Com. v. Cantoral, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARLOS S. CANTORAL
Appellant No. 1935 MDA 2015
Appeal from the PCRA Order October 15, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003513-2012
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED JULY 20, 2016
Appellant, Carlos S. Cantoral, appeals from the October 15, 2015 order
denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. After careful consideration, we affirm.
We summarize the procedural history of this case as follows. On
January 13, 2012, Officer Timothy Fink, of the West Manchester Township
Police Department, charged Appellant with two counts of indecent assault
and one count of disorderly conduct1 in connection with a December 18,
2011 incident where Appellant approached a 15-year-old girl in the make-up
aisle of Target and squeezed or pinched her buttocks. After some
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3126(a)(1), 3126(a)(4), and 5503(a)(4), respectively.
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continuances, Appellant waived his preliminary hearing and, on June 6,
2012, applied for admittance into the Accelerated Rehabilitative Disposition
(ARD) program. The District Attorney approved the application and filed a
motion for Appellant’s admission into the ARD program. The trial court
admitted Appellant into the ARD program with special sex offender
conditions on August 24, 2012. One special condition, of which Appellant
was advised, was that “[Appellant] shall be required to obtain approval
before leaving the jurisdiction of the Court and [Appellant] must secure
travel permission before leaving the state.” ARD Order and Conditions,
8/24/12, at 2, ¶ 4. The U.S. Immigration and Customs Enforcement agency
contacted the clerk of courts, on November 8, 2012, requesting existing and
future documentation relative to Appellant’s case.
Citing unauthorized travel by Appellant, the York County Office of
Adult Probation, on November 14, 2012, petitioned for Appellant’s removal
from the ARD program.2 In the meantime, Appellant retained new counsel,
who, on November 30, 2012, filed a motion on Appellant’s behalf to
withdraw from his ARD program and proceed to trial.3 After a hearing on
the Probation Department’s motion to remove, held on January 4, 2013, the
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2
We note that Pennsylvania Rule of Criminal Procedure 318(A) directs that
motions charging a defendant with violation of the conditions of his ARD be
initiated by the attorney for the Commonwealth.
3
Appellant was initially represented by Anthony Sangiamo, Esquire, and
subsequently by Matthew Menges, Esquire.
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trial court issued an order, filed January 31, 2013, removing Appellant from
the ARD program.4
Appellant’s case eventually proceeded to a jury trial. On January 8,
2015, the jury returned a verdict of guilty on the two indecent assault
counts and not guilty on the disorderly conduct charge. 5 On February 23,
2015, the trial court initially sentenced Appellant to six to twenty-three
months’ with the six months to be served on house arrest with electronic
monitoring. The Commonwealth filed a post-sentence motion to modify
sentence, averring the sentence as structured was illegal. Commonwealth
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4
A transcript of the January 4, 2013 hearing is not contained in the certified
record, and it is unclear whether Appellant’s motion to withdraw from the
ARD program was also addressed at that time. It is also unclear whether
the trial court’s order was based on a finding of a violation or was a grant of
Appellant’s motion. The parties and the trial court advance the position that
Appellant’s removal was based on a grant of Appellant’s motion to withdraw.
See Commonwealth’s Brief at 5 (asserting,”[o]n January 4, 2013,
[Appellant] withdrew from the ARD program”); Appellant’s Brief at 4, 9, 13
(indicating no hearing on Appellant’s violation was held and that, on January
4, 2013, Appellant was permitted to withdraw from his ARD program); PCRA
Court Opinion, 2/2/16, at 4, 11 (indicating the PCRA court “took judicial
notice that Attorney Menges and the Commonwealth had agreed to allow the
Appellant to withdraw from ARD,” and that the allegation of Appellant’s
violation of his ARD remains undecided). However, a transcript from a
hearing held on January 22, 2013 indicates that the 22nd was the date set to
address Appellant’s motion to withdraw. The attorney for the
Commonwealth opened the hearing as follows. “Your Honor, we’re here
today on [Appellant’s] motion to withdraw from ARD and compel discovery.
