J-S01038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : v. : : MOHAMMAD SOHAIL SALEEM, : : Appellant : No. 645 MDA 2016
Appeal from the PCRA Order March 24, 2016 in the Court of Common Pleas of Lebanon County, Criminal Division, No(s): CP-38-CR-0000565-2014; CP-38-CR-0001112-2014
BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 28, 2017
Mohammad Sohail Saleem (“Saleem”), pro se, appeals from the Order
denying his first Petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”).1 We affirm.
In its Opinion filed on July 22, 2016, the PCRA court set forth the
relevant history underlying the instant appeal. See PCRA Court Opinion,
7/22/16, at 1-12. We adopt the PCRA court’s recitation for the purpose of
this appeal. See id.
Briefly, Saleem pled guilty to indecent assault and the summary
offense of harassment involving two victims.2 The victims were employees
of a small business owned by Saleem. Upon his guilty plea, the trial court
ordered an assessment to determine whether Saleem is a sexually violent
1 42 Pa.C.S.A. §§ 9541-9546. 2 See 18 Pa.C.S.A. §§ 3126, 2709. J-S01038-17
predator pursuant to 42 Pa.C.S.A. § 9792. Saleem was thereafter found to
be a sexually violent predator. At sentencing, following a discussion
regarding possible deportation proceedings, the trial court sentenced Saleem
to an aggregate prison term of 21 months to 10 years. Saleem
subsequently filed two post-sentence Motions claiming ineffective assistance
of counsel, which the trial court denied without prejudice to Saleem for
seeking relief under the PCRA.
Saleem timely filed the instant pro se PCRA Petition, claiming that his
plea was unknowing and involuntary. In his Petition, Saleem asserted that
he had been promised that he would be deported if he entered a guilty plea.
The PCRA court appointed counsel to represent Saleem. At the evidentiary
hearing, Saleem’s PCRA counsel argued that the plea agreement required
the immediate deportation of Saleem, and that the Commonwealth violated
this agreement. The PCRA court denied Saleem’s Petition. Although Saleem
was represented by counsel, Saleem subsequently filed numerous pro se
documents, including a pro se Notice of Appeal, followed by a pro se court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal. After a Grazier3 hearing, the trial court permitted Saleem to
proceed pro se, but with appointed stand-by counsel. Saleem subsequently
filed a revised Rule 1925(b) Concise Statement, which raised additional
claims.
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-2- J-S01038-17
Saleem now presents the following claims for our review:
1. Whether the evidence presented in the PCRA [c]ourt was sufficient to establish that trial counsel was ineffective by coercing or misleading [Saleem] to enter a guilty plea [that] was not knowingly, voluntarily and intelligently entered?
2. Whether the PCRA [c]ourt erred in denying [Saleem’s] PCRA Petition where a plea of guilty was induced[,] and [Saleem] is innocent?
3. Whether the sentencing and PCRA [j]udge, Bradford H. Charles [(“Judge Charles”),] demonstrated bias by statements [he] made during the proceedings?
4. Whether PCRA [c]ounsel was ineffective in failing to investigate and raise claims of arguable merit?
Brief for Appellant at 7.
Because they are related, we will address Saleem’s first two claims
together. Saleem first claims that the PCRA court improperly determined his
plea was not unknowing, involuntary and misleading. Id. at 16. Saleem
contends that his plea counsel coerced and misled him into pleading guilty,
based upon a representation that Saleem would be immediately deported to
Pakistan. Id. Saleem quotes a letter from his plea counsel, which stated
the following: “The District Attorney’s Office would also agree to include a
provision in the sentencing order that they have no objection to your
immediate deportation.” Id. Saleem contends that his counsel left him with
the impression that he would be deported immediately. Id. at 17. Saleem
further argues that his counsel rendered ineffective assistance by not
objecting or informing Saleem that he could withdraw his plea. Id. at 18.
-3- J-S01038-17
According to Saleem, the sentencing judge appeared to be unaware that
another judge had accepted Saleem’s plea, which was conditioned upon
Saleem’s immediate deportation. Id. at 20.
In his second claim of error, Saleem argues that the PCRA court
improperly denied him relief, where his guilty plea was “unlawfully induced
where the circumstances make it likely that the inducement caused him to
plead guilty and he is innocent.” Id. at 23. Saleem again asserts that he
was unlawfully induced to plead guilty with a promise of immediate
deportation. Id. Saleem argues that the sentencing judge disagreed with
the judge who accepted his plea. Id. at 24. According to Saleem, he is
innocent, and a surveillance video would prove his innocence. Id.
“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.”
Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and
internal quotation marks omitted).
Where a PCRA court fails to support its holding with sufficient explanations of the facts and law, or fails to provide an adequate opinion addressing all of the claims raised in a PCRA petition, including factual and credibility disputes, a remand is appropriate.
Id. at 410.
“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.
-4- J-S01038-17
Mitchell, 105 A.3d 1257, 1272 (Pa. 2014) (citations omitted). To prevail on
a claim of ineffective assistance of counsel under the PCRA, a petitioner
must plead and prove 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.” 42
Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the
underlying claim has arguable merit; second, that counsel had no reasonable
basis for his action or inaction; and third, that [a]ppellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014),
“Where it is clear that a petitioner has failed to meet any of the three,
distinct prongs of the … test, the claim may be disposed of on that basis
alone, without a determination of whether the other two prongs have been
met.” Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008).
“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 and internal quotation marks omitted). “[C]ounsel is presumed to
be effective and the burden of demonstrating ineffectiveness rests on
[a]ppellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.
2011). Additionally, “counsel cannot be held ineffective for failing to pursue
-5- J-S01038-17
a meritless claim[.]” Commonwealth v. Hall, 867 A.2d 619, 632 (Pa.
Super. 2005).
