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2022 PA Super 26

COMMONWEALTH OF PENNSYLVANIA

v.

BENOY THOMAS

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 680 EDA 2021 Appeal from the PCRA Order Entered March 19, 2021 In the Court of Common Pleas of Delaware County Criminal Division at CP

- 23

- CR

- 0001355

- 2020

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E. *

OPINION BY MURRAY, J.: FILED FEBRUARY 15, 2022
Benoy Thomas (Appellant) appeals from the order dismiss ing his timely

petition filed pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S. A.

§§ 9541

- 9546. We affirm

. This case began when,

[o] n March 3, 2020, Appellant was arrested and charged with various criminal offenses, including four counts of Possession with Intent to Deliver (35 P.S. § 780

- 113(A)(30)).

On July 13, 2020 Appellant tendered a negotiated plea of guilty to one count of Possession with Intent to Deliver (ungraded felony). In accordance with the negotiated plea agreement, this [c] o urt immediately imposed upon Appellant a sentence of, inter alia , confinement for a minimum term of three months (to be served on electronic home monitoring) to a maximum term of twenty

- three months, followed by a two

- year term of county probation.

PCRA Court Opinion, 7/1 6 /21, at 1

- 2.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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Appellant did not file a direct appeal. With new representation, he timely

filed a PCRA petition alleging ineffectiveness of prior counsel (Plea Counsel)

. Appellant claims c ounsel’s ineffectiveness led to his placement “ in deportation
proceedings by ICE as a result of his guilty plea.” PCRA Petition, 8/13/20, at

3.
Appellant’s Petition and Commonwealth Response

Appellant is not a United States citizen. He is a citizen of India, and his

native language is Malayalam. See id. Appellant avers he has “limited

proficiency in English,” and Plea Counsel fail ed to request a translator. Id.

Appellant assert s Plea Counsel advised him “ that the risk of deportation was

n ot a real risk in this case.” Id. (emphasis in original). He states Plea

Counsel failed to “inquire as to [Appellant’s] immigration status prior to the

Guilty Plea Hearing,” and failed to advise Appellant “there could be collateral

immigration consequences. ” Id. at 3 , 5. Because Plea Counsel provided
Appellant “with false assurances that the possibility of deportation resulting
from the guilty plea was not a real one,” Appellant “believed that he had no

real adverse immigration consequence by pleading guilty to the crime of

Possession of a Controlled Substance With the Intent to Deliv er
– Cocaine.”

Id. at 3

- 4, 5.
“After his Guilty Plea Hearing, [Appellant] first discovered that his

conviction has adverse immigration consequences when he was placed in
deportation proceedings.” Id. at 4. Appellan t “would have rejected the plea ”J

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had Plea Counsel properly advised him of the “real adverse immigration

consequences.” Id. at 7. Appellant assert s Plea Counsel was ineffective for

misadvising him about the likelihood of being deported, and “ prejudicial

ineffectiveness

... undermined the proc ess in this case so no reliable
adjudication of guilt or innocence could have taken place.” Id.

The Commonwealth filed a response opposing an evidentiary hearing.

The Commonwealth faulted Appellant’s noncompliance with the PCRA, sta t ing :

B ecause [Appellant’s] claim lacks a n y support in the record, he was obliged to establish his claim by supplying witness certifications (42 Pa.C.S. § 9545 (d)(1)(i); Pa.R.Crim.P. 902(A)(15)) and ‘ af fidavits, d o cuments, and other evidence ’ (Pa.R.Crim.P. 902(A)(12)) from himself, or trial counse l , or any other witness, that would establish the three prongs of the ineffectivenes s test

. Commonwealth Response , 10/13/20, at 2.

In addition, t he Commonwealth described Appellant ’s petition as

“ mak [ing] a bare, unsupported claim of attorney ineffectiveness for failing to

inform hi m of the collateral immigration consequences of his guilty plea.” Id.

T he Commonwealth argue d that “ aside from prese nting his allegations as fact

and con c luding error, [Appellant] wholly failed to meet his burden of proof.

This shortco m ing not only precludes an evidentiary hearing, it is fatal to his

claim. ” Id. at 3. Notwithstanding the Commonwealth’s opposition , t he PCRA

court conducted an evidentiary hearing.J

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- PCRA Hearing

Appellant was the only witness. He testified remotely by video, through

a court

- certified interpreter who was physically present at the hearing. 1 N.T.,

10/27/20, at 3.

