Appeal from the PCRA Order of November 21, 2012, in the Court of Common Pleas of Monroe County, Criminal Division at No. CP-45-CR-0001034-2011
BEFORE: STEVENS, P.J., PANELLA and COLVILLE [*], JJ.
The Commonwealth appeals the order granting Israel Escobar's petition under the Post Conviction Relief Act ("PCRA"). The order vacated Escobar's conviction and listed his case for trial. We reverse the order and remand this case with instructions.
The record reveals the following facts. Escobar pled guilty to possession with intent to deliver a controlled substance ("PWID"). The controlled substance was cocaine. Prior to the plea, Escobar's counsel informed him it was "likelyand possible" that deportation proceedings would be initiated against him. N.T., 10/24/11, at 5. Also, Escobar signed a written plea colloquy containing two entries indicating Escobar understood deportation was possible. Additionally, counsel's PCRA testimony would eventually indicate counsel advised Escobar, before he pled guilty, that he faced a substantial deportation risk.
After his guilty plea, Escobar was sentenced. He took no direct appeal. Through counsel, he filed a timely PCRA petition. Therein, he asserted the federal government had begun deportation proceedings against him because of his PWID conviction. Escobar further contended his guilty plea had been involuntary and his plea counsel was ineffective because counsel had not properly advised him of the deportation consequences arising from his conviction.
After a PCRA hearing, the court granted Escobar relief. In doing so, the court found plea counsel was ineffective in not providing sufficient advice concerning the risk of deportation. The court also determined Escobar's plea was therefore invalid.
The foundation of the PCRA court's reasoning was the court's belief that counsel was required to tell Escobar his deportation would, in fact, result from his plea, and not just that deportation was likely to result.
The relevant deportation statute is:
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).
Section 1227 also provides that, upon order of the United States Attorney General, deportable aliens listed in the statute shall be removed from the country. Id. § 1227(a).
Believing that Section 1227(a)(2)(B)(i) made it clear that Escobar's PWID conviction would necessarily render him deportable, the court reasoned counsel's advice was not sufficiently definite. That is, the PCRA court determined that, while counsel did advise Escobar about the risk of deportation to some extent, the advice ...