Com. v. Forde, K.

J. S69026/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

v. :

:

KEVIN FORDE, :

:

APPELLANT : No. 446 MDA 2016

Appeal from the PCRA Order February 17, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0000057-2010

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.: FILED JANUARY 25, 2017

Appellant Kevin Forde appeals from the Order dismissing his first

Petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. He challenges the effectiveness of plea counsel for failing to

inform him of the certainty of his deportation. We affirm.

Appellant was born in Guyana, South America, and has lived in the

United States as a legal resident for most of his life. In December 2009, the

Commonwealth charged Appellant with Simple Assault, Aggravated Assault,

and Attempted Murder.1 The Commonwealth also filed a parole detainer. In

*

Retired Senior Judge Assigned to the Superior Court.

1

The simple assault charge arose from Appellant’s entering the home of the

mother of one of his children on December 5, 2009, and punching her

several times as she slept. Two days later, the Aggravated Assault and

J. S69026/16

addition, Appellant had a detainer from U.S. Immigration and Customs

Enforcement (“ICE”) as a result of a 2004 Simple Assault charge. Brian

Platt, Esq., from the Dauphin County Public Defender’s office, represented

Appellant.

On October 25, 2010, Appellant pled guilty to one count each of

Simple Assault and Aggravated Assault in exchange for the Commonwealth

dropping the Attempted Murder charge, withdrawing the parole detainer,

and recommending an aggregate sentence of five to ten years’ incarceration.

Prior to entering the negotiated plea, Appellant participated in a full colloquy,

acknowledging that as a “potential collateral consequence” of pleading

guilty, “there may be consequences including the potential for removal from

the United States as a result of a conviction for a felony.” N.T. Guilty Plea,

10/25/10, at 6-7. The court accepted Appellant’s guilty plea as knowing and

voluntary, and sentenced him in accordance with the plea agreement.

Appellant did not appeal or challenge the validity of his plea.

On March 3, 2015, Appellant filed a pro se PCRA Petition, alleging

ineffective assistance of plea counsel because he learned for the first time at

a status hearing before an immigration judge on January 21, 2015, that he

was subject to automatic deportation upon his release from incarceration.

Attempted Murder charges occurred as a result of Appellant’s getting into a

fist fight with another man, drawing a knife with a four-inch blade, and

stabbing the man seven times, including four times in his back.

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He averred that because of counsel’s omission, his plea was not knowingly

entered. The PCRA court appointed counsel, and Appellant filed a

supplemental Petition asserting that his Petition falls within the PCRA’s

timeliness exception provided in Section 9545(b)(1)(ii).

The PCRA Court held an evidentiary hearing at which Appellant

testified that he and Attorney Platt discussed “the immigration issue” prior to

his entering the guilty plea, but “we didn’t discuss that I was facing

mandatory deportation.” N.T. PCRA Hearing, 9/3/15, at 18. Attorney Platt

testified that as soon as he learned that Appellant had an ICE detainer, he

informed Appellant that there was “a real possibility that you could be

deported.” Id. at 25. He admitted that he had not explained to Appellant

that he was subject to automatic or mandatory deportation, but stated that

he never told Appellant that deportation “couldn’t happen, [or] that it was an

impossibility[.]” Id.

On February 17, 2016, the PCRA Court denied the Petition. Appellant

timely appealed.

Appellant raises the following issue for our review:

Did the PCRA court err or abuse its discretion when it denied

Appellant’s petition for relief even though the court found that

Appellant’s plea counsel had failed to advise Appellant of the

collateral consequence of his guilty plea to the offense of

aggravated assault, that being presumptively mandatory

deportation?

Appellant’s Brief at 4.

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When reviewing the denial of PCRA Petition, “we examine whether the

PCRA court’s determination is supported by the record and free of legal

error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal

quotation marks and citation omitted). “The scope of review is limited to the

findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level.” Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Credibility

determinations made by the PCRA court are binding on this Court where

there is support in the record for the determination. Commonwealth v.

Timchak, 69 A.3d 765, 769 (Pa. Super. 2013).

Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final

“at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court

may not address the merits of the issues raised if the PCRA petition was not

timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).

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Pennsylvania courts may consider an untimely PCRA petition, however,

if the petitioner pleads and proves one of three exceptions set forth in 42

Pa.C.S. § 9545(b)(1). Section 9454(b)(1)(ii), the section invoked by

Appellant, provides that a petition for post-conviction relief may be reviewed

if ”the facts upon which the claim is predicated were unknown to the

petitioner and could not have been ascertained by the exercise of due

diligence[.]” 42 Pa.C.S. § 9545(b)(1)(ii). A petitioner asserting a timeliness

exception must raise the claim within 60 days of learning of the new facts.

See, e.g., Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)

(reviewing specific facts that demonstrated the claim had been timely raised

within 60-day timeframe).

In the instant case, Appellant learned at a hearing before an

immigration judge on January 21, 2015, that because of his 2010

aggravated assault conviction, his deportation would be automatic upon his

upcoming release from prison.2 He filed his pro se PCRA petition within sixty

days of learning of that consequence. See 42 Pa.C.S. § 9545(b)(1)(ii).

Although Appellant raised the claim within 60 days of his hearing

before the immigration judge, it is arguable that Appellant could have

learned of the mandatory nature of his deportation consequence “by the

exercise of due diligence” so that his claim does not satisfy the requirements

2

See 8 U.S.C. §§ 1101(a)(43)(F); 1227(A)(2); 1228(A)(3)(a) (providing for

deportation of an alien convicted of an aggravated felony, an offense

carrying a presumption of deportability on an expedited basis).

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of Section 9545(b)(1)(ii). Appellant had some familiarity with the

deportation possibility, not only because he was informed that there was a

possibility of deportation in 2010, but also because he had an ICE detainer in

connection with a 2004 crime. It is, thus, debatable that, even as an

incarcerated individual, Appellant could have “ascertained with the exercise

of due diligence” the fact that he would be subject to mandatory

deportation.

Notwithstanding that observation, we consider whether Appellant’s

ineffectiveness claim has merit. In analyzing claims of ineffective assistance

of counsel, we presume that counsel was effective unless the PCRA

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177 (Pa. 1999). In order to succeed on a claim of ineffective assistance of

counsel, Appellant must demonstrate (1) that the underlying claim is of

arguable merit; (2) that counsel’s performance lacked a reasonable basis;

and (3) that the ineffectiveness of counsel caused the appellant prejudice.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Appellant bears

the burden of proving each of these elements, and his “failure to satisfy any

prong of the ineffectiveness test requires rejection of the claim of

ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citation omitted).

Here, Appellant avers that pursuant to Padilla v. Kentucky, 559 U.S.

