J-S49008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JARDIAN CAOH,
Appellant No. 2505 EDA 2013
Appeal from the PCRA Order of August 28, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005412-2011
BEFORE: OLSON, OTT and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 23, 2014
Appellant, Jardian Caoh, appeals from the order entered on August 28,
2013, denying relief on his first petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The facts of this case, as aptly summarized by the PCRA court, are as
follows:
At approximately 7:30 p.m. on February 24, 2011,
police conducted an undercover surveillance of the 2000
block of West Seybert Street in Philadelphia. Over the
course of one hour, police saw [Appellant] engaged in six
drug sales. In each case, the buyer approached
[Appellant], engaged him in brief conversation and handed
him U.S. currency. [Appellant] then went to a vacant lot on
the north side of Seybert Street, bent down, picked up a
clear plastic bag from a nearby tree, removed small items
from it and handed the items to the buyer. Police stopped
each individual that engaged in a transaction with
[Appellant] and recovered various packets of crack cocaine.
[Appellant] was arrested with $158[.00] on his person.
PCRA Court Opinion, 12/26/2013, at 2 (record citations omitted).
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Procedurally, the case progressed as follows:
On December 9, 2011, before the Honorable Carolyn
Engel Temin, the now retired judge of the Court of Common
Pleas, [Appellant] entered into a negotiated plea to the
charges of possession with intent to deliver [a controlled
substance] (PWID)1 and conspiracy.2 Accordingly, Judge
Temin sentenced [Appellant] to three (3) to twenty-three
(23) months of incarceration with immediate parole,
[Appellant] filed an amended petition. On January 23,
2013, the Honorable Denis P. Cohen, Judge of the Court of
Common Pleas, granted an evidentiary hearing, which was
held on July 23, 2013. On August 28, 2013, [the PCRA
September 10, 2013, [Appellant] filed a notice of appeal.
On September 11, 2013, [the PCRA] court issued [an order
pursuant to Pa.R.A.P. 1925(b)]. On September 27, 2013,
[Appellant] filed a statement of [errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b)]. [The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on
December 26, 2013].
Id. at 1-2 (superfluous capitalization omitted).
On appeal, Appellant presents one issue for our review:
I.
intelligent[,] and voluntary when he was not informed
due to ineffective advice of trial defense 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?
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1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S.A. § 903(a)(1).
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Appellant argues:
Because he is not a U.S. citizen[,] the convictions, which
involve drug distribution offenses, resulting from his guilty
pleas require his deportation from the United States. When
[Appellant] pleaded guilty to these offenses he was not
notified by either the trial court[3] or defense counsel that
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3
PCRA and subject to 42 Pa.C.S.A. § 9543. Eligibility for relief requires
resulted from:
(i) A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances
make it likely that the inducement caused the petitioner to plead
guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the
petitioner's right of appeal where a meritorious appealable issue
existed and was properly preserved in the trial court.
(v) Deleted.
(Footnote Continued Next Page)
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because of his guilty pleas his deportation from the United
States of America was mandatory. If he had known this, he
would have not pleaded guilty.
Padilla v. Kentucky, 130 S. Ct.
1473 (2010) for this proposition. Id. at 8.
This Court recently addressed a similar claim in Commonwealth v.
McDermitt, 66 A.3d 810 (Pa. Super. 2013). We begin with our well-settled
standard of review:
Our standard of review for an order denying post-
conviction relief is whether the record supports the PCRA
court's determination, and whether the PCRA court's
determination is free of legal error. The PCRA court's
findings will not be disturbed unless there is no support for
the findings in the certified record.
showing in order to succeed with [] a claim [that trial
counsel was ineffective]: (1) that the underlying claim is of
arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) that, but for
_______________________
(Footnote Continued)
(vi) The unavailability at the time of trial of exculpatory evidence
that has subsequently become available and would have
changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S.A. § 9543(a)(2). Here, Appellant argues that trial counsel was
ineffective for failing to inform him of mandatory deportation. Such a claim
is cognizable under the PCRA. However, an allegation that the trial court
similarly erred is not. Appellant has not asserted his innocence to invoke 42
Pa.C.S.A. § 9343(a)(2)(iii). Hence, we confine our appellate review to
s claim that trial counsel was ineffective.
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the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have
been different. The failure to satisfy any prong of this test
will cause the entire claim to fail. Finally, counsel is
presumed to be effective, and appellant has the burden of
proving otherwise.
Commonwealth v. McDermitt, 66 A.3d 810, 813 (Pa. Super. 2013)
(internal citations omitted).
In McDermitt
because counsel ineffectively gave him inadequate advice as to his
deportation risk, informing [McDermitt] that his conviction rendered him
Id. sel needed
to inform him not just that his conviction carried a risk of deportation, but
Id. Thus, McDermitt, like Appellant
herein, argued that Padilla required disclosure that deportation was certain.
We rejected such assertion, relying on the plain language of Padilla:
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. 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.
McDermitt, 66 A.3d at 814 citing Padilla, 130 S. Ct. at 1486 (internal
Padilla
requires counsel to inform a defendant as to a risk of deportation, not as to
its certainty McDermitt, 66 A.3d at 814 (emphasis added).
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In this case, the PCRA court held an evidentiary hearing wherein
Appellant and trial counsel testified. Appellant testified that trial counsel told
The Commonwealth entered into the record a written plea colloquy signed by
Appellant prior to guilty plea. Id. at 13. The relevant portion of the written
plea colloquy stated:
RISK OF DEPORTATION (If an Alien)
I know that if I am not a United States citizen, it is possible
I may be deported if I plead guilty to the crime(s) charged
against me.
Id. at 13, Exhibit C at 3. Appellant claimed that he did not read it and it
was not explained to him by trial counsel. Id. at 14-17. He further testified
that when the trial court subsequently conducted an oral colloquy, he lied
when he said he read the written colloquy and that trial counsel had
explained it to him.4 Id. at 17-18.
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4
defendant may not challenge his guilty plea by asserting that he lied while
under oath, even if he avers that counsel induced the l Commonwealth
v. Pollard
person who elects to plead guilty is bound by the statements he makes in
open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
Id.
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Trial counsel testified that he read the written plea colloquy to
Appellant prior to entering the guilty plea. Id. at 22. Trial counsel read the
portion of the written plea colloquy pertaining to deportation to Appellant
colloquy was explained. Id. at 23. Trial counsel denied telling Appellant
that he would not be deported because he had a Green Card. Id. at 30.
The PCRA court found trial counsel credible. PCRA Court Opinion,
[Appellant] about the possible risk of deportation even without knowing
[Appellant] was an alien, and did not misrepresent to [Appellant] any
Id. It concluded
that trial counsel provided effective representation. Id. at 8.
Based upon our standard of review, we agree with the PCRA court.
The re
not disturb those findings. Padilla requires counsel to inform his client of a
risk of deportation before pleading guilty. McDermitt, 66 A.3d at 814;
Padilla, 130 S. Ct. at 1486. Trial counsel was not required to explain
deportation in certain terms. McDermitt, 66 A.3d at 814. Here, trial
counsel read Appellant the written plea colloquy including a disclaimer that
the risk of deportation was a possible consequence of pleading guilty.
Appellant signed the written colloquy and then confirmed with the trial court
that he understood the contents of the written colloquy, trial counsel had
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representation. See N.T., 12/09/2011, at 6-8, 30. Based on all of the
of counsel claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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