Commonwealth v. McDermitt
66 A.3d 810
| Pa. Super. Ct. | 2013Background
- On July 13, 2009, appellant pled no contest to possession with intent to deliver; court imposed three years' probation.
- During the plea, appellant was informed the conviction rendered him deportable and he was already undergoing deportation.
- No direct appeal followed the plea.
- August 10, 2010, appellant filed a counseled PCRA petition; March 15, 2011, Commonwealth moved to dismiss; April 19, 2011, PCRA court issued a Rule 907 notice to dismiss without evidentiary hearing.
- Petition was dismissed on June 2, 2011; appellant timely appealed challenging multiple ineffective-assistance and related claims.
- The court applied applicable PCRA standards and law on ineffective assistance and appeal consultation, ultimately affirming the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for inadequate pre-trial investigation | McDermott alleges trial counsel failed to investigate key factors and call witnesses. | Kraft argues the claims are undeveloped and lack prejudice, and fail to show error. | No prejudice; claims undeveloped; no evidentiary hearing required. |
| Whether plea counsel misadvised about deportation risk under Padilla | McDermott contends counsel should have informed of actual deportation certainty, citing Padilla. | Kraft argues Padilla did not mandate certainty and appellant knew of deportation due to ongoing proceedings. | Padilla requires informing of deportation risk, not certainty; no reversible error given appellant's deportation status at the time. |
| Whether counsel failed to consult about appeal per Flores-Ortega | McDermott claims counsel did not adequately consult about appealing. | Kraft contends there was no reason to believe appellant would want to appeal after a favorable plea. | No duty to consult; no reasonable grounds to appeal given no-fruitature issues from a no-contest plea and probation terms. |
| Whether counsel failed to preserve other claims | McDermott asserts failure to preserve various claims. | Kraft asserts claims are unpreserved or undeveloped. | Claims either undeveloped or waived; no error in dismissing without evidentiary hearing. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must inform client of deportation risk)
- Roe v. Flores-Ortega, 528 U.S. 470 (2000) (duty to consult about appeal when appropriate)
- Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001) ( Flores-Ortega consultation duty framework)
- Commonwealth v. Knighten, 742 A.2d 679 (Pa. Super. 1999) (requirement to request an appeal for ineffective assistance standard)
- Commonwealth v. Carter, 21 A.3d 680 (Pa. Super. 2011) (distinguishes Carter from cases where no anticipated appeal issues exist)
- Commonwealth v. Kraft, 739 A.2d 1063 (Pa. Super. 1999) (no appeal issue identified post-plea; no duty to consult)
- Commonwealth v. Rivera, 10 A.3d 1276 (Pa. Super. 2010) (ineffective-assistance framework for PCRA claims)
- Commonwealth v. Pond, 846 A.2d 699 (Pa. Super. 2003) (presumption of effective counsel; burden on defendant to prove otherwise)