Appeal from the Order of Superior Court entered June 8, 2010 at No. 1158 WDA 2009, reversing the Order of the Court of Common Pleas of Allegheny County entered June 22, 2009 at CP-02-CR- 0005423-2008 and remanding. 996 A.2d 1090 (Pa. Super. 2010)
The opinion of the court was delivered by: Mr. Justice Eakin
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
The Commonwealth appeals from the order of the Superior Court reversing the order denying appellee's petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and remanding for an evidentiary hearing. We reverse.
Appellee, Joseph Abraham, was a high school teacher in the Pittsburgh public school system. In 2008, one of his students alleged he offered her $300 to have sex with him and touched her buttocks; she further stated he gave her one of his business cards and wrote his private cell phone number on it. After these allegations surfaced, appellee, who was 67 years old, retired from teaching and began receiving pension payments of $1,500 per month. Shortly after appellee retired, he was charged for the above incident. Pursuant to a negotiated agreement, appellee pled guilty to corruption of a minor*fn1 and indecent assault of a person less than 16 years of age.*fn2 He was sentenced to probation; no direct appeal was filed.
Because the crime of indecent assault of a person less than 16 years of age is one of the enumerated offenses in the Public Employee Pension Forfeiture Act (PEPFA), 43 P.S. §§ 1311-1315, appellee forfeited his pension when he pled guilty to this charge. He filed a motion to withdraw his plea nunc pro tunc, alleging he was not informed of his right to seek withdrawal of his plea or of the possible sentences he faced. The trial court denied the motion.
Appellee filed a timely PCRA petition alleging plea counsel was ineffective for failing to inform him he would forfeit his pension upon pleading guilty. The PCRA court, after giving the required notice pursuant to Pa.R.Crim.P. 907(1), dismissed the petition without a hearing. In its Pa.R.A.P. 1925(a) opinion, the PCRA court stated the loss of appellee's pension was an issue collateral to the plea; thus, under Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa. 1989), plea counsel's failure to explain this consequence to appellee was not relevant to whether his plea was knowing and voluntary. Accordingly, the PCRA court held counsel was not ineffective.
On appeal, the Superior Court reversed, holding a recent United States Supreme Court decision, Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), abrogated Frometa, which held deportation was collateral consequence of a guilty plea and therefore did not need to be explained to the defendant. The Superior Court noted Padilla, which also dealt with deportation following entry of a guilty plea, held such consequences were so intimately connected with the criminal process that a direct versus collateral consequences analysis*fn3 was ill suited to evaluate an ineffectiveness claim arising in this context. Commonwealth v. Abraham, 996 A.2d 1090, 1092 (Pa. Super. 2010). Rather, the court observed, Padilla examined the totality of the circumstances to determine whether counsel's failure to advise his client he would be deported if he pled guilty to drug charges constituted ineffective assistance. Id. The Superior Court noted factors such as the certainty of the consequence, the connection between criminal activity and the consequence, and the consequence's being succinct, clear, and distinct played a role in the Supreme Court's analysis. Id., at 1092-93. However, the court concluded it was unclear whether, under Padilla, the direct versus collateral consequences analysis was still viable, noting such "analysis might still be useful if the nature of the action is not as 'intimately connected' to the criminal process as deportation." Id., at 1092.
The court reasoned that determining whether a consequence is civil or penal - an analysis predominantly used to evaluate ex post facto challenges - was relevant to determining whether counsel was constitutionally effective in this case, as both situations implicate due process. Id., at 1093. Accordingly, the court analyzed pension forfeiture under the two-prong test applied in Lehman v. Pennsylvania State Police, 839 A.2d 265 (Pa. 2003),*fn4 and applied the seven "guideposts" Lehman used in assessing the effect of the measure at issue. The court concluded: (1) the legislature intended forfeiture of pension benefits under PEPFA to be a civil sanction; (2) pension forfeiture is an affirmative disability; (3) there does not appear to be a historical use of pension forfeiture as applied to criminal behavior; (4) no independent finding of scienter is required to trigger pension forfeiture; (5) the underlying behavior to which pension forfeiture applies is solely criminal; (6) pension forfeiture promotes the traditional aims of punishment, acting as both retribution and deterrence; and (7) there is no alternative purpose for pension forfeiture, and thus there is no need to determine whether the sanction appears excessive in relation to such purpose. Abraham, at 1093-94. Based on these guideposts, the court concluded, "[I]t is apparent the loss of pension is punitive in nature." Id., at 1094. Applying Padilla's "newly minted" approach, id., at 1093, the court concluded:
Because of the automatic nature of forfeiture, the punitive nature of the consequence, and the fact that only criminal behavior triggers forfeiture, the application of PEPFA is, like deportation, intimately connected to the criminal process. Therefore, counsel was obliged to warn his client of the loss of pension as a consequence to pleading guilty.
