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[U] Commonwealth v. Abrahams

Superior Court of Pennsylvania

February 28, 2014



Appeal from the PCRA Order of April 5, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No.: CP-46-CR-0000599-2008

Appeal from the PCRA Order of April 5, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No.: CP-46-CR-0005948-2008




O'Neil Abrahams ("Abrahams") appeals from the April 5, 2013 order dismissing his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46.[1] Counsel for Abrahams has filed with this Court an Anders brief, and a petition to withdraw as counsel in both above-captioned cases.[2], [3] We grant counsel's petitions to withdraw in both cases, and we affirm the PCRA court's order.

The procedural and factual history of this case is as follows. On March 27, 2009, Abrahams pleaded guilty at case number CP-46-CR-599-2008 (hereinafter, "CR-599") to possession of marijuana with the intent to deliver, aggravated assault, conspiracy to possess marijuana with the intent to deliver, and flight to avoid apprehension.[4] On that same date, Abrahams also pleaded guilty at case number CP-46-CR-5948-2008 (hereinafter, "CR-5984") to corrupt organizations, criminal conspiracy, possession of marijuana with the intent to deliver, and criminal use of a communications facility.[5] Abrahams' sentences on each count were structured in such a way that his aggregate sentence was six and one-half years' to seventeen years' imprisonment. PCRA Court Opinion ("P.C.O."), 6/25/2013, at 1, 6. Abrahams is a Jamaican national. As correctly noted in Abrahams' brief, "the drug convictions that resulted from [the above] guilty plea[s] rendered [Abrahams] liable for deportation from the United States." Brief for Abrahams at 5 (citing 8 U.S.C. § 1227(a)(2)(B)(i)).

Abrahams did not institute a direct appeal from the respective judgments of sentence. On January 7, 2010, Abrahams filed a pro se petition that raised numerous allegations of legal error and asserted ineffective assistance of counsel. Pursuant to Pa.R.Crim.P. 576, the trial court forwarded a copy of the petition to Abrahams' trial counsel. No further action was taken with regard to that pro se petition. P.C.O. at 7. On October 22, 2010, Abrahams filed a PCRA petition alleging that the Commonwealth had committed a Brady violation.[6] On February 22, 2011, the PCRA court provided Abrahams with notice pursuant to Pa.R.Crim.P. 907(1) that it intended to dismiss the PCRA petition without a hearing. On March 14, 2011, Abrahams responded to the PCRA court's Rule 907(1) notice. That response raised a new claim that Abrahams' "guilty plea counsel had been ineffective under Padilla v. Kentucky, 559 U.S. 356 (2010), for failing to advise [Abrahams] of the potential immigration consequences of his guilty plea." P.C.O. at 2. On March 25, 2011, the PCRA court dismissed Abrahams' petition on the basis that it was time-barred. See 42 Pa.C.S. § 9545(b)(1)(iii).

On April 18, 2011, Abrahams filed a timely notice of appeal. Abrahams filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 14, 2011, Abrahams' PCRA counsel filed a petition to withdraw with this Court, citing disagreements with his client over appellate strategy and Abrahams' non-payment of legal fees. That same day, this Court granted PCRA counsel's petition to withdraw. On October 13, 2011, the Montgomery County Public Defenders' Office was appointed to represent Abrahams.

On December 14, 2011, Abrahams' new PCRA counsel requested remand to the PCRA court for the filing of an amended Rule 1925(b) statement. On December 16, 2011, this Court remanded the record to the PCRA court for sixty days to allow for the filing of a new Rule 1925(b) statement. On December 30, 2011, Abrahams timely complied. In this new Rule 1925(b) statement, Abrahams asserted that the PCRA court had erred in not treating his January 7, 2010 petition as a timely pro se PCRA petition. By memorandum dated August 7, 2012, this Court reversed the PCRA court. See Commonwealth v. Abrahams, 60 A.3d 559 (Pa. Super. 2012) (table). Specifically, a panel of this Court held that the PCRA court should have treated Abrahams' January 7, 2010 petition as a PCRA petition and appointed new counsel to represent Abrahams. Id. Accordingly, we remanded to allow Abrahams' new PCRA counsel to file an amended PCRA petition.

