Commonwealth v. Thomas

• Decision Date: 15 February 2022
• Docket Number: 680 EDA 2021
• Citation: 270 A.3d 1221
• Parties: COMMONWEALTH of Pennsylvania v. Benoy THOMAS, Appellant
• Court: Pennsylvania Superior Court

270 A.3d 1221

COMMONWEALTH of Pennsylvania

v.Benoy THOMAS, Appellant

No. 680 EDA 2021

Superior Court of Pennsylvania.

Submitted January 31, 2022

Filed February 15, 2022

Scott D. Godshall, Media, for appellant.

Wana Saadzoi, Media, for appellant.

Frederick J. Stollsteimer, District Attorney, Media, for Commonwealth, appellee.

Catherine B. Kiefer, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.^*

OPINION BY MURRAY, J.:

Benoy Thomas (Appellant) appeals from the order dismissing his timely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. We affirm.

This case began when,

[o]n March 3, 2020, Appellant was arrested and charged with various criminal offenses, including four counts of Possession with Intent to Deliver ( 35 P.S. § 780-113(A)(30) ).

On July 13, 2020 Appellant tendered a negotiated plea of guilty to one count of Possession with Intent to Deliver (ungraded felony). In accordance with the negotiated plea agreement, this [c]ourt immediately imposed upon Appellant a sentence of, inter alia , confinement for a minimum term of three months (to be served on electronic home monitoring) to a maximum term of twenty-three months, followed by a two-year term of county probation.

PCRA Court Opinion, 7/16/21, at 1-2.

Appellant did not file a direct appeal. With new representation, he timely filed a PCRA petition alleging ineffectiveness of prior counsel (Plea Counsel). Appellant claims counsel's ineffectiveness led to his placement "in deportation proceedings by ICE as a result of his guilty plea." PCRA Petition, 8/13/20, at 3.

Appellant's Petition and Commonwealth Response

Appellant is not a United States citizen. He is a citizen of India, and his native language is Malayalam. See id. Appellant avers he has "limited proficiency in English," and Plea Counsel failed to request a translator. Id. Appellant asserts Plea Counsel advised him "that the risk of deportation was not a real risk in this case." Id. (emphasis in original). He states Plea Counsel failed to "inquire as to [Appellant's] immigration status prior to the Guilty Plea Hearing," and failed to advise Appellant "there could be collateral immigration consequences." Id. at 3, 5. Because Plea Counsel provided Appellant "with false assurances that the possibility of deportation resulting from the guilty plea was not a real one," Appellant "believed that he had no real adverse immigration consequence by pleading guilty to the crime of Possession of a Controlled Substance With the Intent to Deliver – Cocaine." Id. at 3-4, 5.

"After his Guilty Plea Hearing, [Appellant] first discovered that his conviction has adverse immigration consequences when he was placed in deportation proceedings." Id. at 4. Appellant "would have rejected the plea" had Plea Counsel properly advised him of the "real adverse immigration consequences." Id. at 7. Appellant asserts Plea Counsel was ineffective for misadvising him about the likelihood of being deported, and "prejudicial ineffectiveness ... undermined the process in this case so no reliable adjudication of guilt or innocence could have taken place." Id.

The Commonwealth filed a response opposing an evidentiary hearing. The Commonwealth faulted Appellant's noncompliance with the PCRA, stating:

Because [Appellant's] claim lacks any support in the record, he was obliged to establish his claim by supplying witness certifications ( 42 Pa.C.S. § 9545 (d)(1)(i) ; Pa.R.Crim.P. 902(A)(15) ) and ‘affidavits, documents, and other evidence’ ( Pa.R.Crim.P. 902(A)(12) ) from himself, or trial counsel, or any other witness, that would establish the three prongs of the ineffectiveness test.

Commonwealth Response, 10/13/20, at 2.

In addition, the Commonwealth described Appellant's petition as "mak[ing] a bare, unsupported claim of attorney ineffectiveness for failing to inform him of the collateral immigration consequences of his guilty plea." Id. The Commonwealth argued that "aside from presenting his allegations as fact and concluding error, [Appellant] wholly failed to meet his burden of proof. This shortcoming not only precludes an evidentiary hearing, it is fatal to his claim." Id. at 3. Notwithstanding the Commonwealth's opposition, the PCRA court conducted an evidentiary hearing.

PCRA Hearing

Appellant was the only witness. He testified remotely by video, through a court-certified interpreter who was physically present at the hearing.¹ N.T., 10/27/20, at 3.