Appellant testified that Immigration and Customs Enforcement (ICE)

took him into custody approximately two weeks after his plea and sentenc ing

.
Id. at 8. Appellant stated he did not know he could consult an immigration

attorney, or “ that he would be deported to India. So he never thought of

going to an immigration attorney.” Id. at 9. Appellant testified he “signed

the [plea colloquy] papers in the hallway [,]

. . . did not see what the papers

were and he asked but the lawyer said time we got to g o. So he signed it and

they were in the courtroom and that is all he had.” Id. at 10

- 11.

Appellant testified that Plea Counsel met with him three times

. Id. at

12. A t the plea hearing, Appellant

did not ask any questions, he just signed the paperwork that they gave to him. ... He said he did not understand what it is that

_________________ __________ ______ ____ _______

1 The Commonwealth objected to Appellant’s testimony , arguing that Appellant’s petition was noncompliant with Section 9545 and lacked “certifications or affidavits of any witnesses which renders any proposed witness testimony admissible.” N.T., 10/27/20, at 6. The PCRA court advised it would allow the testimony and “consider the argument at a later time.” Id. Although the court did not expressly overrule the objection, its ruling is implied by th e analysis in it s March 19, 2021 order and July 15, 2021 opinion . T he court denied relief after “consideration of the issues raised in Appellant’s PCRA petition,” making “credibility determinations,” and concluding Appellant’s claims are “absurd and wholl y unproven, unsubstantiated, uncorroborated, and conceived only following the institution of deportation proceedings against him.” PCRA Court Opinion, 7/15/21, at 11.J

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[ sic ] and the lawyer didn’t give him an opportunity to read it. ... The lawyer aske d him to sign it and also he asked ... what should I be doing. And the lawyer said whatever the Judge asks you just say yes to all of those questions and it will be fine for you. ... He did not read the paragraph [about the risk of deportation]. ... He did not know in the beginning that they were going to deport [him]. ... He did not ask [whether he could get a better offer , ] but when the immigration people came to the house to pick him up he asked friends to call his lawyer and friends called two or t hree times and he did not respond.

N.T., 10/27/20, at 11

- 12 (translator relating Appellant’s testimony)

. Appellant additionally expressed concern about religious persecution,

stating that he is a practicing Catholic and fears returning to India because
“they will give him a hard time

. ” Id

. at 13

- 14 . A week prior to the PCRA
hearing, Appellant “ phoned the immigration lawyer and [ asked about asylum

in the United States] and they said you are not eligible because of the felony

that you have. ” Id. at 15. Appellant testified he “did not get a chance and
nobody told him that he was not eligible for asylum.” Id. Appellant pled guilty
“because he was told it was only for three months and he would be out of this

case.” Id. Appellant would not ha ve accepted t he plea if he knew he would

be in eligible for asylum. Id.

At the conclusion of PCRA counsel’s direct examination, the

Commonwealth stated it had no questions for cross

- examination and would

“go on the record we have.” Id. at 16. T he PCRA court deferred disposition,

and provided a timeframe for the parties to submit briefs “in regards to the

colloquy o r any other issue that exist s .” Id.J

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- PCRA Court Dispos i tion

On March 19, 2021, the PCRA court entered its order denying relief. The

order included findings of fact and conclusions of law. Noting PCRA counsel 2

had provided “ remarkable, well

- reasoned, and zealous representation

... in
raising important issues on behalf of [Appellant],” the court nonetheless

concluded , [Appellant’s] testimon y and argument are not compelling enough to change this court ’ s determination that the PCRA petition should be dismissed and [Appellant] has failed to meet his burden under the PCRA to show plea coun sel was ineffective or the plea was unlawfully induced; the claims and allegations are not proven and are without support in the record and lack merit; there are no additional issues meriting relief under the PCRA; [Appellant] is not entitled to post convi ction collateral relief; and no purpose would be served by any further proceeding [.]

Order, 3/19/12, at 1

- 2.

Appellant timely appealed. Although the PCRA court did not order

Appellant to file a Pa.R.A.P. 1925(b) concise statement, it filed an opinion on

July 15 , 2021 , in which it expanded on the findings and conclusions set forth

in the March 19, 2021 , order.