356 (2010), his plea counsel gave “insufficient advice to Appellant regarding

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J. S69026/16

the collateral consequence of a conviction for aggravated assault[.]”

Appellant’s Brief at 8. He avers that because the federal Immigration Code

clearly lists an “aggravated felony” as a presumptively deportable offense,

counsel should have advised Appellant that “his deportability was a virtual

certainty,” not that is was a “possibility.” Id. at 8-9.

In Padilla, decided by the U.S. Supreme Court in March 2010, plea

counsel failed to advise Padilla of the deportation consequence of pleading

guilty, and advised him that he did not need to worry about his immigration

status because he had been living legally in the United States for forty years.

The U.S. Supreme Court reversed the denial of post-conviction relief, holding

that in order “to ensure that no criminal defendant whether a citizen or not

is left to the mercies of incompetent counsel[,] . . . counsel must inform her

client whether his plea carries a risk of deportation.” Padilla, supra at 374

(quotation marks and internal citation omitted). The Court recognized that

immigration law can be complex and is a legal specialty of its own, so that a

“criminal defense attorney need do no more than advise a noncitizen client

that pending criminal charges may carry a risk of adverse immigration

consequences. But when the deportation consequence is truly clear, as it

was in this case, the duty to give correct advice is equally clear.” Id. at

369. The Court then remanded the case for a determination of whether

Padilla had been prejudiced by counsel’s failure to inform his client of the

risk of deportation.

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J. S69026/16

Pennsylvania subsequently interpreted and applied the Padilla holding

in a number of cases. Most relevant to this appeal, in Commonwealth v.

Escobar, 70 A.3d 838 (Pa. Super. 2013), a case involving drug offenses

that render an alien offender presumptively deportable, this Court

interpreted the Padilla language, as follows:

We do acknowledge that parts of the Padilla opinion contain

language arguably supporting the notion that plea counsel in

some cases may have a duty to provide a rather certain

indication of deportation. . . .

Even still, we think the [C]ourt’s overall emphasis was that the

deportation statute in question makes most drug convicts

subject to deportation in the sense that they certainly become

deportable, not in the sense that plea counsel should know and

state with certainty that the federal government will, in fact,

initiate deportation proceedings.

Ultimately, when announcing its holding, the Padilla court

opined, “We now hold that counsel must inform the client

whether the plea carries a risk of deportation.”

Id. at 842 (internal citations omitted). See also Commonwealth v. Wah,

42 A.3d 335 (Pa. Super. 2012) (rejecting ineffectiveness claim where

counsel informed the defendant that there could be deportation

consequences as a result of his plea and suggested that he consult with

immigration counsel); Commonwealth v. McDermitt, 66 A.3d 810, 814

(Pa. Super. 2013) (holding that Padilla requires counsel to inform a non-

citizen defendant of the risk of deportation, not that deportation is a

certainty).

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In the instant case, the record is clear that Appellant was informed

that his plea carried a risk of deportation. His plea colloquy outlining the

terms of his negotiated plea agreement demonstrated this fact:

Commonwealth: Now there are potential collateral to a

guilty plea. It is my understanding that you are a foreign

national.

Defendant: Yes.

Commonwealth: And do you understand that there may

be consequences including the potential for removal from

the United States as a result of a conviction for a felony:

Defendant: Yes.

Commonwealth: Now knowing that, you still wish to enter

the pleas of guilty, right?

Defendant: Yes.

N.T. Guilty Plea at 6-7.

Appellant’s counsel then provided some background information on

Appellant since he had waived the presentence investigation, stating, inter

alia, “[w]e have discussed the immigration issue and he is aware of the

consequences that he is facing regarding that issue.” Id. at 9.

At the PCRA hearing, Appellant acknowledged that he knew that there

was a chance he would be deported, and provided some inconsistent

statements about his conversations with plea counsel on the topic. He

testified that plea counsel had told him that it was not likely he would be

deported because he had been in the country so long and was, at that time,

married and had children. See N.T. PCRA Hearing, 9/3/15, at 6. Plea

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counsel testified that he had informed Appellant, upon discovering the ICE

detainer, that “there is a possibility that you could be deported if you are

convicted of any or all of these offenses or if you plead guilty. . . .I didn’t

advise him that it was any type of automatic or mandatory deportation so

that is true.” Id., at 24-25. Counsel denied ever telling Appellant that

deportation “couldn’t happen” or “that it was an impossibility.” Id. at 25.

He also testified that he was aware of Padilla when it was decided in March

2010, and he would advise “in every case” where he had a client with an

immigration detainer “that there is a possibility of deportation.” Id. at 25-

27.

The PCRA court determined that counsel’s testimony was more

credible than Appellant’s, and that Appellant knew and understood when he

pled guilty that deportation was a possible consequence of his conviction.

See PCRA Court Opinion, dated 2/1716, at 6. After providing a

comprehensive analysis of applicable statutory and case law, the PCRA court

ultimately concluded that Appellant had not proven that plea counsel had

provided ineffective assistance. The court opined:

Because I believe the deportation consequence in this case was

truly clear, and the immigration law succinct and

straightforward, counsel’s duty was to provide [Appellant]

correct advice, which this court would interpret to require he

advise [Appellant] that at the least, his deportation upon

conviction was a near certainty or that he would be conclusively

presumed deportable. I would thus have held that counsel’s

advising of the mere possibility of deportation to have been

ineffective.

***

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This court is bound, however, by the Superior Court holdings[.]

As such, I am constrained to hold that because counsel’s advice

was not deficient under Wah, McDermitt, and Escobar,

[supra,] [Appellant] has not established counsel was ineffective

and[,] as such, his plea was voluntary, knowing and intelligent.

PCRA Ct. Op., at 19-20 (heading omitted).

We agree with the PCRA Court’s legal analysis and adopt it as our own.

See id. at 5 - 20.3 In addition, our review of the record supports the PCRA

court’s determination and we conclude its Opinion is free of legal error.

Accordingly, we affirm the denial of PCRA relief.

The parties are directed to annex a copy of the PCRA court’s February

17, 2016 Opinion to all future filings.

Order affirmed.

Judge Stabile joins the memorandum.

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/25/2017

3

We note further that Appellant does not allege that he is innocent of the

crimes to which he pled guilty or that, but for counsel’s omission, he would

have taken his chances at trial on all three charges, including the attempted

murder charge. He has, thus, not satisfied the prejudice prong of the

ineffectiveness test. See Fulton, supra.

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Circulated 12/27/2016 10:27 AM

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~ . •. - ·, ~ I

COMMONWEALTH 0}916 FEB 17 PM 2: 05: IN THE COURT OF COMMON PLEAS

PENNSYLVANIA : DAUPHIN COUNTY, PENNSYLVANIA

V. : No. CP-22-CR-00057 -. 20 IO

: No. CP-22-CR-00526 - 20 l 0.

