Commonwealth v. Urbina-Nevarez COMMONWEALTH OF PENNSYLVANIA v. URBINA-NEVAREZ, Defendant

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1 COMMONWELTH OF PENNSYLVNI v. URBIN-NEVREZ, Defendant 1 PCR relief: Ineffective assistance of counsel based upon Padilla v. Kentucky; 1. To prove counsel ineffective, ppellant must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel s actions lacked an objective reasonable basis; and (3) ppellant was prejudiced by counsel s act or omission. 2. To prevail on an ineffective assistance of counsel claim under Padilla v. Kentucky, the Defendant must prove that counsel s alleged failure to inform him of the potential immigration consequences of his crimes prejudiced him. 3. Here, in support of its denial of the defendant s request for PCR relief based upon the ineffective assistance of trial counsel pursuant to Padilla, the court cites to the record from the evidentiary hearing, as well as the defendant having absconded during the pendency of his case and his trial, which was held in absentia. The court found that any prejudice sustained by the defendant resulted from his own actions and failure to communicate with his attorney. COMMONWELTH OF PENNSYLVNI v. PBLO URBIN-NEVREZ, DEFENDNT, IN THE COURT OF COMMON PLES OF BERKS COUNTY, PENNSYLVNI, CRIMINL DIVISION No. CP-06-CR , Superior Court No.: 1084 MD ndrea F. McKenna, Esq., Senior Deputy ttorney General, ttorney for the Commonwealth Orest Bezpalko II, Esq., ttorney for the Defendant MEMORNDUM OPINION LUDGTE, J. _ ugust 22, 2012 On September 14, 2011, Pablo Urbina-Nevarez (hereinafter the Defendant ) timely filed, through private counsel, a Petition pursuant to the Post-Conviction Relief ct, 42 Pa. C.S et seq. ( PCR ). On May 11, 2012, following a hearing and review of submitted briefs, the Court issued an Opinion and Order in Disposition of the Defendant s PCR Petition denying the Petition. On June 12, 2012, the Defendant timely appealed the Court s dismissal of the Defendant s PCR Petition. On appeal, the Defendant raises three (3) claims of error all of which are without merit. ccordingly, the Court asks that the Court s dismissal of the Defendant s PCR Petition be affirmed and the Defendant s appeal be dismissed. The Court hereby adopts its Opinion in Disposition of the Defendant s PCR Petition, dated May 11, 2012, as if fully set forth below. 1. PROCEDURL HISTORY Initially, the Court notes that the Defendant absconded from the Commonwealth in the fall of 2005 and was a fugitive from the law until ugust of 2006, almost a

2 2 year after he left the Commonwealth. fter the Defendant failed to appear at a hearing, the Court issued a bench warrant for the Defendant s failure to appear. Because the Defendant was a fugitive of the law, the Court proceeded to trial on ugust 28, 2006, with the trial against the Defendant proceeding in absentia. 1 The Defendant remained a fugitive from the law until ugust 31, 2006, when he was located by a bail bondsman in Virginia and was returned to the Court. 2 On September 11, 2006, a jury found the Defendant guilty of the following offenses: Corrupt Organizations, 18 Pa. C.S.. 911(b)(3) and 18 Pa. C.S.. 911(b)(4); Possession of a Controlled Substance, 35 P.S (a)(16); Possession with Intent to Deliver a Controlled Substance, 35 P.S (a)(30); Criminal Conspiracy, 18 Pa. C.S.. 903; and Criminal Use of a Communication Facility, 18 Pa. C.S On September 26, 2006, the Court imposed an aggregate sentence of not less than seventeen-and-one-half (17.5) nor more than thirty-five (35) years to the Bureau of Corrections for confinement in a State Correctional Facility. Post-sentence motions were denied on October 10, On November 9, 2006, the Defendant timely appealed. On that same date, Jack McMahon, Esq., entered his appearance and filed another Notice of ppeal. Trial counsel s appearance was withdrawn, and the Defendant continued on appeal with ttorney McMahon. Ultimately, the Defendant failed to file a 1925(b) statement, and the appeal was dismissed on March 20, On February 13, 2008, the Defendant filed a pro se PCR Petition. On February 25, the Court appointed llen Daringer, Esq., as PCR Counsel. The Defendant, through counsel, filed an mended Petition on July 31, 2008, and a hearing was held on November 10, The Court reinstated the Defendant s appeal rights nunc pro tunc, the Defendant timely filed a Notice of ppeal and a 1925(b) statement, and, by opinion dated February 8, 2010, the Superior Court affirmed the Defendant s 1 On ugust 23, 2006, the Court issues Findings of Fact and Conclusions of Law granting the Commonwealth s motion to try the Defendant in absentia. The Court noted that the Defendant, after his bail was reduced and he posted bail on July 8, 2005, only appeared once more in front of the Court, on September 8, 2005, despite having an Order to appear in front of the Court on October 28, 2005, and January 26 and 27, The Court also noted that a bench warrant issued on October 28, 2005, and the Defendant received an Order at his last known address ordering him to appear ugust 23, The Court further noted that the Defendant was not present at any of the addresses which he provided to the Court, the bail bondsman, or trial counsel. In consideration of judicial economy, the fact that this was a multi-defendant trial, undue burden on the Commonwealth, hardship on the Court, the jury, and the witnesses, and the Defendant s complete absence for more than ten months prior to trial, the Court granted the motion and the Defendant was tried in absentia for the first several days of trial. Order, 8/23/06. 2 The Court notes that the Defendant returned during trial and attended trial after being returned to the Commonwealth by bail bondsmen. fter the Defendant was returned, the Court held argument as to how to properly handle the situation, and, after careful consideration, the Court determined that it would instruct the jury as follows: Members of the jury, you will notice that the Defendant, Pablo Urbina-Nevarez, is now present. You are not to draw any conclusions regarding that in any way. Please continue to focus on the testimony. N.T., Trial, 8/28/06-9/1/06, 808, 812.

