J-S01021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMAINE L. KERR :
:
Appellant : No. 959 MDA 2018
Appeal from the PCRA Order May 16, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000367-2016,
CP-22-CR-0002787-2015, CP-22-CR-0006724-2014,
CP-22-CR-0006728-2014
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
MEMORANDUM BY MURRAY, J.: FILED JANUARY 25, 2019
Jermaine L. Kerr (Appellant) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
On March 2, 2016, Appellant, a legal permanent resident of the United
States and native of Jamaica, pled guilty to multiple counts of terroristic
threats, simple assault, violations of the Controlled Substance, Drug, Device
and Cosmetic Act, and one count of criminal trespass. The same day, the trial
court sentenced Appellant to 60 months of probation. On November 9, 2016,
the trial court revoked Appellant’s probation for violating numerous conditions
of his supervision, including, inter alia, violating the prohibition on possessing
controlled substances. The same day, the trial court imposed a new sentence
of 3 to 18 months of incarceration.
*Retired Senior Judge assigned to the Superior Court.
J-S01021-19
On March 6, 2017, Appellant filed a pro se petition for habeas corpus
relief; the court properly treated the filing as a PCRA petition and appointed
counsel, who filed an amended PCRA petition on January 10, 2018. See
Pa.R.Crim.P. 904(C ). In the interim, Appellant was transferred to the custody
of the United States Department of Homeland Security Immigration and
Customs Enforcement (ICE) officials in York County, Pennsylvania, where he
currently remains.
The PCRA court held a hearing on Appellant’s PCRA petition on March 1
and 22, 2018. On May 16, 2018, the PCRA court denied Appellant’s petition.
On June 12, 2018, Appellant timely appealed to this Court. Both the PCRA
court and Appellant have complied with Rule 1925 of the Pennsylvania Rules
of Appellate Procedure.
On appeal, Appellant presents the following issues for review:
1. Did the PCRA [c]ourt abuse its discretion and commit legal
error when it declined to conclude that plea counsel’s failure to
advise [Appellant] that he faced deportation amounts to per se
ineffectiveness which resulted in [Appellant] entering an
unknowing, involuntary, and unintelligent plea?
2. Did the PCRA [c]ourt abuse its discretion and commit legal
error when it declined to conclude that plea counsel’s failure to
procure a language interpreter during plea negotiations amounts
to a denial of the right to counsel which resulted in [Appellant]
entering an unknowing, involuntary, and unintelligent plea?
Appellant’s Brief at 2-3.
“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.”
-2-
J-S01021-19
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and
citations omitted). “To be entitled to PCRA relief, [an] appellant must
establish, by a preponderance of the evidence, [that] his conviction or
sentence resulted from one or more of the enumerated errors in 42
Pa.C.S.[A.] § 9543(a)(2)[.]” Id.
Appellant argues that the PCRA court erred in dismissing his ineffective
assistance of counsel claims as they relate to his guilty plea. For his first
issue, Appellant asserts that the PCRA court erred in denying his claim that he
did not enter a knowing, voluntary, and intelligent plea when plea counsel
failed to inform him that he could face deportation by pleading guilty. In
response, the Commonwealth asserts that plea counsel had no way of knowing
that Appellant was not an American citizen because he indicated that he was
an American citizen on his application for representation. For his second issue,
Appellant argues that plea counsel was ineffective for failing to procure an
interpreter for his guilty plea proceedings and that this likewise resulted in a
plea that was not knowing, voluntary, and intelligent. We address these issues
together.
In deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,
the petitioner must establish: “(1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s action or failure to act; and (3)
-3-
J-S01021-19
the petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Id. (citation omitted). To
demonstrate prejudice in an ineffective assistance of counsel claim, “the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
“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.
Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation
omitted). “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.” Id.
(quotations and citations omitted). “Thus, to establish prejudice, the
defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.
2013) (quotations and citations omitted). “The reasonable probability test is
-4-
J-S01021-19
not a stringent one; it merely refers to a probability sufficient to undermine
confidence in the outcome.” Id. (quotations and citations omitted).
With respect to valid guilty pleas, this Court has explained:
A valid guilty plea must be knowingly, voluntarily and intelligently
entered. The Pennsylvania Rules of Criminal Procedure mandate
that pleas be taken in open court, and require the court to conduct
an on-the-record colloquy to ascertain whether a defendant is
aware of his rights and the consequences of his plea. Specifically,
the court must affirmatively demonstrate the defendant
understands: (1) the nature of the charges to which he is pleading
guilty; (2) the factual basis for the plea; (3) his right to trial by
jury; (4) the presumption of innocence; (5) the permissible ranges
of sentences and fines possible; and (6) that the court is not
bound by the terms of the agreement unless the court accepts the
agreement. This Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining
the totality of the circumstances surrounding the entry of that
plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations
omitted); see also Pa.R.Crim.P. 590.