Upon our review of the parties’ briefs and the certified record, we
agree with the sound analysis of the PCRA court, as set forth in its Opinion,
and its conclusion that Saleem’s claims lack arguable merit. See PCRA
Court Opinion, 7/22/16, at 15-21. Specifically, the PCRA court found that
there was no promise of immediate deportation in exchange for Saleem’s
plea, and counsel did not render ineffective assistance in this regard. See
id. We therefore affirm on the basis of the PCRA court’s Opinion with regard
to this claim.4 See id.
In his third claim, Saleem argues that the sentencing judge was biased
against him. Brief for Appellant at 26. Saleem directs our attention to the
following hypothetical, stated by the sentencing judge, as an example of
how Saleem could be permitted back into the United States, even after
deportation:
Let me give a hypothetical. Let’s say that [Saleem’s] ever in Pakistan. He comes into knowledge about a terrorist. He goes to the United States Consulate and says, I’ll give up this terrorist. I’ll let you know where he is, I’ll let you know where he’s staying, but you are going to have to let me come back and live with my family in America. Now, when that happens—if that happens—the federal government is going to say, hum, we can take out a terrorist who’s dangerous to thousands of people and may commit horrific acts and all we have to do is let this guy
4 We additionally note that, at the sentencing hearing, the Commonwealth informed the trial court that deportation proceedings had been instituted based upon two prior convictions for sexual assault, relating to different victims, which took place in 2009. N.T., 6/3/15, at 5-6.
-6- J-S01038-17
come back and live in America with his wife and children. That’s going to be awful tempting.
Brief for Appellant at 26 (quoting N.T., 6/3/15, at 11-12). Saleem argues
that the judge’s comments demonstrate the judge’s prejudice against him.
Id. Saleem also directs our attention to the sentencing judge’s explanation
regarding the court’s concern that Saleem would not be incarcerated in
Pakistan:
[Saleem’s] not going to be put in jail in Pakistan. I can’t—I’m speculating when I say that he might be viewed as a hero there, but—and that is speculation. But I know that he gets off that plane in Islamabad, the American officials are going to send him out of a gate, take his handcuffs off, and say, bye, bye. And he’s free as a bird. In fact, that I know and that’s not something I’m comfortable with.
Brief for Appellant at 27 (quoting N.T., 6/3/16, at 16).
Our review of the record discloses that Saleem did not raise this claim
in his PCRA Petition or before the PCRA court. Accordingly, it is not
preserved for appellate review. See Pa.R.A.P. 302(a) (stating that a claim
cannot be raised for the first time on appeal).
In his final claim, Saleem argues that his PCRA counsel rendered
ineffective assistance for failing to investigate and raise claims of arguable
merit. Brief for Appellant at 29. Specifically, Saleem argues that his PCRA
counsel failed to raise the second and third claims Saleem now raises in this
appeal. Id. In support, Saleem baldly assets that his claims have arguable
merit; counsel had no basis for not presenting the claims; and the claims,
-7- J-S01038-17
and their cumulative effect, had an adverse effect on the outcome of the
proceedings. Id. at 30.
Regarding Saleem’s claim of ineffective assistance of PCRA counsel,
based upon an alleged promise of immediate deportation, we note that
Saleem challenged his plea agreement before the PCRA court. During the
PCRA proceedings, the PCRA court asked counsel, in Saleem’s presence, as
to the issues that Saleem sought to raise in the PCRA proceedings. N.T.,
3/24/16, at 3. Counsel indicated that Saleem sought to challenge only his
guilty plea as unknowing and involuntary, based upon Saleem’s belief that
the agreement provided for immediate deportation. Id. Thus, Saleem’s
challenge to PCRA counsel’s actions lacks arguable merit, as counsel, in fact,
challenged the plea agreement.5
Under these circumstances, we conclude that Saleem’s claim of PCRA
counsel’s ineffectiveness, based upon an alleged promise of immediate
deportation, lacks arguable merit. At the PCRA hearing, Saleem
acknowledged the Commonwealth’s agreement that it would not object to
deportation. N.T., 3/24/16, at 11. The Commonwealth complied with the
plea agreement. The Commonwealth, in compliance with the agreement,
lodged no objection to the immediate deportation of Saleem. Id. at 11.
Consequently, there is no arguable merit to Saleem’s underlying claim. See
5 Our review of the notes of testimony from the sentencing hearing further discloses that the trial court correctly informed Saleem that it had no involvement with federal deportation proceedings. N.T., 6/3/15, at 19, 21- 22; see also PCRA Court Opinion, 7/22/16, at 15-20.
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Steele, 961 A.2d at 797 (stating that where a petitioner fails to meet any of
the three prongs of the ineffectiveness test, the claim may be disposed of on
that basis alone).
We further conclude that Saleem’s claim of ineffective assistance,
based upon PCRA counsel’s failure to allege bias by the sentencing judge, is
waived, based upon Saleem’s failure to raise the issue before the PCRA
court. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the
first time on appeal); see also Commonwealth v. Henkel, 90 A.3d 16,
29-30 (Pa. Super. 2014) (en banc) (finding ineffective assistance of PCRA
counsel claims cannot be raised for the first time on appeal). We therefore
affirm the Order of the PCRA court.
