Com. v. Vincent, M.

• Court: Superior Court of Pennsylvania
• Decided: September 30, 2022
• Docket: 1647 EDA 2020
• Status: Unpublished

Opinion

J-A21039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MARC VINCENT : No. 1647 EDA 2020

Appeal from the Order Entered August 17, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006690-2018

BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 30, 2022

The Commonwealth appeals from the order entered on August 17, 2020,

in the Philadelphia County Court of Common Pleas, granting Marc Vincent

(Appellee) relief under the Post Conviction Relief Act (PCRA),1 and allowing

him to withdraw his guilty plea. On appeal, the Commonwealth argues the

PCRA court erred in allowing Appellee to withdraw his guilty plea where: (1)

Appellee did not preserve the claim before the court; (2) the standard guilty

plea colloquy provided to Appellee was not defective nor did it violate due

process; and (3) plea counsel was not ineffective for failing to object to the

standard colloquy given to Appellee. For the reasons below, we reverse the

order granting PCRA relief.

____________________________________________

1 42 Pa.C.S. §§ 9541-9546. J-A21039-22

Briefly, we glean the underlying facts of this case from the PCRA court

opinion:

On February 26, 2019, [Appellee] pled guilty to rape [and unlawful contact with a minor2] as [felonies] of the first degree for raping his adopted daughter “KV” [(Victim)] beginning in 2015 while she was 14 [years old]. This occurred on numerous occasions and by the time [Victim] was 15 [years old,] she was pregnant and had an abortion at the women’s center in Bucks County[, Pennsylvania]. It was reported and prosecution ensued.

During this time, [Appellee] had pending an application for US citizenship. [Appellee] was granted US citizenship on February 9, 2018. [The] granting of his citizenship was prior to his guilty plea but . . . was pending during the time when the illegal sexual conduct was ongoing. On the form for citizenship there [was] a question asking if [Appellee was] engaged in any ongoing criminal activity which [Appellee] denied.

PCRA Ct. Op., 10/7/21, at 1 (unpaginated).

Appellee’s written guilty plea colloquy included the following provision:

Risk Of Deportation (If an Alien)

I know that if I am not a United States citizen, it is possible I may be deported if I plead guilty to the crime(s) charged against me.

Appellee’s Written Guilty Plea Colloquy, 2/26/19, at 3 (unpaginated) (some

capitalization omitted). At the guilty plea hearing, the trial court confirmed

Appellee read, understood, and freely signed the written colloquy. See N.T.

Guilty Plea, 2/26/19, at 5-6. The court then stated:

I do not know your status as a U.S. citizen, because I’m not allowed to ask. But if you are not this will lead to deportation. . . .

Id. at 8. ____________________________________________

2 18 Pa.C.S. §§ 3121(a)(1), 6318(a)(1).

-2- J-A21039-22

Pursuant to the plea agreement, the court sentenced Appellee to an

aggregate term of two and one half to five years’ incarceration, followed by

five years’ probation. Appellant was also required to report for lifetime

registration as a tier three sexual offender under Sex Offender Registration

and Notification Act (SORNA).3 Five months after Appellee was sentenced, he

was indicted by a federal grand jury for unlawful procurement of naturalization

and false statements in relation to naturalization4 “based upon the same

conduct to which [he pled] guilty[.]” PCRA Ct. Op. at 2 (unpaginated).

Appellee did not file post-sentence motions or a direct appeal, but

instead, on March 10, 2020, he filed a Motion to Withdraw Guilty Plea Nunc

Pro Tunc, which the trial court treated as a first timely PCRA petition. In this

petition, Appellee alleged: (1) he was “erroneously advised that only a non-

citizen could face” deportation based on a guilty plea; (2) the standard guilty

plea colloquy he was given was “legally inaccurate as written[;]” and (3) based

on this “obvious defect[,]” he did not knowingly or voluntarily enter his guilty

plea. Appellee’s Motion to Withdraw Guilty Plea Nunc Pro Tunc, 3/10/20, at

1, 3 (emphasis omitted). Appellee also averred the following:

[Appellee] is not challenging [c]ounsel’s stewardship of the plea under the 6th Amendment, since this was principally an error with respect to the judicial advisals which in turn were based on the . . . objectively erroneous [guilty plea colloquy]. However, should the [PCRA c]ourt find that counsel was under an obligation to ____________________________________________

3 42 Pa.C.S. §§9799.51-9799.75.

4 18 U.S.C. §§ 1425, 1015(a).

-3- J-A21039-22

enter a contemporaneous objection at the time of the plea, preserving the issue for appellate review, then a [PCRA claim] would be pursued prior to the one-year filing deadline.

Id. at 2 n.1.

