Further, as noted above, the PCRA court found plea 

counsel’s testimony credible. Id. at 5.

We add that plea counsel testified: “I didn’t cite the [Immigration] Act. 

But I’m sure I said that it could subject [Appellant] to potential deportation. 

I know that there is a list of offenses of [sic] crimes that could subject 
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[Appellant] to this.” N.T. PCRA Hr’g, 7/12/18, at 18. Plea counsel later 

reiterated that he notified Appellant that he could be subject to deportation. 

Id. at 20. However, plea counsel conceded that he did not explicitly inform 

Appellant that a guilty plea would absolutely result in his deportation. Id. at 

28. 

Instantly, our review of the record establishes that the PCRA court’s 

credibility determinations and findings of fact are supported by the record. 

See Becker, 192 A.3d at 112. To the extent Appellant argues that plea 

counsel should have advised him that deportation was a certainty, we 

disagree. See Escobar, 70 A.3d at 841. As in Escobar, Appellant was 

advised that he could be subject to deportation, and whether Appellant would 

actually be deported was uncertain at the time he entered his guilty plea. See 

id. Therefore, having found no abuse of discretion or error of law, we affirm

the order denying Appellant’s PCRA petition. See Barndt, 74 A.3d at 191-

92.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/2/2019