Com. v. Velazquez, G.

J-S12024-19 2019 PA Super 243 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : GUILLERMO ISREAL VELAZQUEZ : No. 1705 MDA 2018 Appeal from the Order Entered September 19, 2018 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000747-2017 BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J. OPINION BY DUBOW, J.: FILED AUGUST 15, 2019 The Commonwealth appeals from the Order entered September 19, 2018, granting the Petition for collateral relief filed by Guillermo Israel Velazquez under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541- 9546. We affirm. In October 2017, Velazquez entered into a negotiated guilty plea to charges of Simple Assault and Disorderly Conduct in exchange for 36 months of probation as well as recommended treatment for substance abuse and domestic violence.1 N.T. Plea, 10/26/17, at 1-2. Following a colloquy, the trial court accepted the plea and imposed the agreed-upon sentence. Id. at 8. Velazquez did not appeal the Judgment of Sentence. Velazquez is a resident alien. PCRA Ct. Op., 9/19/18, at 1. Following his plea, federal authorities arrested Velazquez on an immigration detainer ____________________________________________ 1 18 Pa.C.S. §§ 2701(a)(3), 5503(a)(1), respectively. J-S12024-19 based upon the charges to which he pleaded. Removal proceedings commenced, and Velazquez now faces deportation. Id. at 3. In April 2018, Velazquez filed a Petition for collateral relief, asserting ineffective assistance of plea counsel. According to Velazquez, counsel failed to advise him properly of the immigration consequences of his plea. Petition, 4/30/18. Specifically, Velazquez averred, counsel advised him to plead guilty to Simple Assault, 18 Pa.C.S. § 2701(a)(3), based on counsel’s determination that this particular section would not adversely affect his immigration status. Petition, 4/30/18, at 2-4. However, according to Velazquez, this advice was clearly erroneous and subjected him to deportation. Id. According to Velazquez, had he known of the immigration implications of his plea, he never would have agreed to plead guilty. Id. Thus, Velazquez averred, his plea was neither knowing nor voluntary. Id. The PCRA court held an evidentiary hearing at which plea counsel testified. Counsel acknowledged that he knew Velazquez was not a United States citizen, that the charges against him could impact his immigration status, and that he was unsure which specific section or sections of the Simple Assault statute may constitute a deportable offense. N.T. PCRA, 7/19/18, at 35-36. Further, counsel conceded that he failed to follow express instructions from his superior to consult with an immigration attorney prior to Velazquez’s plea hearing. Id. Nevertheless, counsel also acknowledged that he specifically advised Velazquez that Section 2701(a)(3) was not a deportable offense. Id. at 38. -2- J-S12024-19 Following the hearing, the PCRA court granted relief, vacating the Judgment of Sentence previously imposed and directing Velazquez to appear for further proceedings. PCRA Ct. Order, 9/19/18. The Commonwealth timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement.2 In its appeal, the Commonwealth raises the following issue: [Whether] the PCRA court err[ed] in granting relief to ...

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