KEVIN A. FORDE : PCRA Petition

February17, 2016

OPINION

Before the court is Kevin Fordes petition under the Post-Conviction Collateral Relief

Act (PCRA).1 Petitioner pled guilty in 2010 and received a negotiated sentence of five to ten

years. Petitioner, who was born in Guyana, South America, and has spent most of his life in the

United States, requests that his plea be withdrawn on the basis that his plea attorney was

ineffective under the United States Supreme Court case Padilla v. Kentucky for failing to inform

him that he would be deported upon the expiration of his state sentence.2 Following evidentiary

hearings on petitioner's claims and upon consideration of the briefs filed, I am constrained to

deny his request for post-conviction relief for the reasons set forth below.

Background

On October 25, 2010, petitioner agreed to plead guilty to one count of aggravated assault

and one count of simple assault in exchange for an aggregate sentence of five to ten years. As

part of the plea, the Commonwealth agreed to drop an attempted murder charge and to withdraw

a parole detainer on a 2004 simple assault charge. (N.T. Guilty Plea at 3, 7) Petitioner was

represented by an attorney from the Dauphin County Public Defender's Office.

The charges arose from two separate incidents. The simple assault occurred December 5,

2009, when petitioner entered the home of a woman with whom he had a child, and punched her

several times while she slept. (N.T. Guilty Plea 7) The aggravated assault charge arose from an

incident that occurred just two days later. While petitioner was picking up his wife from the

Kaplan Institute in Harrisburg, got into a fist fight with another man during which petitioner

1

42 Pa.C.S.A. § 9541-9551.

2

559 U.S. 356 (2010).

drew a concealed knife with a four-inch blade and stabbed the man seven times, including four

times in his back, causing him life-threatening injuries. (N.T. Guilty Plea 7-8)

During the course of the colloquy outlining the terms of the negotiated guilty plea

agreement, the prosecutor questioned petitioner as follows:

Commonwealth: Now there are potential collateral consequences to a guilty

plea. It is my understanding that you are a foreign national.

Defendant: Yes.

Commonwealth: And do you understand that there may be consequences

including the potential for removal from the United States as a result of a

conviction for a fe1ony?

Defendant: Yes.

Commonwealth; Now knowing that, you still wish to enter the pleas of guilty,

right?

Defendant: Yes.

(N.T. Guilty Plea at 6-7) (emphasis added)

Petitioner's plea counsel thereafter provided background information about petitioner

since he had waived a presentence investigation, as follows:

Mr. Forde is 30 years of age. He does have his GED. Your Honor, he is married. He

has three kids, 12, 9, and 1 year old. He does support those children and he does visit

with them regularly. In addition he was working two jobs. He was working as a

partner with Sads Seafood in Harrisburg. In addition, he had his own cleaning

business, Q and T Cleaning, which he was working as well.

Since he has been incarcerated in Dauphin County Prison he has participated in

violence intervention programs, victim awareness, and also addictive compulsive

behavior classes. We have discussed the immigration issue and he is aware of the

consequences that he is facing regarding that issue.

In addition, Mr. Forde would like the Court to be aware that it wasn't his intention to

go there and kill Mr. Mitchell on that day. Kevin was attacked. He did what he did.

Maybe it wasn't necessary for him to pull the knife out and use the force that he did

and, therefore, we have the guilty plea here today.

{N.T. Guilty Plea at 8-9) (emphasis added)

2

-.

Following the colloquy, I sentenced petitioner to the agreed prison term. He did not file

an appeal or challenge his plea or sentence until he filed his pro se PCRA petition March 3,

2015. I thereafter appointed him a PCRA attorney who filed a supplemental petition.

In the supplemental petition, petitioner asserts that on January 21, 2015, he learned from

an immigration judge that he was subject to "mandatory deportation" because of his aggravated

assault conviction. (PCRA Petition 1 11) He filed his pro se PCRA petition within sixty days of

learning of this deportation consequence. Petitioner claims that plea counsel was ineffective for

failing to advise him that by pleading guilty to aggravated assault he would be facing mandatory

deportation upon his release, in violation of the requirements announced in Padilla v. Kentucky,

issued seven months prior to petitioner's guilty plea. (Id. ,i,i 5, 16) He also claims that counsel

actually told him that he "saw no reason why Petitioner would be deported if he pied to the

charges because Petitioner had been [in the U.S.] most of his life and he had a wife and three

children in this county." (Id. ,i 9) Petitioner asserts that he relied upon counsel's advice thinking

he had little chance ofremova1. @. ,i 10) It is petitioner's belief that because immigration law

clearly indicated that petitioner was facing "mandatory deportation," or that deportation was

"virtually assured" or at 1east a "very real probability," counsel was required under Padilla to tell

him more than just that deportation was a potential or possible consequence of pleading guilty to

aggravated assault. (Id. 11 21-25)

After the Commonwealth filed a response to the supplemental PCRA petition, I held an

evidentiary hearing. Petitioner testified that he was born in Guyana and came to the U.S. with his

parents in 1985, when he was five years old. Petitioner holds a Green Card, signifying him as a

permanent resident. (N.T. PCRA Hearing at 4) Petitioner stated that his plea counsel discussed

his legal status in 2010, in preparation for trial. Petitioner recalled that he had concerns that a

conviction could result in deportation and discussed this with counsel. (Id. at 6) Petitioner agreed

counsel brought up the subject with him because he discovered the U.S. Immigration and

Customs Enforcement (lCE) had filed a detainer against him. (Id. at 14) According to petitioner,

counsel told him "there is not a chance" or that "it is not likely" or that "there is no risk" he

would be deported because he had been in the U.S. for so long, had children and was married.

(Id.at 6, 14)

3

Petitioner admitted, however, that he answered "yes" to the question asked of him by the

prosecutor at his guilty plea hearing whether he "underst[ood] that there may be consequences

including the potential for removal from the United States as a result of a conviction for a

felony." (Id. at 11) Petitioner explained that he was aware of possible immigration issues but

that he didn't think it would involve "mandatory deportation" or be "as serious as it was." (Id. at

12, 18) He understood the prosecutor's mention of deportation to mean "there may be some

collateral consequences to me taking the plea," which he interpreted to mean "there was a chance

I was going to be deported." (Id. at 11)

Petitioner testified that when the prosecutor told him at his guilty plea hearing about the

potential for deportation upon his conviction this was new information to him. (Id. at 15, 17) He

further admitted that even though this was different than what his plea counsel allegedly told him

earlier (that "there is not a chance" or "it is not likely" or "there is no risk" he would be

deported), petitioner nevertheless agreed with the prosecutor that he understood there was a

"potential for removal" upon conviction. (fd. at 15) Petitioner explained that he felt like he could

not object or stop the proceedings because he had already signed his written plea colloquies. (Id.

at 15, 17)

Petitioner's plea counsel testified he met with petitioner approximately ten times. He

considered the charges against petitioner to be very serious and meritorious, including the

attempted murder charge for which petitioner could have been sentenced to at least ten to twenty

years. (Id. at 22-23) Upon discovering the ICE detainer, he discussed it with petitioner,

informing him "you have got to realize that there is a possibility that you could be deported if

you are convicted of any or all of these offenses or if you plead guilty." (Id. at 24) Petitioner's

counsel elaborated on his recollection of his discussion with petitioner:

1 told him this is just something that you have to be aware of that there is a real

possibility that you could be deported. He acknowledged that he understood. I

explained I am not an immigration attorney. Obviously I didn't advise him that it

was any type of automatic or mandatory deportation so that is true.

