J-S52024-14

*Former Justice specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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.

DAVID CHALOEUNPORN, 

 Appellant No. 2938 EDA 2013 

Appeal from the PCRA Order entered October 10, 2013, 

in the Court of Common Pleas of Philadelphia County, 

Criminal Division, at No(s): CP-51-CR-0004499-2007 

& CP-51-CR-0004500-2007 

BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ. 

MEMORANDUM BY ALLEN, J.: FILED AUGUST 27, 2014 

David Chaloeunporn (“Appellant”) appeals from the order denying his 

petition for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

sections 9541-46. We affirm. 

 The pertinent facts and procedural history are as follows: On 

December 6, 2007, Appellant, a citizen of Cambodia, entered a guilty plea to 

multiple sexual offenses involving two of his nieces, ages ten and thirteen. 

On May 28, 2008, the trial court sentenced Appellant to an aggregate term 

of seven and one-half to fifteen years of imprisonment, to be followed by a 

twenty-five year probationary term. Appellant did not file a direct appeal. 
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 Appellant filed a pro se PCRA petition on November 25, 2008. On 

September 6, 2009, PCRA counsel filed a motion to withdraw and a no-merit 

letter pursuant to the dictates of Commonwealth v. Turner, 544 A.2d 927 

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988) (en banc). On January 26, 2010, the PCRA court issued notice of its 

intent to dismiss Appellant’s PCRA petition without a hearing pursuant to 

Pa.R.Crim.P. 907. By order entered February 16, 2010, the PCRA court 

denied Appellant’s PCRA petition, and permitted PCRA counsel to withdraw. 

 Appellant filed a pro se appeal, and the PCRA court appointed present 

counsel. However, the PCRA court subsequently requested that this Court 

vacate its order and remand the case for further proceedings before a 

different judge; we did so on February 18, 2011. Commonwealth v. 

Chaloeunporn, 24 A.3d 459 (Pa. Super. 2011) (unpublished 

memorandum). 

 Following remand, present counsel filed an amended PCRA petition on 

October 14, 2011. The Commonwealth filed a motion to dismiss on June 25, 

2013. On September 11, 2013, the PCRA court issued Pa.R.Crim.P. 907 

notice of its intent to dismiss Appellant’s petition without a hearing. 

Appellant did not file a response. By order entered October 10, 2013, the 

PCRA court dismissed Appellant’s amended PCRA petition. This appeal 

followed. Although Appellant complied with the PCRA court’s order to file a 

Pa.R.A.P. 1925(b) statement, the PCRA court did not file a Rule 1925(a) 

opinion. 
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 Appellant raises the following issue on appeal: 

I. Was [Appellant]’s guilty plea knowing[,] intelligent[,] 

and voluntary when he was not informed by [trial counsel], 

nor did he know, at the time that he tendered the guilty 

plea, that his deportation, because he was not a U.S. 

citizen, was mandatory because of the offenses to which 

he was pleading guilty? 

Appellant’s Brief at 2.

In reviewing the propriety of an order granting or denying PCRA relief, 

an appellate court is limited to ascertaining whether the record supports the 

determination of the PCRA court and whether the ruling is free of legal error. 

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great 

deference to the findings of the PCRA court, “but its legal determinations are 

subject to our plenary review.” Id. Furthermore, to be entitled to relief 

under the PCRA, the petitioner must plead and prove by a preponderance of 

the evidence that the conviction or sentence arose from one or more of the 

errors enumerated in section 9543(a)(2) of the PCRA. One such error 

involves the ineffectiveness of counsel. 

To obtain relief under the PCRA premised on a claim that counsel was 

ineffective, a petitioner must establish by a preponderance of the evidence 

that counsel's ineffectiveness so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place. 

Id. “Generally, counsel’s performance is presumed to be constitutionally 

adequate, and counsel will only be deemed ineffective upon a sufficient 
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showing by the petitioner.” Id. This requires the petitioner to demonstrate 

that: (1) the underlying claim is of arguable merit; (2) counsel had no 

reasonable strategic basis for his or her action or inaction; and (3) petitioner 

was prejudiced by counsel's act or omission. Id. at 533. A finding of 

"prejudice" requires the petitioner to show "that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different." Id. Counsel cannot be deemed 

ineffective for failing to pursue a meritless claim. Commonwealth v. 

