Com. v. Kerr, J.

Opinion

J-S01021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JERMAINE L. KERR : : Appellant : No. 959 MDA 2018

Appeal from the PCRA Order May 16, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000367-2016, CP-22-CR-0002787-2015, CP-22-CR-0006724-2014, CP-22-CR-0006728-2014

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.: FILED JANUARY 25, 2019

Jermaine L. Kerr (Appellant) appeals from the order dismissing his

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

§§ 9541-9546. We affirm.

On March 2, 2016, Appellant, a legal permanent resident of the United

States and native of Jamaica, pled guilty to multiple counts of terroristic

threats, simple assault, violations of the Controlled Substance, Drug, Device

and Cosmetic Act, and one count of criminal trespass. The same day, the trial

court sentenced Appellant to 60 months of probation. On November 9, 2016,

the trial court revoked Appellant’s probation for violating numerous conditions

of his supervision, including, inter alia, violating the prohibition on possessing

controlled substances. The same day, the trial court imposed a new sentence

of 3 to 18 months of incarceration.

*Retired Senior Judge assigned to the Superior Court. J-S01021-19

On March 6, 2017, Appellant filed a pro se petition for habeas corpus

relief; the court properly treated the filing as a PCRA petition and appointed

counsel, who filed an amended PCRA petition on January 10, 2018. See

Pa.R.Crim.P. 904(C ). In the interim, Appellant was transferred to the custody

of the United States Department of Homeland Security Immigration and

Customs Enforcement (ICE) officials in York County, Pennsylvania, where he

currently remains.

The PCRA court held a hearing on Appellant’s PCRA petition on March 1

and 22, 2018. On May 16, 2018, the PCRA court denied Appellant’s petition.

On June 12, 2018, Appellant timely appealed to this Court. Both the PCRA

court and Appellant have complied with Rule 1925 of the Pennsylvania Rules

of Appellate Procedure.

On appeal, Appellant presents the following issues for review:

1. Did the PCRA [c]ourt abuse its discretion and commit legal error when it declined to conclude that plea counsel’s failure to advise [Appellant] that he faced deportation amounts to per se ineffectiveness which resulted in [Appellant] entering an unknowing, involuntary, and unintelligent plea?

2. Did the PCRA [c]ourt abuse its discretion and commit legal error when it declined to conclude that plea counsel’s failure to procure a language interpreter during plea negotiations amounts to a denial of the right to counsel which resulted in [Appellant] entering an unknowing, involuntary, and unintelligent plea?

Appellant’s Brief at 2-3.

“In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

-2- J-S01021-19

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and

citations omitted). “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, [that] his conviction or

sentence resulted from one or more of the enumerated errors in 42

Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

Appellant argues that the PCRA court erred in dismissing his ineffective

assistance of counsel claims as they relate to his guilty plea. For his first

issue, Appellant asserts that the PCRA court erred in denying his claim that he

did not enter a knowing, voluntary, and intelligent plea when plea counsel

failed to inform him that he could face deportation by pleading guilty. In

response, the Commonwealth asserts that plea counsel had no way of knowing

that Appellant was not an American citizen because he indicated that he was

an American citizen on his application for representation. For his second issue,

Appellant argues that plea counsel was ineffective for failing to procure an

interpreter for his guilty plea proceedings and that this likewise resulted in a

plea that was not knowing, voluntary, and intelligent. We address these issues

together.

In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

-3- J-S01021-19

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.” Id. (citation omitted). To

demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

“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.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation

omitted). “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.

(quotations and citations omitted). “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

-4- J-S01021-19

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

With respect to valid guilty pleas, this Court has explained:

A valid guilty plea must be knowingly, voluntarily and intelligently entered. The Pennsylvania Rules of Criminal Procedure mandate that pleas be taken in open court, and require the court to conduct an on-the-record colloquy to ascertain whether a defendant is aware of his rights and the consequences of his plea. Specifically, the court must affirmatively demonstrate the defendant understands: (1) the nature of the charges to which he is pleading guilty; (2) the factual basis for the plea; (3) his right to trial by jury; (4) the presumption of innocence; (5) the permissible ranges of sentences and fines possible; and (6) that the court is not bound by the terms of the agreement unless the court accepts the agreement. This Court will evaluate the adequacy of the plea colloquy and the voluntariness of the resulting plea by examining the totality of the circumstances surrounding the entry of that plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted); see also Pa.R.Crim.P. 590.

