J-S18028-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARCOS ANTONIO BETANCOURT : GANIER : : No. 1432 MDA 2018 Appellant : Appeal from the PCRA Order Entered August 1, 2018 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003303-2016 BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.* MEMORANDUM BY NICHOLS, J.: FILED: MAY 2, 2019 Appellant Marcos Antonio Betancourt Ganier appeals from the order denying his first Post Conviction Relief Act1 (PCRA) petition. Appellant contends his plea counsel was ineffective for failing to advise him that a guilty plea would result in deportation. We affirm. We adopt the facts and procedural history set forth in the PCRA court’s opinion.2 See PCRA Ct. Op., 10/25/18, at 2. Of note, Appellant, who was ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 We recognize that on July 18, 2017, Appellant was sentenced to nine to twenty-three months’ imprisonment with two days of credit for time served. Order, 7/21/17. Appellant was still serving his sentence as of July 12, 2018, J-S18028-19 represented by plea counsel, pleaded guilty to delivery of a controlled substance.3 At the guilty plea hearing, Appellant’s immigration status was not addressed. Appellant did not take a direct appeal,4 but filed the instant timely first PCRA petition, asserting that plea counsel was ineffective for failing to advise him of the deportation consequences of his plea. The PCRA court appointed PCRA counsel. Following a hearing, the PCRA court denied Appellant’s petition on August 1, 2018. Appellant timely appealed. The PCRA court did not order Appellant to comply with Pa.R.A.P. 1925(b). The PCRA court filed a Rule 1925(a) decision holding, among other things, that it found Appellant’s plea counsel credibly testified that he advised Appellant he may be subject to deportation. PCRA Ct. Op. at 5. Appellant raises the following issue: Did the trial court err in failing to grant . . . Appellant leave to withdraw his plea of guilt[y] to the subject crime [because the plea] was unlawfully induced through ineffective assistance, under Padilla v. Kentucky, [130 S. Ct. 1473 (2010)], where the record does not support that trial counsel provided advice concerning the ____________________________________________ the date of the PCRA evidentiary hearing. No party has alerted this Court that Appellant is no longer serving his sentence. 3 35 P.S. § 780-113(a)(30). 4 We note that the trial court did not comply with Rule 704(C), which requires the court to determine on the record that the defendant has been advised of his post-sentence and appellate rights. -2- J-S18028-19 consequences of the plea and was, as a result, not knowingly, voluntarily, intelligently and knowingly tendered? Appellant’s Brief at 4. In support, Appellant argues that the PCRA court erred in concluding that plea counsel advised him of the deportation consequences from a guilty plea. Appellant’s Brief at 13. He asserts that he first learned of ...
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