OPINION BY SHOGAN, J.:
Appellant, Tarik Rachak, appeals from the order entered on April 5, 2012, denying his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A §§ 9541-9546. We affirm.
The relevant facts and procedural history of this case were set forth by the PCRA court as follows:
PCRA Court Opinion, 6/6/12, at 1-2.
On appeal, Appellant raises two issues:
Appellant's Brief at 3. We will begin our discussion by setting forth the applicable standard of review.
When reviewing the propriety of an order granting or denying PCRA relief, this Court is limited to determining whether the evidence of record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super.2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record. Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super.2003), appeal denied, 576 Pa. 712, 839 A.2d 352 (2003).
Here, the thrust of Appellant's argument is that his lack of knowledge as to the effect a guilty plea would have on his immigration status requires relief under the PCRA. Appellant's Brief at 7. However, the PCRA court concluded that, under the facts of this case, Appellant was not entitled to relief under the PCRA.
In its thorough discussion of Appellant's issues, the PCRA court analogized Appellant's immigration status to an individual's criminal history or status as a parolee at the time of the entry of a guilty plea. PCRA Court Opinion, 6/6/12, at 5 (unnumbered pages). The PCRA court concluded that it is not the responsibility
Moreover, Appellant was informed multiple times of his right to counsel, and, even after the trial court afforded Appellant a continuance to obtain counsel (Order, 6/22/11), he refused. On the record, Appellant stated he understood his right to counsel, and he knowingly and voluntarily waived that right following a colloquy. N.T., 7/20/11, at 2-3. Appellant chose to proceed pro se. Ultimately, the PCRA correctly concluded that, under the facts and the record presented here, Appellant cannot satisfy the requirements for PCRA relief.
While Appellant focuses on the voluntariness of his guilty plea, that issue should have been raised on direct appeal; it was not.
We are in agreement with the PCRA court. Accordingly, after a review of the briefs of the parties, the certified record on appeal, and the applicable law, we affirm the PCRA court's order on the basis of the Honorable Michael E. Bortner's opinion, which is reproduced, in its entirety, below:
The Court received a Notice of Appeal, docketed on May 7, 2012, that Tarik Rachak, through his counsel, appeals to the Superior Court of Pennsylvania this Court's Order issued April 5, 2012. The Court has reviewed the record and Mr. Rachak's Statement of Matters Complained of on Appeal, docketed on June 4, 2012. The Court now issues this Opinion in support of the Order dated April 5, 2012.
While Defendant has neglected to file a concise Statement of Matters Complained of on Appeal as required by Pennsylvania Rule of Appelate Procedure 1925(b), his brief-styled Statement appears to set forth one issue on appeal. That is, whether this Court erred in denying his petition for relief under the Post-Conviction Relief Act because Defendant did in fact meet requirements two and three for relief under that act.
Defendant was arrested on January 4, 2011 for Simple Possession of Cocaine, 35 P.S. § 780-113(a)(16), and Possession of Drug Paraphernalia, 35 P.S. § 780-113(a)(32). Defendant appeared pro se at his Arraignment before The Honorable Judge Gregory Snyder on April 29, 2011; at that time, Judge Snyder advised all defendants, including this Defendant, of the right to counsel and conveyed the importance of securing counsel prior to Pre-Trial Conference. At his Arraignment, Defendant received notice of his Pre-Trial Conference, set for June 22, 2011; that notice also informed Defendant that if he appeared without a lawyer, he must be
Defendant completed a written Guilty Plea Colloquy that advised him again of his right to counsel. This Court also conducted an oral colloquy on the record; at that time, Defendant stated that he understood his right to an attorney and that if he could not afford one, one would be appointed to represent him. The Court then asked Defendant three times if he wished to waive his right to counsel and proceed with a guilty plea; Defendant responded "yes" all three times. Defendant then pled guilty to both charges for a Sentence of 2 years probation.
On November 17, 2011, Defendant, through counsel, filed a Petition for Relief under the Post-Conviction Relief Act, alleging for the first time that his plea was not freely, voluntarily, and knowingly entered. A hearing was held on February 15, 2012, at which time this Court heard testimony from Defendant and argument from both parties. The Court took the matter under advisement and allowed both parties a chance to file supporting memoranda. This Court then denied Mr. Rachak's Petition by Order of April 5, 2012 and filed an opinion in support thereof Mr. Rachak now appeals this Court's denial of his Petition for Post-Conviction Relief.
The Post-Conviction Relief Act states that in order to be eligible for relief, the petitioner, here Defendant,
42 Pa. Cons. Stat. Ann. § 9543(a). Defendant must meet all four requirements of the statute to be eligible for relief.
Both sides agree that Defendant meets the first requirement; he has been convicted of a crime under the laws of this Commonwealth and is currently serving a sentence on that crime.
