Commonwealth Of Pa. v. Abraham

• Decision Date: 08 June 2010
• Citation: 996 A.2d 1090
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Joseph ABRAHAM, Appellant.
• Court: Pennsylvania Superior Court

996 A.2d 1090

COMMONWEALTH of Pennsylvania, Appelleev.Joseph ABRAHAM, Appellant.

Superior Court of Pennsylvania.

Filed June 8, 2010.

William S. Stickman, IV, and Patrick K. Cavanaugh, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, and Rebecca G. McBride, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, J., OTT, J., and McEWEN, P.J.E.

OPINION BY OTT, J.:

¶ 1 Joseph Abraham appeals from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. In his petition, Abraham claimed his trial counsel was ineffective for failing to inform him a guilty plea to indecent assault would result in the loss of his vested pension rights see 43 P.S. § 1311 et seq. , ¹ thereby rendering his guilty plea unknowing and involuntary. The PCRA Court dismissed his petition without a hearing pursuant to Pa.R.Crim.P. 907. After a thorough review of the official record, submissions by the parties, and relevant law, we reverse and remand for a hearing.

¶ 2 On December 8, 2008, Joseph Abraham pled guilty to one count of corruption of minors and one count of indecent assault. Abraham had been a teacher at Allderdice High School. He offered $300 to a student to have sex with him and also touched her buttocks. He gave her one of his business cards and wrote his private cell phone number on it. A couple of months after the incident, the student told a friend what had happened. The friend told a teacher who then told the principal. The victim eventually related what happened and turned over the business card to the school police. Abraham, 67 years old at the time, was allowed to retire with his pension.

¶ 3 Abraham was charged with corruption of a minor, 18 Pa.C.S. § 6301; indecent assault of a person less than 16 years of age, 18 Pa.C.S. § 3126; endangering the welfare of a child, 18 Pa.C.S. § 4304; and criminal solicitation, 18 Pa.C.S. § 5902. Indecent assault is the charge that triggered the application of PEPFA. See 43 P.S. § 1312. Endangering the welfare of a child and solicitation were dropped at the time of the plea agreement. Abraham was sentenced to three years' probation. No direct appeal was taken, but Abraham did file a nunc pro tunc motion to withdraw his plea, alleging among other things he was not informed of his right to withdraw his plea or told of the possible sentences he was facing. This motion was denied without opinion.

¶ 4 Abraham then filed this timely PCRA petition in which his sole claim is counsel was ineffective for failing to inform him he would forfeit his pension upon pleading guilty. The PCRA court denied the petition, following proper notice, without a hearing. In its Pa.R.A.P. 1925(a) opinion, the PCRA court stated the loss of pension was a collateral issue to the plea. The PCRA court stated pursuant to Commonwealth v. Frometa, 520 Pa. 552, 555 A.2d 92 (1989), a collateral issue does not need to be explained to a defendant and failure to explain a collateral issue is irrelevant to whether a guilty plea was knowing and voluntary. The PCRA court reasoned because the loss of the pension was a collateral issue that was not required to be explained, counsel could not have been ineffective.

¶ 5 In reviewing a claim of ineffective assistance of counsel, we are mindful of the following standards. “The right to counsel is the right to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The 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.” Id. Our Supreme Court interpreted the right to constitutionally effective counsel to encompass three issues for analysis: (1) the underlying claim must have arguable merit; (2) counsel's performance lacked a reasonable basis; and (3) ineffectiveness of counsel caused the petitioner prejudice. See generally, Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The Pierce court also noted Strickland eschewed the application of mechanical rules for determining ineffective assistance and used a totality of the circumstances test. Pierce at 157, 527 A.2d at 975.

¶ 6 As noted above, the PCRA court relied on Frometa to dismiss Abraham's petition. The United States Supreme Court abrogated Frometa in Padilla v. Kentucky, --- U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Frometa, our Supreme Court held deportation was a collateral consequence of a guilty plea and therefore did not need to be explained to a defendant contemplating a guilty plea. Id. at 556, 555 A.2d at 93.

