Appeal From the Order Entered May 18, 1987 in the Court of Common Pleas of Philadelphia County, Criminal, No. M.C. 84-09-2231.
Catherine Marshall, Assistant District Attorney, Philadelphia, for Com., appellant.
Gerald A. Stein, Philadelphia, for appellee.
Cirillo, President Judge, and Tamilia and Hester, JJ.
[ 373 Pa. Super. Page 165]
The Commonwealth appeals an order of the Court of Common Pleas, Philadelphia County, granting Frank Chin, a resident alien, a new trial under the Post Conviction Hearing Act, 42 Pa.C.S. §§ 9541-9551. We reverse.
Frank Chin entered a guilty plea to charges of possession of a controlled substance and possession of a controlled substance with intent to deliver. He was sentenced to two years probation and a three hundred dollar fine. Approximately two years later, defendant filed a petition for relief under the Post Conviction Hearing Act alleging that his counsel, Mr. McWilliams, was ineffective for failing to advise him of the possible deportation consequences of a guilty plea. Chin alleged that as a result of the guilty plea, his immigration status has been seriously jeopardized and he is subject to possible deportation. Chin also alleged that had he known of these consequences, he would not have entered a guilty plea.
Trial counsel testified that he was unaware of the fact that defendant was a resident alien and unaware of the possible consequences of the plea until just prior to entry of the plea when the assistant district attorney brought the situation to counsel's attention. At this time, McWilliams advised Chin of what he had learned and advised him also to seek other counsel experienced in the area of immigration to address those problems. Direct examination of Frank Chin at the hearing on the PCHA petition reveals the following:
Q: What did Mr. McWilliams tell you about what would happen if you received probation -- what would happen to you from the Immigration Service?
A: Well, he told me that if I am found guilty I will be deported, but if I wasn't found guilty and on probation I
[ 373 Pa. Super. Page 166]
wouldn't be bothered, the Immigration wouldn't be bothered.
The Court: Would it be correct to say if you were found guilty by a trial you would be deported and if you pled guilty and got ...