Defendant argues only that his guilty plea was not freely, voluntarily, and knowingly entered. Therefore, the Court need not address the issues found in subsections (a)(i), (a)(ii), and (a)(iv) through (a)(viii). A plea of guilty is unlawfully induced "where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent." 42 Pa. Cons.Stat. Ann. § 9543(a)(iii).
"An attempt to withdraw a plea of guilty after sentencing will only be granted where the defendant is able to show that his plea was the result of manifest injustice." Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915, 921 (1994) (citing Commonwealth v. Holbrook, 427 Pa.Super. 387, 629 A.2d 154, 158 (1993)). To establish such manifest injustice, Defendant "must show that his plea was involuntary or was given without knowledge of the charge." Id. The Pennsylvania Rules of Criminal Procedure mandate that a guilty plea be offered in open court, and advise that the trial court should inquire into at least six areas in order to show that the plea was voluntarily, knowingly, and intelligently entered. Id. (citing Commonwealth v. Fluharty, 429 Pa.Super. 213, 632 A.2d 312, 314 (1993); Pa.R.Crim.P. [590], cmt). Those six areas include:
Id. (citing Commonwealth v. Fluharty, 632 A.2d at 314; Pa.R.Crim.P. [590], cmt).
The Court went through an extensive oral colloquy with Defendant at the time of his guilty plea. At that time, Defendant indicated that he understood what he was pleading guilty to one count of possession and one count of possession of drug paraphernalia — and that he understood the maximum penalties for those offenses to which he pled. (Notes of Testimony, 7/20/11, at 3-4.) The Court stated the facts alleged, namely that Defendant possessed cocaine and drug paraphernalia on the date in question, and asked if Defendant had in fact possessed those items; Defendant indicated that he had. (N.T., 7/20/11, at 4-5.) The Court also informed Defendant of his right to a trial by jury and instructed him that it is the responsibility of the Commonwealth, not Defendant, to prove guilt. (N.T., 7/20/11, at 3.) Defendant also acknowledged that he understood the terms of the plea agreement. (N.T., 7/20/11, at 3.)
It is this Court's belief, based on Defendant's responses to questions asked during the in-court colloquy, that he entered his plea voluntarily, knowingly, and intelligently. Furthermore, to meet the requirement of an unlawfully-induced guilty plea under the Post-Conviction Relief Act, Defendant must also show that the circumstances make it likely "that the inducement caused the petitioner to plead guilty and the petitioner is innocent." 42 Pa. Cons.Stat. Ann. § 9543(a)(iii) (emphasis added). Defendant has not asserted his innocence. In fact, at the hearing on his Petition for Relief, Defendant testified that he told the truth when he entered his guilty plea and that when this Court asked if he had possessed cocaine and drug paraphernalia on the date in question, he had not lied by responding affirmatively. Such testimony would fly directly in the face of a claim of innocence — a claim that was put forth neither in his Petition for Relief nor in his supporting Memorandum of Law, submitted after the hearing. It is the Commonwealth's burden to prove guilt and not the defendant's burden to prove innocence in a criminal case; however, where the defendant is petitioning for Post-Conviction Relief under the Act, he must show that "the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent." 42 Pa. Cons.Stat. Ann. § 9543(a)(in). Defendant has failed to make such a showing in this case.
Therefore, Defendant has not met the second requirement necessary for relief under the Post-Conviction Relief Act.
To be eligible for relief, Defendant's allegation of error must not have been previously litigated or waived. Both parties agree this allegation of error has not been previously litigated. However, "an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa. Cons.Stat. Ann. § 9544(b).
"Ordinarily, failure to petition to withdraw plea, combined with failure to pursue direct appeal will bar consideration of an attack on one's plea in collateral proceedings."
Therefore, this Court believes Defendant has not met the third requirement necessary for relief under the Post-Conviction Relief Act.
The fourth requirement — that failure to have previously litigated the issue was not the result of any rational, strategic or tactical decision by counsel — is clearly met here since Defendant appeared pro se up until the filing of this Petition for Relief.
Even if the Court found, arguendo, that Defendant had not waived his claim because he was unaware of the immigration consequences related to his guilty plea until after the time for filing post-sentence motions and appeals had lapsed, this Court still finds that Defendant did not meet the second requirement under the Act, thereby making him ineligible for relief.
Finally, the Court would note that despite Defendant's harsh recounting of its afore-issued opinion, it is not without sympathy for Defendant's current dilemma. While the Court can appreciate that a defendant might find the possibility of deportation more important than the possibility of incarceration, it must judge the Petition before it based on the law. Defendant has filed a Petition for Post-Conviction Relief and the Court has analyzed his Petition according to the Act itself. While it is unfortunate that Defendant has been subject to deportation as a result of his guilty plea, his failure to meet the requirements of the Act make him ineligible for Post-Conviction Relief.
Based upon the reasons stated above, this Court respectfully urges affirmance of the certification, conviction, and sentence of the Defendant.
Order affirmed.
