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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
MD ALL RABBY TOUKIR, :
:
Appellant : No. 1432 EDA 2015
Appeal from a PCRA Order April 14, 2015,
in the Court of Common Pleas of Montgomery County,
Criminal Division, at No(s): CP-46-CR-0008379-2013
BEFORE: OLSON, STABILE, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 06, 2016
Md All Rabby Toukir (Appellant) appeals from the order entered April
14, 2015, dismissing his petition filed pursuant to the Post Conviction Relief
Act (PCRA).1 We affirm.
The pertinent factual and procedural history of this action has been
summarized by the PCRA court as follows.2
[Appellant], a citizen of Bangladesh, came to the United
States in 2007 and was granted a green card. A confidential
1
42 Pa.C.S. §§ 9541-9546.
2
The PCRA court began its recitation of the relevant facts and procedural
history by acknowledging that the “background is derived from allegations
contained in the affidavit of probable cause, which [Appellant] agreed in his
written guilty plea colloquy to have incorporated into the record, as well as
facts as found by [the PCRA court] at the PCRA hearing.” PCRA Court
Opinion, 7/10/2015, at n.1. The PCRA court noted that in doing so, it
credited the testimony of plea counsel and not the “interested testimony of
[Appellant] and his fiancé[e].” Id.
* Retired Senior Judge assigned to the Superior Court.
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informant advised police in September 2013 that the then 20-
year-old [Appellant] would be engaging in a drug deal at a
convenience store in Towamencin Township, Montgomery
County. Surveilling police subsequently observed [Appellant]
engage in a hand-to-hand transaction with another man. The
men were stopped by police and marijuana and currency were
seized. A consent search of [Appellant]’s vehicle revealed
additional quantities of marijuana, drug paraphernalia and a
bottle of liquor. [Appellant] was charged with possession of
marijuana with intent to deliver, receipt in commerce,
possession of drug paraphernalia[,] and possession of liquor by a
person under 21.
[Appellant] retained Edward Fabick, Esq., to represent
him. Fabick advised [Appellant] on numerous occasions that the
drug offenses carried a “high probability” of deportation. Fabick
advised [Appellant] to consult with an immigration attorney.
[Appellant]’s primary focus was not going to jail and it was
Fabick who initiated any discussions about potential immigration
consequences.
Throughout his representation, Fabick advised that
[Appellant] might avoid prosecution, and immigration
consequences altogether, if he cooperated with law enforcement.
[Appellant] did not want to pursue that strategy. Fabick
attempted to negotiate a plea agreement that would reduce the
charges to a summary offense, such as disorderly conduct. The
Commonwealth maintained its intention to pursue the felony
possession with intent to deliver charge.
Fabick eventually received an offer from the
Commonwealth for [Appellant] to plead guilty to two counts of
misdemeanor receipt in commerce in exchange for an aggregate
sentence of six years of probation. The Commonwealth
indicated the offer would get no better. [Appellant], who did not
want to go to trial and who wanted to avoid jail time, accepted
the offer.
[Appellant] pleaded guilty on July 2, 2014, to two counts
of receipt in commerce and was sentence[d] to an aggregate
term of six years of probation. In exchange, the Commonwealth
did not pursue the possession with intent to deliver, drug
paraphernalia and alcohol charges … [Appellant] did not file a
direct appeal after his guilty plea.
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On October 16, 2014, [Appellant], through new counsel,
filed a PCRA petition. The petition alleged [Appellant] had been
detained since August 7, 2014, by US Immigration and Customs
Enforcement pending deportation. He claimed plea counsel had
rendered ineffective assistance by allegedly misadvising him that
his guilty plea would not subject him to immigration
consequences. [Appellant] claimed that had he known of the
immigration consequences of his plea, he would have attempted
to negotiate a better deal or gone to trial.
The Commonwealth filed a written response to the petition
and [the PCRA court] held a hearing. The court denied the
petition in an order dated April 14, 2015.
PCRA Court Opinion, 7/10/2015, at 1-4 (internal citations and footnotes
removed). This appeal followed. Both Appellant and the PCRA court have
complied with the directives of Pa.R.A.P. 1925.
