Commonwealth v. Wah

• Decision Date: 01 March 2012
• Parties: COMMONWEALTH of Pennsylvania v. John David WAH, Appellant.
• Court: Pennsylvania Superior Court

42 A.3d 335

2012 PA Super 54

COMMONWEALTH of Pennsylvania

v.John David WAH, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 21, 2011.

Filed March 1, 2012.

Wayne Sachs, Philadelphia, for appellant.

Christian Sondergaard, Jr., Office of the Attorney General, Norristown, for Commonwealth, appellee.

Andrea F. McKenna Office of the Attorney General, Harrisburg, for Commonwealth, appellee.

Risa V. Ferman, District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and COLVILLE, J. ^*

OPINION BY FORD ELLIOTT, P.J.E.:

John David Wah appeals from the order of March 25, 2011, dismissing his petition brought pursuant to the PCRA.¹ We affirm.

On June 2, 2010, appellant entered a negotiated guilty plea to one count each of Medicaid fraud ² and forgery.³ Appellant admitted that between June 2007 and March 2008, he provided wrap-around services through an agency called Access. (Notes of testimony, 6/2/10 at 5.) During that time, he overbilled or billed for services which he did not provide in the amount of $19,603. ( Id. at 3, 5.) As of the date of his plea, appellant had paid back $7,500, leaving an outstanding amount of $12,103. ( Id. at 3.) In accordance with the negotiated plea, appellant was sentenced to three years' probation and restitution of $12,103. ( Id. at 10.) Remaining charges were withdrawn. Appellant, who is a Liberian national and a resident alien, acknowledged that his guilty plea could affect his immigration status. ( Id. at 9.)

Federal law provides that any alien convicted of an aggravated felony is removable. 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” includes an offense involving fraud or deceit in which the loss to the victim exceeds $10,000. 8 U.S.C. § 1101(a)(43)(M)(i).

No direct appeal was filed; however, on August 30, 2010, appellant filed a counseled PCRA petition in which he alleged that plea counsel was ineffective for failing to advise him of the immigration consequences of pleading guilty to a loss amount in excess of $10,000. Appellant alleged that he is facing mandatory, automatic deportation as a result of the monetary value of the loss being above $10,000 at the time the plea was entered and sentence imposed. According to appellant, he could have avoided mandatory deportation merely by continuing the plea for several weeks, allowing him time to bring the amount of restitution below the $10,000 threshold. In fact, appellant alleged that by June 15, 2010, he had already paid an additional $2,600 into court, bringing the amount due to $9,600. Appellant states that if PCRA relief is granted, he does not wish to proceed to trial; rather, he wants to re-enter the identical plea to the same charges, but with a stipulated loss figure of less than $10,000 in order to avoid mandatory deportation.

On March 25, 2011, following Rule 907 ⁴ notice, appellant's petition was dismissed. This timely appeal followed on April 21, 2011. Appellant complied with the PCRA court's order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the PCRA court has filed an opinion.

This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795, 799 n. 2 (2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super.2007), appeal denied,596 Pa. 707, 940 A.2d 365 (2007).

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super.2001). It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. Id. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing. Commonwealth v. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, 542–543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238, 1239–1240 (Pa.Super.2004).

To prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999); Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226, 230 (1994).

Commonwealth v. Bracey, 568 Pa. 264, 276, 795 A.2d 935, 942 (2001).

It is clear that a criminal defendant's right to effective counsel extends to the plea process, as well as during trial. However, “[a]llegations 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. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.”

Commonwealth v. Allen, 833 A.2d 800, 802 (Pa.Super.2003), appeal denied,580 Pa. 703, 860 A.2d 488 (2004), quoting Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (internal citations omitted).

Appellant relies on the recently decided case of Padilla v. Kentucky, –––U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in which the United States Supreme Court held that counsel must inform his client whether his plea carries a risk of deportation. The Padilla Court rejected Kentucky state law holding that the risk of deportation concerns only collateral matters outside the scope of representation required by the Sixth Amendment, and therefore, failure to advise a defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel. Padilla had the effect of abrogating similar case law in Pennsylvania, notably Commonwealth v. Frometa, 520 Pa. 552, 555 A.2d 92 (1989) (holding that deportation is a collateral consequence of a guilty plea and failure to explain it to a defendant is irrelevant to whether the guilty plea was knowing and voluntary). See Commonwealth v. Abraham, 996 A.2d 1090, 1092 (Pa.Super.2010), appeal granted in part,607 Pa. 618, 9 A.3d 1133 (2010) (stating that, “Under Padilla, it is unclear if the direct/collateral analysis is still viable,” and holding that counsel was obliged to warn his client of the loss of his pension rights as a direct consequence of pleading guilty).

Initially, we note that Padilla was handed down on March 31, 2010, and appellant entered his guilty plea and was sentenced on June 2, 2010. Therefore, appellant is entitled to the benefit of Padilla 's holding. ⁵

An examination of the salient facts underpinning the Padilla holding is appropriate, because we find that they are readily distinguishable from the case sub judice. Jose Padilla, a Honduran native who had lived in the United States for more than 40 years, pled guilty to transportation of a large amount of marijuana, a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i). Padilla, 130 S.Ct. at 1477. Padilla claimed that counsel not only failed to advise him of the possibility of deportation prior to entering the plea, but also told him that he “did not have to worry about immigration status since he had been in the country so long.” Id. at 1478. Padilla relied on counsel's erroneous advice when he pleaded guilty to the drug charges, and alleged in his post-conviction petition that he would have gone to trial had he not received incorrect advice from his attorney. Id.

Noting the “unique nature of deportation,” the Padilla Court decided that, “The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Id. at 1481–1482. The Court found that, although civil in nature, “deportation is nevertheless intimately related to the criminal process” id. at 1481, and concluded that “The severity of deportation—‘the equivalent of banishment or exile,’—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.” Id. at 1486, quoting Delgadillo v. Carmichael, 332 U.S. 388, 390–391, 68 S.Ct. 10, 92 L.Ed. 17 (1947) (footnote omitted). Ultimately, the Court in Padilla remanded the matter for a determination as to whether Padilla could demonstrate that he was prejudiced by counsel's incorrect advice. Id. at 1487.

In the instant case, in contrast to Padilla, counsel not only advised appellant that there could be deportation consequences as a result of his plea, but also suggested that he seek the advice of an immigration attorney: ⁶

Q. There is one other issue I want to cover with you. You are a resident alien, are you not?

A. Yes.

Q. As such, you have possessed until recently what we call a green card, correct?

A. Yes.

Q. Have any representations been made to you as to the effect of this plea upon your immigration status by anyone involved in this case?

A. No.

Q. Have you, in fact, been advised by me to consult with an immigration attorney if you wanted to know the specific consequences of your guilty plea here today?

A. Yes.

Q. And you have done so on your own, correct?

A. Yes.

Q. Just...