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Home My WebLink AboutCP-21-CR-0002150-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-2150-2009 : : ANELA SARIC : IN RE: DEFENDANT’S MOTION FOR POST-CONVICTION RELIEF BEFORE HESS, P.J. OPINION AND ORDER On March 10, 2010, Petitioner pled guilty to one count of criminal conspiracy to commit robbery and one count of criminal conspiracy to deliver a controlled substance. (Order of Court, Mar. 10, 2010). This court sentenced Petitioner to three years’ probation which she is currently serving. (Order of Court, Jul. 13, 2010). On July 7, 2011, with the assistance of new counsel, Petitioner filed this timely Post Conviction Relief Act (PCRA) petition in which she claims that her original counsel was ineffective for failing to inform her of immigration and deportation consequences which could have arisen as a result of her guilty pleas. (PCRA Petition, Jul. 7, 2011). Petitioner’s PCRA petition may be summarized as follows. Petitioner has been a lawful permanent resident of the United States since she was eight years old. (Notes of Testimony, 3, Hearing, In Re: Transcript of Proceedings PCRA Hearing, August 25, 2010 (hereinafter N.T. ___)). Petitioner asserts that as a civil consequence of Petitioner’s guilty plea, her immigration status is now at issue. (PCRA Petition, para. 6). Petitioner has an immigration hearing scheduled on November 29, 2011. (N.T. 5). Petitioner testified that her immigration attorney informed her that her chances of being deported are “very real.” (N.T. 5). At the time she entered her plea, Petitioner was not aware that her immigration status would be placed in issue. (PCRA Petition, para. 7). Petitioner avers that her trial counsel advised her to plead guilty, but did not inform her that her immigration status could be affected or that she could be deported as a result of her pleas. (PCRA Petition, para. 8). Petitioner did not file a direct appeal with the Pennsylvania Superior Court, and no petition for allowance of appeal was filed with the Pennsylvania Supreme Court. (PCRA Petition, para. 9). Petitioner asserts that she would not have pled guilty to the charges if she had been informed that a guilty plea would require her to leave the United States. (PCRA Petition, para. 16). To be eligible for PCRA relief, a petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime” for which he is petitioning for relief. 42 Pa.C.S.A. Section 9543(a)(1)(i). Subsections 9543(a)(2)(i-iii) of the Post Conviction Relief Act, provide, in pertinent part, as follows: General Rule (a) – To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: …. (2) That the conviction or sentence resulted from one or more of the following: (i)A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States, which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place. (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to 2 plead guilty and the petitioner is innocent. 42 Pa.C.S.A. § 9543(a),(a)(2)(i-iii). An alien is deportable for a controlled substance offense under United States Code, subsection 1227(a)(2)(B)(i). That subsection provides, in pertinent part, as follows: (B) Controlled substances (i) Conviction Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable. 8 U.S.C. § 1227(a)(2)(B)(i). A criminal defendant has a right to effective assistance of counsel during a plea process. Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002). 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. Id. The United States Supreme Court has held that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). The Pennsylvania Supreme Court has interpreted the right to constitutionally effective counsel to include three issues for analysis: first, the underlying claim must have arguable merit; second, counsel’s performance must have lacked a reasonable basis; and lastly, the ineffectiveness of counsel caused the petitioner prejudice. Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987). The third prong requires a petitioner to demonstrate prejudice, meaning that a petitioner must show it was reasonably probable that, barring the errors of counsel, the result of the 3 proceeding would have been different. Commonwealth v. Hickman, 799 A.2d 136, 142 (Pa.Super. 2002). In Pierce, our Supreme Court also noted that Strickland avoided the application of mechanical rules for determining ineffective assistance and used a totality of the circumstances test. Pierce, 526 A.2d at 975. Recently, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010). In Padilla, the Court found that defense counsel was ineffective for failing to inform a criminal defendant of the immigration consequences of a guilty plea. Id. at 1487. The Court held that in these cases where it is truly clear that a plea will have deportation consequences, a criminal defense attorney has an affirmative duty to inform his client of the consequences which may arise as a collateral result of the plea. Id. at 1483. Alternatively, where deportation consequences are not so straightforward, an attorney continues to have a duty, albeit more limited, to advise his client that the pending criminal charges or plea may carry a risk of adverse immigration consequences. Id. A breach of either of these duties results in constitutionally deficient assistance of counsel. Id. at 1486-87. Padilla thereby abrograted Frometa, 520 A.2d 92 (Pa. 1989), in which the Pennsylvania Supreme Court had held that counsel is not required to advise a defendant of the immigration consequences of pleading guilty. Commonwealth v. Garcia, 23 A.3d 1059, 1064 (Pa.Super. 2011). Moreover, the Superior Court recently explained that Padilla did not recognize a new constitutional right; instead, the Supreme Court “clarified and refined the scope of a criminal defendant’s long-standing constitutional right to the effective assistance of counsel during the guilty plea process.” Garcia, 23 A.3d at 1064. The United States Supreme Court merely applied the Strickland ineffective assistance test to a new set of facts. Id. at 1065. Furthermore, our 4 Superior Court held that the constitutional right to effective assistance of counsel during the guilty plea process falls under the established scope of Strickland. Id. at 1066. Applying the Strickland test, we hold that Petitioner’s underlying ineffective assistance of counsel claim has merit because Petitioner’s trial counsel did not advise petitioner of the immigration consequences that may result from her guilty pleas. Furthermore, Petitioner’s trial counsel had no reasonable basis for failing to advise her of the potential immigration consequences resulting from her pleas. Because the deportation consequences were clear, counsel had a duty to inform Petitioner of those consequences. Under the second prong of Strickland, therefore, when Petitioner’s counsel failed to advise Petitioner of the immigration consequences, counsel’s representation fell below the standard of reasonableness. Petitioner filed this PCRA Petition in which she asserts that, had she known the potential immigration consequences prior to entering her guilty pleas, she would not have pled guilty and would have proceeded to trial An immigration hearing has, in fact, been set for the end of November 2011. We are satisfied that the alleged ineffectiveness of counsel has resulted in prejudice. ORDER AND NOW, this day of October, 2011, the petition of the defendant for Post- Conviction Relief is GRANTED. Her plea of guilty in the captioned case is WITHDRAWN and the Commonwealth is authorized to list this case for trial. BY THE COURT, _______________________________ Kevin A. Hess, P. J. 5 Matthew Smith, Esquire Chief Deputy District Attorney Karl Rominger, Esquire For the Defendant :rlm 6 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-2150-2009 : : ANELA SARIC : IN RE: DEFENDANT’S MOTION FOR POST-CONVICTION RELIEF BEFORE HESS, P.J. ORDER AND NOW, this day of October, 2011, the petition of the defendant for Post- Conviction Relief is GRANTED. Her plea of guilty in the captioned case is WITHDRAWN and the Commonwealth is authorized to list this case for trial. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Matthew Smith, Esquire Chief Deputy District Attorney Karl Rominger, Esquire For the Defendant :rlm