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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
:
v. :
:
MOHAMMAD SOHAIL SALEEM, :
:
Appellant : No. 645 MDA 2016
Appeal from the PCRA Order March 24, 2016
in the Court of Common Pleas of Lebanon County,
Criminal Division, No(s): CP-38-CR-0000565-2014;
CP-38-CR-0001112-2014
BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 28, 2017
Mohammad Sohail Saleem (“Saleem”), pro se, appeals from the Order
denying his first Petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”).1 We affirm.
In its Opinion filed on July 22, 2016, the PCRA court set forth the
relevant history underlying the instant appeal. See PCRA Court Opinion,
7/22/16, at 1-12. We adopt the PCRA court’s recitation for the purpose of
this appeal. See id.
Briefly, Saleem pled guilty to indecent assault and the summary
offense of harassment involving two victims.2 The victims were employees
of a small business owned by Saleem. Upon his guilty plea, the trial court
ordered an assessment to determine whether Saleem is a sexually violent
1
42 Pa.C.S.A. §§ 9541-9546.
2
See 18 Pa.C.S.A. §§ 3126, 2709.
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predator pursuant to 42 Pa.C.S.A. § 9792. Saleem was thereafter found to
be a sexually violent predator. At sentencing, following a discussion
regarding possible deportation proceedings, the trial court sentenced Saleem
to an aggregate prison term of 21 months to 10 years. Saleem
subsequently filed two post-sentence Motions claiming ineffective assistance
of counsel, which the trial court denied without prejudice to Saleem for
seeking relief under the PCRA.
Saleem timely filed the instant pro se PCRA Petition, claiming that his
plea was unknowing and involuntary. In his Petition, Saleem asserted that
he had been promised that he would be deported if he entered a guilty plea.
The PCRA court appointed counsel to represent Saleem. At the evidentiary
hearing, Saleem’s PCRA counsel argued that the plea agreement required
the immediate deportation of Saleem, and that the Commonwealth violated
this agreement. The PCRA court denied Saleem’s Petition. Although Saleem
was represented by counsel, Saleem subsequently filed numerous pro se
documents, including a pro se Notice of Appeal, followed by a pro se court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal. After a Grazier3 hearing, the trial court permitted Saleem to
proceed pro se, but with appointed stand-by counsel. Saleem subsequently
filed a revised Rule 1925(b) Concise Statement, which raised additional
claims.
3
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Saleem now presents the following claims for our review:
1. Whether the evidence presented in the PCRA [c]ourt was
sufficient to establish that trial counsel was ineffective by
coercing or misleading [Saleem] to enter a guilty plea [that] was
not knowingly, voluntarily and intelligently entered?
2. Whether the PCRA [c]ourt erred in denying [Saleem’s] PCRA
Petition where a plea of guilty was induced[,] and [Saleem] is
innocent?
3. Whether the sentencing and PCRA [j]udge, Bradford H.
Charles [(“Judge Charles”),] demonstrated bias by statements
[he] made during the proceedings?
4. Whether PCRA [c]ounsel was ineffective in failing to
investigate and raise claims of arguable merit?
Brief for Appellant at 7.
Because they are related, we will address Saleem’s first two claims
together. Saleem first claims that the PCRA court improperly determined his
plea was not unknowing, involuntary and misleading. Id. at 16. Saleem
contends that his plea counsel coerced and misled him into pleading guilty,
based upon a representation that Saleem would be immediately deported to
Pakistan. Id. Saleem quotes a letter from his plea counsel, which stated
the following: “The District Attorney’s Office would also agree to include a
provision in the sentencing order that they have no objection to your
immediate deportation.” Id. Saleem contends that his counsel left him with
the impression that he would be deported immediately. Id. at 17. Saleem
further argues that his counsel rendered ineffective assistance by not
objecting or informing Saleem that he could withdraw his plea. Id. at 18.
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According to Saleem, the sentencing judge appeared to be unaware that
another judge had accepted Saleem’s plea, which was conditioned upon
Saleem’s immediate deportation. Id. at 20.
In his second claim of error, Saleem argues that the PCRA court
improperly denied him relief, where his guilty plea was “unlawfully induced
where the circumstances make it likely that the inducement caused him to
plead guilty and he is innocent.” Id. at 23. Saleem again asserts that he
was unlawfully induced to plead guilty with a promise of immediate
deportation. Id. Saleem argues that the sentencing judge disagreed with
the judge who accepted his plea. Id. at 24. According to Saleem, he is
innocent, and a surveillance video would prove his innocence. Id.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and
internal quotation marks omitted).
Where a PCRA court fails to support its holding with
sufficient explanations of the facts and law, or fails to provide an
adequate opinion addressing all of the claims raised in a PCRA
petition, including factual and credibility disputes, a remand is
appropriate.
Id. at 410.
“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.” Commonwealth v.
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Mitchell, 105 A.3d 1257, 1272 (Pa. 2014) (citations omitted). To prevail on
a claim of ineffective assistance of counsel under the PCRA, a petitioner
must plead and prove 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.” 42
Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the
underlying claim has arguable merit; second, that counsel had no reasonable
basis for his action or inaction; and third, that [a]ppellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014),
“Where it is clear that a petitioner has failed to meet any of the three,
distinct prongs of the … test, the claim may be disposed of on that basis
alone, without a determination of whether the other two prongs have been
met.” Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008).
“Where the defendant enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether counsel’s 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 internal quotation marks omitted). “[C]ounsel is presumed to
be effective and the burden of demonstrating ineffectiveness rests on
[a]ppellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.
