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Commonwealth of Pennsylvania v. Peter Mcdermitt

May 13, 2013

COMMONWEALTH OF PENNSYLVANIA
v.
PETER MCDERMITT,*FN1 APPELLANT



Appeal from the PCRA Order, June 2, 2011, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0010737-2008

The opinion of the court was delivered by: Ford Elliott, P.J.E

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND MUSMANNO, JJ.

OPINION BY FORD ELLIOTT, P.J.E.

Appellant appeals the order entered June 2, 2011 which dismissed his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Finding no error, we affirm the order below.

On July 13, 2009, appellant entered a negotiated plea of no contest to a charge of possession of a controlled substance with intent to deliver. Immediately thereafter, the court imposed the negotiated sentence of three years' probation. During the plea, appellant was informed that the conviction rendered him deportable and the court was informed that appellant was already voluntarily going through the channels of deportation. (Notes of testimony, 7/13/09 at 14.)

Thereafter, no direct appeal was filed. On August 10, 2010, appellant filed a counseled PCRA petition. On March 15, 2011, the Commonwealth filed a motion to dismiss the petition. On April 19, 2011, the PCRA court entered an order, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss the petition without evidentiary hearing. As noted, appellant's petition was dismissed on June 2, 2011, and appellant now brings this timely appeal.*fn2

Appellant raises the following issues on appeal:

1. Did the court err in denying the PCRA petition without an evidentiary hearing, despite Mr. McDermott's verified claims regarding plea counsel's ineffective assistance up to the plea colloquy, as set forth in subparagraphs 2(A) -(D) of the August 10, 2010, PCRA petition?

2. Did the court err in denying the PCRA petition without a hearing despite Mr. McDermott's verified claims regarding the certain (not merely possible) deportation consequences of a PWID conviction, as set forth in subparagraph 2(E) of the August 10, 2010, PCRA petition (see Padilla v. Kentucky, 559 U.S. - (March 31, 2010))?

3. Did the court err in denying the PCRA petition without an evidentiary hearing, despite Mr. McDermott's verified claims regarding the failure to conduct a Flores-Ortega consultation, as set forth in subparagraph 2(F) of the August 10, 2010, PCRA petition (see Roe v. Flores-Ortega, 528 U.S. 470 (2000))?

4. Did the court err in denying the PCRA petition without a hearing despite Mr. McDermott's verified claims regarding the failure to preserve other claims, as set forth in subparagraphs 2(G) (H) of the August 10, 2010, PCRA petition?

Appellant's brief at 2.

Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.

Moreover, as some of appellant's issues on appeal are stated in terms of ineffective assistance of counsel, we note that appellant is required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Daniels, 947 A.2d 795, ...


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