Motion to Expedite denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/28/2017
-9- Circulated 03/06/2017 12:09 PM
ENTERED\ f-i;_t:_J CLERK OF COURTS IN THE COURT OF COMMON PLEAS LEBAN.0:NA.00.UNZl'Y PENNSYLVANIA Zul5 JUL 22 Pf'l 3 21 CRIMINAL DIVISION
COMMONWEAL TH OF NO. CP-38-CR-565-2014 PENNSYLVANIA CP-38-CR-1112-2014
v. MOHAMMAD SOHAIL SALEEM
APPEARANCES
Jared Hinsey, Esquire For Commonwealth of Pennsylvania DISTRI.CT ATTORNEY'S OFFICE
Mohammed Sohail Saleem Pro Se
OPINION BY CHARLES, J., July 22, 2016
On March 24, 2016, we presided over a Post-Conviction Relief Act
(PCRA) Hearing in the above-referenced case. Prior to the hearing,
Mohammad Sohail Saleem (hereafter "DEFENDANT"}, through his counsel,
identified only one issue that he intended to pursue via his PCRA Petition:
Whether DEFENDANT's guilty plea counsel was ineffective for telling
DEFENDANT he would be immediately deported to Pakistan? After
conducting a hearing, we rejected DEFENDANT's claims. Thereafter, he
filed an Appeal. After discharging his counsel and choosing to represent
himself, DEFENDANT filed a pro se Statement of Errors Complained of on
Appeal that attempted to raise new issues. We issue this Opinion under
Pa. R.A.P. 1925 in order to address the issue that DEFENDANT did properly
I raise at the time of his PCRA hearing and to explain. why we will not address
-thcse issues DEFENDANT now wishes to add.
I. PROCEDURAL BACKGROUND
DEFENDANT was charged in two 2014 dockets with various sexuatly-
related offenses. All of the offenses involved sexual assaults committed by
DEFENDANT upon women who were employed by a small business owned
by him. ·with respect to Docket CR-565-2014, the Commonwealth charged
DEFENDANT with sexually assaulting a woman who we will call J.J. by ....... ---···--·---·· - Rissmg her, grabbing her, fondling her and eventually ejaculating on her.
On Docket CR-1112-2014, the Commonwealth charged DEFENDANT with
groping the breasts of another employee who we will call C.M.
Following the filing of the 2014 charges, the Commonwealth filed a
. Notice. under Pa.R.Ev. 404(b). In its Notice, the Commonwealth referenced
two prior incidents of sexual abuse committed by DEFENDANT upon other
employees and asked that they be admitted to establish motive, intent and.
common scheme. In its Notice, the Commonwealth indicated that
DEFENDANT was convicted of the prior sexual assaults in 2009.1 A hearing
was conducted on October 29, 2014 regarding the Commonwealth's Rule
404(b) motion. As a result of that hearing, we determined the following
commonalities with .respect to DEFENDANT's two prior victims and the
victims of the above-referenced charges:
.•.. ·-- -~- -- . ..., ,:;- .. ·.- ~· __ : • ·
I See Docket CP-38-CR-386-2009. (1) All of the women were Caucasian;
(2) All of the women were relatively young;
(3) All of the women were employed by DEFENDANT at his business;
(4) All of the women were financially dependent upon DEFENDANT;
(5) With respect to each victim, DEFENDANT -groped, grabbed and/or
fondled her breasts;
(6) Each woman testified that DEFENDANT made a habit of hugging her
in a "bear hug" that made her uncomfortable;
(7) Each of the women described that incidents of sexual misconduct
occurred in a room known as the "back room" of the Quick Cell facility.
Based upon all of the information presented, we determined that the
incidents relative to all four victims were sufficiently similar so as to be
"probative of DEFENDANT's motive, opportunity, intent, preparation, plan
and knowledge." We consolidated Dockets 565-2014 and 1112-2014 for
the purpose of trial. However, we could not decide based on the record
before us whether the relevance of the prior victims' testimony would
outweigh the prejudice that would be caused by such testimony. We
therefore deferred a final decision regarding admissibility of the prior
victims' testimony until after the testimony of J.J. and 8.8. could be
presented at trial. (See Court Order dated 10/29/2014).
After numerous continuances, the above-referenced dockets were
eventually listed for trial during the April 2015 term of court. On April 21,
2015, DEFENDANT entered a plea of guilty. Because DEFENDANT's
3 offense.s were within the ambit of Pennsylvania's .Megan's . Law, he was
ordered to undergo an ·evaluation by the .sexuat.ottenders Assessment
Board.
On June 3, 2015, weconducted a sentencing hearing at which we also
addressed DEFENDANT's status under Megan's Law. Relying upon the
report of Dr. Robert Stein, we declared DEFENDANT to be. a sexually violent
predator and wedirected-ntm. to -comply with.,the+reg:istrati~n- and reportirl'g·
requirements applicable to sexually violent predators· by Pennsylvania's
Megan's Law . . . ·
With respect to sentencing, the Commonwealth communicated that it
had nol prossed Counts 1, 2, 5_and 6 on D.ocket.565-2014 .. Effectively,- we
were. asked to sentence DEFENDANT on two counts of Indecent. Assault
relating to .J .-J. and an additional count of Indecent.Assa ult relating to 8. 8.
We were told that the sentencing ranges applicable to the two Indecent
Assault charges on Docket 565-2014 were: RS-9.and the sentencing range - . . . .. -· .•.
applicable to Docket No. 1112-2014 was: RS-3.
At sentencing, we were told that deportation proceedings had been commenced against DEFENDANT. (Sentencing N.T. 4). We were told by
the prosecutor: "l don't think that there's anything that you can do that will
keep him here in this country at this point." ·(Sentencing N.T. 7). · We were
also told by victim 8. 8. that she vehemently opposed a resolution that would
permit DEFENDANT to return to Pakistan without serving significant
incarceration .. (Sentencing N.T. 13-14). · This Court entered into an exchange with counsel regarding
deportation. We expressed our sympathy with the position articulated by
the victim. We stated:
The Court: ... He gets deported next week, he will have done three plus months in prison. And he's going to get off the plane in Islamabad and the American officials are going to say, bye-bye.