@. at 25) (holding added) He denied ever telling petitioner that deportation "couldn't happen"

or "was an impossibility." (Id.) He further testified that generally his normal practice where he

4

discovers an immigration detainer is to advise his client "in every case that there is a possibility

of deportation." (Id. at 24-25)

Petitioner's attorney testified that he read Padilla v. Kentucky shortly after it was issued

in March 2010 and that the case was also discussed at regular meetings on new law held in his

office. (Id. at 28) He also explained that due to previously dealing with immigration issues, he

had some familiarity with the deportable offense section of United States Code though he

claimed no special knowledge or training beyond that. (lg. at 27) He testified that even before

Padilla was issued, if he had a client with an immigration detainer he would tell them about the

possibility of deportation "to cover my bases." (Id. at 26)

Plea counsel admitted that at the time of petitioner's guilty plea in 2010, he was familiar

with the term "aggravated felony" used in immigration law and understood that such felonies

were deportable. (Id. at 2 7) He did not understand that an aggravated felony was a "definite

deportable" or "mandatory deportable" crime. (Id. at 27-28)

Legal Discussion

I. Ineffectiveness Claims

To establish ineffectiveness of counsel, a PCRA petitioner must show the underlying

claim has arguable merit, counsel's actions lacked any reasonable basis, and counsel's actions

prejudiced the petitioner. Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. 2013),

appeal denied, 86 A.3d 232 (Pa. 2014) (citation omitted), Prejudice means that, absent counsel's

conduct, there is a reasonable probability the outcome of the proceedings would have been

different. Id. The failure to satisfy any prong of this test will cause the entire claim to fail.

Commonwealth v. McDermit!, 66 A.3d 810, 813 (Pa. Super. 2013) (citation omitted). Counsel is

presumed to be effective, and petitioner has the burden of proving otherwise. Id. (citation

omitted).

Allegations of ineffectiveness in connection with a guilty plea do not warrant relief

unless counsel's ineffectiveness caused an involuntary, unknowing or unintelligent plea. Escobar

at 841 (citation omitted). Where the defendant enters a plea on counsel's advice, the voluntary and

5

---··-· -------------------------------

knowing nature of that plea turns on whether counsel's advice fell within the range of

competence demanded of attorneys in criminal cases. Id.

Petitioner essentially makes alternative claims. The first is that counsel was ineffective

for advising him that if he pled guilty there was no risk or it was unlikely he could be deported,

in violation of the requirements of Padilla. Alternatively, to the extent it is believed that

petitioner was advised and understood that by pleading guilty there was a risk of deportation,

petitioner claims such advice or information was not sufficient under Padilla inasmuch as the

advice failed to inform petitioner it was a near certainty he would be deported.

At the outset, I find that counsel did not tell petitioner "there [was] not a chance" or that

"it [was] not likely" or that "there [was] no risk" he would be deported because he had been in

the U.S. for a long time, had children and was married. This claim is not credible for a number of

reasons. First, I do not believe counsel would have so advised petitioner because he was aware of

the Padilla holding at the time of petitioner's plea, knew that aggravated felonies were deportable

offenses under immigration law and whose routine practice, even before Padilla was issued, was

to advise noncitizens of the potential risk of deportation. I found much more credible counsel's

testimony that he informed petitioner that there was a "possibility" that he could be deported if

convicted of any or all of the offenses charged.

Second, petitioner's responses at his guilty plea hearing contradict his claim that he

initially understood there was no risk or it was unlikely his plea could result in deportation. As

noted above, petitioner answered "yes" when the prosecutor questioned him if "underst[ood]

that there may be consequences including the potential for removal from the United States as a

result of a conviction for a felony." He admitted that he understood the prosecutor's mention of

deportation meant "there may be some collateral consequences to me taking the plea" and "that

there was a chance I was going to be deported."

I thus conclude that petitioner knew and understood when he pied guilty, that deportation

was a possible consequence of his conviction. Accordingly, the issue presented is whether his

guilty plea attorney was ineffective under Padilla v. Kentucky for advising him of the mere

6

possibility of deportation instead of that his deportation would be automatic or mandatory, or at

least nearly certain.

11 Federal Immigration/Deportation Law

Before addressing Padilla and its Commonwealth progeny, it is necessary to understand

the relevant immigration law and petitioner's status. An extensive list of deportable offenses is

set forth in Title 8 of the United States Code at Section l 227(a), including for aliens convicted of

aggravated felonies, as follows:

§ 1227. Deportable aliens.

(a) Classes of deportable aliens

Any alien (including an alien crewman) in and admitted to the United States

shall, upon the order of the Attorney General, be removed if the alien is within

one or more of the following classes of deportable aliens:

(2) Criminal offenses

(A) General crimes

(iii) Aggravated felony

Any alien who is convicted of an aggravated felony at any time after

admission is deportable.

8 U.S.C,A. § 1227(a).

"Aggravated felony" is defined as "a crime of violence (as defined in section 16 of Title

1 &, but not including a purely political offense) for which the term of imprisonment [is] at least

one year." 8 U.S.C.A. § 1 l01(a)(43)(F). A "crime of violence" includes "an offense that has as

an element the use, attempted use, or threatened use of physical force against the person or

property of another." 18 U.S.C.A. §16(a). Section 1228 includes a number of provisions

applicable to persons who have committed aggravated felonies, including that such persons are

conclusively presumed deportable and further providing for their expedited removal, as follows:

7

-.

§ 1228. Expedited removal of aliens convicted of committing aggravated felonies.

(a) Removal of criminal aliens

(1) In general

The Attorney General shall provide for the availability of special removal

proceedings at certain Federal, State, and local correctional facilities for aliens

convicted of any criminal offense covered in section 1227(a)(2)(A)(iii) [aggravated

felonies], , ., .