On January 29, 2013, Abrahams filed an amended PCRA petition that raised claims of illegal sentencing[7] and ineffective assistance of counsel. On March 4, 2013, the PCRA court entered notice pursuant to Pa.R.Crim.P. 907(1) that it intended to dismiss Abrahams' amended PCRA petition without a hearing. Abrahams did not file a response. On April 5, 2013, the PCRA court dismissed Abrahams' amended PCRA petition. On May 1, 2013, Abrahams filed a notice of appeal. That same day, citing Abrahams' desire to continue his PCRA appeal pro se if necessary, Abrahams' counsel requested a Grazier hearing. See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) ("Given appellant's timely and unequivocal request to conduct his appeal pro se . . . an on-the-record determination should be made that the waiver [of his right to counsel] is a knowing, intelligent, and voluntary one."). On May 21, 2013, the PCRA court held a Grazier hearing during which Abrahams requested that PCRA counsel continue to represent him on appeal, specifically with reference to his ineffectiveness claim pursuant to Padilla. Abrahams' Brief at 11; see Notes of Testimony ("N.T."), 5/21/2013, at 5-9.

This appeal followed. On May 28, 2013, the PCRA court ordered Abrahams to file a Rule 1925(b) statement. On June 12, 2013, Abrahams timely complied. On June 25, 2013, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises one issue for our consideration at both CR-5984 and CR-599: "Did the PCRA court err in dismissing [Abrahams'] amended [PCRA petition] where said petition raised a claim of ineffective assistance of counsel in counsel's failure to advise [Abrahams] of the adverse immigration consequences of his plea of guilty to possession of marijuana with the intent to deliver?" Abrahams' Brief at 4.

As noted earlier, counsel for Appellant has filed an Anders brief and a motion to withdraw as counsel. Because this is an appeal from a PCRA order, we will treat counsel's Anders brief as a Turner/Finley brief. See supra at n.1. We first consider whether PCRA counsel has complied with the requirements of Turner and Finley. This Court previously has explained this procedure as follows:

Turner/Finley counsel must . . . submit a 'no merit' letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the "no merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley, the court will not reach the merits of the underlying claims but, rather, will merely deny counsel's request to withdraw. Upon doing so, the court will then take the appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advocate's brief.
However, where counsel submits a petition and no merit letter that do satisfy the technical demands of Turner/Finley, the court - trial court or this Court - must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny counsel's request and grant relief, or at least instruct counsel to file an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations omitted).

We have reviewed counsel's submissions, and we conclude that she has complied substantially with the requirements of Turner and Finley in both of the above-captioned cases. In both cases, counsel has submitted a brief detailing the issue as to which Abrahams sought review. After thoroughly reciting the procedural history of the cases, counsel sets forth her reasoning as to why she believes that Abrahams' appellate issue is frivolous. First, counsel recites the new rule announced in Padilla, which establishes that "plea counsel's failure to advise a defendant of the potential adverse immigration consequences associated with his plea constitutes ineffective assistance of counsel." Abrahams' Brief at 17; see Padilla, 559 U.S. at 374. Then, counsel states that the United States Supreme Court's subsequent ruling in Chaidez v. United States, 133 S.Ct. 1103 (2013), held that the effects of Padilla were not retroactively applicable to defendants whose convictions became final before the decision in Padilla was announced. Abrahams' Brief at 18 (citing Chaidez, 133 S.Ct. At 1113). Abrahams' conviction became final as of April 27, 2009, [8] and counsel argues that, because Padilla was not decided until March 31, 2010, Abrahams is not entitled to a presumption of ineffective assistance of counsel under the holding of Chaidez. Abrahams' Brief at 18. For this reason, counsel asserts that Abrahams' lone appellate issue is without merit.

On August 12, 2013, counsel filed a petition to withdraw as appellate counsel in both cases. Counsel also has attached copies of letters that she sent to Abrahams on the same day, which explained that: (1) counsel believed that Abrahams' appeal lacked merit; (2) counsel had attached a copy of her petition to withdraw in each case to the respective letters; and (3) Abrahams had the right to continue his appeal pro se or to retain new counsel at his own expense. See CR-599 Letter, 8/12/2013, at 1 (unpaginated); CR-5984 Letter, 8/12/2013, at 1 (unpaginated).