On May 17, 2020, the Commonwealth filed a motion to dismiss the

petition asserting: (1) Appellee’s claim must be viewed under the confines of

the PCRA; (2) his claim is waived because he failed to object during the

colloquy, or raise the issue in a post-sentence motion or on direct appeal; (3)

any claim of counsel’s ineffectiveness was underdeveloped; and (4) all of the

information given to Appellee during his colloquy was accurate.

Commonwealth’s Motion to Dismiss, 5/17/20, at 5-8. Appellee filed a letter

response in which he stated:

[I]t was agreed that the [PCRA c]ourt would be compelled to treat the [m]otion as a PCRA [petition] challenging plea counsel’s failure to object to the defective advisal . . . since the [PCRA c]ourt did not have jurisdiction under the rules to allow for the withdrawal of a guilty plea at this juncture.

Letter from Appellee’s Counsel to PCRA court, 5/28/20, at 1-2 (unpaginated).5

After an August 17, 2020, evidentiary hearing, the PCRA court entered

an order granting relief and allowed Appellee to withdraw his guilty plea. The

5 Upon review of the record, there is no support for Appellee’s assertion that “it was agreed” to view his claim under the confines of ineffective assistance of counsel. Nor does Appellee allege whether the agreement was between himself and the PCRA court, the Commonwealth, or all parties. Neither the PCRA court nor the Commonwealth addresses or disputes any such agreement.

-4- J-A21039-22

court stated the “totality of the circumstances” supported relief. See N.T.

PCRA H’rg, 8/17/20, at 5-7. The Commonwealth filed this timely appeal.6

On appeal, the Commonwealth raises the following claims:

I. Did [Appellee] waive his PCRA claim that his plea was involuntary by failing to raise it in a post-sentence motion or on direct appeal, thus rendering the PCRA court’s grant of relief on it error?

II. Did the standard plea colloquy as delivered comport with the requirements of due process, where it accurately conveyed the law, including, inter alia, potential immigration consequences of the plea?

III. Could plea counsel have been ineffective for not objecting to the standard plea colloquy?

Commonwealth’s Brief at 4.

When reviewing an order granting or denying PCRA relief,

[we must] determine whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law are free from error. The scope of our review is limited to the findings of the PCRA court and the evidence of record, which we view in the light most favorable to the party who prevailed before that court. The PCRA court’s factual findings and credibility determinations, when supported by the record, are binding upon this Court. However, we review the PCRA court’s legal determinations de novo.

Commonwealth v. Orner, 251 A.3d 819, 824 (Pa. Super. 2021) (en banc),

quotation marks and citations omitted), appeal denied, 308 MAL 2021 (Oct.

26, 2021).

6 The Commonwealth complied with the PCRA court’s order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

-5- J-A21039-22

In its first issue, the Commonwealth argues Appellee waived any claim

that his plea was involuntary when he did not raise it before the trial court

and as such, the PCRA court’s review of the claim was legal error.

Commonwealth’s Brief at 13. In the alternative, the Commonwealth maintains

Appellee was aware he was potentially subject to denaturalization when he

lied on his citizenship paperwork because he “signed his name, multiple times,

to affirm under penalty of perjury that all of the information” in the paperwork

was true and correct. Id. at 14. Thus, the Commonwealth insists that

Appellee “repeatedly affirmed his understanding of . . . potential ramifications

before he pled guilty in this case[.]” Id.

Regarding a challenge to the validity of a guilty plea, a defendant must

preserve this claim by objecting during the plea colloquy, at sentencing, or in

a post-sentence motion. Commonwealth v. Monjaras-Amaya, 163 A.3d

466, 468-69 (Pa. Super. 2017). Failure to preserve this claim results in

waiver. Id.; Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”). Further:

[U]pon entry of a guilty plea, a defendant waives all claims and defenses other than those sounding in the jurisdiction of the court, the validity of the plea, and what has been termed the legality of the sentence imposed[.]

Commonwealth v. Prieto, 206 A.3d 529, 533-34 (Pa. Super. 2019) (citation

and quotation marks omitted).

Here, the PCRA court acknowledges Appellee did not challenge the

validity of his plea prior to filing his PCRA petition. PCRA Ct. Op. at 3.

-6- J-A21039-22

However, the court maintains Appellee did not waive this claim and is entitled

to relief under 42 Pa.C.S. § 9544(b). That is, due to “the unique nature of the

issue at hand[,]” the court found Appellee “was not aware of the consequences

to his immigration status.” Id. at 3-4. We disagree.