Importantly, the United States Supreme Court has held that counsel
must inform a noncitizen defendant whether a plea carries a risk of
deportation. Padilla v. Kentucky, 559 U.S. 356, 374 (2010). In Padilla,
the Supreme Court explained:
When the law is not succinct and straightforward . . .,
a criminal defense attorney need do no more than
advise a noncitizen client that pending criminal
charges may carry a risk of adverse immigration
consequences. But when the deportation
consequence is truly clear . . . the duty to give correct
advice is equally clear.
-5-
J-S01021-19
Id. at 369 (footnote omitted). This Court has held that Padilla requires
counsel to inform a defendant about the risk of deportation, but not its
certainty. Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. 2013);
see also Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super.
2013) (holding that plea counsel’s advice that defendant’s guilty plea would
render him “deportable” was not ineffective).
In rejecting Appellant’s claims, the PCRA court stated:
Here, [Appellant]’s written and signed assertion that he was an
American citizen removes him from the protection of Padilla,
supra, and Escobar, supra. This [c]ourt credited the testimony
of [Appellant]’s plea counsel . . . that she was unaware of
[Appellant]’s status as a non-citizen. Because [Appellant]
specifically asserted his status as an American citizen in his
application, there was no reason whatsoever for [plea counsel] to
inform [Appellant] of a risk of deportation. Moreover, [plea
counsel] indicated the she and [Appellant] did not have a problem
communicating, thereby removing the need to procure a language
interpreter. [Plea counsel] facilitated a negotiated plea deal with
[Appellant], and he agreed to all terms. His colloquy affirmatively
demonstrated that [Appellant] understood what the plea connoted
and its consequences. The record simply belies [Appellant]’s
assertion that his plea was unknowing, that he should have been
provided with an interpreter, and that counsel was ineffective.
PCRA Court Opinion, 9/26/18, at 4.
Based upon our review of the certified record on appeal, including the
transcripts of Appellant’s guilty plea and PCRA hearings, and his written guilty
plea colloquy, we conclude that the PCRA court did not err in dismissing
Appellant’s PCRA petition. The record supports the PCRA court’s
determination that plea counsel was not ineffective and that Appellant’s guilty
plea was knowing, voluntary, and intelligent.
-6-
J-S01021-19
At Appellant’s PCRA hearing, plea counsel testified:
Whenever someone fills out an application for representation, one
of the questions on there is whether or not they are an American
citizen, you circle yes or no. Whenever I look at the file before I
meet with my client, I look at this to see their status, their prior
record, anything like that. He filled out his application and wrote
he was an American citizen. So I would not have talked to him
about that.
N.T., 3/22/18, at 5-6.
Thus, plea counsel’s testimony reflects that as a matter of course, when
plea counsel reviews the application for representation of her appointed
clients, she checks whether her clients are American citizens. See id.
Appellant explicitly marked that he was an American citizen on his application
for representation. Id., Exhibit 1. Additionally, our review of the record
reveals that Appellant did not otherwise indicate that he was not an American
citizen prior to his guilty plea. Although Appellant asserts that plea counsel
should have informed him about the risks of deportation associated with
pleading guilty “[i]n an abudance of caution,” Appellant’s Brief at 12, he cites
no authority indicating that plea counsel should have disregarded Appellant’s
notation in his application for representation that he was an American citizen.
Therefore, the record support’s the PCRA court’s conclusion that plea counsel
had no reason to believe that Appellant was not an American citizen, and
consequently, plea counsel was not ineffective for failing to advise Appellant
of the risk of deportation associated with pleading guilty.
-7-
J-S01021-19
With respect to Appellant’s claim that plea counsel was ineffective for
failing to procure the assistance of an interpreter, plea counsel testified that
she was unaware that Appellant could not speak, write, or understand the
English language and that she had no issue communicating with him. Id. at
8-9. Moreover, in his written guilty plea colloquy, Appellant specifically
indicated that he was able to read and write and understood all of the terms
of his guilty plea. See Guilty Plea Colloquy, 3/2/16. “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.” Commonwealth v.
Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011). Therefore, the record
likewise supports the PCRA court’s conclusion that plea counsel was not
ineffective for failing to procure the assistance of an interpreter, as it had no
demonstrable effect on Appellant’s ability to understand the terms of the guilty
plea.
Finally, we note that the PCRA court credited plea counsel’s testimony
relating to her belief that Appellant was an American citizen and that he was
able to read and communicate in the English language. “[W]e are bound by
the PCRA court’s credibility determinations when they are supported by the
record.” Commonwealth v. Williams, 141 A.3d 440, 475 (Pa. 2016).
Because the record supports the PCRA court’s credibility determinations, we
-8-
J-S01021-19
conclude that the PCRA court did not abuse its discretion in determining that
Appellant’s guilty plea was knowing, voluntary, and intelligent.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/25/2019
-9-