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852 

A.2d 311 (Pa. 2004). 

Appellant claims that inadequate advice from trial counsel caused him 

to enter an invalid plea. When asserting a claim of ineffectiveness of 

counsel in the context of a guilty plea, a defendant must show that plea 

counsel’s ineffectiveness induced him to enter the plea. Commonwealth v. 

Johnson, 875 A.2d 328, 331 (Pa. Super. 2005). As this Court stated: 

Because a plea of guilty effectively waives all nonjurisdictional defects and defenses, after sentencing, 

allegations of ineffectiveness of counsel in this context 

provide a basis for withdrawal of the plea only where there 

is a causal nexus between counsel’s ineffectiveness, if any, 

and an unknowing or involuntary plea. The guilty plea 

hearing becomes the significant procedure under scrutiny. 

The focus of the inquiry is whether the accused was misled 

or misinformed and acted under that misguided influence

when entering the guilty plea. 
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Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993) 

(citations omitted). 

Further, this Court summarized: 

Our law presumes that a defendant who enters a guilty plea 

was aware of what he was doing. He bears the burden of 

proving otherwise. 

 * * * 

 The long standing rule of Pennsylvania law is that a

defendant may not challenge his guilty plea by asserting 

that he lied while under oath, even if he avers that counsel 

induced the lies. A person who elects to plead guilty is 

bound by the statements he makes in open court while 

under oath and may not later assert grounds for 

withdrawing the plea which contradict the statements he

made at his plea colloquy. 

 * * * 

[A] defendant who elects to plead guilty has a duty to

answer questions truthfully. We [cannot] permit a 

defendant to postpone the final disposition of his case by 

lying to the court and later alleging that his lies were 

induced by the prompting of counsel. 

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003) 

(citations omitted). 

Appellant does not challenge his responses given to the trial court 

during his guilty plea colloquy. Rather, Appellant claims that although he 

was informed prior to entering his guilty plea that there was a possibility he 

may be deported, see N.T., 12/6/07, at 23, trial counsel “was ineffective for 

not informing [him] that the consequences of his guilty plea was mandatory 

deportation.” Appellant’s Brief at 5.
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Appellant bases his ineffectiveness claim upon the United States 

Supreme Court decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). In 

Padilla, the high court held that the Sixth Amendment of the United States 

Constitution requires that defense counsel inform a criminal defendant of the 

risk of deportation, should he decide to enter a guilty plea. However, as 

acknowledged by the Commonwealth, the United States Supreme Court, 

noting the difference in treatment of the issue by various federal district 

courts, has more recently held that “Padilla does not have retroactive 

effect.” Commonwealth v. Ghisoiu, 63 A.3d 1272, 1274 (Pa. Super. 

2013), appeal denied, 74 A.2d 125 (Pa. 2013) (quoting Chiadez v. U.S., 

133 S.Ct. 1103, 1105 (2013). See also Commonwealth v. Abraham, 62 

A.2d 343 (Pa. 2011) (noting the split in the treatment of Padilla claims by 

the federal courts). 

 Here, Appellant entered his guilty plea in 2007, the trial court 

sentenced him in 2008, and he did not file a direct appeal. Therefore, his 

judgment of sentence became final approximately two years before the 

Padilla decision. Appellant is thus unable to benefit from the Padilla 

decision. 

Moreover, even if the Padilla decision applied, this Court has rejected 

claims similar to Appellant’s which challenge the adequacy of the advice 

given by counsel. See, e.g., Ghisoiu, 63 A.3d at 1274 (concluding that 

even if Padilla applied, both of defendant’s attorneys advised him “that his 
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plea could have immigration consequences”); see also Commonwealth v. 

Escobar, 70 A.2d 838, 842 (Pa. Super. 2013) (concluding that trial counsel 

informing the defendant that deportation proceedings were likely “was within 

the range of competence demanded of attorneys in criminal cases”); 

Commonwealth v. McDermitt, 66 A.2d 810, 814 (Pa. Super. 2013) 

(holding that “Padilla requires counsel to inform a defendant as to a risk of 

deportation, not as to its certainty.”).

Because Appellant’s judgment of sentence became final prior to the 

Padilla decision, he is not entitled to the benefit of its holding. In addition, 

the record demonstrates that Appellant was informed of the risk of 

deportation, such that Appellant’s claim of ineffectiveness fails.

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/27/2014 
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