Appellant testified that Immigration and Customs Enforcement (ICE) took him into custody approximately two weeks after his plea and sentencing. Id. at 8. Appellant stated he did not know he could consult an immigration attorney, or "that he would be deported to India. So he never thought of going to an immigration attorney." Id. at 9. Appellant testified he "signed the [plea colloquy] papers in the hallway[,] ... did not see what the papers were and he asked but the lawyer said time we got to go. So he signed it and they were in the courtroom and that is all he had." Id. at 10-11.

Appellant testified that Plea Counsel met with him three times. Id. at 12. At the plea hearing, Appellant

did not ask any questions, he just signed the paperwork that they gave to him. ... He said he did not understand what it is that [sic ] and the lawyer didn't give him an opportunity to read it. ... The lawyer asked him to sign it and also he asked ... what should I be doing. And the lawyer said whatever the Judge asks you just say yes to all of those questions and it will be fine for you. ... He did not read the paragraph [about the risk of deportation]. ... He did not know in the beginning that they were going to deport [him]. ... He did not ask [whether he could get a better offer,] but when the immigration people came to the house to pick him up he asked friends to call his lawyer and friends called two or three times and he did not respond.

N.T., 10/27/20, at 11-12 (translator relating Appellant's testimony).

Appellant additionally expressed concern about religious persecution, stating that he is a practicing Catholic and fears returning to India because "they will give him a hard time." Id . at 13-14. A week prior to the PCRA hearing, Appellant "phoned the immigration lawyer and [asked about asylum in the United States] and they said you are not eligible because of the felony that you have." Id. at 15. Appellant testified he "did not get a chance and nobody told him that he was not eligible for asylum." Id. Appellant pled guilty "because he was told it was only for three months and he would be out of this case." Id. Appellant would not have accepted the plea if he knew he would be ineligible for asylum. Id.

At the conclusion of PCRA counsel's direct examination, the Commonwealth stated it had no questions for cross-examination and would "go on the record we have." Id. at 16. The PCRA court deferred disposition, and provided a timeframe for the parties to submit briefs "in regards to the colloquy or any other issue that exists." Id.

PCRA Court Disposition

On March 19, 2021, the PCRA court entered its order denying relief. The order included findings of fact and conclusions of law. Noting PCRA counsel² had provided "remarkable, well-reasoned, and zealous representation ... in raising important issues on behalf of [Appellant]," the court nonetheless concluded,

[Appellant's] testimony and argument are not compelling enough to change this court's determination that the PCRA petition should be dismissed and [Appellant] has failed to meet his burden under the PCRA to show plea counsel was ineffective or the plea was unlawfully induced; the claims and allegations are not proven and are without support in the record and lack merit; there are no additional issues meriting relief under the PCRA; [Appellant] is not entitled to post conviction collateral relief; and no purpose would be served by any further proceeding[.]

Order, 3/19/12, at 1-2.

Appellant timely appealed. Although the PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement, it filed an opinion on July 15, 2021, in which it expanded on the findings and conclusions set forth in the March 19, 2021, order.

Issue

Appellant presents one question for our review:

1. Whether the PCRA court erred in dismissing Appellant's Petition for Post-Conviction Collateral Relief[?]

Appellant's Brief at 4.

Appellant argues the PCRA court erred in failing to find Plea Counsel ineffective.

Appellant claims Plea Counsel "misadvised Appellant by stating that there was no real risk of deportation as a result of pleading guilty to the charge of Possession of a Controlled Substance With the Intent to Deliver — Cocaine, [and f]or this reason, Appellant believed that he faced no real adverse immigration consequence by pleading guilty to this crime." Id. at 6.

Legal Standards

In reviewing the PCRA court's denial of relief, we examine whether the determination is supported by the record and free of legal error. Commonwealth v. Montalvo, 631 Pa. 516, 114 A.3d 401, 409 (2015) (citation omitted). We will not disturb the court's findings unless there is no support in the record. Commonwealth v. Wah , 42 A.3d 335, 338 (Pa. Super. 2012). "It is an appellant's burden to persuade us that the PCRA court erred and that relief is due." Commonwealth v. Miner , 44 A.3d 684, 688 (Pa. Super. 2012).

With regard to Appellant's claim of Plea Counsel's ineffectiveness, counsel is presumed to be effective, and a PCRA petitioner bears the burden of proving otherwise. Commonwealth v. Becker , 192 A.3d 106, 112 (Pa. Super. 2018). To obtain relief based on ineffective assistance of counsel, the petitioner must establish: (1) the underlying claim is of arguable merit; (2) there was no reasonable basis for counsel's action or failure to act; and (3) but for counsel's error, there is a "reasonable probability the result of the proceeding would have been different." Commonwealth v. Treiber , 632 Pa....