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[U] Commonwealth v. Abrahams

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
O'NEIL ABRAHAMS Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
O'NEIL ABRAHAMS Appellant

NON-PRECEDENTIAL DECISION

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

BEFORE: BOWES, J., LAZARUS, J., and WECHT, J.

MEMORANDUM

WECHT, J.

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 Tu ...


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