The court alternatively concluded that if it applied the direct versus collateral consequences analysis, the result would be the same: "loss of pension is related to the nature of the sentence and the application of the measure has a definite, immediate and automatic effect on the range of punishment." Id. (citing Commonwealth v. Wall, 867 A.2d 578, 582 (Pa. Super. 2005)). Therefore, the court held plea counsel was obliged to inform appellee he would forfeit his pension if he pled guilty to the triggering crime.
The Superior Court thus concluded appellee met the "arguable merit" and "reasonable basis" prongs of the ineffectiveness test,*fn5 but held in the absence of a record, it could not conclude whether appellee suffered prejudice resulting from counsel's inaction; the only evidence was appellee's signed, notarized declaration that if counsel had advised him of the pension forfeiture, he would have either sought to plead guilty to a charge other than indecent assault or would have gone to trial. Accordingly, the Superior Court held an evidentiary hearing was necessary to determine the issue of prejudice, and reversed and remanded. Judge Bowes concurred in the result.
We granted the Commonwealth's Petition for Allowance of Appeal to determine:
(1) Whether, in light of Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473 (2010), the distinction in Pennsylvania between direct and collateral consequences to define the scope of constitutionally "reasonable and professional assistance" required under Strickland v. Washington, 486 U.S. 668 (1984) is appropriate?
(2) If so, whether the forfeiture of a pension that stems from a public school teacher's negotiated plea to crimes committed in the scope of his employment is a collateral consequence of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise?
Commonwealth v. Abraham, 9 A.3d 1133 (Pa. 2010). Because these are questions of law, our scope of review is plenary, and our standard of review is de novo. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).
We first address whether a direct versus collateral consequences analysis remains viable in light of Padilla.*fn6 Padilla, a native of Honduras, had been a lawful permanent resident of the United States for over 40 years when he was charged with transporting drugs, a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i). He pled guilty, not knowing he faced deportation. He later claimed his counsel did not advise him of this consequence prior to entry of the plea, assuring him he did not have to worry about deportation because he had been in the country for so long. Padilla contended he would have insisted on going to trial had counsel not given him incorrect advice.
The Supreme Court of Kentucky denied relief, holding deportation was a collateral consequence of Padilla's conviction, such that the Sixth Amendment's guarantee of effective assistance of counsel did not protect him from counsel's erroneous advice regarding deportation. Commonwealth v. Padilla, 253 S.W.3d 482, 485 (Ky. 2008). In the Court's view, "collateral consequences are outside the scope of the guarantee of the Sixth Amendment right to counsel[.]" Id. The United States Supreme Court reversed, concluding counsel had an obligation to advise Padilla the offense to which he would plead guilty was a deportable one, and that constitutionally competent counsel would have given such advice. Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Accordingly, the Court concluded Padilla had established Strickland's first prong - constitutional deficiency. However, the Court declined to conclude Padilla established Strickland's second prong - prejudice - because this issue was not ruled upon below. The Court reversed and remanded for proceedings consistent with its decision. See id., at 1483-84, 1487.
In holding counsel's failure to properly advise on deportation deprived Padilla of his Sixth Amendment right to effective counsel, the Court noted changes to immigration law over the past century "have dramatically raised the stakes of a noncitizen's criminal conviction. The importance of accurate legal advice for non-citizens accused of crimes has never been more important." Id., at 1480. The Court observed the Kentucky Supreme Court was not alone in its view that deportation was a collateral consequence, but stated, "We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation." Id., at 1481 (citation omitted). Thus, the Court declined to rule on the specific question before us: whether the direct versus collateral consequences analysis is appropriate in assessing a claim of ineffectiveness in connection with entry of a plea. Instead, the starting point for the Court's analysis was that deportation was a unique consequence which did not lend itself to such an analysis. The Court, in examining the nature of deportation, observed:
We have long recognized that deportation is a particularly severe "penalty"; but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it "most difficult" to divorce the penalty from the conviction in the deportation context.
Id., at 1481 (citations omitted). Because of deportation's "close connection to the criminal process," the Court concluded it was "uniquely difficult to classify as either a direct or collateral consequence[,]" and "[t]he collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation." Id., at 1482.
The Superior Court held that Padilla made it unclear whether the direct versus collateral consequences analysis was still viable in assessing ineffectiveness claims involving the consequences of a plea. The court went on to conclude pension forfeiture, like deportation, was so "intimately connected" to the criminal process that, like deportation, counsel was required to advise his client of the consequence of pension forfeiture. We disagree.
The provision of PEPFA which directs forfeiture provides:
(a) Notwithstanding any other provision of law, no public official or public employee nor any beneficiary designated by such public official or public employee shall be entitled to receive any retirement or other benefit or payment of any kind except a return of the contribution paid into any pension fund without interest, if such public official or public employee is ...