On appeal, Appellant presents for our consideration the following
issue:
Whether the [PCRA Court] committed legal error in finding that
plea counsel had provided effective assistance of counsel where
plea counsel admitted under questioning that he had no
knowledge of the requirements that Padilla v. Kentucky, 599
U.S. 356 (2010)[,] imposes on counsel regarding the duty to
inform a defendant of the immigration consequences of a
[d]efendant’s guilty plea where deportation was a virtual
certainty.
Appellant’s Brief at 4.
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). This Court
grants great deference to the findings of the PCRA court if the record
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contains any support for those findings. Commonwealth v. Boyd, 923
A.2d 513 (Pa. Super. 2007). If the record supports a post-conviction court’s
credibility determination, it is binding on the appellate court.
Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa. Super. 1999). 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.
Such errors include the ineffectiveness of counsel. See 42 Pa.C.S.
§ 9543(a)(2)(ii).3
In reviewing the PCRA court’s denial of Appellant’s claims of ineffective
assistance of counsel, we bear in mind that counsel is presumed to be
effective. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To
overcome this presumption, Appellant bears the burden of proving the
following:
Allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or
unknowing plea. Where the defendant enters his plea on the
advice of counsel, the voluntariness of the plea depends on
whether counsels’ advice was within the range of competence
demanded of attorneys in criminal cases.
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)
(citations and quotation marks omitted).
3
Section 9543(a)(2)(ii) provides the following: “Ineffective assistance of
counsel which, in the circumstances of the particular case, so undermined
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Keeping the above standards in mind, we now address Appellant’s
claim on appeal. Appellant contends that plea counsel, Attorney Fabick was
ineffective for failing to advise Appellant that deportation was “virtually
certain” due to the nature of the crime, to which he was pleading guilty.
Appellant’s Brief at 8. Appellant further argues that plea counsel was
“virtually unfamiliar” with the details of the case law setting forth the duties
counsel has to his non-citizen client. Id. at 11. Appellant avers that, but for
plea counsel’s insufficient advice, he would have “chosen to negotiate
another plea bargain or go to trial if a plea that was immigration friendly
could not be reached.” Id. at 14.
An attorney has the duty to inform his client of the immigration
consequences which may exist when pleading guilty. See Padilla v.
Kentucky, 559 U.S. 356 (2010) (holding that the Sixth Amendment
requires that counsel inform a criminal defendant of the risk of deportation
occasioned by a plea). Specifically, Padilla held “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.
the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.” 42 Pa.C.S. § 9543 (a)(2)(ii).
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Since Padilla, this Court has reviewed cases involving immigration
and deportation consequences while cognizant of the standard set forth by
the United States Supreme Court. Specifically, in Commonwealth v.
Escobar, 70 A.3d 838 (Pa. Super. 2013),4 we stated:
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. For example, at one point, the Padilla
court agreed competent counsel would have told Padilla he was
“subject to automatic deportation.” At another point, the court
indicated the instant deportation statute “commands”
deportation for virtually all drug convictions. The opinion
likewise observes that deportation for certain convictions is
“practically inevitable.” 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.
Id. at 842 (citations omitted and emphasis added).5
The PCRA court provided a detailed and reasoned analysis why it
denied Appellant’s post-conviction relief petition:
Instantly, evidence credited by [the PCRA court] at the PCRA
hearing demonstrated that plea counsel had been practicing as a
4
Escobar involves the same statute that is at issue in the present case, and
is factually similar in that counsel in Escobar told his client that there was a
deportation risk in pleading guilty, but failed to tell his client that he would
be deported.
5
This Court recognizes the factual differences between Padilla and the
instant case. In Padilla, counsel assured Padilla that his conviction would
not result in deportation. In this case, plea counsel testified, which the
PCRA court credited, that he told Appellant of the “high probability” of
deportation when pleading guilty. N.T.4/8/2015 at 10.
