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COMMONWEALTH PENNSYLVANIA v. JORGE M. FROMETA (07/29/87)

filed: July 29, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
JORGE M. FROMETA, APPELLANT



Appeal from the PCHA Order in the Court of Common Pleas of Dauphin County, Criminal Division, No. 977, 1043, 1043(A)C.D. 1984, 2491 C.D. 1985.

COUNSEL

Francis M. Socha, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Cirillo, President Judge, and Tamilia and Watkins, JJ. Dissenting opinion by Cirillo, President Judge.

Author: Tamilia

[ 366 Pa. Super. Page 314]

On February 10, 1986, appellant pled guilty to one charge of possession with intent to manufacture and deliver a controlled substance (cocaine), three charges of unlawful delivery of a controlled substance (cocaine), and two charges of criminal conspiracy to deliver a controlled substance (cocaine). Appellant was sentenced to four (4) to eight (8) years imprisonment on each of the above charges with all sentences to run concurrently. Appellant filed a timely petition for reconsideration of sentence which was denied on May 2, 1986. Subsequently, he filed an untimely notice of appeal to our Court, which was dismissed on July 31, 1986.

[ 366 Pa. Super. Page 315]

Appellant then filed a pro se petition under the Post Conviction Hearing Act, hereinafter "PCHA", 42 Pa.C.S. ยง 9541 et seq. This resulted in the appointment of present counsel, who filed an amended PCHA petition on August 29, 1986. After reviewing the amended petition the lower court ordered an evidentiary hearing to look into certain claims of ineffectiveness of trial counsel. The hearing was held on December 15, 1986 and the lower court denied all of appellant's PCHA claims on January 14, 1987. Appellant timely appeals this denial.

Appellant contends his trial counsel was ineffective in failing to inform him, prior to the entry of his guilty plea, that he could face deportation from this country as a result of a conviction on the charges involved. In finding against appellant, the lower court held that his trial counsel's failure to advise him of deportation consequences was not prejudicial. (Slip Op., Morgan, J., 1/14/87, p. 1). The lower court reasoned that in order for a defendant to claim harm, a defendant must demonstrate a reasonable probability that, but for this failure by his attorney, the result of the plea proceedings would have been different, i.e., prejudice. (Id. at 2). After the evidentiary hearing, the court concluded appellant had not demonstrated that his basis for entering a guilty plea -- that being his hopes for a lighter sentence -- would have changed if he had information concerning the collateral deportation consequences of his plea. (Id.).

As has been repeatedly enunciated by the Pennsylvania Supreme Court, when confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interest of his client. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). The Supreme Court set forth the standard governing

[ 366 Pa. Super. Page 316]

    ineffectiveness claims in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967):

[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of ...


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