(3) Expedited proceedings

(A) Notwithstanding any other provision of law, the Attorney General shall

provide for the initiation and, to the extent possible, the completion of

removal proceedings, and any administrative appeals thereof, in the case of

any alien convicted of an aggravated felony before the alien's release from

incarceration for the underlying aggravated felony.

(c) Presumption of deportability

An alien convicted of an aggravated felony shall be conclusively presumed to be

deportable from the United States.

8 U.S.C.A. § 1228 (emphasis added). Section 1229b(a)(3) removes any power from the Attorney

General to cancel removal proceedings involving an alien convicted of an aggravated felony. 8

U.S.C.A. § 1229b(a)(3).

Thus, at the time he pied guilty, petitioner was pleading to at least one crime (aggravated

assault) that clearly qualified as an aggravated felony under immigration law and as such

petitioner was deportable, He was also subject to expedited removal proceedings to be initiated

by the Attorney General, during which he would be "conclusively presumed" deportable.

Finally, the Attorney General lacked any discretion to cancel his deportation proceeding.

8

-------

Ill. Padilla v. Kentucky

The defendant In Padilla a lawful permanent resident of the U.S. for over forty years,

faced deportation after pleading guilty to drug distribution charges. In state court proceedings, he

claimed a violation of his Sixth Amendment right to effective assistance of counsel because

counsel failed to advise him of the deportation consequence of pleading guilty. Counsel had

advised him he did not need to worry about his immigration status because he had been in the

U.S. for so long. 559 U.S. at 359. The Kentucky Supreme Court denied Padilla post-conviction

relief, holding that the Sixth Amendment does not protect a defendant from counsel's erroneous

deportation advice because deportation is merely a collateral consequence, as opposed to a direct

consequence, of conviction. Id. at 359-60.

The Kentucky court's decision was ultimately reversed by the U.S. Supreme Court. In

addressing the issue, the majority opinion, authored by Justice Stevens, initially surveyed

immigration law and the significant 1996 amendments thereto, noting:

Under contemporary law, if a noncitizen has committed a removable offense after

[the 1996 amendments], his removal is practically inevitable but for the possible

exercise of limited remnants of equitable discretion vested in the Attorney General

to cancel removal for noncitizens convicted of particular classes of offenses ....

These changes to our immigration law have dramatically raised the stakes of a

noncitizen's criminal conviction. The importance of accurate legal advice for

noncitizens accused of crimes has never been more important. These changes

confirm our view that, as a matter of federal law, deportation is an integral part-

indeed, sometimes the most important part - of the penalty that may be imposed

on noncitizen defendants who plead guilty to specified crimes.

Id. at 363~64 (footnotes omitted).

Given the stakes involved, the Court held that advice regarding the deportation

consequence is not categorically removed from the ambit of the Sixth Amendment's right to

competent counsel, refusing to classify the deportation consequence as either direct or collateral.

Id. at 366. The court further held that counsel's representation fell below an objective standard

of reasonableness which required counsel advise Padilla of the risk of deportation (Id. at 367),

reasoning as follows:

9

In the instant case, the terms of the relevant immigration statute are succinct,

clear, and explicit in defining the removal consequence for Padilla's conviction. See

8 U.S.C. § 1227(a)(2)(B)(i) ("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 ... , other than a single offense involving possession for one's own use of

30 grams or less of marijuana, is deportable"), Padilla's counsel could have easily

determined that his plea would make him eligible for deportation simply from

reading the text of the statute, which addresses not some broad classification of

crimes but specifically commands removal for all controlled substances convictions

except for the most trivial of marijuana possession offenses. Instead, Padilla's

counsel provided him false assurance that his conviction would not result in his

removal from this country. This is not a hard case in which to find deficiency:

The consequences of Padilla's plea could easily be determined from reading

the removal statute, his deportation was presumptively mandatory, and his

counsel's advice was incorrect.

Immigration law can be complex, and it is a legal specialty of its own. Some

members of the bar who represent clients facing criminal charges, in either state or

federal court or both, may not be well versed in it. There will, therefore,

undoubtedly be numerous situations in which the deportation consequences of a

particular plea are unclear or uncertain. The duty of the private practitioner in such

cases is more limited. When the law is not succinct and straightforward (as it is in

many of the scenarios posited by Justice Alito [in his concurrence]), a criminal

defense attorney need do no more than advise a noncitizen client that pending

criminal charges may carry a risk of adverse immigration consequences. But when

the deportation consequence is truly dear, as it was in this case, the duty to

give correct advice is equally clear.

Id. at 368~69 (holding added) (footnote omitted). The Padilla Court later summarized its holding

as follows:

lt is our responsibility under the Constitution to ensure that no criminal

defendant-whether a citizen or not-is left to the "mercies of incompetent

counsel." Richardson, 397 U.S., at 771, 90 S. Ct. 1441. To satisfy this

responsibility, we now hold that counsel must inform her client whether his

plea carries a risk of deportation. Our longstanding Sixth Amendment

precedents, the seriousness of deportation as a consequence of a criminal plea, and

the concomitant impact of deportation on families living lawfully in this country

demand no less.

Id. at 374 (holding added). Having found that Padilla sufficiently alleged a constitutional

deficiency in counsel's representation, the Court remanded the case back to the lower court to

determine whether he had been prejudiced. Id.

10

-.

IV Pennsylvania Cases

Since its issuance, our Superior Court has addressed ineffective assistance of counsel

claims based upon Padilla in a number of cases, most notably Commonwealth v. Wah, 42 A.3d

335 (Pa. Super. 2012); Commonwealth v. McDermitt, 66 A.3d 810 (Pa. Super. 2013) and

Commonwealth v. Escobar. 70 A.3d 838 (Pa. Super. 2013), appeal denied, 86 A.3d 232 (Pa.

2014). See also, Commonwealth v. Ohisoiu, 63 A.3d 1272 (Pa. Super. 2013), appeal denied, 74

A.3d 125 (Pa. 2013).

Just two months after Padilla was decided, defendant Wah, a resident alien, pled guilty to

forgery and Medicaid fraud in an amount in excess of $10,000. He acknowledged at his guilty

plea that his conviction could affect his immigration status. 42 A.3d at 337. He also

acknowledged that his attorney had told him "to consult with an immigration attorney if you

want] ] to know the specific consequences of your guilty plea." Id. at 340. Wah filed a PCRA

petition in which he alleged that his counsel was ineffective for failing to advise him of the

immigration consequences of pleading guilty to the fraud charge. Under federal immigration Jaw,

fraud causing a loss in excess of $10,000 is classified as an aggravated felony, and as in this

case, subjected Wah to removal proceedings. [d. at 337 (citing 8 U.S.C. § 1227(a)(2)(A)(iii) and

§ l 10I(a)(43)(M)(i)). Wah asserted that his guilty plea to fraud in excess of $10,000 essentially

resulted in "mandatory, automatic deportation" and that his attorney was required to so advise

him under Padilla. Id, The trial court rejected his claims and dismissed his PCRA petition.