I believe the ARD portion of that motion would be moot at this point. On
January 4th of this year, he was removed from ARD for failure to abide by
the conditions.” N.T., 1/22/13, at 2 (emphasis added). Counsel for
Appellant acknowledged that was an accurate statement. Id.
5
After an earlier bench trial, Appellant was granted a new trial based on the
inadequacy of the pretrial colloquies.
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Motion to Modify Sentence, 3/3/15, at 1-2, citing Commonwealth v.
DiMauro, 642 A.2d 507 (Pa. Super. 1994). The trial court, on March 26,
2015, modified Appellant’s sentence to two years of probation with the first
six months on electronically monitored house arrest.
On September 15, 2015, Appellant filed a timely, counselled PCRA
petition, alleging ineffective assistance of prior counsel for failure to advise
him of the immigration consequences of a conviction at the time he was
contemplating withdrawing from the ARD program. The PCRA court held an
evidentiary hearing on October 9, 2015. On October 15, 2015, the PCRA
court denied Appellant’s PCRA petition. Appellant filed a timely notice of
appeal on November 2, 2015.6
Appellant raises the following questions for our review.
A. Whether Appellant was denied the effective
assistance of counsel because defense counsels
failed to advise him of the immigration consequences
of his criminal charges and the specific procedures
and potential immigration consequences of
withdrawing from the [ARD] program?
B. Whether defense counsels are per se
ineffective when they fail to make inquiry into their
client’s citizenship?
C. Whether under the [PCRA], if it is determined
that the appellant received ineffective assistance of
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6
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Appellant, now facing deportation, filed on June
28, 2016, a motion before this Court requesting an advance decision in this
case. Our disposition of the matter renders Appellant’s motion moot.
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counsel, the court may, as an appropriate remedy of
relief, vacate a jury verdict and further order the
appellant’s reinstatement into the ARD program[?]
Appellant’s Brief at 2.7
We review the denial of a PCRA petition in accordance with the
following criteria. “Our standard of review of [an] order granting or denying
relief under the PCRA requires us to determine whether the decision of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Melendez-
Negron, 123 A.3d 1087, 1090 (Pa. Super. 2015) (citation omitted).
We view the findings of the PCRA court and the
evidence of record in a light most favorable to the
prevailing party. … The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court; however, we apply a de novo
standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal
quotation marks and citations omitted). In this case, Appellant claims both
of his prior attorneys were ineffective.
To be entitled to relief on an ineffectiveness claim, [a
claimant] must prove the underlying claim is of
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7
Appellant has not divided his argument section to correspond with his
questions presented on appeal in accordance with Pennsylvania Rule of
Appellate Procedure 2119(a). Rather, Appellant advances a single argument
encompassing all of his issues. We therefore address Appellant’s issues in
the same manner.
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arguable merit, counsel’s performance lacked a
reasonable basis, and counsel’s ineffectiveness
caused him prejudice. Commonwealth v. Pierce,
567 Pa. 186, 786 A.2d 203, 213 (2001); see also
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
973 (1987). Prejudice in the context of ineffective
assistance of counsel means demonstrating there is
a reasonable probability that, but for counsel’s error,
the outcome of the proceeding would have been
different. … Failure to establish any prong of the
test will defeat an ineffectiveness claim.
Commonwealth v. Solano, 129 A.3d 1156, 1162-1163 (Pa. 2015), quoting
Commonwealth v. Keaton, 45 A.3d 1050, 1060-1061 (Pa. 2012) (some
citations and footnote omitted).8 “Trial counsel is presumed to be effective,
and a PCRA petitioner bears the burden of pleading and proving each of the
three factors by a preponderance of the evidence.” Commonwealth v.
Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015) (citation omitted). “When
evaluating ineffectiveness claims, judicial scrutiny of counsel’s performance
must be highly deferential. Counsel will not be deemed ineffective where
the strategy employed had some reasonable basis designed to effectuate his
or her client’s interests.” Id. at 1290.
Appellant rests his claim of ineffective assistance of counsel on the
applicability of Padilla v. Kentucky, 559 U.S. 356 (2010), which held that
the risk of deportation, “because of its close connection to the criminal
process, [is] uniquely difficult to classify as either a direct or a collateral
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8
The Pierce case articulated Pennsylvania’s three-part version of the two-
part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984).
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consequence.” Id. at 366. Accordingly, the Court in Padilla held that
counsel’s failure to properly advise a client of such consequences is subject
to the analysis for effective representation under Strickland, noting “[t]he
weight of prevailing professional norms supports the view that counsel must
advise [his or] her client regarding the risk of deportation.” Id. at 367
(citations omitted). Furthermore, the Padilla Court held “there is no
relevant difference between an act of commission and an act of omission in
this context.” Id. at 370 (internal quotation marks and citation omitted).
The Padilla case arose specifically in the context of counsel’s advice in
connection with a guilty plea, noting that “[b]efore deciding whether to plead
guilty, a defendant is entitled to the effective assistance of competent
counsel.” Id. at 364 (internal quotation marks and citations omitted). We
must first determine whether the holding in Padilla is applicable to a
defendant’s decisions regarding participation in an ARD program. Appellant
asserts that Padilla should apply in the instant case for the following
reasons.
Defendants have a Sixth Amendment right to
counsel, a right that extends to all stages of the
criminal process including the plea-bargaining
process. Missouri v. Frye, 132 S.Ct. 1399, 1405,
182 L.Ed.2d 379 (2012); see also Padilla, [supra
at 373]; Hill v. Lockhart, 474 U.S. 52, 57, 106
S.Ct. 366 (1985); see McMann v. Richardson, 397
U.S. 759, 771, 90 S.Ct. 1441 (1970) (defendants are
“entitled to the effective assistance of competent
counsel “during plea negotiations.”). The ARD
program is part of that process.
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Appellant’s Brief at 14.
Neither the PCRA court nor the Commonwealth question this premise
and accept, without discussion, that Appellant was entitled to effective
assistance of counsel in connection with his decision to withdraw from the
ARD program. In agreement with Appellant, we note that Pennsylvania Rule
of Criminal Procedure 312 requires a hearing in the presence of a defendant
and his counsel to admit the defendant into an ARD program. Additionally,
Rule 318 requires a hearing in the presence of a defendant and his counsel
when contemplating removal of the defendant from an ARD program for
violation of its conditions. Moreover, this Court has previously addressed
ineffective assistance of counsel issues in connection with a counsel’s
purported failure to pursue a defendant’s ARD participation.
Commonwealth v. Brown, 504 A.2d 927 (Pa. Super. 1986); cf.
Commonwealth v. Chazin, 873 A.2d 732 (Pa. Super. 2005) (subjecting a
claim that counsel failed to adequately communicate a Commonwealth plea
offer to the Pierce effectiveness-of-counsel test), appeal denied, 887 A.2d
1239 (Pa. 2005). Therefore, we conclude that a represented defendant’s
decisions surrounding his or her participation in an ARD program require
effective assistance of counsel and we proceed to review the PCRA court’s
determination that Appellant failed to meet his burden to establish
ineffective assistance of counsel.
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Instantly, in addressing the first two prongs of the Pierce test, the
PCRA court determined that the evidence supported Appellant’s claim that
neither of his counsel advised him of the immigration consequences of a
conviction or of the advantages of successful completion of the ARD program
on his immigration status. PCRA Court Opinion, 2/2/16, at 10. Further, the
PCRA court determined that counsels’ actions “lacked any reasonable basis
where they did not perform a required duty.” Id. at 11. Accordingly, the
PCRA court found that “Appellant met the first two parts of the three-part
[Pierce] test for ineffectiveness.” Id.