Importantly, the United States Supreme Court has held that counsel

must inform a noncitizen defendant whether a plea carries a risk of

deportation. Padilla v. Kentucky, 559 U.S. 356, 374 (2010). In Padilla,

the Supreme Court explained:

When the law 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 . . . the duty to give correct advice is equally clear.

-5- J-S01021-19

Id. at 369 (footnote omitted). This Court has held that Padilla requires

counsel to inform a defendant about the risk of deportation, but not its

certainty. Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. 2013);

see also Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super.

2013) (holding that plea counsel’s advice that defendant’s guilty plea would

render him “deportable” was not ineffective).

In rejecting Appellant’s claims, the PCRA court stated:

Here, [Appellant]’s written and signed assertion that he was an American citizen removes him from the protection of Padilla, supra, and Escobar, supra. This [c]ourt credited the testimony of [Appellant]’s plea counsel . . . that she was unaware of [Appellant]’s status as a non-citizen. Because [Appellant] specifically asserted his status as an American citizen in his application, there was no reason whatsoever for [plea counsel] to inform [Appellant] of a risk of deportation. Moreover, [plea counsel] indicated the she and [Appellant] did not have a problem communicating, thereby removing the need to procure a language interpreter. [Plea counsel] facilitated a negotiated plea deal with [Appellant], and he agreed to all terms. His colloquy affirmatively demonstrated that [Appellant] understood what the plea connoted and its consequences. The record simply belies [Appellant]’s assertion that his plea was unknowing, that he should have been provided with an interpreter, and that counsel was ineffective.

PCRA Court Opinion, 9/26/18, at 4.

Based upon our review of the certified record on appeal, including the

transcripts of Appellant’s guilty plea and PCRA hearings, and his written guilty

plea colloquy, we conclude that the PCRA court did not err in dismissing

Appellant’s PCRA petition. The record supports the PCRA court’s

determination that plea counsel was not ineffective and that Appellant’s guilty

plea was knowing, voluntary, and intelligent.

-6- J-S01021-19

At Appellant’s PCRA hearing, plea counsel testified:

Whenever someone fills out an application for representation, one of the questions on there is whether or not they are an American citizen, you circle yes or no. Whenever I look at the file before I meet with my client, I look at this to see their status, their prior record, anything like that. He filled out his application and wrote he was an American citizen. So I would not have talked to him about that.

N.T., 3/22/18, at 5-6.

Thus, plea counsel’s testimony reflects that as a matter of course, when

plea counsel reviews the application for representation of her appointed

clients, she checks whether her clients are American citizens. See id.

Appellant explicitly marked that he was an American citizen on his application

for representation. Id., Exhibit 1. Additionally, our review of the record

reveals that Appellant did not otherwise indicate that he was not an American

citizen prior to his guilty plea. Although Appellant asserts that plea counsel

should have informed him about the risks of deportation associated with

pleading guilty “[i]n an abudance of caution,” Appellant’s Brief at 12, he cites

no authority indicating that plea counsel should have disregarded Appellant’s

notation in his application for representation that he was an American citizen.

Therefore, the record support’s the PCRA court’s conclusion that plea counsel

had no reason to believe that Appellant was not an American citizen, and

consequently, plea counsel was not ineffective for failing to advise Appellant

of the risk of deportation associated with pleading guilty.

-7- J-S01021-19

With respect to Appellant’s claim that plea counsel was ineffective for

failing to procure the assistance of an interpreter, plea counsel testified that

she was unaware that Appellant could not speak, write, or understand the

English language and that she had no issue communicating with him. Id. at

8-9. Moreover, in his written guilty plea colloquy, Appellant specifically

indicated that he was able to read and write and understood all of the terms

of his guilty plea. See Guilty Plea Colloquy, 3/2/16. “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.” Commonwealth v.

Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011). Therefore, the record

likewise supports the PCRA court’s conclusion that plea counsel was not

ineffective for failing to procure the assistance of an interpreter, as it had no

demonstrable effect on Appellant’s ability to understand the terms of the guilty

plea.

Finally, we note that the PCRA court credited plea counsel’s testimony

relating to her belief that Appellant was an American citizen and that he was

able to read and communicate in the English language. “[W]e are bound by

the PCRA court’s credibility determinations when they are supported by the

record.” Commonwealth v. Williams, 141 A.3d 440, 475 (Pa. 2016).

Because the record supports the PCRA court’s credibility determinations, we

-8- J-S01021-19

conclude that the PCRA court did not abuse its discretion in determining that

Appellant’s guilty plea was knowing, voluntary, and intelligent.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/25/2019

-9-