In advancing his argument on appeal, Wah relied upon the distinction drawn by Justice

Stevens in Padilla that appeared to require two different levels of advice from counsel depending

upon the certainty of deportation; i.e. when the deportation consequences are "unclear or

uncertain" and "the law not succinct and straightforward," then counsel need only advise the

noncitizen client that pending criminal charges "may carry a risk of adverse immigration

consequences." However, "when the deportation consequence is truly clear," counsel has a "duty

to give correct advice." See, Padilla at 368-69. Wah claimed that the most cursory review of

immigration law showed Medicaid fraud in an amount greater than $10,000 was an aggravated

felony subjecting him to "automatic, mandatory deportation" and because this consequence was

truly clear and not uncertain, his counsel owed him the higher duty to so advise him as opposed

II

-.

to just advising him of a general risk of deportation. Wah at 340. Furthermore, he argued it was

ineffectiveness for his attorney to have advised him to consult with an immigration attorney.

Wah asserted such advice is only proper when the immigration consequences of the plea are not

certain. Since the consequences of his plea were certain, counsel's responsibility was non-

delegable. Id.

The Superior Court rejected Wah's arguments, distinguishing his case from Padilla and

citing Justice Alito's concurring opinion therein, as follows:

The statute at issue in Padilla provides for the deportation of any alien convicted

of any drug violation, other than a single offense involving possession for one's own

use of 30 grams or less of marijuana. Padilla, 130 S. Ct. at 1483, citing 8 U.S.C. §

l 227(a)(2)(B)(i). As the Court in Padilla recognized, "The consequences of

Padilla's plea could easily be determined from reading the removal statute .... '' Id

However, in acknowledging the complexity of federal immigration law, which is its

own legal specialty, the Court stated:

There will, therefore, undoubtedly be numerous situations in which the

deportation consequences of a particular plea are unclear or uncertain.

The duty of the private practitioner in such cases is more limited. When

the law is not succinct and straightforward ... a criminal defense attorney

need do no more than advise a noncitizen client that pending criminal

charges may carry a risk of adverse immigration consequences.

Id (footnote omitted).

In fact, in Justice Alito's concurrence, he remarks that,

Most crimes affecting immigration status are not specifically

mentioned by the [Immigration and Nationality Act (INA)], but

instead fall under a broad category of crimes, such as crimes

involving moral turpitude or aggravated felonies. As has been widely

acknowledged, determining whether a particular crime is an

"aggravated felony" or a "crime involving moral turpitude [(CIMT)]" is

not an easy task.

Id at 1488 (brackets in original) (emphasis in original) (additional quotation marks

and citations omitted). In this case, appellant was removable as an "aggravated

felon" based upon his conviction of a crime involving fraud or deceit in which the

loss to the victim exceeded $10,000. 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. §

110 l (a)(43 )(M)(i). Certainly, this matter is more complex than the statute at

issue in Padilla, which mandates removal for virtually all controlled substances

convictions. We find that counsel acted within the range of professionally

12

competent assistance when he recommended that appellant seek the advice of an

expert in immigration law if he desired to know the specific consequences of his

guilty plea.

Wah at 340-41 (holding added, italics in original).

The Superior Court next addressed an ineffective assistance of counsel claim under

Padilla in Commonwea1th v. McDermitt. There the defendant pled no contest to possession of a

controlled substance with intent to deliver. During the plea, defendant was informed that his

conviction rendered him deportable. In addition, the court was informed that defendant was

already voluntarily going through the channels of deportation. McDermitt later filed a PCRA

petition claiming ineffective assistance of counsel, which claim was dismissed by the trial court

without a hearing. 66 A.3d at 812. On appeal, the Superior Court affirmed, rejecting

McDerrnitt's argument that his attorney had a duty under Padilla to inform him he actually

would be deported for his controlled substance conviction and not just that he was deportable. Id.

at 814. The court summarily rejected McDennitt's claim, as follows:

... We will quote that case's [Padilla's] actual holding to refute appellant:

It is our responsibility under the Constitution to ensure that no criminal

defendant-whether a citizen or not-is left to the "mercies of incompetent

counsel." [McMann v.] Richardson, 397 U.S. [759], at 771, 90 S.Ct. 1441

[25 L.Ed.2d 763 (1970) ]. To satisfy this responsibility, we now hold that

counsel must inform her client whether his plea carries a risk of

deportation. Our longstanding Sixth Amendment precedents, the

seriousness of deportation as a consequence of a criminal plea, and the

concomitant impact of deportation on families living lawfully in this

country demand no less.

Padilla, 559 U.S. at--, 130 S. Ct. at 1486 (emphasis added).

Clearly, Padilla requites counsel to inform a defendant as to a risk of deportation,

not as to its certainty. Moreover, even if Padilla required such information, it was

not necessary in this case. At the time of his plea, appellant was already undergoing

deportation and was well aware that he would be deported ....

Id. (italics in original).

Notable by its absence in McDermitt was any discussion by the Superior Court pane} of

Justice Stevens' language in Padilla, acknowledged in Wah, regarding counsel's duty to give

13

-.

"correct advice" in cases involving controlled substance crimes, since what qualified as a

controlled substance crime was recognized as easily determined under immigration law and that

the consequence of conviction for such a crime was clear (mandatory deportation), further

suggesting that the advice counsel was required to give in such cases requires more than just that

there is "a risk of deportation." See Padilla at 368~69.

Shortly after McDermitt was issued, the Superior Court in Commonwealth v. Escobar

more fully addressed the issue of what circumstances require "correct advice" under Padilla.

There, Escobar pled guilty to possession with intent to deliver a controlled substance. Prior to his

plea, he was informed on the record that it was "likely and possible" deportation proceedings

would be initiated against him. He also signed a written colloquy twice acknowledging

deportation was possible. Finally, his plea counsel testified that he advised Escobar "he faced a

substantial deportation risk" if he pled guilty. 70 A.3d at 840. After deportation proceedings

were initiated, Escobar filed a PCRA petition seeking to withdraw his plea on the basis of

ineffective assistance of counsel. The trial court granted him relief finding ineffective assistance

under Padilla. In so deciding, the trial court seized upon Justice Stevens' language, "essentially

interpret[ing] the words 'the duty to give correct advice is equally clear' to mean that, because

the instant statute clearly made Escobar deportable by virtue of his drug conviction, counsel was

required to tell Escobar that he would, in fact, be deported." Id. at 841.