Mr. Grenoble: I don't know that to be fact, your Honor. I ·don't know what the 'consequences Will be.' · ·
The Court: He's not going to be put in jail in Pakistan. I can't - I'm speculating when I say that he might be viewed as a hero there, but - and that is speculation. But I know that when he gets off that plane in Islamabad, the American officials are going to send him out the gate, take his handcuffs off, and say, bye-bye. And he's free as a bird. In fact, that I know and that's not something I am comfortable with.
(Sentencing N.T. 16).
During the sentencing proceeding, another exchange occurred that
DEFENDANT now cites as "proof" that this Jurist was prejudiced against
him. That exchange involved the possibility of DEFENDANT's return to
America after following deportation. The prosecutor posited that it might
be in the best interest of Pennsylvania for DEFENDANT to be deported
rather than have the taxpayers pay for his incarceration in a state
correctional facility for up to 25 years. She stated: "But I also feel like we
are doing a service by being able to get him out of here and never letting
him come back .... There's no reason why he will ever be able to come back
to this country again regardless of the fact that his wife and children still
5 reside .here." (Sentencing N.T. 11). We responded to :the ·prosecutor's
· statementtnat+no reasont.would ever exist:that:.woald'-allow:DEFENDANT -
to return to the country by stating:
Let me give you a hypothetical. Let's say that he's over in Pakistan. He comes into knowledge about a terrorist. He goes ._ to the .United States Consulate and he saya- !'·II give up 'th is terrorist -I'lt let you 'know where he is;-1'11 let you 'knew where he's staying, .but.you'rs going to have to Jet.me come back and live with .my family in America. Now, when that happens - if that happens»- .thefederal goveriiment-is going to-say, hum, we ···can take-out a terrorist who's dangerous to thousands of people and may commit horrific acts and all we have to do is let this guy come back and live in America with ·his w,ife and children; - . . That's going -to :-b$ .:·~Y{f_ul - tem~Hng. ·That's .. ssas to -be awf.u~L · tempting.
(Sentencing N.T. 11-12). Before ending the discussion, we again
emphasized that our example was merely hypothetical. (Sentencing N. T. , .. : ~-- -·-:- .·. :,:...... . - ;. . . .. : ,. . .
12-13). Nevertheless DEFENDANT now claims that we classified him as a
terrorist. . . .. . . Ultimately; we made the decision to sentence DEFENDANT without . .
- regard-to ·,possible deportation consequences. Before imposing sentence,
th is Court stated:
If I am looking at this as I would any other case and I have a gentleman who has two prior convictions for the same thing, is - before- me- for two sexual assaults, and I have a victim here · saying, lock him up and throw away the key, do you think I am going .to -give bottom of the standard range under those . , .clrcumstancesv If you do, you don't know me well enough. So c-!'. fQrgef-:abo,ul:.H.akistan. If I am looking .at th-is as-I would· any. other case, he's-not looking at the bottom of the standard range . . . · ... He's looking at the top of the standard range .. We concluded by stating: .. .... ~ •·•,·,.:;-:'..,-::.'.-: ,.." . ,·.: '. ..•. :· .: ...
-And+ thlnkin this case I have to. be wiseenough to .know -· " ----0• -
· ..-. - · ·-- --···-·----- ,; ~ .....·:· ' • j - --\I -:.--~-·"'·~- 'n1~.:..;,_ ", .,:,;--;_::;; ': ..:;.\:f'J ~-t--··ther.o- ..~ -:e- ·J· us·~ 'l ,-J.-, ·~ u;_.•,.-~-r,e rta n th"1ngs •: . I - can .. r~~;;ti._f.r.l•:: .J-: ;,.: . not : ·. _.' ':.•-:.cO· ." '1 · ... "·t,r·ol·.:·.·:,,'···~l''!\· . ,.~,-11.,n· ' .·-.d- ._.:.·::1..-:.~·_ . ,f'1·,r.-:,;>;.·C!.t.:·,:.::a, ..:n_, ·d-:_. ··,-··:~.,.:- ,...,:-:· .- :tP: ·L .' ·!.~':·/ foremost, among those is what the federal government decides to do with its immigration policies. They don't give a rip what I say and they're going to do what they're going to do regardless of what I do. So I am going to analyze this case just as though Mr. Saleem were an American citizen and just as though Pakistan and ICE had nothing to do with this situation. And when I analyze this case in that way, I have to consider that Mr. Saleem is a serial sex offender, that he did this before in 2009, that he had rehabilitative opportunities to see the error of his ways and modify his behavior and instead of doing that, he choose to victimize additional ladies. I have to look at the fact that he was the -owner of a business and th'ese ladiesworked forhim. They were under his supervision. He had a degree of control over them, economically, if no other way. I have to look at the nature of the indecent assault. There are indecent assaults and there are indecent assaults. The conduct is rather broad. And this is on the worst side of the continuum and not the better side of the continuum if there is such a thing. And I have to look at the fact that there are two separate victims of Mr. Saleem's conduct. And I am going to fashion a sentence based on what is now before me just as I would any other person under similar circumstances without regard to the immigration implications of what's going to happen thereafter. At that point, ICE will do what ICE will do and I have to recognize that there's nothing I can do about their decision making process.
(Sentencing N. T. 19-20).
Ultimately, we sentenced DEFENDANT on Docket 565-~014 to serve
an aggregate sentence of 18 months to 8 years. On Docket 1112-2014, we
sentenced DEFENDANT to serve a consecutive sentence of 3 months to 2
years. DEFENDANT's total sentence was therefore 21 months to 1 O years.
All of DEFENDANT's individual sentences were within the standard range
governing his charges.
On July 3, 2015, DEFENDANT filed a prose Post-Sentence Motion in
which he challenged the effectiveness of his counsel. We denied that
motion and articulated that.his claims would better be addressed under a
7 PCRA Petition. On July 31, 2015, DEFENDA_N_T_aga.inJHes:L~.PtO se Post-
Sentence ·Motion\,.'· Because · his second motion also challenged thE!