In considering whether Appellant established the third prong of the
Pierce test, i.e., that he suffered prejudice as a result of counsel’s failure to
advise him of the immigration consequences of withdrawing from the ARD
program, the PCRA court considered the testimony received at the October
9, 2015 hearing on Appellant’s PCRA petition. The PCRA court summarized
that testimony as follows.
During his testimony, [] Appellant stated that
it never occurred to him that he might be deported
as a consequence of the criminal charges he faced in
the instant case and none of his counselors
addressed this issue. Appellant admitted that a
probation officer explained to him that his movement
would be restricted to a certain area. [] Appellant
further testified that he was informed by a probation
officer that his charges would not be expunged at
the end of the ARD program. Based upon this
information, [] Appellant testified that he spoke with
[Attorney] Sangiamo who offered that if [] Appellant
wanted off of ARD then he simply needed to sign
papers and Attorney Sangiamo would take care of
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the matter. [] Appellant also told this Court that
Attorney Sangiamo knew [] Appellant was a truck
driver and that [] Appellant should continue on about
his business in violation of the ARD restrictions on
travel.
[] Appellant testified that he did not believe
Attorney Sangiamo was a competent attorney and
that he informed [Attorney] Sangiamo that he would
be seeking different counsel. Appellant stated that
he was informed by his probation officer that he had
not been removed from the program. We heard
testimony from [] Appellant that if he had known
that Attorney Sangiamo had not accomplished
Appellant’s removal from ARD then [] Appellant
would have complied with the rules of the program.
Finally, [] Appellant informed this Court that neither
Attorney Sangiamo, nor Attorney [] Menges,
explained any immigration consequences to []
Appellant.[9]
…
Probation Officer Cindy Sweitzer was called to
testify at the PCRA Hearing and she began by stating
that, on the day [] Appellant was placed onto ARD,
she was called upon to speak with [] Appellant
because he had stated that he would not be
complying with the sex offender conditions including
the one about leaving the county. Officer Sweitzer
clarified that [] Appellant understood the conditions;
however, [] Appellant was “quite angry about [the
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9
Attorney Menges also testified at the hearing. He testified that he first met
with Appellant on or about October 15, 2012. Appellant related that he was
concerned about remaining on the ARD program if the charges would not
thereafter be expunged. Appellant also expressed concern about the need
to comply with the travel conditions of the ARD, which he felt would
jeopardize his employment as a truck driver. Nevertheless, Attorney
Menges averred he was unaware that Appellant was actually not in
compliance when he prepared and filed Appellants motion to withdraw from
the ARD program. PCRA Court Opinion, 2/2/16, at 5-6.
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conditions]” and stated that he would not comply
with them.
Within thirty days of his intake for ARD, Officer
Sweitzer met with [] Appellant again and he
indicated that he was still driving outside of the
County of York, Pennsylvania. Officer Sweitzer
informed Appellant that this behavior was
inappropriate and that he should speak to his
attorney. At the conclusions of both the initial ARD
intake meeting and the second meeting, following
the explaining of conditions, [] Appellant stated that
he would not comply because he felt that the
conditions were unfair.
Officer Sweitzer conducted a third meeting
with [] Appellant approximately two weeks after the
second meeting and during this meeting [] Appellant
informed Officer Sweitzer that he was still travelling
to other states and he maintained that he would
continue to do so. Further, [] Appellant informed
Officer Sweitzer that he wanted to be removed from
the ARD program. The probation officer informed []
Appellant that the docketing information available to
her indicated [] Appellant was still on ARD and that
[] Appellant could not self-remove himself. …
… It was only at [their] fourth meeting that []
Appellant informed Officer Sweitzer that he did not
believe he was in the ARD program anymore. []
Appellant went on to tell Officer Sweitzer that
whether he was in the program or not he was going
to keep driving out of York County. Finally, while the
violation was filed in November, [] Appellant was
aware in October that the violation was being filed.
