Com. v. Foreus, J.

• Court: Superior Court of Pennsylvania
• Decided: May 23, 2017
• Docket: Com. v. Foreus, J. No. 1395 MDA 2016
• Status: Unpublished

Opinion

J-S26002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

JACQUES SHMELYN FOREUS

Appellant No. 1395 MDA 2016

Appeal from the PCRA Order July 20, 2016 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000007-2015

BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED MAY 23, 2017

Jacques Shmelyn Foreus appeals from the July 20, 2016 order denying

him PCRA relief. We affirm.

Based upon the following events, on November 23, 2014, Appellant

was charged with conspiracy and aggravated assault graded as second-

degree felonies. At approximately 10:30 p.m. on November 22, 2014,

Chambersburg police were called to the scene of an active fight on King

Street. Their investigation revealed that Appellant and his brother, John,

had assaulted Keemkwing Mathurin, III, with a deadly weapon by striking

him with a beer bottle. “Several witnesses advised [police] that both

subjects punched the victim several times in the head and then struck the

victim in the head with a beer bottle.” Affidavit of Probable Cause,

* Former Justice specially assigned to the Superior Court. J-S26002-17

11/23/14, at 1. Mr. Mathurin went to the emergency room and received

multiple stitches. During his interview with police, Mr. Mathurin confirmed

that his assailants were Appellant and John.

On February 12, 2015, Appellant pled guilty in this action to simple

assault graded as a second-degree misdemeanor. During that proceeding,

he simultaneously tendered a nolo contendere plea in another case, action

number 1664 of 2014, to riot graded as a third-degree felony. The plea

colloquy indicates that the riot offense was based on events occurring during

the night of May 20, 2014, and the morning of May 21, 2014, when

Chambersburg police were twice dispatched to a residence about noise

complaints. Appellant was with a group of five to seven people, became

confrontational with the police, and refused to disperse when ordered to do

so. People in the group tried to interfere when police arrested Appellant.

After entering his guilty/nolo contendere plea in the cases, Appellant

was sentenced to time served of seventy-seven days to eleven months

imprisonment, and was immediately paroled. On November 25, 2015,

Appellant filed a timely, counseled PCRA petition. In his PCRA petition,

Appellant averred the following. He is a citizen of Haiti and not the United

States of America, and plea counsel failed to advise him of the immigration

consequences of entering the plea in question. In July 2015, Appellant was

taken into custody by Immigration and Customs Enforcement and charged

with removability from the United States due to the convictions resulting

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from his February 12, 2015 guilty/nolo contendere plea. Appellant argued

that he was entitled to withdraw the guilty/nolo contendere plea under

Padilla v. Kentucky, 559 U.S. 356 (2010), wherein the United States

Supreme Court ruled that plea counsel is constitutionally ineffective if

counsel fails to inform a defendant of the immigration consequences of

entering a guilty plea to a crime.1

A hearing was held on the PCRA petition, but Appellant failed to

request that the proceeding be transcribed so that a transcript of the hearing

is not contained in the certified record. Nevertheless, that default does not

interfere with our ability to review this matter, and we do not need to order

transcription of the PCRA hearing. Specifically, the PCRA court, Appellant,

and the Commonwealth, in responding to Appellant’s request for PCRA relief,

were all in accord as to the substance of plea counsel’s testimony at that

proceeding. Counsel reported that he told Appellant that there might be

deportation consequences to entry of the guilty/nolo contendere plea but

counsel was not knowledgeable about immigration law. Counsel advised

Appellant that he should consult an immigration attorney before entering his

guilty/nolo contendere plea. Appellant acknowledged being told by plea

____________________________________________

1 We note that, “It is well established that a plea of nolo contendere is treated as a guilty plea in terms of its effect upon a given case.” Commonwealth v. V.G., 9 A.3d 222, 226 (Pa.Super. 2010).