. effectiveness . of counsel, we . again declared that DEFENDANT should
present his claims via a PCRA Petition.
Following our. denial. of DEFENDANT'.s untimely Post-Sentence·
Motion, DEFENDANT hired Attorney Kristen .Weisenberger .. On September
1, 2015, DEF.EN DANT. filed .a.counsered r : RCRA . .Petition.~,),The ·. sote .lssue
raised in the PCRA involved the .voluntariness of DEFENDANT's plea.
--DEFENDANT .argue9:~tn.~~t.·his-·plea was .PI~.c:JJ.9 . ~te_d··u~on a··promi~~..:Jbat he__
would be deported to Pakistan. · When. deportation. did. not· occur..
DEFENDANTargued:tha.Lhe was deprived of the . .be.nefitof his .bargain. He
also argued that his -guilty plea counsel was ineffective for leading him to
betleve-that.deportatlon would occur. This Court determined that the issues
raised by- DEFENDANT triggered the need :for a hearing .. Eventually, a
hearing was-conducted on March 24, 2016 regarding DEFENDANT's PCRA -:
As _.is the custom of this Court, -we asked DEFENDANT's counsel to . .
· artlculate.ln h.er ...client's presence all grounds that were being pursued in
the PCRA Petition. Attorney Weisenberger focused .upon the argument that
DEFENDANT's_ plea ·agreement called for immediate deportation and the
Court's sentence violated that plea agreement. She stated:
We believe Mr. Saleem's guilty plea had not been entered .... __ .. knowingl.y and. voluntarily and intelligently ·based upon the ine.ffective--assista nee of counsel under the _believe that he had. -· i..,';:+.~;:;-~_:::"-'- ,~-"..;":;:,t;,;la~p.L-aa:'.!'ag.ne.,ement to be immediately deported -to Paklstan.«: .. : - :
0 ,./
(PCRA N.T. 3). After hearing testimony on this issue from DEFENDANT,
Attorney Megan-Ryland Tanner and Attorney David Warner, we issued a
Court Order .to deny DEFENDANT's PCRA relief. In that Court Order, we
stated:
AND NOW, to wit, this 24th day of March, 2016, after hearing, the Court reaches the following findings of fact:
A. The Defendant entered a plea of guilty before this Gou it on April 2-1, '2015. The :plea was entered pursuant to a plea agreement whereby the Commonwealth agreed to waive applicable mandatory sentences. In return the Defendant agreed to enter a plea of guilty to two misdemeanor counts of simple assault and the Defendant agreed that the sentence on those counts would be totally in the discretion of the Judge.
B. As part of the plea agreement the District Attorney's office agreed that it would have no objection to deportation and it further agreed that it would not take any action to prevent - -deportation. However, immediate deportation was- NOT a part of the parties' plea agreement. In fact, the District Attorney's office took the position that it could not control deportation and that deportation was a collateral consequence totally within the purview of the federal government. Moreover, the Defendant's attorney also stated that he told his client that deportation was not a part of the plea agreement and that the District Attorney's office made no promises regarding deportation.
C. To his credit, the Defendant's attorney wrote a comprehensive letter to the Defendant dated April 13., 2015. This letter set forth in concise and understandable language exactly where the Defendant stood with respect to the charges he was facing. The letter sent by the Defendant' counsel communicated that there was no guarantee that the Defendant would be deported. Specifically, the letter stated: "There is no way to determine how much of your sentence you will have to serve before you are deported. It is possible that you would have to serve your entire sentence, possibly 50 years or more, before, you are deported."
"'' ·:· -D.. In addition to the above, the Defendant hired his own immigration counsel and met with that immigration counsel ;0.<: 0i._:,£:c-;:.:.:. :r,-,/:;:,;,: ::-00 .numeroua-oeeastons. The Defendant's -guilty plea counsel
9 .. __ --~- was.nct.an.immlqratton expert and advised the . Detendant.ot this fact. · ·
E. vt« find the Defendant's counsel's version of discussions with his client to be credible .. We also find the defense counsel's testimony was corroborated by the written . ,-a· _ - - -: -,"--letter he provided to the Defendant dated April 13, 2015. · .Based in no small part on the defense counsel's credible testimony and the testimony of the prosecutor, we determine- as a· fact that - immediate deportation was not a part of the parties' bargain for . exchange during the plea bargain process. ·
, · F>· The issue - of deportation · 'arose -at the -tlme -of>· - sentencing. After a lengthy discussion the Court ultimately decided . to sentence the Defendant .wlthout regard,- to any possible deportation consequences. Essentially we treated the :---Defend-ant-exactly as we would have treated-an American citizen if that - citizen were . before this Court under identical circumstances .
. .. c--.,.c, G, . In reviewing the totality of lntormation .presented -at __
today's hearing, we conclude unequivocally and without hesitation that Attorney David Warner was not ineffective in his - representation of the Defendant. In fact, we perceive ·of very little else -that Attorney Warner could --p·os·s·Ibly: have·::done· re _ outltne.opttons for the Defendant and the risks of pursuing each option. · ·
: · H; We find the Defendant's guilty·p1e·a"was knowingly,· voluntarily and intelligently entered and his effort today to -- ---disavow the voluntariness of that plea is rejected+: ·,----., ._- · . . . . . . . . '
- : Accordingly, the Defendant's Motion for Rellef-urrder the Pennsylvania Post Conviction _ Relief Act is denied. The Defendant-is · advised that he has thirtr(-30) 'days · from today's date in which to appeal the decision we have rendered today.
A copy of. this Order is to be provided to the District Attorney of Lebanon County, to the Defendant's PCRA·counsel, .: -· and to the-Defendant by certified mail, return receipt requested.