I ssue
Appellant presents one question for our review :

1. Whether the PCRA court erred in dismissing Appellant ’ s Petition for Po st

- Conviction Collateral Relief[?]

_________________ __________ ______ ____ _______

2 On June 4, 2021, this Court granted PCRA counsel’s “Motion to Withdraw as Counsel. ” The PCRA court appointed appellate counsel on June 10, 2021.J

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Appellant’s Brief at 4.

Appellant argues the PCRA court erred in failing to find P lea C ounsel

ineffective

. Appellant claims Plea C ounsel “ misadvised Appellant by stating

that there was no real risk of deportation as a result of pleading guilty to the

charge of Possession of a Controlled Substance With the Intent to Deliver

—

Cocaine , [and f] or this reason, Appellant believed that he faced no real

adverse immigration consequence by pleading guilty to thi s crime. ” Id. at 6.

Legal Standards

In reviewing the PCRA court’s d enial of relief, we examine whether the

determination is supported by the record and free of legal

error. Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation

omitted). We will not disturb the court’s findings unl ess there is no support

in the record. Commonwealth v. Wah , 42 A.3d 335, 338 (Pa. Super. 2012).

“I t is an appellant’ s burden to persuade us that the PCRA court erred and that

relief is due.” Commonwealth v. Miner , 44 A.3d 684, 688 (Pa. Super.

2012).
With regard to Appellant’s claim of Plea Counsel’ s ineffectiveness,

c ounsel is presumed to be effective, and a PCRA petitioner bears the burden

of proving otherwise. Commonwealth v. Becker , 192 A.3d 106, 112 (Pa.

Super. 2018). To obtain relief based on ineffective assistance of counsel ,
the petitioner must establish : (1) the underlying claim is of arguable merit;

(2) there was no reasonable basis for counsel’s action or failure to act; andJ

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(3) but for counsel’s error, there is a “reasonable probability the result of the
proceeding would have been different.” Commonw ealth v. Treiber , 121

A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three prongs is fatal

to the claim. Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014). It is

well

- settled that “counsel cannot be held ineffective for failing to pursue a

mer itless claim[.]” Commonwealth v. Hall, 867 A.2d 619, 632 (Pa. Super.

2005).
“In the context of a plea, a claim of ineffectiveness may provide relief

only if the alleged ineffectiveness caused an involuntary or unknowing

plea.” Commonwealth v. Orlando , 156 A.3d 1274, 1281 (Pa. Super. 2017).
“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.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citations omitted).

Analysis

At the outset, we observe that in the heading of Appellant’s argument,
Appellant states the PCRA court “ erred in dismissing ” his petition. Appellant’s

Brief at 9. However, Appellant never discusses how the PCRA court erred.

See id. at 9

- 23. Appellant essentially repeats the argument he presented to

the PCRA court, and requests this Court “vacate the PCRA Court’ s Order and

g rant Appellant post

- conviction relief .” Id. at 23. We emphasize it isJ

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Appellant’s duty to prove error by the PCRA court , Miner , supra , and while
we review the PCRA court’s legal conclusions de novo , we are bound by the

PCRA court’s credibility determinations. See Commonwealth v. Lee , 206

A.3d 1, 6 ( Pa. Super. 2019)

. Appellant’s argument is based o n the “adverse consequences” of his

guilty plea, i.e. , deportation. He claims :
Plea Counsel (1) misadvised him by informing him that Appellant's plea had no real adverse immigration consequence; (2) failed to advise him of the immigration consequences of his plea in violation of the Sixth Amendment right to effective counsel; (3) failed to adequately investigate the adverse immigration consequences of crimes involving drugs ; and (4) failed to adequately investigate potential plea offers that would include mitigation of the adverse immigration consequences now facing Appellant.

Appellant’s Brief at 9.

Our review reveals no error by the PCRA court. Generally, “a

defendant’ s lack of knowledge of collateral consequences of the entry of a

guilty plea does not undermine the validity of the plea, and counsel is

therefore not constitutionally ineffective fo r failure to advise a defendant of
the collateral consequences of a guilty plea.” Commonwealth v. Abraham , 62 A.3d 343, 350 (Pa. 2012). However, t he United States Su preme Court has

recognized that immigration law “ ma [kes] removal nearly an automatic result

for a broad class of noncitizen offenders,” and it is therefore “ ‘most difficult’

to divorce the penalty from the conviction in the deportation context , ” when

considering the constitutional right to effective assistance of counsel. PadillaJ

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v. Kentucky , 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

(citation omitted)

.

