Commonwealth of Pennsylvania v. Roberto Corona-Gavilan No. CP-38-CR-0000277-2015

Criminal Action-Law-Motion for Recusal-Sentencing Factors-Immigration Status-Foreign National

Defendant, who entered a negotiated guilty plea to charges relating to passing counterfeit currency, filed a Motion for Recusal after the Court rejected his negotiated guilty plea agreement and refused to impose sentence per that agreement in part because the Defendant was not a citizen of the United States.

1. The proponent of a disqualification motion must allege facts tending to show bias, interest or other disqualifying events. Recusal is unwarranted where these has been no allegation or showing of any specific prejudgment or bias. A call for recusal need not be based upon discreet incidents but may assert the cumulative effects of a judge’s remarks and conduct.

2. It is the duty of the judge to decide whether that judge feels he or she can hear and dispose of the case fairly and without prejudice.

3. A review of a trial court’s decision not to recuse is limited to an abuse of discretion.

4. The United States Supreme Court has indicated that while foreign nationals are not subject to the equal protection clause of the Fourth Amendment to the United States Constitution, all persons within the United States, including aliens unlawfully present, may involve the constitutional protections guaranteed by the Fifth and Sixth Amendments to the United States Constitution.

5. It is improper for a sentencing court exclusively to predicate a decision based upon a defendant’s citizenship status.

6. Where a statute exists that vests deportation authority upon a non-judicial entity, the court cannot fashion a sentence designed to circumvent the administrative decision regarding deportation.

7. As long as it is only one (1) of several factors, a court may consider a defendant’s status as a non-citizen when rendering a sentencing decision.

8. Defendant’s status as a foreign national with no citizenship ties to the United States can and should be considered as a sentencing factor, and the Court’s expressed intent to do so did not warrant recusal.

L.C.C.C.P. No. CP-38-CR-0000277-2015, Opinion by Bradford H. Charles, Judge, January 26, 2016.

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA CRIMINAL DIVISION NO. CP-38-CR-277-2015

COMMONWEALTH OF PENNSYLVANIA

vs.

ROBERTO CORONA-GAVILAN

ORDER OF COURT

And now, this 26^th day of January, 2016, upon consideration of the Motion for Recusal filed by the Defendant, said Motion is DENIED. The Bench Warrant issued by this Court for the Defendant’s arrest shall remain in full force and effect. If or when the Defendant is arrested on the Bench Warrant, a new sentencing hearing should be scheduled before the undersigned Jurist.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES

Nichole Eisenhart, Esquire For Commonwealth of Pennsylvania

DISTRICT ATTORNEY’S OFFICE

Joseph J. Yeager, Esquire For Robert Corona-Gavilan

OPINION BY CHARLES, J., January 26, 2016

Can a Sentencing Judge consider the fact that a defendant is not a citizen of the United States? With respect to the above-captioned Defendant, this Jurist openly declared his intent to consider the Defendant’s status as a resident alien. The Defendant responded by filing a motion seeking recusal of the undersigned. We author this Opinion to deny the Defendant’s motion because we remain convinced that it is entirely proper for a Court to consider the Defendant’s citizenship as a factor when making a sentencing decision.

I. FACTS

On December 22^nd and December 23^rd of 2014, Roberto Corona-Gavilan (hereafter “DEFENDANT”) and at least one comrade traveled through Pennsylvania passing counterfeit one hundred dollar bills in order to obtain legitimate United States currency as change. He was charged in Lebanon County with two counts of Attempted Forgery, thirty counts of Forgery, one count of Theft by Deception and two counts of Attempted Theft by Deception. After several continuances and one bench warrant for failure to appear, the DEFENDANT appeared in Court on October 30, 2015 and acknowledged his guilt pursuant to a plea agreement with the Commonwealth that called for a sentence of probation.

DEFENDANT appeared in Court for a sentencing proceeding on November 25, 2015. At that proceeding, DEFENDANT’s attorney acknowledged to the Court that DEFENDANT was a citizen of Mexico and not a United States citizen. Ultimately, this Jurist decided not to accept the parties’ plea agreement. There were several reasons for the Court’s decision to reject the plea agreement. Without question, one of those reasons was DEFENDANT’s non-citizen status.

To give the parties time to renegotiate a suitable plea agreement that called for some period of incarceration, this Court postponed DEFENDANT’s sentencing until December 23, 2015. On the new sentencing date, DEFENDANT did not appear and we issued a bench warrant as a result. However, DEFENDANT’s lawyer did submit a Motion for Recusal. Counsel argued that it was not proper for the Court to consider a defendant’s lack of citizenship as a factor in making a sentencing decision. While we questioned whether DEFENDANT effectively waived his right to pursue a Motion for Recusal by virtue of his choice to become a fugitive, we nevertheless addressed the argument proffered by his counsel.