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counsel to obtain the advice of a lawyer versed in immigration law. The

PCRA court concluded that plea counsel’s advice satisfied the mandates of

Padilla and denied relief. This appeal, wherein Appellant presents this

contention, followed:

Whether the trial court erred in denying Appellant's Petition for Post Conviction Relief given that Appellant's counsel was aware of Appellant’s noncitizen immigration status, had represented over 20 other noncitizen defendants in prior criminal guilty pleas, and simply advised Appellant to seek advice from an immigration attorney, without himself ever conferring with immigration counsel, prior to advising Appellant to plead guilty [/nolo contendere]? 2 Appellant’s brief at 4.

Initially, we note that this Court reviews the “denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa.Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444

(Pa. 2015)). “This Court grants great deference to the findings of the PCRA

court, and we will not disturb those findings merely because the record could

support a contrary holding. We will not disturb the PCRA court's findings

unless the record fails to support those findings.” Commonwealth v.

Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation omitted).

2 We note our disapproval of the fact that the Commonwealth has failed to fulfill its responsibility of filing a brief with this Court.

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In order to obtain relief based upon ineffective assistance of counsel,

the defendant must demonstrate: “(1) the underlying claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for his or her

action or inaction; and (3) but for the errors and omissions of counsel, there

is a reasonable probability that the outcome of the proceedings would have

been different.” Id. at 397-98. “A defendant is permitted to withdraw his

guilty plea under the PCRA if ineffective assistance of counsel caused the

defendant to enter an involuntary plea of guilty.” Id. at 397 (citation

omitted); accord Commonwealth v. Fears, 86 A.3d 795, 806–07 (Pa.

2014) (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 appellant to enter an involuntary or unknowing

plea.”).

Herein, Appellant complains that plea counsel’s advice was inadequate.

Specifically, he argues that it was insufficient that counsel warned him that

there might be immigration consequences to entering the guilty/nolo

contendere plea and told him to speak with an immigration lawyer before

entering it. He suggests that his guilty/nolo contendere plea is infirm under

Padilla because that decision requires plea counsel to research immigration

law and properly advise a client. Appellant maintains that he is subject to

automatic deportation due to entry of the guilty/nolo contendere plea and

plea counsel rendered ineffective assistance in not researching the

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immigration issue. Appellant’s brief at 9 (“The holding in Padilla was made

with intention of providing defense attorneys the proper incentive to

research immigration issues to discuss with their clients, and to ensure that

noncitizens ultimately receive advice tailored to their particular situation

whenever possible.”).

We disagree with Appellant’s assertion that the Padilla holding

requires a criminal attorney to learn immigration law and tailor advice

specifically to the client’s situation. We conclude that plea counsel’s advice

that it was a possibility that Appellant could be deported due to entry of the

plea, coupled with counsel’s admonition to consult with an immigration

lawyer, was sufficient to satisfy the mandates of Padilla in this case.

In Padilla, the defendant, a noncitizen, had been a legal resident of

the United States in excess of forty years. Padilla pled guilty to distributing

drugs. During his post-conviction proceeding, Padilla maintained that his

guilty plea was induced by ineffective assistance of plea counsel.

Specifically, plea counsel not only failed to advise Padilla that he faced

deportation due to entry of the plea, counsel actually informed him that he

did not need to concern himself about being deported since he had lived in

this country for such a long period. However, the plea in question was

entered to a crime that results in automatic deportation.

The state court refused to allow Padilla to withdraw his guilty plea,

reasoning that counsel does not render ineffective assistance under the Sixth

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Amendment by offering incorrect deportation advice because deportation is a

collateral consequence of a conviction. The United States Supreme Court

disagreed, holding that deportation is not a collateral consequence of

entering a guilty plea. It observed that the ability to remain in this country

is of great concern to a defendant and may be more important to him than

the potential jail term. The Padilla Court also reviewed the history of

federal immigration law and noted that deportation “as a consequence of a

criminal conviction” had a “close connection to the criminal process” and

could not be characterized as a mere collateral consequence of entry of a

plea. Padilla, 559 U.S. at 366.

