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Commonwealth of Pennsylvania v. Tarik Rachak

November 27, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
TARIK RACHAK,



Appeal from the PCRA Order Entered April 5, 2012, In the Court of Common Pleas of York County, Criminal Division, at No. CP-67-CR-0001805-2011.

The opinion of the court was delivered by: Michael E. Bortner, Judge

BEFORE: BOWES, SHOGAN and PLATT*fn1 , JJ.

OPINION BY SHOGAN, J.:

Appellant, Tarik Rachak, appeals from the order entered on April 5, 2012, denying his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A §§ 9541-9546. We affirm.

The relevant facts and procedural history of this case were set forth by the PCRA court as follows:

[Appellant] was arrested on January 4, 2011 for Simple Possession of Cocaine, 35 P.S. § 780-113(a)(16), and Possession of Drug Paraphernalia, 35 P.S. § 780-113(a)(32). [Appellant] appeared pro se at his Arraignment before The Honorable Judge Gregory Snyder on April 29, 2011; at that time, Judge Snyder advised [Appellant] of the right to counsel and conveyed the importance of securing counsel prior to Pre-Trial Conference. At his Arraignment, [Appellant] received notice of his Pre-Trial

Conference, set for June 22, 2011; that notice also informed [Appellant] that if he appeared without a lawyer, he must be prepared to explain. On June 22, 2011, [Appellant] appeared for his Pre-Trial Conference without a lawyer and this Court reluctantly agreed to a continuance in order for [Appellant] to obtain a lawyer. [Appellant] returned on July 20, 2011, again without a lawyer, and indicated his desire to plead guilty to the charges.

[Appellant] completed a written Guilty Plea Colloquy that advised him again of his right to counsel. This Court also conducted an oral colloquy on the record; at that time, [Appellant] stated that he understood his right to an attorney and that if he could not afford one, one would be appointed to represent him. The Court then asked [Appellant] three times if he wished to waive his right to counsel and proceed with a guilty plea; [Appellant] responded "yes" all three times. [Appellant] then pled guilty to both charges for a Sentence of 2 years [of] probation.

On November 17, 2011, [Appellant], through counsel, filed a Petition for Relief under the Post-Conviction Relief Act, alleging for the first time that his plea was not freely, voluntarily, and knowingly entered. A hearing was held on February 15, 2012, at which time this Court heard testimony from [Appellant] and argument from both parties. The Court took the matter under advisement and allowed both parties a chance to file supporting memoranda. This Court then denied [Appellant's] Petition by Order of April 5, 2012 and filed an opinion in support thereof. [Appellant] now appeals this Court's denial of his Petition for Post-Conviction Relief.

PCRA Court Opinion, 6/6/12, at 1-2.

On appeal, Appellant raises two issues:

Whether the trial court erred in finding that Appellant had not met the second requirement of the PCRA where Appellant established that his plea was not tendered knowingly, intelligently and voluntarily given that he was not advised by the Court, nor by counsel, that deportation from the United States was a penalty that would be imposed on him as a result of his guilty plea.

Whether the trial court erred in finding that Appellant had not met the third requirement of the PCRA where Appellant was unable to file timely post-sentence motions and/or a timely direct appeal given that he did not learn that he would be deported until after the time for filing had elapsed, and where Appellant's issues were not proper to be raised in the first instance on direct appeal.

Appellant's Brief at 3. We will begin our discussion by setting forth the applicable standard of review.

When reviewing the propriety of an order granting or denying PCRA relief, this Court is limited to determining whether the evidence of record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record. Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003), appeal denied, 576 Pa. 712, 839 A.2d 352 (2003).

Here, the thrust of Appellant's argument is that his lack of knowledge as to the effect a guilty plea would have on his immigration status requires relief under the PCRA. Appellant's Brief at 7. However, the PCRA court concluded that, under the facts of this case, Appellant was not entitled to relief under the PCRA.

In its thorough discussion of Appellant's issues, the PCRA court analogized Appellant's immigration status to an individual's criminal history or status as a parolee at the time of the entry of a guilty plea. PCRA Court Opinion, 6/6/12, at 5 (unnumbered pages). The PCRA court concluded that it is not the responsibility of the trial court to determine a person's criminal history, parole status, or whether he or she is a citizen of the United States before accepting a guilty plea. Id. (emphasis added). Those factors are typically unknown to the court at that juncture, especially where the defendant opts to proceed pro se. Here, the record reflects that Appellant was apprised of all the information that is required to be relayed by the trial court pursuant to Pa.R.Crim.P. 590 when a person chooses to plead guilty.

N.T., 7/20/11, at 3-5.

Moreover, Appellant was informed multiple times of his right to counsel, and, even after the trial court afforded Appellant a continuance to obtain counsel (Order, 6/22/11), he refused. On the record, Appellant stated he understood his right to counsel, and he knowingly and voluntarily waived that right following a colloquy. N.T., 7/20/11, at 2-3. Appellant chose to proceed pro se. Ultimately, the PCRA correctly concluded that, under the facts and the record presented here, Appellant cannot satisfy the requirements for PCRA relief.

While Appellant focuses on the voluntariness of his guilty plea, that issue should have been raised on direct appeal; it was not.*fn2 Therefore the issue is waived. 42 Pa.C.S.A. § 9543(a)(3). Moreover, there is no indication that Appellant was induced to plead guilty despite being innocent, as there is no claim of innocence here. 42 Pa.C.S.A. § 9543(a)(2)(iii). The PCRA court opinion accurately addressed every facet of Appellant's petition, correctly explained the inapplicability of the United States Supreme Court's decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010),*fn3 and concluded that Appellant is entitled to no relief.

We are in agreement with the PCRA court. Accordingly, after a review of the briefs of the parties, the certified record on appeal, and the applicable law, we affirm the PCRA court's order on the basis of the Honorable Michael

E. Bortner's opinion, which is reproduced, in its entirety, below:

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA ...


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