I n Padilla , the defendant , Jose Padilla, pled guilty to possessing a large

amount of marijuana. In post conviction proceedings, Mr. Padilla alleged h i s
plea counsel did not advise him of immigration consequences ; to the contrary,

his counsel told him “ ‘ he did not have to worry about immigration status since

he had been in the country so long. ’ ” Id. at 359, 130 S.Ct. 1473 (citation

omi tted)

. Mr. Padilla claimed he relied on counsel’s erroneous advice, when

in reality , his plea “made his deportation virtually mandatory.” Id. Mr. Padilla

alleged that he would have gone to trial but for the incorrect advice from his

attorney. Id. “ Assuming the truth of his allegations,” the United States

Supreme Court concluded the Supreme Court of Kentucky improperly denied
Mr. Padilla “relief without the benefit of an evidentiary hearing.” Id. It held,

as a matter of law, that “counsel must inform her client whether his plea

carries a risk of deportation.” Id. at 374, 130 S.Ct. 1486

. After the United States Supreme Court decided Padilla , this Court

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

Escobar , the defendant, like Appellant, pled guilty to possession of a

controlled substance (cocaine), with intent to deliver

. Following his plea, the federal government commenced deportation proceedings against him. E scobar filed a petition for collateral relief, asserting that counsel’ s advice did not sufficiently inform him th at deportation was a certainty.J

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The PCRA court granted relief, but this Court reversed. Distilling the United States Supreme Court’ s seminal o pinion in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), into its essential holding, we determined that “counsel must inform a noncitizen defendant as to whether a plea carries a risk of d eportation.” Escobar , 70 A.3d

a t 841 (citing Padilla , 559 U.S. at 373

- 74, 130 S.Ct. 1473).

The record established not only that counsel had informed Escobar that deportation proceedings were “likely and possible,” but also that Escobar had signed a written plea colloquy indicating that he understood the risk. Thus, Escobar was fully and specifically aware that his conviction made him “deportable.” Under these circumstances, we determined that counsel incurred no further responsibility to advise or predict whether “actua l deportation proceedings [were] a ce rtainty,” and we deemed counsel’ s representa tion constitutionally adequate.

Commonwealth v. Velazquez , 216 A.3d 1146, 1150

– 51 ( Pa. Super. 2019)

(some citations omitted) (distinguishing Escobar and holding plea counsel

ineffective for failing to advi s e defendant of the deportation risk of pleading to
simple assault).

As with Escobar , we affirmed the denial of PCRA relief in

Commonwealth v. Rachak , 62 A.3d 389 (Pa. Super. 2012), where the

defendant was repeatedly advised of his right to counsel, waived the right,

and entered a pro se guilty plea to possession of cocaine , 35 P.S. § 780

– 113(a)(16), and possession of drug paraphernalia, 35 P.S. § 780

– 113(a)(32).

Id. at 392. The defendant filed a counseled PCRA petition asserting his plea

was invalid because he was unaware of immigration consequences. Id. at

395. This Court affirmed the denial of relief based on the PCRA court’s

reasoning, wh ich we reproduced , stat ing: “ W hile the United States SupremeJ

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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 t he same responsibility on the courts.” Id.

The immigration statute implicated in Padilla , Escobar , Rachak

— and

Appellant’s case

— pertains to convictions for crimes involving controlled

substances :
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance ... other than a single offen se involving possession for one’ s own use of 30 gra ms or les s of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i).

Consistent with the foregoing legal authority, we discern no error by the

PCRA court . T he evidence from the plea hearing contradicts Appellant’s claim

regarding his English skills. App ellant responded “yes” when Plea Counsel

asked him whether he “ could read and write the English language?” N.T.,

7/13/20, at 4. Thereafter, the following exchange occurred between the

Commonwealth, the trial court, Plea C ounsel , and Appellant:

[COMMONWEALTH]: [ W ] e had originally continued this matter b ecause there was an immigration issue and I believe that immigr ation issue persists and I think the record should clearly reflect that Counsel has had that conversation with his client and his client understands

.
THE COURT: [ Plea Counsel] ?J

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[ PL E A COUNSEL] : Yes, Your Honor. Now [Appellant] , prior to entering this guilty plea , I explained to you tha t at the time you were entering the plea you were not a U.S. citizen. Do you understand that?