The United States Supreme Court also noted that the immigration law

clearly provided for automatic removal for the offense to which Padilla pled

guilty, stating that “the terms of the relevant immigration statute are

succinct, clear, and explicit in defining the [automatic] removal consequence

for Padilla's conviction.” Id. at 368. The Nation’s High Court recognized that

deportation law can be nuanced and may not be entirely clear as to whether

a defendant will be removed from the county due to commission of the

crime. The Padilla Court outlined:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law

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is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

Id. at 369 (footnote omitted).

Clearly, this language does not impose a mandatory duty on defense

counsel to learn the specifics of immigration law and “research immigration

issues,” as suggested by Appellant. Appellant’s brief at 9. Instead, only

when the immigration law is truly clear that the offense will result in

automatic deportation must the defendant be so advised. On the other

hand, where the law is not succinct and straightforward, plea counsel merely

must warn a client that there are immigration consequences to a criminal

conviction.

In the present case, the critical problem with Appellant’s argument is

that he makes no effort to examine the pertinent immigration law and

establish that his guilty/nolo contendere plea to the offenses of simple

assault and riot clearly, succinctly, and explicitly mandated removal, as did

the conviction examined in Padilla. Thus, under that United States

Supreme Court decision, Appellant only had to be advised that there were

possible immigration consequences flowing from entry of the plea. While

Appellant claims that he was not informed by plea counsel that his

guilty/nolo contendere plea carried immigration consequences, this claim is

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contradicted by his concession that he was told to consult with an

immigration lawyer. Simply put, if there were no immigration consequences

to entering the plea in question, then there would have been absolutely no

need for Appellant to obtain advice from an attorney knowledgeable in

immigration law. Appellant thus, by his own concession herein, knew that

there was a possibility of deportation from entry of the guilty/nolo

contendere plea.

Our decision in Commonwealth v. Wah, 42 A.3d 335 (Pa.Super.

2012), is controlling. Therein, Wah entered a negotiated guilty plea to

forgery and Medicaid fraud by illegally receiving funds in excess of $10,000.

He was a citizen of Liberia and was aware that his guilty plea could affect his

immigration status as a legal resident alien. Federal immigration law

provides for deportation for commission of an aggravated felony where the

loss exceeded $10,000.

Wah averred that he was facing mandatory and automatic removal

from this country due to entry of the plea, and that he was entitled to

withdraw his guilty plea under Padilla. This Court in Wah observed that

plea counsel had advised Wah, before entry of the plea, that immigration

consequences could flow from the plea’s entry and that Wah should consult

an immigration lawyer. We concluded plea counsel’s warning was sufficient

to satisfy the mandates of Padilla and that Wah’s plea was not induced by

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ineffective assistance of counsel in connection with the proffered immigration

advice.

Wah maintained that plea counsel had a non-delegable duty to

ascertain the immigration law, and that a cursory review of the immigration

statutes would have revealed that his plea to Medicaid fraud in an amount

greater than $10,000 would be deemed an aggravated felony and subject

him to automatic removal from the country. We rejected that position,

noting that it was not clear whether Medicaid fraud was an “aggravated

felony,” as outlined in the applicable federal statutes.

The Wah Court therefore found “that counsel acted within the range of

professionally competent assistance when he recommended that appellant

seek the advice of an expert in immigration law if he desired to know the

specific consequences of his guilty plea.” Id. at 341; accord

Commonwealth v. Ghisoiu, 63 A.3d 1272, 1273–74 (Pa.Super. 2013)

(finding that plea counsel was not ineffective under Padilla where defendant

was told entry of guilty plea could carry immigration consequences and to

seek advice from immigration lawyer). Herein, Wah and Ghisoiu apply,

and counsel did not ineffectively induce Appellant’s plea because counsel

informed Appellant that there might be immigration consequences to entry

of the guilty/nolo contendere plea and to consult with an immigration

lawyer. The PCRA court therefore did not abuse its discretion in denying

relief under Padilla.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/23/2017

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