BY THE COURT:
Isl Bradford H. Charles
BRADFORD H. CHARLES
1 /"\ Following our March 24, 2016 Court Order.. DEFENDANT filed a flurry
-of pro se documents. Among those documents was a Notice of Appeal. On
April 18, 201'6,- we issued a- Court Order noting that DEFENDANT was
represented by privately-paid counsel. As a result, we declined to entertain
any of DEFENDANT's pro se motions other than his Notice of Appeal. We
also issued an Order under Pa.R.A.P. 1925 directing DEFENDANT to
identify the issues he intended to raise on appeal.
On May 4, 2016, Attorney Weisenberger filed a Motion to Withdraw
as Counsel. On May 9, 2016, DEFENDANT filed his -initial Statement of
Errors Complained of on Appeal. In that Statement, he raised numerous
additional issues that had not been raised at the time of the PCRA Hearing,
including the following:
• That his PCRA counsel was ineffective;
• That video evidence existed that would prove his innocence;
• That his prior counsel was ineffective for failing to rebut the
Commonwealth's Megan's Law assessment;
• That the Judge should have disqualified himself.
None of the- issues contained in DEFENDANT's first Statement of Errors
included the issues that had been litigated in the PCRA hearing.
On June 14, 2016, we conducted a Grazier hearing to determine
- whether DEFENDANT wished to represent himself. After conducting a
colloquy with DEFENDANT, we learned that he did in fact wish to represent
-_-_ himself. However, he also asked that standby counsel be appointed. We
11 therefore appointed the Lebanon County Pu.b.JiQ.D_e.tell_d~r'.JLQ.ttite]p serve
· as .standby counsel. -At the-request of the Public Defender, we .afforded
DEFENDANT wlthadditlonal time to file an Amended Statement of Errors
Complained of on Appeal.
On July -10, 2016, DEFENDANT filed a second Statement of Errors
Complalned.of .on Appeal.'. In his second Statement of Errors, DEFENDANT
stated that the court's dectsionto ·deny his PORA teliefwas· "arbitrary and
capricious." He also complained about the Court's /'.interpretation" of a
letter introduced- at the PCRA hearing through his prior counael, Be..c.a.u.se ..
these issues arguably implicate the decisions we rendered following the
PCRA hearing, we will address via this Opinion our reasoning with respect
to ,DEFENDANI's PCRA. - However, DEFENDANT'S revised Statement of
-v. ... Errors alsolncluded numerous other issues--that-were-not-r-aised or litigated
. . at the timeof the PORA-hearing. Once again, t>EFENDANt argued that his . . . . f PCRA- ·counsel was- ineffective, that his guilty plea counsel· should have
... challenged the ,Megan'.s Law-aesessment, -that· the -Judge .. should· have
disqualified himself, · that a video hard drive would have proven his
innocence,· and that some-sort ct civil proceeding is pending. For reasons
we will articulate below, we will not address the issues that DEFENDANT
declined to raise at the time of his PCRA hearing.
:·;_·• ..... ,... ... . . . .. • ,·• ~; ••.• ·:·.; ,•. ,'-J.'":"..::l' .• ...ii:.. ,- ....-........ ...,..~._ .... , ..... • •• ··.,_ •• . _-;,· .. • ... ·-··-·· II. ISSUES THAT WERE WAIVED
Prior to the commencement of any PCRA hearing, we routinely ask
counsel to identify in the presence of the client what issues are going to be
litigated during the PCRA hearing. We undertake this action for three
reasons:
(1) To focus the testimony and evidence on the issues actually in dispute;
.and
(2) · To afford DEFENDANT with the opportunity to correct and/or clarify
what counsel indicates. if additional unarticulated issues are sought
to be raised; and
(3) To prevent incessant litigation by defendants who desire to serially
raise additional PCRA issues as time marches on.
lrrthls easer DEFENDANT's -counsel was asked to articulate all issues sought to be addressed via the PCRA hearing. Counsel noted only one -
that DEFENDANT's guilty plea was not voluntary due to ineffective
-assistance--of counsel in· leading DEFENDANT to believe that he would be
immediately deported to Pakistan. It is this issue that we addressed during
the March 24, 2016 hearing.
After we- denied DEFENDANT's PCRA claim; he subsequently
attempted to raise numerous other issues. By failing to raise and pursue
these Issuesat the time of the March 24, 2016 PCRA hearing, DEFENDANT
has waived his right to pursue those issues via appeal.
13 ItJs.axlomatlo.that _PCRA claims mustbe .assertedwith.speciflclty .
. See·· Commonwealth v;~.-Reyes,· 870 A.2d aaa··(Pa·;··,:2005). ·' Vague ,or
. .. conclusory allegations. are not preserved for ·. appellate review.
Commonwealth·v. Lambert, 765 A.2d 306 (Pa.Super. 2000). · 1n fact, our
Gommonwealth'-s ·highest ·court· has declared· "it-ia-wel t-setttsdthat claims
raised outside-of .a court-authorized PCRA -Petition are subject to· waiver
regardless of whether -the Commonwealth -ralses-: a timely and
_ objectionJo . .thern. at the-time .. they are raised /1- -Commonwealth v. Mason,
. 130 A.2d 601-;---627 (Pa. 20-15). · In· M_as_oni' ·the__:_SuJfre~m.EL ...Co.u.rt· oL
Pennsylvania.stated: "The Petitioner bears the onus of informing the PCRA
.courtthat.he er .she-eeeks to add claims through an amended petition, and,
. in response, the court ·shall freely grant leave to amend where doing so 11 achieves substantial-justice .... Id. at 627. Wher~ no such· amendment of .... ' -~··
the -PCRA Petition is sought, the Defendant must be deemed to have waived
any issues not presented to the lower court. See Commonwealth v. Mason, supra. •"• ,,,. ,--,;· ~. •"·••'••Jo•·--., •••••,o,-..N;..-·•' '•"'.'---- •-: ":·••• •• 0 ,;_. ••
The, Pennsylvania Superior Court has followed the lead of the
-··Supreme Court. In Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super.