Appellee did not raise a claim regarding his defective plea colloquy at

any time before filing his first PCRA petition, a requirement to properly

preserve this claim, and thus it is subject to waiver. See Pa.R.A.P. 302(a);

Monjaras-Amaya, 163 A.3d at 468-69. The PCRA court, therefore,

committed legal error in granting relief and we must reverse. See Orner,

251 A.3d at 824. Further, the PCRA court did not provide any relevant

authority7 in support of its contention, but instead simply stated Appellee was

entitled to relief because of the “unique” situation. PCRA Ct. Op. at 4. While

we do not dispute the present facts are uncommon, the record does not

support a finding of relief. See Orner, 251 A.3d at 824. Appellee’s challenge

to the validity of his plea is waived.

Though Appellee’s claims are waived, both he and the PCRA court

compare the present facts to Padilla v. Kentucky, 559 U.S. 356 (2010), and

7 The PCRA court cited 42 Pa.C.S. § 9544(b) in support of its position, but this provision is irrelevant to support a grant of relief as it states that under the PCRA, “an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b). The PCRA court seems to ignore that preservation of a claim challenging the validity of a plea must be raised prior to the filing of a PCRA petition. See Monjaras-Amaya, 163 A.3d at 468-69.

-7- J-A21039-22

contend it is either partially or fully applicable. Appellee argued the trial

court was required to advise him on potential consequences to naturalized

citizens. Appellee’s Motion to Withdraw Guilty Plea Nunc Pro Tunc, at 1, 4.

The PCRA court maintains Padilla is “partially applicable” because Appellee

was in the process of obtaining naturalized citizenship during the commission

of his crimes. PCRA Ct. Op. at 6 (unpaginated). It states that if plea counsel

knew Appellee lied on his naturalization forms prior to the guilty plea colloquy,

then Appellee would be entitled to relief under Padilla. Id.

The Commonwealth contends Appellee’s reliance is misplaced. Further,

the Commonwealth avers Appellee’s guilty plea colloquy was not defective.

Commonwealth’s Brief at 17. It highlights that contrary to Appellee’s claims,

the guilty plea colloquy did not state that “‘only’ a non-citizen can face

deportation based on a guilty plea[,]” but instead was silent as to the

consequences a naturalized citizen may face. See id. The Commonwealth

maintains that it is the responsibility of counsel, not the courts, to advise a

defendant about potential immigration consequences after pleading guilty.

Id. at 17, 19-21 citing Commonwealth v. Rachak, 62 A.3d 389, 395 (Pa.

Super. 2012) (holding that while the United States Supreme 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.”).

Moreover, we conclude Padilla is distinguishable on its facts. In that

case, the defendant, a lawful permanent resident of the United States for over

-8- J-A21039-22

40 years, was facing deportation after pleading guilty to drug related crimes.

Padilla, 559 U.S. at 359. In a post-conviction proceeding, the defendant

alleged his counsel failed to advise him of immigration consequences and

stated he “did not have to worry about immigration status since he had been

in the country so long.” Id. (internal quotation marks and citation omitted).

After following his counsel’s advice, the defendant entered a guilty plea which

made his deportation “virtually mandatory.” Id. The defendant asserted that

if he knew of this consequence, he would have “insisted on going to trial[.]”

Id.

The Supreme Court of Kentucky denied the defendant relief without an

evidentiary hearing, stating “the Sixth Amendment’s guarantee of effective

assistance of counsel does not protect a criminal defendant from erroneous

advice about deportation because it is merely a ‘collateral’ consequence” of

conviction. Padilla, 559 U.S. at 359-60 (citation omitted). The United States

Supreme Court granted certiorari to decide whether the defendant’s counsel

“had an obligation to advise him that the offense to which he was pleading

guilty would result in his removal from this country.” Id. at 360. The Court

held “constitutionally competent counsel would have advised [the defendant]

that his conviction for drug distribution made him subject to automatic

deportation[,]” but whether the defendant was entitled to relief depended on

whether he had been prejudiced, which the Court did not address. Id. The

Court opined that “advice regarding deportation” falls under what the Sixth

Amendment requires of counsel, stating further:

-9- J-A21039-22

There will . . . 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 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 366, 369 (citation omitted). The Supreme Court viewed the claim

through the purview of counsel’s ineffectiveness and made no comment

regarding any potential duty of a trial court to inform a defendant of

immigration consequences.

The present case is not analogous to Padilla. The record does not

reveal, nor does Appellee allege, that plea counsel gave him incorrect advice

prior to entering his guilty plea. Further, Appellee maintains that the error

was on the part of the trial court. Padilla only addressed counsel’s failure

to advise a defendant of the immigration consequences of a guilty plea. To

expand this holding and analysis to require trial courts to provide a detailed

explanation of the potential immigration consequences of a plea, is simply not

supported by the Supreme Court’s analysis. Additionally, Appellee’s federal

indictment sought to revoke his citizenship while deportation proceedings

were pending - it did not require “automatic deportation” as was the case in

Padilla. Significantly, the indictment did not seek to impose penalties for the

underlying crimes of his guilty plea, but rather for lying on his

naturalization forms. Thus, we agree with the Commonwealth that

Appellee’s reliance on Padilla is misplaced.

