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HomeMy WebLinkAboutCP-21-CR-0000167-2004 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LUIS SANTIAGO BRITO : CP-21-CR-0167-2004 IN RE: POST-CONVICTION RELIEF ACT PETITION OPINION AND ORDER OF COURT Masland, J., December 6, 2010:-- Petitioner, Luis Santiago Brito, asks to withdraw his guilty plea entered May 23, 2006 pursuant to the Post Conviction Relief Act (PCRA). Specifically, he alleges he received ineffective assistance of counsel because his attorney did not warn him of the deportation consequences of his guilty plea. For the following reasons, the court dismisses his petition as untimely. In 2006, Petitioner pled guilty to Possession of a Controlled Substance. At the time, his attorney did not advise him that, as a non-citizen, his guilty plea would render him eligible for deportation. See 8 U.S.C. §1227(a)(2)(B)(i). Several years later, the Supreme Court of the United States held, for the first time, that defense counsel must notify a non-citizen client of the deportation consequences of guilty pleas, and that the failure to do so may constitute ineffective assistance of counsel. Padilla v. Kentucky, 130 S. Ct. 1473 (2010) abrogating Commonwealth v. Frometta, 555 A.2d 92 (Pa. 1989). Previously, such a failure to warn did not constitute ineffective assistance of counsel in CP-21-CR-0167-2004 1 Pennsylvania. Frometta, 555 A.2d at 93-94. Petitioner contends the Padilla decision permits him to bring this otherwise untimely PCRA petition. The court disagrees. There are limited exceptions to the general rule that a PCRA petition must be filed within one year of the date a judgment becomes final. 42 Pa. C.S. §9545(b)(1). Relevant here, an otherwise untimely petition may be considered if the right asserted therein “is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.” 42 Pa. C.S. ·§9545(b)(1)(iii) (emphasis added). Accordingly, the court must determine whether the right recognized in Padilla applies retroactively. The court determines that it does not. Padilla announced a new rule of constitutional criminal procedure by ruling that defense counsel must inform his non-citizen client of the deportation consequences of a guilty plea. Padilla, 130 S. Ct. at 1486. The Commonwealth argues, correctly, that the opinion did not explicitly make this rule retroactive. For his part, Petitioner provides no argument or citation on this critical issue beyond the conclusory statement that “the Court's decision applies retroactively.” Pet. at ¶29. To clarify, this opinion deals exclusively with whether Padilla applies 1 retroactively, thereby permitting the filing of an otherwise untimely PCRA petition. This opinion does not address what effect Padilla has on the analysis of ineffective assistance of counsel claims in Pennsylvania. See Commonwealth v. Abraham, 996 A.2d 1090 (Pa. Super. 2010); appeal granted, in part, A.3d (No. 305 WAL 2010, decided Nov. 30 2010) (granting appeal to determine Padilla’s effect on distinction between direct and collateral consequences to define scope of reasonable professional services.) -2- CP-21-CR-0167-2004 It is well-settled that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310 (1989). There are two exceptions to this rule. The first permits retroactive application where the rule decriminalizes a class of conduct or prohibits a certain category of punishment for a class of defendants because of their status or offense. Graham v. Collins, 506 U.S. 461, 477 (1993). This exception is clearly inapplicable to the instant petition. Padilla did not decriminalize the possession of cocaine, nor did it render non-citizens ineligible for deportation when they have been convicted of controlled substances violations. The second exception is also inapplicable. It provides for the retroactive application of “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. at 477-78. In announcing this exception, the Court cautioned, “[b]ecause we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge.” Teague, 489 U.S. at 313. This court is not convinced that the rule announced by Padilla represents such a rule. Based on the foregoing, the court concludes that Padilla has no retroactive effect. The Padilla rule was neither made retroactive explicitly, nor does it qualify for the two narrow exceptions to the PCRA’s general rule that new rules of constitutional criminal procedure are not applied retroactively. Accordingly, the instant petition fails to satisfy the relevant exception to the one -3- CP-21-CR-0167-2004 year filing limitation and is therefore untimely. For these reasons, the court dismisses the petition for post-conviction relief as untimely without an evidentiary hearing. ORDER OF COURT AND NOW, this day of December, 2010, upon consideration of the petition for post-conviction collateral relief of Luis Santiago Brito, the Commonwealth's answer thereto, and motion to dismiss, the petition is DISMISSED as untimely. By the Court, Albert H. Masland, J. Joshua M. Yohe, Esquire Assistant District Attorney Karl E. Rominger, Esquire For Petitioner :saa -4- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LUIS SANTIAGO BRITO : CP-21-CR-0167-2004 IN RE: POST-CONVICTION RELIEF ACT PETITION ORDER OF COURT AND NOW, this day of December, 2010, upon consideration of the petition for post-conviction collateral relief of Luis Santiago Brito, the Commonwealth's answer thereto, and motion to dismiss, the petition is DISMISSED as untimely. By the Court, Albert H. Masland, J. Joshua M. Yohe, Esquire Assistant District Attorney Karl E. Rominger, Esquire For Petitioner :saa