20-12), a defendan.t sought to add two new assertions of trial ineffectiveness
.- - ·.. durin.g .. thecourse ot.hls appeal. Because neither issue was raised in an
Amended, PCRA,.Petition; -the-superlor Court .stated: , "Having not-acupht
permission to amend his petition to raise these new claims, the PCRA court
was not required to address the issues and it did not." Id. at 1192.
1 A _ In this case, DEFENDANT .raised one .IssueJn.his counseled PCRA
Petition. Prior to the hearing that was conducted; the Court invited
DEFENDANT to ·articulate all issues that he intended to pursue. In
DEFENDANT's presence, counsel noted only one issue - the one involving
DEFENDANT's alleged right to immediate deportation. This is the issue
that was addressed at length in the March 24, 2016 hearing, and it is the
only issue that we adjudicated foiioWing the hearing.
To the extent that DEFENDANT now claims to-add-additional issues,
he should be precluded from doing so by virtue of the doctrine of waiver.
By failing to articulate his claims he now wishes to pursue regarding the
Judge and the allegedly exculpatory video, DEFENDANT waived those
issues; Accordingly, we will not substantively address them."
Ill ... ISSUE PERTAINING TO PURPORTED PLEA AGREEMENT
The sole issue that was preserved by DEFENDANT for appellate
review was aptly articulated by his attorney prior to the PCRA hearing.
Attorney Weisenberger stated in response to an inquiry by the Court:
2 With the above being said, we wish to note that DEFENDANT's arguments regarding disqualification of the Judge are predicated upon hyperbole. For example, DEFENDANT's Rule 1925 Statements indicate that the Judge called him a "terrorist." This is simply not accurate. In response to a statement proffered by the prosecutor, the Judge provided a hypothetical scenario by which DEFENDANT could earn a return to America. The Judge emphasized on numerous occasions that his comments were "hypothetical" and not based upon a belief that DEFENDANT was . .in fact a terrorist. In addition, DEFENDANT points to a letter from the mother of an aggrieved litigant that was published in a local paper as proof that the Judge had "numerous complaints" proffered against him. Similarly, DEFENDANT has investigated the background of the Judge. Because the Judge's son is a Navy SEAL who works for the Defense Department and because the Judge himself has led church-related mission trips to Ecuador, DEFENDANT hypothesizes that the Judge must be prejudiced against Muslims like himself. Such claims are wildly exaggerated and have no basis in fact. · -,· · · -. · ·
15 . . Your. Honor, .. what we· filed is what we.'.re>.stic.kin.g~:_with.;.<:.,We .... ·- indicated that we believe Mr. Saleem's guilty plea had not been . . ·,,, :· ,·_ . ·--~ . :ente red,:k·nowi ng ly . a n d i nvo I u nta ri I y and .tnte lligentl~cb'aserkapo n . . . the ineffective assistance of counsel under the beiief that he· ,.had. a.plea -aqreernent to be immediately deported to Pakistan. That obviously did not occur in that he's still here. And he is contesting.that he only entered the plea upon the faulty advice of counsel that he was going to be immediately deported. I thin.k that's the basis of it. · · ·- · --·- · ·... : .. ··, -· -·- ·
On the issue ·raised by DEFENDANT, we.. heard testimony from three
witnesses, including DEFENDANT himself. Among the evidence-that we / ..
heard was the following:
e . The·. written---guiltt=~lea · colloguY- set -Iorth ·DEEE.N.D.ANI'·s pJea
agreement. That plea agreement was: "Commonwealth to nol pros
'; . Counts 1, 2, -5, 6 at sentencing. Defendant to . plead open .
. · .,,i:.,Commonwealth has no objection to immediate deportation." (Exh,
2 and 3; PCRA N:T. 11).
•---During -DEFENDANT's guilty plea,· he was verbally advised by
· former President Judge Robert J. Eby that 'hls ·p'h:!if agreement
-called for -hlm to enter an open plea -'!so··that:you· can-receive any • ' l i •.
sentence up to the ·maximum sentence which the iaw permits." : -~ .. :(Plea--N.T;·2);: Judge Eby also arttculated-that-the Commonwealth i
wo_uld have no objection to immediate deportation: '(Plea N.T. 2) .
. However, there was no promise that DEFENDANT would be .. immediately deported. .. · ···· ·.;:..::::.: ': ;": . ,:.::·:-:>:.: . ; ·.~.,: ... :':"~.-r:~;.:~:;..- ..:;.::·.,·:.- :.:::-. :-:~_:: -, ·.. .::·:.: ·- . ~ ·. ·······.
,~-- ·:Megan Ryland-Tanner was the · prosecutor - 'assigned· to
.. -~ ' - -.:... .,·-·_ .. D~-F'ENOANT'$ case, .she negotiated the possibility· of a plea on
1 r..: behalf of the Commonwealth. (PCRA N.T. 16). Although Ms.
Tanner believed that DEFENDANT would be deported shortly after
sentencing (PCRA N.T. 18), she was very clear that the plea
agreement did not require deportation. (PCRA N.T. 19-20).
Attorney Tanner was asked a direct questlontrorn the Court:
The Court: -- Was immediate deportation· a part of the plea agreement that you entered into?
·· Ms. Tanner: It was not from my perspective because, again, I don't have control over what the feds do. So I wasn't going to be the one to say this can't happen, but at the same time I don't have control over what they choose to do.
The Court: But I guess what I am asking, so I am very clear here, was there-ever a-plea agreement that you made with Attorney Warner that said, a condition of this plea of guilty is that the Defendant ·will be deported?
The Witness: No.
(PCRA N.T. 22).