- 10 - J-A21039-22

We also agree with the Commonwealth’s assertion that Appellee’s guilty

plea colloquy was not defective. Commonwealth Brief at 17. The PCRA court

found that while the colloquy “was legally accurate . . . it did not fully

encompass the potential issues that would arise from” Appellee’s plea. PCRA

Ct. Op. at 4. Though the PCRA court correctly observed that the colloquies

did not “fully encompass” the potential ramifications of Appellee’s immigration

status, this is not a basis for relief. PCRA Ct. Op. at 4. Affirming on the trial

court’s opinion in Rachak, this Court agreed, explaining:

[Padilla] did not saddle courts with the responsibility of determining if every defendant before them is a United States citizen before accepting a guilty plea. Just as the court is ignorant of a defendant’s criminal history and whether or not a guilty plea will result in a parole or probation violation, it is ignorant of a defendant’s citizenship status and whether or not a guilty plea will result in deportation. While the United States Supreme 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.

Rachak, 62 A.3d at 395. Thus, we conclude the colloquy provided by the trial

court was proper and provides no basis for relief.

Last, we address Appellee’s assertion that plea counsel provided

ineffective assistance of counsel.8 See Appellee’s Brief at 13-15. Appellee ____________________________________________

8 Preliminarily, we note Appellee specifically did not assert a claim of ineffective assistance of counsel in his PCRA petition. See Appellee’s Motion to Withdraw Guilty Plea Nunc Pro Tunc, at 2 n.1 (stating his “is not challenging [c]ounsel’s stewardship . . . under the [Sixth] Amendment, since this was principally an error with” the trial court). It was not until his response to the Commonwealth’s motion to dismiss that Appellee attempted to raise an (Footnote Continued Next Page)

- 11 - J-A21039-22

asserts counsel was per se ineffective for failing to object to the “plainly

deficient” guilty plea colloquies. Id. at 14. He avers there is no reasonable

basis for this failure and as such he was “prejudice[d] per se.” Id. at 15. The

Commonwealth disagrees, stating Appellee did not demonstrate that plea

counsel knew or should have known “any of the facts underlying [his] current

federal indictment” at the time of the guilty plea, and without any offer of

proof suggesting so, his claim must fail. Commonwealth Brief at 25. The

Commonwealth insists that expecting plea counsel to inquire as to whether

Appellee became a naturalized citizen through fraudulent means does not fall

within the “range of competence demanded of attorneys in criminal cases.”

Id. at 25-26 (citation omitted).

To succeed on a claim of ineffective assistance, an appellant must plead

and prove the following:

(1) that the underlying issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel’s act or failure to act. The failure to meet any of these aspects of the ineffectiveness test results in the claim failing.

Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015) (citation

The PCRA court found that while Appellee’s ineffectiveness claim had

“some merit,” his claim still could not succeed because he failed to establish ____________________________________________

ineffectiveness claim. See Letter, 5/28/20, at 1-2 (whereupon Appellee alleges “it was agreed” to address his claims as ineffective assistance of counsel).

- 12 - J-A21039-22

the final two prongs of the ineffectiveness test. PCRA Ct. Op. at 5. We agree

to the extent that his claim must fail. Appellee rests his entire claim on the

notion that the guilty plea colloquy was defective and legally inaccurate, and

therefore counsel was obligated to object during its recitation. As discussed

above, the standard colloquy provided to Appellee did not contain any

inaccurate information and the trial court was not required to inquire or

provide advice regarding Appellee’s specific immigration status. See Rachak,

62 A.3d at 395. We cannot expect counsel to object to a standard plea

colloquy, especially where the claimed “defect” contained within could not

possibly be known to counsel under these specific circumstances. For this

reason, Appellee’s claim lacks arguable merit and counsel was not ineffective.

See Barnett, 121 A.3d at 540. Further, we note Appellee did not call plea

counsel to testify at his PCRA hearing. Without evidence that counsel had no

reasonable basis for not objecting during sentencing, we cannot allow

Appellee’s claim to succeed. See id.

We recognize the efforts of the trial court to provide relief where it

believes fair amongst these uncommon facts, however, we are constrained by

our function as an error correcting court to analyze this matter under the

confines of the PCRA. Appellee was not placed at a disadvantage because of

his guilty plea, but rather because of his own choice to lie on his naturalization

forms. This is not a basis for relief. Because we conclude the PCRA court

erred in granting Appellee relief, we reverse the order on appeal.

Order reversed. Jurisdiction relinquished.

- 13 - J-A21039-22

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/30/2022

- 14 -