Before passing upon counsel's motion to withdraw as appellate counsel, we must conduct our "own independent evaluation of the record and agree with counsel that the petition is without merit." Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012). For the reasons that follow, we agree with PCRA counsel that Abrahams' petition lacks merit.

On appeal from the denial of PCRA relief, our standard of review requires us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. Commonwealth v. Washington, 927 A.2d 586, 593-94 (Pa. 2007). To be eligible for relief based on a claim of ineffective assistance of counsel, a PCRA petitioner must demonstrate by a preponderance of the evidence that (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or omission; and (3) there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).

Commonwealth v. Widgins, 29 A.3d 816, 819 (Pa. Super. 2011) (citations modified, emphasis added).

Prior to the decision in Padilla, Pennsylvania precedent imposed no duty upon plea counsel to apprise the client of potential deportation consequences of pleading guilty. See Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa. 1989) ("[W]e now hold that counsel, in providing adequate assistance to a criminal defendant who is contemplating a guilty plea, is not required to advise a defendant of the collateral consequences of pleading guilty."). Padilla abrogated this paradigm. The United States Supreme Court announced a new legal requirement that plea counsel "must inform her client whether his plea carries a risk of deportation[, ]" citing "the seriousness of deportation as a consequence of a criminal plea[.]" Padilla, 559 U.S. at 374. Failure to do so may result in a finding of ineffectiveness. Id. at 1482, 1487; see also generally Strickland v. Washington, 466 U.S. 668 (1984). As the PCRA court discussed in its Rule 1925(a) opinion, the announcement of Padilla initially created interpretive uncertainty:

Until recently, there was a split in appellate authority - both state and federal - as to whether Padilla enunciated a new rule of law and as to whether the holding of Padilla was to be given retroactive application. By way of example, in Commonwealth v. Garcia, 23 A.3d 1059 (Pa. Super. 2011), our Superior Court held that Padilla did not recognize a new constitutional right, as required to qualify for the exception to the time requirements of the [PCRA.] In United States v. Orocio, 645 F.3d 630 (3rd Cir. 2011), the Third Circuit also held that Padilla did not announce a new constitutional rule, and further held that the holding of Padilla would apply retroactively. In United States v. Chang Hong, 671 F.3d 1147 (10th Cir. 2011), by contrast, the [Tenth] Circuit held that Padilla would not be given retroactive effect.

P.C.O. at 9 (citations modified, italics in original). The United States Supreme Court sought to cure this confusion through its decision in Chaidez. Relying upon Teague v. Lane, 489 U.S. 288 (1989), the Court ruled that "defendants whose convictions became final prior to Padilla . . . cannot benefit from its holding." Chaidez, 133 S.Ct. at 1113.[9]

Applying the precedent above to the instant case, it is clear that Abrahams' claim lacks merit. As noted above, Abrahams' judgment of sentence became final on April 27, 2009, and the United States Supreme Court did not issue its decision in Padilla until March 31, 2010. Therefore, Abrahams' conviction became final approximately eleven months before the holding in Padilla was announced. Pursuant to Chaidez, Abrahams is not entitled to benefit from the ineffectiveness standard articulated in Padilla. Consequently, even assuming, arguendo, that Abrahams' plea counsel failed to inform him of the deportation consequences of his guilty plea, he is not entitled to relief.

Based upon the preceding discussion, we conclude that the PCRA court's determination is supported by the record and is free from legal error. Moreover, we agree with PCRA counsel's determination that Abrahams' appellate issue is meritless. Because the holding in Padilla does not avail Abrahams, he cannot demonstrate that his claim of ineffectiveness has arguable merit. See Widgins, supra. Furthermore, our independent review of the entire record has uncovered no other issues or potentially meritorious claims. See Rykard, supra. Consequently, we grant counsel's petitions to withdraw, and we affirm the order of the PCRA court.

Petitions to withdraw granted. Order affirmed.

Judgment Entered.

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