• David Warner, Esquire was DEFENDANT's counsel when he
- decided to plead guilty. Attorney Warner testified" that he
requested that Attorney Tanner agree to· lrnmediate deportation.
However; Attorney Warner emphasized: "And from that first
conversation, she [Attorney Tanner] indicated to me, I don't have
the ablllty to control that, I can't really help or obstruct that in any
17 -, way, that's In control of the federa_f _gove.rnrnent.-And that was her
.position throughout." (PCRA N.T.- 26)i~,-
• Attorney Warner recommended that DEFENDANT hire an
. immigration attorney at Attorney Warner's request. Before
-entering a plea of -guilty, DEFENDANT met with· and received
advice from . an immigration attorney regarding·· his. immigration
issues. (PCRA N.T. 9-10).
• . Attorney- Warner-acknowledged that·-DEF-ENDANT's·u·number··one
··· ·:--· =: g:o_al"--wa.5=-fo he ·depott.ed~However,: ·A-t-to-r-ne-y \l\ta#rnr tes-Hfied
I continued to assure him throughout the process that I couldn't control that. He asked me numerous times, get me deported; do whatever you can, talk to someone, call someone. And I continued to tell him, I can't do anything, .z.z.:': __ :~.::.th_eLe._'_s -nothing I can do to expedite that process to make that happen more quickly. It's completely outsJde my control. ·· · .. · · · · · ·
. (PCRA N.T. 28-29).
• Attorney Warner wrote a letter to DEFENDANT that was admitted at
the PC.RA hearing as Exhibit· No. 1. This letter -ccrnprehenstvety
outlined all of Mr. Saleem's options for him. · Attorney Warner
described the · sentencing ranges. appllcable ·to-· DEFE'N DAN T's
charges and told DEFENDANT: ·111 cannot tell-you what your exact
· .- · sentence will be, but I would expect there to be some period of
incarceration due to your prior record." (Exh. 1; PCRA N.T. 33}. · ·
- - •' ·Attorney·-warner never advised DEFENDANT'th~t ·ne ·would be
immediately depo_rted .es a result of his guilty plea. · (PCRA N.T. 34). _ In rendering our .declsion regarding DEFENDANT's PCRA. claim, we
placed weight upon the letter-written by Attorney ;Warner that-·was marked
as Exh. 1. Among other things, the comprehensive letter outlined the plea
agreement for DEFENDANT. Attorney Warner wrote:
If you agree to plead guilty, the District Attorney's Office will waive the mandatory minimum and will not seek to enforce it. You would plead open to these three total counts with the Judge to sentence you on those charges. The standard range on the charges would be probation to 9 months in jail and probation to 3 months in jail. The District Attorney's office would also agree to include a provision in the sentencing -order-that they would have no objection to your immediate deportation. I cannot tell you what your exact sentence would be;·but I would expect that there would be some period of incarceration due to your prior record.
(Exh. 1). The Jetter written by Attorney Warner is completely consistent
- with his -testlmony and the testimony of Deputy-District Attorney Tanner.
Simply stated, the Commonwealth promised not to inject itself into the
deportation process, but it never promised that deportation would occur.
Attorney Warner truthfully communicated this information to DEFENDANT,
and he chose to enter a plea of guilty knowing all of his options.
We have little doubt that DEFENDANT hoped to be deported. We also
have little doubt that he was surprised when the victim appeared to
complain about the prospect of deportation after only three months of
incarceration .. -He may have even been hoping for a sentence at the bottom
of his standard range. Whatever DEFENDANT may have hoped does not
chanqethe clear reality of what occurred. DEFENDANT voluntarily entered
an open plea. of :guilty knowing that he could be sentenced to jail and
19 .. knowing . that deportation was not a certainty. The fact . that .eventsdld not proceed. asDEFENDANT hadhoped or even.antlclpated-does-not-ehanqe
the fact that he knew the implications of what he was facing by pleading
guilty and nevertheless chose to do so.
· -· -The gravamen of DEFENDANT's PCRA-is that his· ·guilty plea counsel
was ineffective.· .As we rhetorically asked during the PCRA, "What did
Attorney Warner do .wrong?" Attorney Warner truthfully described to
DEFENDANT what the plea agreement was. Attorney Warner-truthfully-told
DEFENDANT --that-·--the_- -Commonwealth· wo!,lld -_ have· r:1-0 o_b_j_e.c.ti:o.n to.;
deportation, but he could not promise or guaranty a prompt deportation.
Attorney Warner wrote a +etter .outlining all of DEFENDANT's opti.ons. He
even - advised DEF EN DANT that the most likely outcome would be a
sentence that called-for incarceration. We are hard pressed to discern how
Attorney Warner provided. ineffective representation. To the contrary,
Attorney ·warner did everything that could reasonably be expected· of
. -counsel representing a defendant in a guilty plea.
IV. CONCLUSION
DEFENDANT raised one issue via his counseled PCRA Petition. That
petition was predicated upon two principal assumptions:
· -··· :· · :- {1) c: -'Thata:-p1e·a.agreement existed that called for DEFENDANT to receive
immediate deportation; and
. c·..... -·- (2) -- That~his guilty -plea counsel was ineffective in providing advice ·prior
to his decision to plead guilty. Based upon the totality of the evidence presented at the PCRA hearing, we
concluded and still conclude that no plea agreehienftequiring-,deportation
existed and that DEFENDANT's guilty plea counsel provided completely
accurate and appropriate advice both verbally and in writing.
Having concluded that the pillars upon which DEFENDANT's
argument was constructed are made of clay, his PCRA claim for relief can
and must crumble. Accordingly, we conclude that DEFENDANT's PCRA
Petition was properly denied and we send this Opinion to the-Pennsylvania
Superior Court in support of our opinion that - DEFENDANT judgment of
sentence should be affirmed.