J-S04020-22

2022 PA Super 26

COMMONWEALTH OF PENNSYLVANIA

v.

BENOY THOMAS 

Appellant

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 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 dismissing 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]ourt 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, 7/16/21, at 1-2.

____________________________________________

* Former Justice specially assigned to the Superior Court.
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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 counsel’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 failed to request a translator. Id. 

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

not 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 Deliver – 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. Appellant “would have rejected the plea” 
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had Plea Counsel properly advised him of the “real adverse immigration 

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

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

ineffectiveness ... undermined the process 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, stating:

Because [Appellant’s] claim lacks any 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 ‘affidavits, documents, and other evidence’

(Pa.R.Crim.P. 902(A)(12)) from himself, or trial counsel, or any 

other witness, that would establish the three prongs of the 

ineffectiveness test.

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

In addition, the Commonwealth described Appellant’s petition as

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

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

The Commonwealth argued that “aside from presenting his allegations as fact

and concluding error, [Appellant] wholly failed to meet his burden of proof. 

This shortcoming not only precludes an evidentiary hearing, it is fatal to his 

claim.” Id. at 3. Notwithstanding the Commonwealth’s opposition, the PCRA 

court conducted an evidentiary hearing.
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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 sentencing. 

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 go. 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. At 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 the analysis in its March 19, 2021 order and July 15, 2021 opinion. The 

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 wholly unproven, unsubstantiated, uncorroborated, 

and conceived only following the institution of deportation proceedings against 

him.” PCRA Court Opinion, 7/15/21, at 11. 
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[sic] and the lawyer didn’t give him an opportunity to read it. ... 

The lawyer asked 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 

three 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 have accepted the plea if he knew he would 

be ineligible 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. The PCRA court deferred disposition, 

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

colloquy or any other issue that exists.” Id.
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PCRA Court Disposition

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

order included findings of fact and conclusions of law. Noting PCRA counsel2

had provided “remarkable, well-reasoned, and zealous representation ... in 

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

concluded,

[Appellant’s] testimony 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 counsel 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 conviction 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.

Issue

Appellant presents one question for our review:

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

for Post-Conviction Collateral Relief[?]

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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. 
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Appellant’s Brief at 4.

Appellant argues the PCRA court erred in failing to find Plea Counsel 

ineffective. Appellant claims Plea Counsel “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 this crime.” Id. at 6.

Legal Standards

In reviewing the PCRA court’s denial 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 unless there is no support 

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

“It 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, 

counsel 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; and 
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(3) but for counsel’s error, there is a “reasonable probability the result of the 

proceeding would have been different.” Commonwealth 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 

meritless 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 

grant Appellant post-conviction relief.” Id. at 23. We emphasize it is 
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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 on 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 for failure to advise a defendant of 

the collateral consequences of a guilty plea.” Commonwealth v. Abraham, 

62 A.3d 343, 350 (Pa. 2012). However, the United States Supreme 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. Padilla
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v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

(citation omitted).

In Padilla, the defendant, Jose Padilla, pled guilty to possessing a large 

amount of marijuana. In postconviction proceedings, Mr. Padilla alleged his 

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 

omitted). 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. Escobar filed a petition for 

collateral relief, asserting that counsel’s advice did not sufficiently 

inform him that deportation was a certainty.
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The PCRA court granted relief, but this Court reversed. Distilling 

the United States Supreme Court’s seminal opinion 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 deportation.” Escobar, 70 A.3d

at 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 “actual deportation 

proceedings [were] a certainty,” and we deemed counsel’s 

representation 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 advise 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, which we reproduced, stating: “While the United States Supreme 
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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 the 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 offense 

involving possession for one’s own use of 30 grams or less 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. The evidence from the plea hearing contradicts Appellant’s claim 

regarding his English skills. Appellant 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 Counsel, and Appellant: 

[COMMONWEALTH]: [W]e had originally continued this

matter because there was an 

immigration issue and I believe that 

immigration 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]?
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[PLEA COUNSEL]: Yes, Your Honor. Now [Appellant], prior to 

entering this guilty plea, I explained to 

you that 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 your 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. Those 

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.
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THE COURT: And you did so with the assistance of 

Counsel? 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 

contendere 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 immigration 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, “throughout the proceedings, 

demonstrated 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 demonstrates an 

understanding of the questions asked. Appellant testified using 

the English language, and responded to questions using familiar 
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terms including, “Um-hum” and “Uh-huh”, and explaining to the 

[c]ourt his employment status. Additionally, neither 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 PCRA petition addresses only issues 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, the 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 noted 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 concluded that Appellant’s uncorroborated 

allegations were “no more than self-serving, after-the-fact, contrived 

grievances against plea counsel.” Id. at 11.
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As the record supports 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