On appeal, the Superior Court reversed, holding that Escobar's plea counsel was not

ineffective for advising him that his guilty plea would "likely" result in deportation. Id. at 841 ~

42. The court reasoned as follows:

We disagree with the court's application of the law. We do not agree that giving

"correct" advice necessarily means counsel, when advising Escobar about his

deportation risk, needed to tell Escobar he definitely would be deported. It is

true that 8 U.S.C. § 1227(a)(2)(B)(i) does lead to the conclusion that Escobar's

PWID conviction certainly made him deportable. However, whether the U.S.

Attorney General and/or other personnel would necessarily take all the steps

needed to institute and carry out Escobar's actual deportation was not an

absolute certainty when he pied. Given that Escobar did know deportation was

possible, given that counsel advised him there was a substantial risk of deportation,

and given that counsel told Escobar it was likely there would be deportation

proceedings instituted against him, we find counsel's advice was, in fact, correct.

14

Id. at 841 (bolding added, italics in original). The court then addressed the tension between its

holding and language in Padilla suggesting that "correct advice" requires plea counsel in some

cases advise a noncitizen that deportation may be certain, explaining as follows:

In reaching our result, we are mindful that the Padilla court specifically

considered 8 U .S.C. § l 227(a)(2)(B) [concerning the deportability of aliens

convicted of controlled substance crimes], the same immigration/deportation

statute at issue in the present case. When it did so, the court concluded that the

statute clearly made Padilla "eligible for deportation" and that "his deportation was

presumptively mandatory." Padilla, 130 S. Ct. at 1483 (emphasis added). These

remarks by the court were consonant with the terms of the statute indicating most

drug convictions render a defendant deportable. We do not read the statute or

the court's words as announcing a guarantee that actual deportation

proceedings are a certainty such that counsel must advise a defendant to that

effect.

We do acknowledge that parts of the Padilla opimon contain language

arguably supporting the notion that plea counsel in some cases may have a

duty to provide a rather certain indication of deportation. For example, at one

point, the Padilla court agreed competent counsel would have told Padilla he was

"subject to automatic deportation." Id. at 1478. At another point, the court

indicated the instant deportation statute "commands" deportation for virtually all

drug convictions. Id at 1483. The opinion likewise observes that deportation for

certain convictions is "practically inevitable." Id at I 480.

Even still, we think the court's overall emphasis was that the deportation

statute in question makes most drug convicts subject to deportation in the

sense that they certainly become deportable, not in the sense that plea counsel

should know and state with certainty that the federal government will, in fact,

initiate deportation proceedings.

Ultimately, when announcing its holding, the Padilla court opined, "[W]e

now hold that counsel must inform [the] client whether [the] plea carries a

risk of deportation." Id. at 1486. Here, counsel did advise Escobar his plea

carried a risk of deportation. In fact, counsel told Escobar deportation proceedings

were likely. Present counsel's advice was within the range of competence

demanded of attorneys in criminal cases.

Id. at 842 (holding added, italics in original).

15

V Application of Padilla and the Superior Court Cases

The Superior Court in Wah rejected the same claim advanced by petitioner here, which

was that under Padilla, his deportation situation was truly clear and required that counsel provide

him correct advice; i.e, that because he pied guilty to fraud involving more than $10,000 - a

crime readily classified as an aggravated felony under immigration law - he would be subject to

"mandatory, automatic deportation" and should have been so advised. Wah at 340. As noted, the

Wah court, relying on Padilla, reasoned that the determination of what crimes qualify as an

aggravated felony under immigration law is "not an easy task" and "more complex" (than

determination of a controlled substance crime). Id. at 340-41. Our Superior Court in Wah thus

classified deportation situations involving aggravated felonies as "unclear and uncertain" within

the Padilla framework;' Under Padilla, deportation situations falling into this category only

require that counsel advise the noncitizen client that the conviction "may carry a risk of adverse

immigration consequences." Padilla at 374. Based upon this decision, petitioner's counsel was

not ineffective here when he advised petitioner there was only a possibility he could be deported

if he pled guilty to the crimes charged, including to aggravated assault, a crime clearly qualifying

as an aggravated felony under immigration law.

To the extent there still remained a question after Wah as to whether plea counsel owed

some greater duty under Padilla beyond merely advising a noncitizen client about a general risk

or possibility of deportation, the Superior Court's decisions in McDermitt and Escobar answered

that question in the negative. The court in McDermitt basically reiterated the Wah holding that

where a noncitizen pleads guilty to a potentially deportable crime - even to a controlled

substance crime which Padilla and Wah acknowledged was a conviction for which deportation

was nearly certain and the relevant statute succinct and clear - the only duty owed by counsel is

to inform the noncitizen of"a risk of deportation, not as to its certainty." McDermitt at 814.

The court in Escobar announced the same result addressing the issue in greater depth and

retreating from language in Padilla suggesting that there were convictions that would ostensibly

involve "automatic deportation" or situations where deportation was "commandjed]" or

3

Discovering the deportation consequence of the aggravated felony arising from Medicaid fraud in Wah

required about the same level of expertise as did discoveryof the aggravatedfelony in this case. As I note

below in Part VI, I disagree that this discovery required any specialized level of legal expertise,

16

"practically inevitable." Id. at 842 (citing Padilla). Escobar essentially rejected the notion that

mandatory deportation or nearly certain deportation can be a consequence of a guilty plea,

finding only that a conviction for a qualifying crime renders the noncitizen "eligible" for removal

proceedings and thus merely "deportable," reasoning that whether all the necessary steps

required to institute and carry out deportation is "not an absolute certainty" when the plea is

rendered. Id. at 8411 842.

Under Escobar, petitioner was merely eligible for removal proceedings when he entered

his guilty plea to a deportable offense and as such, he was not subject to mandatory or automatic

deportation given that it was not an "absolute certainty" the necessary steps to deport him would

be undertaken; whether ICE would initiate and pursue petitioner's actual deportation could not

be determined at the time of his plea. Id. at 841. Since plea counsel here could not have stated

with certainty that the federal government would in fact initiate removal proceedings against

petitioner, counsel could not have been ineffective for failing to provide such advice.

