Com. v. Unterwerger, R.

J-S50022-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : Appellant : : : v. : : : No. 3856 EDA 2016 RYAN UNTERWERGER Appeal from the PCRA Order December 9, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007012-2016 BEFORE: PANELLA, J., RANSOM, J., and PLATT, J. MEMORANDUM BY PANELLA, J. FILED FEBRUARY 06, 2018 The Commonwealth of Pennsylvania appeals from the order entered in the Montgomery County Court of Common Pleas, granting Appellee, Ryan Unterwerger’s second petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We reverse. On March 22, 2016, Appellee pleaded guilty to a single count of possession with intent to deliver. The trial court sentenced Appellee to a term of three to twenty-three months’ imprisonment followed by a four-year probationary sentence. Appellee did not seek direct review; however, after discovering the possible adverse immigration consequences of his plea deal, he presented a motion to withdraw his guilty plea, nunc pro tunc. Through his ____________________________________________  Retired Senior Judge assigned to the Superior Court. J-S50022-17 motion, Appellee alleged guilty plea counsel, David McKenzie, Esquire, provided ineffective assistance by failing to advise him of the potential adverse immigration consequences. The PCRA court held an evidentiary hearing on Appellee’s petition.1 Prior to the admission of evidence, Appellee’s counsel orally moved to amend Appellee’s petition to include a claim that guilty plea counsel was ineffective for representing Appellee despite a conflict of interest. The Commonwealth initially opposed the addition of this claim, and objected to Appellee’s attempts to develop this claim, but ultimately withdrew its objection. Appellee testified he was unaware Attorney McKenzie was representing Paul McNamara, the prospective buyer in the underlying drug matter, at the time he entered his guilty plea. Attorney McKenzie confirmed he represented both McNamara and Appellee during Appellee’s guilty plea process, but believed his representation of Appellee was unaffected by his concurrent representation of McNamara. On September 20, 2016, the PCRA court denied Appellee’s petition, finding the ineffectiveness claim based upon guilty plea counsel’s failure to inform of immigration consequences meritless. Further, the PCRA court denied ____________________________________________ 1 Prior to the hearing, the PCRA court determined that because Appellee’s motion centered upon his allegations of ineffective assistance of counsel, his motion was actually a PCRA petition. See N.T., PCRA Hearing, 9/2/16, at 6-7. Neither party objected to the PCRA court deeming the motion a PCRA petition and the hearing proceeded as a PCRA evidentiary hearing. See id., at 7. -2- J-S50022-17 relief based upon any alleged conflict of interest, noting that PCRA counsel, Wayne Sachs, Esquire, failed to establish prejudice, and thus failed to meet his burden of proof. Appellee retained new counsel and filed, on October 12, 2016, a second PCRA petition,2 alleging the ineffectiveness of Attorney McKenzie for his dual representation of McNamara and Appellee, as well Attorney Sachs’ alleged ineffectiveness for failing to properly litigate this claim. The PCRA ...

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