2011). Additionally, “counsel cannot be held ineffective for failing to pursue
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a meritless claim[.]” Commonwealth v. Hall, 867 A.2d 619, 632 (Pa.
Super. 2005).
Upon our review of the parties’ briefs and the certified record, we
agree with the sound analysis of the PCRA court, as set forth in its Opinion,
and its conclusion that Saleem’s claims lack arguable merit. See PCRA
Court Opinion, 7/22/16, at 15-21. Specifically, the PCRA court found that
there was no promise of immediate deportation in exchange for Saleem’s
plea, and counsel did not render ineffective assistance in this regard. See
id. We therefore affirm on the basis of the PCRA court’s Opinion with regard
to this claim.4 See id.
In his third claim, Saleem argues that the sentencing judge was biased
against him. Brief for Appellant at 26. Saleem directs our attention to the
following hypothetical, stated by the sentencing judge, as an example of
how Saleem could be permitted back into the United States, even after
deportation:
Let me give a hypothetical. Let’s say that [Saleem’s] ever in
Pakistan. He comes into knowledge about a terrorist. He goes
to the United States Consulate and says, I’ll give up this
terrorist. I’ll let you know where he is, I’ll let you know where
he’s staying, but you are going to have to let me come back and
live with my family in America. Now, when that happens—if that
happens—the federal government is going to say, hum, we can
take out a terrorist who’s dangerous to thousands of people and
may commit horrific acts and all we have to do is let this guy
4
We additionally note that, at the sentencing hearing, the Commonwealth
informed the trial court that deportation proceedings had been instituted
based upon two prior convictions for sexual assault, relating to different
victims, which took place in 2009. N.T., 6/3/15, at 5-6.
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come back and live in America with his wife and children. That’s
going to be awful tempting.
Brief for Appellant at 26 (quoting N.T., 6/3/15, at 11-12). Saleem argues
that the judge’s comments demonstrate the judge’s prejudice against him.
Id. Saleem also directs our attention to the sentencing judge’s explanation
regarding the court’s concern that Saleem would not be incarcerated in
Pakistan:
[Saleem’s] not going to be put in jail in Pakistan. I can’t—I’m
speculating when I say that he might be viewed as a hero there,
but—and that is speculation. But I know that he gets off that
plane in Islamabad, the American officials are going to send him
out of a gate, take his handcuffs off, and say, bye, bye. And
he’s free as a bird. In fact, that I know and that’s not something
I’m comfortable with.
Brief for Appellant at 27 (quoting N.T., 6/3/16, at 16).
Our review of the record discloses that Saleem did not raise this claim
in his PCRA Petition or before the PCRA court. Accordingly, it is not
preserved for appellate review. See Pa.R.A.P. 302(a) (stating that a claim
cannot be raised for the first time on appeal).
In his final claim, Saleem argues that his PCRA counsel rendered
ineffective assistance for failing to investigate and raise claims of arguable
merit. Brief for Appellant at 29. Specifically, Saleem argues that his PCRA
counsel failed to raise the second and third claims Saleem now raises in this
appeal. Id. In support, Saleem baldly assets that his claims have arguable
merit; counsel had no basis for not presenting the claims; and the claims,
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and their cumulative effect, had an adverse effect on the outcome of the
proceedings. Id. at 30.
Regarding Saleem’s claim of ineffective assistance of PCRA counsel,
based upon an alleged promise of immediate deportation, we note that
Saleem challenged his plea agreement before the PCRA court. During the
PCRA proceedings, the PCRA court asked counsel, in Saleem’s presence, as
to the issues that Saleem sought to raise in the PCRA proceedings. N.T.,
3/24/16, at 3. Counsel indicated that Saleem sought to challenge only his
guilty plea as unknowing and involuntary, based upon Saleem’s belief that
the agreement provided for immediate deportation. Id. Thus, Saleem’s
challenge to PCRA counsel’s actions lacks arguable merit, as counsel, in fact,
challenged the plea agreement.5
Under these circumstances, we conclude that Saleem’s claim of PCRA
counsel’s ineffectiveness, based upon an alleged promise of immediate
deportation, lacks arguable merit. At the PCRA hearing, Saleem
acknowledged the Commonwealth’s agreement that it would not object to
deportation. N.T., 3/24/16, at 11. The Commonwealth complied with the
plea agreement. The Commonwealth, in compliance with the agreement,
lodged no objection to the immediate deportation of Saleem. Id. at 11.
Consequently, there is no arguable merit to Saleem’s underlying claim. See
5
Our review of the notes of testimony from the sentencing hearing further
discloses that the trial court correctly informed Saleem that it had no
involvement with federal deportation proceedings. N.T., 6/3/15, at 19, 21-
22; see also PCRA Court Opinion, 7/22/16, at 15-20.
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Steele, 961 A.2d at 797 (stating that where a petitioner fails to meet any of
the three prongs of the ineffectiveness test, the claim may be disposed of on
that basis alone).
We further conclude that Saleem’s claim of ineffective assistance,
based upon PCRA counsel’s failure to allege bias by the sentencing judge, is
waived, based upon Saleem’s failure to raise the issue before the PCRA
court. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the
first time on appeal); see also Commonwealth v. Henkel, 90 A.3d 16,
29-30 (Pa. Super. 2014) (en banc) (finding ineffective assistance of PCRA
counsel claims cannot be raised for the first time on appeal). We therefore
affirm the Order of the PCRA court.
Motion to Expedite denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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