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criminal defense attorney for approximately a decade when he
began representing [Appellant] in this case. He has represented
non-American citizens in criminal matters and at the time of
[Appellant]’s guilty plea knew that counsel had a duty to inform
clients of potential immigration consequences. While PCRA
counsel attempted to make much at the hearing of plea
counsel’s inability to cite with precision certain passages from
Padilla, [plea counsel] testified the he was aware of the case
and the duty it imposes on counsel. He testified, in particular,
that:
“I know that you have to inform them that there are
consequences, immigration consequences, when
they are taking a plea of guilty to anything that could
cause an immigration issue. And in the case at
hand, I had spoke to them about- - spoke to them,
meaning your client now and my client at the time
and his girlfriend, regularly that there were
immigration consequences in this case.”
Fabick told [Appellant] that if he were convicted of the charged
drug crimes, there was a “high probability” that he would be
deported. Fabick testified candidly that he could not tell
[Appellant] with one-hundred percent certainty that he would be
deported, but he knew and made [Appellant] aware that if he
were convicted of any of the drug crimes he faced a high
probability of deportation. Fabick reviewed immigration statutes
with the [Appellant] and told him that the drug offenses he had
been charged with could cause removal. [Appellant’s] main goal
in his criminal case, however, was to avoid jail time. [The PCRA
court] did not credit the after-the-fact testimony that [Appellant]
was most concerned about deportation. The credited evidence
from the PCRA hearing demonstrated that [Appellant] did not
want to go to jail and pleaded guilty in return for a probationary
sentence despite being informed by plea counsel that he faced a
high likelihood of deportation.
[The PCRA court] also rejected [Appellant’s] assertion that
plea counsel had an obligation to creatively negotiate an
immigration-friendly deal. The record demonstrates that,
despite plea counsel’s best efforts, the Commonwealth was
unwilling to negotiate an offer better than [Appellant] received.
As for [Appellant’s] claim that he would have gone to trial but for
plea counsel’s alleged misadvice, [the PCRA court] credited plea
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counsel’s testimony that the Commonwealth’s case against
[Appellant] was strong, [Appellant] did not want to go to trial
and [Appellant] primarily wanted to avoid a jail sentence.
PCRA Court Opinion, 7/10/2015, at 7-8 (citations removed).
We find the PCRA court’s decision is aligned with our previous holdings
and this Court’s interpretation of Padilla.6 Furthermore, the PCRA court’s
factual findings are binding upon this Court, as they are supported by the
record and based upon the PCRA court’s credibility determinations.
Commonwealth v. Spotz, 47 A.3d 63, 75 (Pa. 2012) (“The PCRA court’s
credibility determinations, when supported by the record, are binding on this
Court….”).
Moreover, while Appellant’s PCRA petition states that plea counsel
failed to provide Appellant accurate information regarding deportation risks,
Appellant’s brief to this Court does not deny that plea counsel addressed
these concerns with Appellant.7 Additionally, during Appellant’s guilty plea
hearing, plea counsel asked Appellant if he understood “that these two
6
Appellant contends that our holding in Escobar “virtually nullifies the
protections provided by the U.S. Supreme Court in Padilla.” Appellant’s
Brief at 20. Not only do we disagree, but in making such an argument,
Appellant is requesting us to disregard and overrule a previous decision
made by a panel on this Court. That we cannot do. See Commonwealth
v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (“It is beyond the power of a
Superior Court panel to overrule a prior decision of the Superior Court.”).
7
See Appellant’s Brief at 12 (“While plea counsel may have successfully
communicated to [Appellant] that there was a risk, the record
demonstrates that plea counsel fell short of advising [Appellant] that he
would almost certainly be deported if he pled guilty to receipt of
commerce.”) (emphasis added).
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offenses [he is] pleading [guilty to] could have some effects on [his] ability
to gain citizenship and [his] ability to retain that green card.” N.T., 7/2/2014
at 9. Appellant responded “yes.” Id. This testimony, which Appellant
denied having occurred when questioned at his PCRA hearing, directly
contradicts Appellant’s testimony and averments within his PCRA petition
that plea counsel “stated there was no risk of deportation as [Appellant] was
a legal permanent resident of the United States.” PCRA Petition,
10/16/2014, at 8.
Accordingly, we find that the PCRA court properly dismissed
Appellant’s petition, and as such, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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