3 Judgment of Sentence. The Pennsylvania Supreme Court denied allowance of appeal on ugust 25, On September 14, 2011, the Defendant, now represented by private counsel Orest Bezpalko II, Esq., filed a PCR Petition. Because the Court reinstated the Defendant s appellate rights nunc pro tunc as a result of the Defendant s first PCR Petition, the Petition was considered the Defendant s first PCR Petition. See Commonwealth v. Karanicolas, 836.2d 940 (Pa. Super. 2010). ccordingly, the Court held an evidentiary hearing on January 24, 2012, and set a briefing schedule. On March 23, 2012, the Defendant filed his brief, and on March 26, 2012, the Commonwealth filed a responsive brief. The Court issued a dispositive opinion denying the Petition on May 12, On June 12, 2012, the Defendant, again represented by ttorney Bezpalko, filed an appeal. 3 On June 19, 2012, the Court ordered the Defendant to file a Concise Statement of Matters Complained of on ppeal pursuant to Pa.R..P. 1925(b). On July 9, 2012, the Defendant filed a Concise Statement raising three claims of error. This opinion is written pursuant to Pa.R..P. 1925(a). 3 II. FCTUL BCKGROUND The facts of this case are well known to all parties and the Superior Court. s such, a brief recitation of the most pertinent facts is appropriate. The Defendant is one of some fifty-five (55) individuals arrested for involvement in a large cocaine trafficking ring in Berks County, Pennsylvania. Peter Borelli ( Borelli ), who was also convicted of various drug offenses, was one of the major distributors of cocaine in Reading, Pennsylvania. In the fall of 2004, Pennsylvania State Troopers began a wiretap investigation of Borelli and his drug ring. During the investigation, State Troopers intercepted several communications between the Defendant, Borelli, and other members of the drug ring. The Defendant was determined to be one of the middle men who procured large amounts of cocaine from several sources and delivered cocaine to Borelli for distribution. See, N.T., 8/28/2006-9/1/2006, at 480. Of special interest to the discussion below is the fact that the Defendant is not a legal resident of the United States. N.T., PCR Hearing, 1/24/12, at 3-5. lso of special interest is the fact that the Defendant absconded from the Commonwealth during the time before trial, and he was not located until a bail bondsman returned him to the Commonwealth during trial. III. Legal nalysis On appeal, the Defendant raises three claims of error: 4 3 The Court notes that defense counsel did not provide the Court with a copy of the Notice of ppeal until the Court contacted defense counsel regarding a request for transcripts purportedly for this appeal. The Court notes that this is yet another instance of lax lawyering that has plagued the PCR and appellate system for years. 4 The Court notes that all three claims of error are addressed in the Court s Opinion and Order in Disposition of the Defendant s PCR Petition. s such, the Court will address each claim briefly.