¶ 7 In Padilla, the United States Supreme Court stated it had never applied the distinction between direct and collateral consequences to define the scope of constitutionally professional assistance required under Strickland. Padilla at ----, 130 S.Ct. at 1481 . The Supreme Court also stated given that deportation is intimately connected with the criminal process, the collateral versus direct consequence analysis was ill-suited to a Strickland claim. Id.

¶ 8 Under Padilla, it is unclear if the direct/collateral analysis is still viable. That analysis might still be useful if the nature of the action is not as “intimately connected” to the criminal process as deportation.

¶ 9 Rather than apply a mechanical rule Padilla harkens back to the original Strickland concept, adopted by our Supreme Court in Pierce, of examining the totality of the circumstances to determine what advice must be given to have a fully informed guilty plea. The United States Supreme Court looked at a number of factors to determine effective assistance of counsel required informing the defendant about deportation. Deportation is a virtual certainty for an alien convicted of drug charges, such as Padilla. Padilla at ----, 130 S.Ct. at 1478. Given the intimate connection between criminal activity and deportation, it cannot be removed from the ambit of Sixth Amendment right to counsel. Id. at ----, 130 S.Ct. at 1480. The Supreme Court determined when the consequences in question are succinct, clear, and distinct, counsel is obliged to inform the client. Id. at ----, 130 S.Ct. at 1483. Finally, ineffectiveness was not dependent on misadvice, but the failure to give good advice about a serious consequence. Id.

¶ 10 Although Padilla is newly minted, the standards and approach used in that decision have been used in Pennsylvania for other matters involving due process.

¶ 11 Pennsylvania case law has developed through a succession of cases setting guideposts to determine whether a newly-enacted provision provides civil or penal consequences. These guideposts have been used predominantly to determine ex post facto consequences. Determination of ex post facto consequences and constitutionally effective counsel both address due process concerns, and as such, there is no reason why an analysis used in one situation cannot be used in the other. Specifically, a consequence that is punitive in nature implicates ex post facto applications and punitive consequence is also a determining factor under Padilla.

¶ 12 Pennsylvania uses a two-pronged test to determine if a consequence is punitive or civil. See Lehman v. Pennsylvania State Police, 576 Pa. 365, 839 A.2d 265 (2003). Lehman adopted the Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), test.² First, we determine whether the intent of the measure is punitive or civil. If the intent is civil, it must then be determined whether the measure is so punitive in purpose or effect as to negate the legislative intention to deem it civil. Lehman, 576 Pa. at 374, 839 A.2d at 270. To determine the effect one looks at seven factors which serve as useful guideposts. Id. The factors are:

(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only after a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether the alternative purpose to which it may be rationally connected is assignable to it; and (7) whether it appears excessive in relation to the alternative purpose assigned.

Id. 839 A.2d at 270-71.

¶ 13 Initially, there is no statement of purpose attached to PEPFA. The Act is found in Title 43, Labor, not in Title 18, the Criminal Code. Although PEPFA makes specific reference to the Criminal Code for triggering purposes, it appears the legislature intended it to be a civil sanction. This does not end the analysis. We must now examine the seven “useful guideposts.”

¶ 14 The forfeiture of a pension is an affirmative disability. It deprives a person of monetary benefits he or she earned and would otherwise be entitled to. Not only is the person deprived of pension benefits, but any beneficiary designated by the person is also denied benefits. 43 P.S. § 1313. In this matter, both Abraham and his wife will be directly affected by the loss of pension benefits.

¶ 15 There does not appear to be a historical use of the forfeiture of pension benefits as applied to criminal behavior. It cannot be said the measure is historically either civil or punitive. There is no independent finding of scienter needed to trigger forfeiture. There is an element of scienter, but that is found in the underlying criminal act. This ties into factor five, and the behavior to which forfeiture applies is solely criminal.

¶ 16 The operation of this measure promotes the traditional aims of punishment, acting as both retribution and deterrence. Justice Zappala, commenting on PEPFA in his dissent in Mazzo v. Board of Pensions and Retirement of the City of Philadelphia, 531 Pa. 78, 86, 611 A.2d 193, 197 (1992), stated, “Forfeiture acts not only as...