Id. at 4-8 (citations and footnotes omitted).
The PCRA court indicated it “found Officer Sweitzer credible and much
of the Appellant’s testimony incredible.” Id. at 11. The PCRA court
concluded that, given Appellant’s recalcitrance regarding compliance with
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the travel restrictions of the ARD program from the beginning of his
enrollment, and his “consistent refusal to abide by the dictates of the ARD
program, … Appellant would be found in violation and removed from the
program” on that basis. Id. at 11-12. The PCRA court further concluded
that “[d]ue to the very serious nature of the crime Appellant was accused of,
the condition that he remain in the county was fundamentally important and
not a violation we would be prepared to overlook.” Id. at 12.
Consequently, the PCRA court concluded that Appellant did not establish
prejudice from counsels’ deficient performance in failing to advise him of the
immigration consequence of his decision to withdraw from the ARD program,
because Appellant would be removed from the ARD program anyway. Id.
Appellant counters that the PCRA court’s reasoning is flawed for two
reasons. Appellant’s Brief at 22. First, Appellant argues his non-compliance
was a result of counsels’ ineffectiveness, because if he had fully understood
the consequences of doing so, he would not have resisted the conditions
imposed by ARD program. To this point, the PCRA court asserts as follows.
For Appellant to succeed on this point, we must
believe that if [] Appellant had only known how
much more serious the ramifications of his failure to
complete ARD successfully were then he would have
been compliant. We do not believe this to be true
and it was not true in actuality.
PCRA Court Opinion, 2/2/16, at 12. Second, Appellant asserts that even if
found in violation, removal from an ARD program is not mandatory. Id. at
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24. “There is no obligation to remove someone from ARD for merely trying
to maintain employment and continue working.” Id. at 27-28.
“Termination of ARD participation is charged to the sound discretion of
the trial court. On appeal we will only reverse an ARD termination where the
court abused its discretion or committed an error of law.” Commonwealth
v. Lebo, 713 A.2d 1158, 1161 (Pa. Super. 1998) (citations and footnote
omitted), appeal denied, 737 A.2d 741 (Pa. 1999).
Our review of the record discloses support for the PCRA court’s factual
findings. Accordingly, we are bound by those findings and Appellant’s
argument that the PCRA court “gave undue deference to Officer Sweitzer” is
unavailing. See Mason, supra. Here the PCRA court found that Appellant
was unwilling to accept the conditions of his ARD program at his first
meeting with Officer Sweitzer. PCRA Court Opinion, 2/2/16, at 11. Had
Appellant expressed his reservation at the ARD hearing, he would not have
been admitted into the program. See Pa.R.Crim.P. 317 (providing “[i]f a
defendant refuses to accept the conditions required by the judge, the judge
shall deny the motion for [ARD]”) (emphasis added). In Chazin, the
appellant raised a claim of ineffective assistance of counsel in his PCRA
petition based on Counsel’s failure to properly advise him about a time-
limited plea agreement offer. Chazin, supra at 735. After acknowledging
that counsel should have properly advised the appellant, we nevertheless
held that the appellant failed to demonstrate prejudice where the evidence
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indicated the trial court would have rejected the agreement if it had been
presented to it. Id. at 737-738.
We conclude that the case at bar is analogous to Chazin. Here, the
evidence supports the PCRA court’s finding that Appellant would still be
removed from the ARD program based on his non-compliance, which the
PCRA court determined was distinct from his awareness or non-awareness of
his immigration consequences. We perceive no abuse of discretion in the
PCRA court’s determination that Appellant will not be continued in the ARD
program. See Lebo, supra. Based on the foregoing, we discern no abuse
of discretion in the PCRA court’s denial of PCRA relief. Accordingly, we
affirm the PCRA court’s October 15, 2015 order.
Order affirmed. Motion denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2016
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