4 4 1. DEFENDNT S POSSIBLE KNOWLEDGE OF IMMIGRTION CONSEUENCES DOES NOT BSOLVE TRIL COUNSEL FROM NOT SEEKING IMMIGRTION DVICE FOR HIS CLI- ENT. 2. TRIL COUNSEL FILED TO DVISE HIS CLIENT OF THE IM- MIGRTION CONSEUENCES. 3. TRIL COUNSEL WS INEFFECTIVE FOR FILING TO COM- MUNICTE WITH DEFENDNT. Because all three claims of error address trial counsel s alleged ineffectiveness, the Court will briefly discuss the applicable law. noncitizen defendant, like a citizen defendant, is entitled to the effective assistance of counsel. Padilla v. Kentucky, 559 U.S., 130 S.Ct. 1473, (U.S. 2010) ( Padilla ) (internal citations and quotations omitted). It is well-established that counsel is presumed effective, and to rebut that presumption, the PCR petitioner must demonstrate that counsel s performance was deficient and that such deficiency prejudiced him. Commonwealth v. Koehler, ---.3d ----, 2012 WL , *6 (Pa. 2012) (citing Strickland v. Washington, 466 U.S. 668, (1984)). [T]o prove counsel ineffective, ppellant must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel s actions lacked an objective reasonable basis; and (3) ppellant was prejudiced by counsel s act or omission. Koehler, 2012 WL at *6 (citing Strickland, 466 U.S. at 975). s such, to prevail on any of his claims, the Defendant must satisfy the Strickland standard and prove that counsel s alleged failure to inform him of the potential immigration consequences of his crimes prejudiced him. The Defendant, in both his Concise Statement and throughout the entire disposition of the Defendant s PCR Petition, cites to the United States Supreme Court s decision in Padilla as legal basis for trial counsel s ineffectiveness. Defendant s reliance on Padilla, however, is wholly unfounded. In Padilla, the defendant, a Honduran native who had been a lawful resident of the United States for more than forty (40) years, was charged with transporting a large amount of marijuana into Kentucky. Padilla, 130 S.Ct. at Padilla chose to plead guilty, and thus became subject to the consequence of removal, after his counsel not only failed to advise him of this consequence prior to entering his plea, but also told him he did not have to worry about immigration status since he had been in the country so long. Id. at Based on counsel s affirmative misinforming of his client, the Court, without finding that Padilla had been prejudiced, found Padilla s trial counsel ineffective and remanded for a prejudice determination. Id. In the present case, the Defendant, an illegal immigrant, refused to even consider a guilty plea, absconded from the Commonwealth, failed to provide avenues of communication to trial counsel, failed to advise trial counsel of his immigration status, and was tried in absentia after a jury trial. N.T., PCR Hearing, at 5, 14, t no time did trial counsel mislead the Defendant, either expressly or impliedly,

5 nor did trial counsel fail to investigate the Defendant s immigration status. N.T., PCR Hearing, at s such the Defendant s reliance on Padilla is improper, and the Padilla decision is not applicable to the present appeal. The Court will address each claim, but in different order for clarity of analysis: 2. TRIL COUNSEL FILED TO DVISE HIS CLIENT OF THE IMIGRTION CONSEUENCES. Because the Defendant s first claim of error hinges on the analysis in claims two (2) and three (3), the Court will address these claims first. The Defendant argues that trial counsel was ineffective for failing to advise the Defendant of the possible immigration consequences of his crimes. The Defendant argues that trial counsel s actions prejudiced him because trial counsel did not adequately inform him of the possible immigration consequences of a conviction for drug dealing offenses. This argument presumes that the Defendant participated in his own defense and enabled trial counsel to properly counsel the Defendant. Further, it presumes that trial counsel was fully informed about the Defendant s immigration status. t the PCR Hearing, trial counsel testified as follows regarding his knowledge of the Defendant s immigration status: 5 During your discussions with your client, did you ever discuss the issue of his citizenship? I m sure the topic came up. I don t know that he ever frankly told me whether he was in this country lawfully or not. I know that issue came up regarding another Defendant in this case. I know that at the time of sentencing in this case, Mr. Urbina related under oath to the Court that he had another identity. I seem to think it was Frank Reyes. That was his actual identity, not Pablo Urbina. So I think that time it was the first time I was really aware that he was here illegally. In 2005 and 2006, were you aware of any obligation on your part to inform him about the potential consequence of deportation. Well, as far as I understood the law at that time, there was no obligation to explain that. I know had Mr. Urbina chose to take a guilty plea, I certainly know that as part of that process I would explain to him that he would be subject to potential deportation as a result of a criminal conviction. However, he at no time indicated any desire to plead guilty to me. So I don t think that we -- if it was discussed, it wasn t discussed in any great detail. N.T., PCR Hearing, at

