HomeMy WebLinkAboutCP-21-CR-0002223-2010
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
MOHAMED M. ALI : CP-21-CR-2223-2010
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE
OF APPELLATE PROCEDURE 1925
Masland, J., June 15, 2011:--
Defendant, Mohamed M. Ali, appeals this court's judgment of sentence of
11 months probation following the Defendant's guilty plea to one count of
unlawful possession of a schedule I controlled substance. He argues that he
received ineffective assistance of counsel when his attorney failed to apprise him
of the federal immigration consequences of his guilty plea. See Padilla v.
Kentucky, 130 S. Ct. 1473 (2010). Defendant's counsel also submits that he may
raise on appeal his own ineffective assistance. For the following reasons,
Defendant's claim of ineffective assistance should be dismissed without prejudice
as premature and this court's judgment of sentence should be affirmed.
Our Supreme Court has held that, as a general rule, "a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral
review." Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). In the instant
matter, there are no special circumstances militating in favor of departing from
the general rule. In fact, this case illustrates the problematic nature of
considering ineffective assistance of trial counsel on direct appeal that our
Supreme Court sought to avoid with its holding in Grant. Of particular relevance
here, the Court reasoned:
CP-21-CR-2223-2010
[E]ven presuming the merit of the claim is apparent on
the existing record, oftentimes, demonstrating trial
counsel's ineffectiveness will involve facts that are not
available on the record. For example, the prejudicial
effect of trial counsel's chosen course of action is
determined more accurately after the trial and
appellate courts have had the opportunity to review the
alleged claims of error and if necessary, correct any
trial court errors. It is only after this review that the full
effect of counsel's conduct can be placed in the context
of the case.
Id. at 737 (emphasis added).
Here, in the statement of matters complained of on appeal, Defendant's
attorney represents that he himself was ineffective because he "incorrectly
advised the [D]efendant and the court of the law or policy of the United States as
it relates to arrest, detention and deportation following criminal conviction."
Statement of Errors Complained of on Appeal at ¶1. The court has no reason to
doubt the veracity of this statement and read in the light most favorable to
Defendant it raises an arguably meritorious basis for a claim of ineffective
assistance of counsel.
Unfortunately, there is no evidence of record to establish the claim and
this court has had no opportunity to make any relevant findings of fact. Also, the
fact that the Defendant’s original trial counsel remains his appellate counsel
further illustrates the impropriety of raising an ineffective assistance claim at this
stage. The irrationality of this position only provides more support for this court's
conclusion that Defendant's ineffective assistance of counsel claim is premature
and should be dismissed.
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CP-21-CR-2223-2010
For his part, Defendant cites Commonwealth v. Johnson, 771 A.2d 751
(Pa. 2001) for the proposition that his attorney may raise his own ineffective
assistance claim on direct appeal. First, Johnson was decided before Grant
clarified the proper procedure for raising ineffective assistance claims and is
therefore distinguishable. Second, the rationale of Johnson served to protect the
defendant from unfair waiver of ineffective assistance claims. No such danger is
present here, as Grant makes it clear, "the claims regarding trial counsel's
ineffectiveness will be dismissed without prejudice. [Defendant] can raise these
claims in addition to other claims of ineffectiveness in a first PCRA petition and at
that time the PCRA court will be in a position to ensure that [Defendant] receives
an evidentiary hearing on his claims, if necessary." Grant, 813 A.2d at 739.
For these reasons, the Superior court should dismiss Defendant's claim of
ineffective assistance of counsel without prejudice and affirm this court's
judgment of sentence.
By the Court,
Albert H. Masland, J.
Christin J. Mehrtens-Carlin, Esquire
Assistant District Attorney
William John Fulton, Esquire
For Defendant
:saa
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