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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GODFREY GILLINGS PANAM,
Appellant No. 259 MDA 2015
Appeal from the PCRA Order of January 8, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006493-2010
BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 20, 2015
Appellant, Godfrey Gillings Panam, appeals from the order entered on
January 8, 2015 dismissing his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On September 16, 2011, a jury convicted Appellant of simple
assault and endangering the welfare of a minor in connection with injuries
his 18-month-old son sustained in 2010. The trial court sentenced Appellant
to 11½ to 23 months of imprisonment, with a consecutive term of four
years’ probation. This Court affirmed Appellant’s judgment of sentence on
November 27, 2012. See Commonwealth v. Panam, 63 A.3d 838 (Pa.
Super. 2012) (unpublished memorandum). Our Supreme Court denied
further review on May 30, 2013. See Commonwealth v. Panam, 68 A.3d
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908 (Pa. 2013). Appellant filed a pro se PCRA petition on February 6, 2014.
On February 11, 2014, the PCRA court appointed counsel to represent
Appellant during collateral review. Appointed counsel filed an amended
PCRA petition on October 1, 2014. On December 17, 2014, the PCRA court
sent Appellant notice pursuant to Pa.R.Crim.P. 907 indicating its intent to
deny relief without a hearing. Appellant responded on January 5, 2015. On
January 8, 2015, the PCRA court entered an order dismissing Appellant’s
PCRA petition. This timely appeal followed.1
On appeal, Appellant presents the following issue for our review:
Was it error for the PCRA court to dismiss Appellant’s PCRA
petition without a hearing?
Appellant’s Brief at 4.
Appellant argues that the PCRA court erred in declining to hold an
evidentiary hearing on his PCRA petition. Citing the United States Supreme
Court decision in Padilla v. Kentucky, 599 U.S. 356 (2010), Appellant
alleges that trial counsel was ineffective for failing to consult and address
deportation consequences resulting from his convictions at trial. Id. at 8.
Appellant recognizes that “Padilla centered on trial counsel’s advice prior to
the entry of a guilty plea[,]” whereas Appellant was convicted by a jury. Id.
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1
Appellant filed a notice of appeal on February 6, 2015. On February 9,
2015, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on February 27, 2015. The PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on April 8, 2015.
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at 9. Appellant claims that “[i]t stands to reason that if trial counsel has an
obligation to explain immigration risks prior to a guilty plea then trial counsel
should have the same obligation to explain immigration risks before deciding
to take the matter to trial.” Id. at 10. Thus, Appellant urges this Court to
“expand the protections offered by [] Padilla to ensure that a criminal
defendant is always aware of the risks of deportation.” Id. at 9. Appellant
posits that “[h]ad trial counsel discussed or addressed [deportation], []
Appellant would have pursued a negotiated plea to an offense which did not
result in deportation.” Id. at 6.
We begin by noting that “this Court's standard of review from the
grant or denial of post-conviction relief is limited to examining whether the
lower court's determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Walker, 110 A.3d
1000, 1003 (Pa. Super. 2015). Where, as here, a petitioner claims that he
received ineffective assistance of counsel, our Supreme Court has stated
that:
A PCRA petitioner will be granted relief only when he
proves, by a preponderance of the evidence, that his
conviction or sentence resulted from the 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. Generally, counsel's performance is
presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the
petitioner. To obtain relief, a petitioner must demonstrate
that counsel's performance was deficient and that the
deficiency prejudiced the petitioner. A petitioner establishes
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prejudice when he demonstrates that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A
properly pled claim of ineffectiveness posits that: (1) the
underlying legal issue has arguable merit; (2) counsel's
actions lacked an objective reasonable basis; and (3) actual
prejudice befell the petitioner from counsel's act or
omission.
Id., citing Commonwealth v. Johnson, 966 A.2d 523, 532–533 (Pa.
2009).
This Court has previously summarized the decision in Padilla, as
follows:
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 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. 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.
Noting the unique nature of deportation, the Padilla Court
decided that, [t]he weight of prevailing professional norms
supports the view that counsel must advise her client
regarding the risk of deportation. The Court found that,
although civil in nature, deportation is nevertheless
intimately related to the criminal process and concluded
that [t]he 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. 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.
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Commonwealth v. Wah, 42 A.3d 335, 339-340 (Pa. Super. 2012) (internal
citations and quotations omitted).
Herein, Appellant did not enter a guilty plea and, thus, his reliance on
Padilla is misplaced. Appellant chose to go to trial and a jury found him
guilty. Hence, Padilla is not applicable. Appellant has not cited, and our
independent review has not revealed, any case law extending Padilla to
cases where a jury finds the defendant guilty. Moreover, while Appellant
argues he would have pled guilty to lesser charges that would not have
required his deportation, such a scenario is entirely speculative. Appellant
has not alleged and proven that the Commonwealth would have agreed to
Appellant’s hypothetical plea terms or that trial counsel could have advised
Appellant as he contends. “The right to an evidentiary hearing on a post-
conviction petition is not absolute.” Commonwealth v. Jordan, 772 A.2d
1011, 1014 (Pa. Super. 2001) (citation omitted). “A PCRA court may decline
to hold a hearing if the petitioner's claim is patently frivolous and is without
a trace of support in either the record or from other evidence.” Id. Here,
having determined that Appellant’s claim is patently frivolous, an evidentiary
hearing was not warranted. Accordingly, Appellant’s sole appellate claim
lacks merit.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2015
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