6 6 t the PCR Hearing, trial counsel testified as follows regarding communication with his client: THE COURT: THE WITNESS: Did you ever have a discussion with Mr. Urbina concerning the consequences of trial versus him entering into a plea? Yes. In fact, while he was still in Berks County Prison after he and I met and reviewed the discovery in this case, I sent him a letter that was over a page explaining to him the consequences in general of going to trial versus taking the plea. nd in that letter did you ever stress to him any of the concerns regarding immigration? There were no concerns regarding immigration because at that time I had not been told that he was here illegally. nd is it fair to say that you did not try to communicate with Mr. Urbina from October 28 th, 2005 until he was brought into court by the bail bonds company? Well I was unable to communicate with him and I did not hear from him. The question was, Mr. Dautrich, did you have anybody -- did you communicate with anybody from his family after he had absconded? I would not be able to say that exactly. I may have received telephone calls from the woman who was saying she was his girlfriend. I may have received -- I may have received a telephone call from Pablo, from Mr. Urbina. I don t know that for sure. But what I do know is I didn t have any valid phone numbers or address for which I would have been able to communicate with him. nd Mr. Dautrich, if you had known where he was, if Mr. Reyes had called you, Mr. Pablo Urbina-Nevarez which isn t his name had called you, as an officer of the court you would have had an obligation to notify the Court you knew where he was? bsolutely. N.T., PCR Hearing, at s noted in the transcript above, the Defendant failed to provide trial counsel with any valid avenue of communication with the Defendant, absconded from the Commonwealth, and failed to notify trial counsel that he was in the United States

7 illegally. Further review of the transcript reveals that trial counsel testified that he represented another defendant in the drug dealing organization, and that the individual was also in the country illegally. N.T., PCR Hearing, at Trial counsel also testified that the other individual had an immigration detainer filed against him, and, as a result, could not be released on bail. Id. The Defendant, however, had no immigration detainer lodged against him and had no trouble being released on bail. s such, the Court rejects the Defendant s argument that trial counsel was ineffective for failing to advise the Defendant regarding immigration issues where the Defendant failed to participate in his defense, failed to provide trial counsel with any means of communication with the Defendant, did not have an immigration detainer, and never informed trial counsel that he was in the country illegally. ccordingly, the Defendant s argument is without merit and must fail. 3. TRIL COUNSEL WS INEFFECTIVE FOR FILING TO COMMUNICTE WITH DEFENDNT. Next, the Defendant argues that trial counsel was ineffective for failing to communicate with the Defendant. The Defendant, citing the Preamble of the Professional Rules of Conduct, argues that a lawyer should maintain communication with a client concerning the representation and a lawyer shall keep a client informed about the status of a matter. Def. Concise Statement, at 5. The Defendant goes so far as to claim that trial counsel should have somehow contacted the Defendant, who had absconded to North Carolina for almost a year, even though the Defendant deliberately failed to provided any channels of communication, and chose to flee from the jurisdiction. The Court rejects that argument that any parts of the law require counsel to omnisciently divine where a defendant has gone when he becomes a fugitive from justice and, as noted above, fails to provide any valid means of communication. s such, the Defendant s third argument lacks merit and must be dismissed. 1. DEFENDNT S POSSIBLE KNOWLEDGE OF IMMIGRTION CONSEUENCES DOES NOT BSOLVE TRIL COUNSEL FROM NOT SEEKING IMMIGRTION DVICE FOR HIS CLIENT. The Defendant next argues that the Defendant s possible knowledge of the immigration consequences of his crimes does not relieve trial counsel from the duty to advise his client regarding immigration consequences from his drug related crimes. s discussed in the Court s PCR Opinion, the Defendant had full knowledge of the potential removal and other immigration consequences of conviction of the crimes charged. See PCR Opinion, May 11, 2012, at 4-6. s further described in the Court s PCR Opinion, the Defendant was not prejudiced by any alleged failure of trial counsel, but, instead, the Defendant was prejudiced by absconding from the Commonwealth and failing to appear for scheduled appearances before this Court. 7

8 8 Id. at 5-6. dditionally, the Defendant failed to inform trial counsel of his immigration status until sentencing. s such, it is the Defendant s own actions, not any failure of trial counsel, which prejudiced the Defendant. To the Court s knowledge, such a claim has never supported post-conviction relief, especially when a defendant went to such extraordinary measures as absconding from the Commonwealth and failing to communicate his immigration status to counsel. The Court rejects the Defendant s argument that trial counsel failed in any way when the Defendant has made every effort to defeat trial counsel s efforts at effective representation. s such, the Defendant s claim is meritless, and the claim must fail. IV. Conclusion Here, the Court was asked to find that a defendant who was in the country illegally, who never told his lawyer his real name and who absconded for nearly a year was given ineffective assistance of counsel. Such a result would demean the criminal justice system and make a mockery of federal and state laws. For all the aforementioned reasons, the Court asks that the Defendant s appeal be DENIED and the Court s dismissal of the Defendant s PCR Petition be FFIRMED.