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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID CHALOEUNPORN,
Appellant No. 2938 EDA 2013
Appeal from the PCRA Order entered October 10, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0004499-2007
& CP-51-CR-0004500-2007
BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 27, 2014
petition for relief under the Post-
sections 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On
December 6, 2007, Appellant, a citizen of Cambodia, entered a guilty plea to
multiple sexual offenses involving two of his nieces, ages ten and thirteen.
On May 28, 2008, the trial court sentenced Appellant to an aggregate term
of seven and one-half to fifteen years of imprisonment, to be followed by a
twenty-five year probationary term. Appellant did not file a direct appeal.
*Former Justice specially assigned to the Superior Court.
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Appellant filed a pro se PCRA petition on November 25, 2008. On
September 6, 2009, PCRA counsel filed a motion to withdraw and a no-merit
letter pursuant to the dictates of Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). On January 26, 2010, the PCRA court issued notice of its
Pa.R.Crim.P. 907. By order entered February 16, 2010, the PCRA court
counsel to withdraw.
Appellant filed a pro se appeal, and the PCRA court appointed present
counsel. However, the PCRA court subsequently requested that this Court
vacate its order and remand the case for further proceedings before a
different judge; we did so on February 18, 2011. Commonwealth v.
Chaloeunporn, 24 A.3d 459 (Pa. Super. 2011) (unpublished
memorandum).
Following remand, present counsel filed an amended PCRA petition on
October 14, 2011. The Commonwealth filed a motion to dismiss on June 25,
2013. On September 11, 2013, the PCRA court issued Pa.R.Crim.P. 907
Appellant did not file a response. By order entered October 10, 2013, the
amended PCRA petition. This appeal
Pa.R.A.P. 1925(b) statement, the PCRA court did not file a Rule 1925(a)
opinion.
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Appellant raises the following issue on appeal:
I. Was [Appe
and voluntary when he was not informed by [trial counsel],
nor did he know, at the time that he tendered the guilty
plea, that his deportation, because he was not a U.S.
citizen, was mandatory because of the offenses to which
he was pleading guilty?
In reviewing the propriety of an order granting or denying PCRA relief,
an appellate court is limited to ascertaining whether the record supports the
determination of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great
Id. Furthermore, to be entitled to relief
under the PCRA, the petitioner must plead and prove by a preponderance of
the evidence that the conviction or sentence arose from one or more of the
errors enumerated in section 9543(a)(2) of the PCRA. One such error
involves the ineffectiveness of counsel.
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish by a preponderance of the evidence
that counsel's ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
Id.
adequate, and counsel will only be deemed ineffective upon a sufficient
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Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel's act or omission. Id. at 533. A finding of
"prejudice" requires the petitioner to show "that there is a reasonable
proceeding would have been different." Id. Counsel cannot be deemed
ineffective for failing to pursue a meritless claim. Commonwealth v.
Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852
A.2d 311 (Pa. 2004).
Appellant claims that inadequate advice from trial counsel caused him
to enter an invalid plea. When asserting a claim of ineffectiveness of
counsel in the context of a guilty plea, a defendant must show that plea
Commonwealth v.
Johnson, 875 A.2d 328, 331 (Pa. Super. 2005). As this Court stated:
Because a plea of guilty effectively waives all non-
jurisdictional defects and defenses, after sentencing,
allegations of ineffectiveness of counsel in this context
provide a basis for withdrawal of the plea only where there
iveness, if any,
and an unknowing or involuntary plea. The guilty plea
hearing becomes the significant procedure under scrutiny.
The focus of the inquiry is whether the accused was misled
or misinformed and acted under that misguided influence
when entering the guilty plea.
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Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)
(citations omitted).
Further, this Court summarized:
Our law presumes that a defendant who enters a guilty plea
was aware of what he was doing. He bears the burden of
proving otherwise.
* * *
The long standing rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting
that he lied while under oath, even if he avers that counsel
induced the lies. A person who elects to plead guilty is
bound by the statements he makes in open court while
under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he
made at his plea colloquy.
* * *
[A] defendant who elects to plead guilty has a duty to
answer questions truthfully. We [cannot] permit a
defendant to postpone the final disposition of his case by
lying to the court and later alleging that his lies were
induced by the prompting of counsel.
Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)
(citations omitted).
Appellant does not challenge his responses given to the trial court
during his guilty plea colloquy. Rather, Appellant claims that although he
was informed prior to entering his guilty plea that there was a possibility he
may be deported, see
not informing [him] that the consequences of his guilty plea was mandatory
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Appellant bases his ineffectiveness claim upon the United States
Supreme Court decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). In
Padilla, the high court held that the Sixth Amendment of the United States
Constitution requires that defense counsel inform a criminal defendant of the
risk of deportation, should he decide to enter a guilty plea. However, as
acknowledged by the Commonwealth, the United States Supreme Court,
noting the difference in treatment of the issue by various federal district
Padilla does not have retroactive
Commonwealth v. Ghisoiu, 63 A.3d 1272, 1274 (Pa. Super.
2013), appeal denied, 74 A.2d 125 (Pa. 2013) (quoting Chiadez v. U.S.,
133 S.Ct. 1103, 1105 (2013). See also Commonwealth v. Abraham, 62
A.2d 343 (Pa. 2011) (noting the split in the treatment of Padilla claims by
the federal courts).
Here, Appellant entered his guilty plea in 2007, the trial court
sentenced him in 2008, and he did not file a direct appeal. Therefore, his
judgment of sentence became final approximately two years before the
Padilla decision. Appellant is thus unable to benefit from the Padilla
decision.
Moreover, even if the Padilla decision applied, this Court has rejected
claims simila
given by counsel. See, e.g., Ghisoiu, 63 A.3d at 1274 (concluding that
even if Padilla
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see also Commonwealth v.
Escobar, 70 A.2d 838, 842 (Pa. Super. 2013) (concluding that trial counsel
Commonwealth v. McDermitt, 66 A.2d 810, 814 (Pa. Super. 2013)
Padilla requires counsel to inform a defendant as to a risk of
Padilla decision, he is not entitled to the benefit of its holding. In addition,
the record demonstrates that Appellant was informed of the risk of
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
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