VI. Padilla and Other Jurisdictions

I would be remiss to note that our Superior Court's decisions interpreting Padilla are

seemingly at odds with those of many other jurisdictions. For example, most jurisdictions appear

to reject the finding in Escobar that there is essentially no such thing as mandatory or nearly

mandatory deportation since it can never be certain at the time of conviction whether the federal

government will later initiate removal proceedings. Instead, foreign courts appear to recognize

the non-fiction that removal proceedings are a mere formality and that a person convicted of a

deportable offense, including for an aggravated felony, will almost certainly be deported. See

~. Mendoza v. United States, 690 F.3d 157, 158 (3d Cir. 2012) (indicating that a guilty plea to

an aggravated felony leads to "mandatory deportation"); United States v. Mancebo, 2014 WL

3385071, at *4 (M.D. Pa. July 9, 2014) ("deportation is an almost-certain consequence of certain

criminal convictions" including aggravated felonies); Encarnacion v. State, 763 S.E.2d 463, 465

(Ga. 2014) (''the applicable federal statutes make it clear that a conviction for an aggravated

felony automaticalJy triggers the removal consequence and almost always leads to deportation");

Keserovic v. State, 345 P.3d 1024, 1027 (Id. App. 2015) (misdemeanor theft conviction which

was an aggravated felony under immigration law subjected the defendant to mandatory or

17

virtually certain deportation); and People v. Corporan, 22 N.Y.S.3d 441, 442 (N.Y. App. 2016)

(a guilty plea to an aggravated felony "triggered mandatory deportation under federal law"),

Furthermore, the Superior Court's holding in Wah - that plea counsel need only advise a

noncitizen pleading guilty to an aggravated felony that there is a risk of deportation - is also at

odds with decisions issued by many other jurisdictions, which hold that since an aggravated

felony results in mandatory or near mandatory deportation, counsel is under a duty to provide

clear advice as to that consequence and that it is ineffective assistance to advise the noncitizen

that there is merely a risk or possibility of deportation. See ShS· United States v. Bonilla, 637

F.3d 980, 984 (9th Cir. 2011) ("]a] criminal defendant who faces almost certain deportation (for

committing an aggravated felony] is entitled to know more than that it is possible that a guilty

plea could lead to removal; he is entitled to know that it is a virtual certainty"); Encarnacion v.

State, 763 S.E.2d 463, 466 (Ga. 2014) ("where, as here, the law is clear that deportation is

mandatory [for the aggravated felony of burglary] ... an attorney has a duty to accurately advise

his client of that fact" and it is not sufficient that the client is merely advised deportation might

occur or was a risk of conviction); Ortega-Araiza v. State, 2014 WY 99, 331 P.3d 1189 (Wyo.

2014) (a plea agreement executed by the alien defendant, which advised the plea "may" result in

negative immigration consequences including potential deportation, was insufficient to cure the

prejudice arising from defendant counsel's deficient performance in failing to specifically advise

defendant of his almost certain deportation if he entered guilty plea to aggravated felony for

committing a crime of violence); State v. Nkiam, supra at 872 (N.C. Ct. App. 2015) (deportation

consequences of guilty plea to robbery crimes, which were plainly indicated as aggravated

felonies under federal law and presumptively mandatory, were truly clear and thus trial counsel

had a duty to give correct advice and not just advise defendant that charges may carry a risk of

adverse immigration consequences); State v. Kostyuchenko, 8 N.E.3d 353, 356-57 (Ohio App.

2014) (counsel breached duty by advising his client only that there may be a consequence of

deportation where defendant pied guilty to an aggravated felony (crime of violence), instead,

counsel was obligated to advise defendant that his deportation would be mandatory) and Cano v.

State, 112 So. 3d 646, 648 (Fla. App. 2013) (noncitizens who, pursuant to a state rule had been

advised by their sentencing judges that they "may" or "could" be deported if they pled guilty,

could state a claim for relief under Padilla if they could establish, among other things, that the

18

law subjected them to "virtually automatic" deportation and that the "presumptively mandatory"

consequence of deportation was clear from the face of the immigration statute). See also,

Mendoza v. United States at 158 (3d Cir. 2012) (suggesting that the failure by counsel to apprise

defendant that his guilty plea to an aggravated felony would lead to mandatory deportation was

deficient representation).

Were it this court's job to dispose of petitioner's ineffective assistance of counsel claim

based solely upon the U.S. Supreme Court's decision in Padilla - prior to our Superior Court's

narrow interpretation in Wah, McDennitt and Escobar - I would have found counsel to have been

ineffective under Padilla, as have the courts of so many other jurisdictions (cited above).

The determination of the deportation consequence for an aggravated assault conviction in

this case was, is in this court's estimation, succinct, clear, explicit and easily discernable from

reading the plain text of the United States Code. The list of deportable offenses, although

extensive, is clearly set out at 8 U.S.C. § 1227(a) and includes aggravated felonies. The list of

twenty-one types of aggravated felonies triggering automatic removal is also clearly set out at 8

U.S.C. l 10l(a)(43)(A-U) and includes "crimes of violence," for which aggravated assault clearly

qualified. Title 8, Section 1228(c) provides for a conclusive presumption of deportation for all

aliens who commit aggravated felonies. Finally, Title 8, Section 1229b(a)(3) removes any power

from the Attorney General to cancel deportation proceedings for persons convicted of aggravated

felonies.

Thus, discovering that a noncitizeris aggravated assault conviction is an aggravated

felony for which deportation is virtually mandatory does not require any kind of special legal

expertise on the part of counsel. See, State v. Nkiam, 778 S.E.2d 863, 870 (N.C. App. 2015)

(noting that courts have generally held that if counsel can discern the deportation consequences

from the plain language of the U.S. Code, than the consequences are clear; if counsel must go

beyond the statute or if there are inconsistent rulings or law, however, the consequences are

unclear (citing cases from foreign jurisdictionsj).

Because I believe the deportation consequence in this case was truly clear, and the

immigration law succinct and straightforward, counsel's duty was to provide him correct advice,

19

which this court would interpret to require he advise petitioner that at the least, his deportation

upon conviction was a near certainty or that he would be conclusively presumed deportable. I

would thus have held that counsel's advising of the mere possibility of deportation to have been

ineffective.

VJ. Conclusion

This court is bound, however, by the Superior Court holdings set forth above. As such, I

am constrained to hold that because counsel's advice was not deficient under Wah, McDermitt

and Escobar, petitioner has not established counsel was ineffective and as such, his plea was

voluntary. knowing and intelligent. Accordingly, I enter the following:

ORDER

AND NOW, this )7th day of February, 2016, the Petition filed by Kevin Forde seeking

relief under the Post-Conviction Relief Act is hereby DENIED. Petitioner is notified of his right to

appeal from this Order within thirty (30) days of its entry.

BY THE COURT:

Distribution: ,;.\ ,'Y\tv ,;,.ri>,;;•-.--..

Elizabeth Hoffman, Esq. -106 Walnut Street, Harrisburg, PA 17101 ,,.-,,,;

PCR.A Attorney -- District Attorney's Office -=l>

Kevin Forde-# 041062609, York County Prison, 3401 Concord Road. York Pa. 17402

By Certified Mail - Return Receipt Requested 1

_ •. ,,

0

10

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