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Commonwealth v. Velazquez

Superior Court of Pennsylvania

August 15, 2019


          Appeal from the Order Entered September 19, 2018 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000747-2017

          BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.


          DUBOW, J.

         The Commonwealth appeals from the Order entered September 19, 2018, granting the Petition for collateral relief filed by Guillermo Israel Velazquez under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

         In October 2017, Velazquez entered into a negotiated guilty plea to charges of Simple Assault and Disorderly Conduct in exchange for 36 months of probation as well as recommended treatment for substance abuse and domestic violence.[1] N.T. Plea, 10/26/17, at 1-2. Following a colloquy, the trial court accepted the plea and imposed the agreed-upon sentence. Id. at 8. Velazquez did not appeal the Judgment of Sentence.

         Velazquez is a resident alien. PCRA Ct. Op., 9/19/18, at 1. Following his plea, federal authorities arrested Velazquez on an immigration detainer based upon the charges to which he pleaded. Removal proceedings commenced, and Velazquez now faces deportation. Id. at 3.

         In April 2018, Velazquez filed a Petition for collateral relief, asserting ineffective assistance of plea counsel. According to Velazquez, counsel failed to advise him properly of the immigration consequences of his plea. Petition, 4/30/18. Specifically, Velazquez averred, counsel advised him to plead guilty to Simple Assault, 18 Pa.C.S. § 2701(a)(3), based on counsel's determination that this particular section would not adversely affect his immigration status. Petition, 4/30/18, at 2-4. However, according to Velazquez, this advice was clearly erroneous and subjected him to deportation. Id. According to Velazquez, had he known of the immigration implications of his plea, he never would have agreed to plead guilty. Id. Thus, Velazquez averred, his plea was neither knowing nor voluntary. Id.

         The PCRA court held an evidentiary hearing at which plea counsel testified. Counsel acknowledged that he knew Velazquez was not a United States citizen, that the charges against him could impact his immigration status, and that he was unsure which specific section or sections of the Simple Assault statute may constitute a deportable offense. N.T. PCRA, 7/19/18, at 35-36. Further, counsel conceded that he failed to follow express instructions from his superior to consult with an immigration attorney prior to Velazquez's plea hearing. Id. Nevertheless, counsel also acknowledged that he specifically advised Velazquez that Section 2701(a)(3) was not a deportable offense. Id. at 38.

         Following the hearing, the PCRA court granted relief, vacating the Judgment of Sentence previously imposed and directing Velazquez to appear for further proceedings. PCRA Ct. Order, 9/19/18. The Commonwealth timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement.[2]

         In its appeal, the Commonwealth raises the following issue:

[Whether] the PCRA court err[ed] in granting relief to [Velazquez] on the basis of ineffective assistance of counsel[, ] where plea counsel failed to explain the immigration consequences of a guilty plea but where [Velazquez] indicated orally and in writing prior to the entry of that plea his understanding that the entry of the plea may have immigration consequences[.]

Commonwealth's Br. at 6.

         The Commonwealth asserts that the PCRA court erred in granting Velazquez relief. Id. at 8. We review an order granting or denying a petition for collateral relief to determine whether the PCRA court's decision is supported by the evidence of record and free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)). We will not disturb the findings of the PCRA court unless there is no support for those findings in the record. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

         In his Petition, Velazquez contended that plea counsel was ineffective. We presume counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). To overcome this presumption, "a PCRA petitioner must show the underlying claim has arguable merit, counsel's actions lacked any reasonable basis, and counsel's actions prejudiced the petitioner." Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. 2013) (citing Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). "Prejudice means that, absent counsel's conduct, there is a reasonable probability the outcome of the proceedings would have been different." Id. A claim will be ...

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