Commonwealth v. Wah
42 A.3d 335
| Pa. Super. Ct. | 2012Background
- Wah pled guilty to Medicaid fraud and forgery on June 2, 2010 pursuant to a negotiated plea.
- He admitted overbilling Access Services between June 2007 and March 2008 totaling $19,603; $7,500 had been paid, leaving $12,103 restitution at sentencing.
- He was sentenced to three years’ probation and restitution of $12,103; other charges were withdrawn.
- As a Liberian national, Wah acknowledged the plea could affect his immigration status and potential removal.
- Wah filed a counseled PCRA petition on August 30, 2010 alleging ineffective assistance for failing to advise on immigration consequences; petition was dismissed March 25, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Padilla retroactivity and applicability | Wah argues Padilla applies to require immigration advice in plea. | Commonwealth contends Padilla does not retroactively apply on collateral review. | Padilla applies; but distinguishable; counsel acted within competence. |
| Whether counsel's immigration advice was within the range of competence | Counsel failed to explain immigration risks or refer to an immigration attorney. | Counsel advised Wah of possible immigration consequences and recommended consulting an attorney. | Counsel acted within the range of competent assistance by advising and directing Wah to an immigration attorney. |
| Whether loss exceeding $10,000 triggers automatic deportation | If restitution lowered the loss below $10,000 before sentencing, deportation might be avoided. | Even with restitution reductions, the loss remains the amount alleged; immigration consequences are not controlled by later restitution. | Loss of $19,603 governs removal; restitution timing does not negate deportation. |
| Prejudice and possible continuance to alter loss figure | A short continuance could allow additional payments to drop the loss below $10,000, altering immigration outcome. | The continuance would likely be rejected; repleading to reduce loss is not allowed and would not change outcome. | No prejudice established; continuance unlikely to change result; no relief. |
Key Cases Cited
- Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005) (PCRA standard of review; evidence-supported findings)
- Commonwealth v. Carr, 1166 (Pa. Super. 2001) (PCRA review; deference to trial court findings)
- Commonwealth v. Turetsky, 879 (Pa. Super. 2007) (PCRA evidentiary hearing standard)
- Commonwealth v. Jordan, 1014 (Pa. Super. 2001) (discretion to deny evidentiary hearing when claim is frivolous)
- Commonwealth v. Hardcastle, 701 (Pa. 1997) (PCRA review framework; material facts standard)
- Commonwealth v. Khalifah, 1239 (Pa. Super. 2004) (PCRA standard and deference to certified record)
- Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999) (ineffective assistance framework for plea counsel)
- Commonwealth v. Douglas, 645 A.2d 226 (Pa. 1994) (plea counsel effectiveness standard)
- Commonwealth v. Bracey, 795 A.2d 935 (Pa. 2001) (ineffective assistance and plea procedures)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise on deportation risks; effects depend on complexity)
- Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. 2003) (restitution amount not controlling for immigration purposes)
- Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2003) (immigration consequences and relief scope)
- Commonwealth v. Garcia, 23 A.3d 1059 (Pa. Super. 2011) (Padilla not a new constitutional right retroactive on PCRA timing)