[APPELLANT] : Yes.

[ PLEA COUNSEL]: And that this could possibly affect your immigration status

. [APPELLANT]: Yes.

[PLEA COUNSEL] : Do you understand that?

[APPELLANT]: Um

- hum.

[PLEA COUNSEL] : And knowing that, [Appellant], you would still like to plead guilty, is that correct ?

[APPELLANT]: Yes

. [PLEA COUNSEL] : Is the Court satisfied?

THE COURT: Yes. Thank you. [Appellant], I am reviewing y our Guilty Plea Statement and your Statement of Post Sentence Rights. I note for the record that next to every paragraph there are the initials B.T. Th ose are your initials, correct?

[APPELLANT]: Yes.

THE COURT: And you placed them next to every paragraph?

[APPELLANT]: Yes.

THE COURT: And you did so after reading each paragraph? Yes?

[APPELLANT]: Yes.J

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THE COURT: And you did so with the assistance of Cou nsel? He advised you as to what they meant, et cetera?

[APPELLANT]: Yes.

THE COURT: Do you have any questions now for him or for me as it relates to these documents?

[APPELLANT]: No.

N.T., 7/13/ 20, at 8

- 10 (emphasis added)

. Appellant’s written guilty plea included the following paragraph, initialed

by Appellant, which states:

If I am not a United States citizen, my plea(s) of guilty or nolo contend e r

e may subject me to MANDATORY DEPORTATION and other adverse immigration consequences. My attorney has answered, to my satisfaction, any questions I have had concerning adverse immi gration consequences of this plea. I also acknowledge that I have had the opportunity to consult an attorney specializing in immigration

- deportation law.

See Order, 3/19/21, at 3 ( quoting Appellant’s Guilty Plea Statement at ¶ 22 )

(bold and underline in original )

. The PCRA court expressly found Appellant, “th roughout the proceedings,

demons trated an understanding of the proceedings and specifically testified

he could read and write English.” Order, 3/19/21, at 2. The court stated,
“[f]rom the outset, it was apparent Appellant understood English, and he

testified he could read, write and understand the English language.” PCRA

Court Opinion, 7/15/21, at 8. The court observed:

Appellant answered questions in a manner that de monstrates an understanding of the questions asked. Appellant testified using the English language, and r esponded to questions using familiarJ

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terms including, “ Um

- hum ” and “ Uh

- huh ” , and explaining to the [c]ourt his employment status. Additionally, neith er Appellant nor his attorney raised the concern Appellant required an interpreter, and this court did not observe any signs Appellant required one or did not understand the proceeding.

Id. at 7 (citation to notes of testimony omitted).

The court further explained :
The PCRA provides collateral relief for persons convicted of crimes they did not commit and persons serving illegal sentences, and it is limited in scope. 42 Pa.C.S. § 9541 et seq

. The PCRA absolutely is not a conduit for providing unhappy defendants with a complete do

- over. The PCRA precludes relief for claims raised and decided on direct appeal and waived claims, and an appeal from the dismissal of a P CRA petition addresses only i ssues raised in the PCRA petition. See 42 Pa.C.S. §§ 9543(a)(3) and 9544.
PCRA Court Opinion, 7/15/21, at 2

- 3.

In sum, t he PCRA court had discretion to “believe or not believe
testimony, and self

- serving or uncorroborated statements by petitioner do not
shift petitioner’s burden of proof.” Id. at 3 (citing Commonwealth v. Baker , 507 A.2d 872 (Pa. Super. 1985) ) . The PCRA court accurately n oted that its
credibility determinations are binding on this Court when supported by the

record. Id. It also bears repeating that Appellant was the only witness at
the PCRA hearing. In considering Appellant’s testimony in the context of the

record as a whole, the PCRA court conclud ed that Appellant’s uncorroborated
allegations were “no more than self

- serving, after

- the

- fact, contrived
grievances against plea counsel.” Id. at 11.J

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As t he record sup ports the PCRA court’s factual findings , and its

conclusions are consistent with the law , we discern no error in the PCRA

court’s determination that Appellant was not entitled to postconviction relief

.
Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/15/2022