In a conversation with DEFENDANT’s counsel, this Jurist emphasized that DEFENDANT’s foreign citizenship was not the only factor that underpinned his decision to reject the plea agreement. Nevertheless, this Jurist did not attempt to distance himself from the fact that he did consider DEFENDANT’s status as a non-citizen. We afforded DEFENDANT with the opportunity to submit a legal memorandum to address the question of whether or how a Court could consider a defendant’s citizenship status. Neither side filed a memorandum, but DEFENDANT did provide us with a copy of a Federal case from the Eleventh Circuit Court of Appeal. We author this Opinion today to reiterate our belief that a defendant’s status as a non-citizen can be considered and in support of our belief that the parties’ plea agreement is not appropriate.

II. DISCUSSION

The question of how a defendant’s lack of citizenship can be considered arrives before us via DEFENDANT’s Motion for Recusal. Under Pennsylvania law, the standard governing a motion to recuse a jurist is well established.

It is incumbent upon the proponent of a disqualification motion to allege facts tending to show bias, interest or other disqualifying events and it is the duty of the judge to decide whether he feels he can hear and dispose of the case fairly and without prejudice. Commonwealth v. Abu-Jamal, 720 A.22d 121, 124 (Pa. 1998). Recusal is unwarranted where there has been no allegation or showing of any specific prejudgment or bias. Id. A call for recusal need not be based only upon discreet incidents but may also assert cumulative effects of a judge’s remarks and conduct. Commonwealth v. Rhodes, 990 A.2d 732 (Pa. Super. 2009). A review of a trial court’s decision not to recuse is limited to an abuse of discretion. Id.

Before DEFENDANT appeared in Court for sentencing on November 25, 2015, this Jurist had never encountered him either inside or outside a courtroom. No personal conflict of interest or bias has been or could be alleged that could support a Motion for Recusal. The only ground alleged by DEFENDANT in support of his Motion for Recusal is his allegation that this Jurist is biased against non-citizen foreign nationals. Because this Jurist has never denied that he considered DEFENDANT’s non-citizen status as a factor in rejecting the plea agreement, the question that now must be answered is: “Can a sentencing judge properly consider whether or not a defendant is a United States citizen?”

With respect to this question, we have found only one Pennsylvania appellate case that is pertinent. In Commonwealth v. Torres, No. 2877 E.D.A. 2013, 2014WL10919355 (Pa.Super. 2014), the appellant argued that a trial court abused its discretion by considering his status as an illegal immigrant at sentencing. The Superior Court noted that the issue had never been raised previously before an appellate court of this Commonwealth. Nevertheless, the Court reasoned that because trial courts can properly investigate a defendant’s immigration status (see Commonwealth v. Nava, 966 A.2d 630, 634-35 (Pa.Super. 2009)), it must be permissible for Courts to consider the outcome of that investigation at the time of sentencing. Had Torres been a reported decision, it would have ended our inquiry. However, because the Superior Court declined to publish its Opinion, Torres represents persuasive, but not binding, precedent.

As we look beyond Pennsylvania precedent for guidance on this issue, we begin with the premise that aliens may be treated differently than United States citizens. In U.S. v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), the United States Supreme Court declared that foreign nationals are not subject to the equal protection clause of the Fourth Amendment to the United States Constitution: “The Fourth Amendment’s drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own government and not to restrain the federal government’s actions against aliens outside United States territory.” On the other hand, the Supreme Court has also recognized that all persons within the United States, “including aliens unlawfully present” may invoke constitutional protections created by the Fifth and Sixth Amendments to the United States Constitution. See Plyler v Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).

The above does not directly address the question of whether Judges can consider a defendant’s citizenship status as part of a sentencing decision. On that question, we have found federal cases that have spoken in different ways.

The case of United States v. Velasquez, 524 F.3d 1248 (11^th Cir. 2008) was referred to us by the DEFENDANT’s counsel. In Velasquez, a Columbian national pled guilty to one count of knowingly using a counterfeit visa for entry into the United States. When a Federal Judge imposed a nine month prison sentence for violation of his supervised release, the Defendant argued that the Sentencing Court erred by expressing its disagreement on the record with the decision by immigration authorities to release the Defendant from detention pending the outcome of an asylum request. In Velasquez, the 11^th Circuit Court of Appeals remanded the case for resentencing. The Court reasoned that “Congress has clearly vested the authority to detain removable aliens in the Attorney General – not the Courts.” Id. at 1253. The Court therefore held:

This is not to say that we express any view whatsoever as to Velasquez’s asylum claim, which may or may not be meritorious. It is simply to say that a judge may not impose a more severe sentence than he would have otherwise based on unfounded assumptions regarding an individual’s immigration status or on his personal views of immigration policy.

Id. at 1253. See also United States v. Borrero-Isaza, 887 F.2d 1349, 1352 (9^th Cir. 1989) (“a sentencing court cannot impose a more severe sentence on the sole basis of a defendant’s alienage or nationality.”).

On the other side of the issue are numerous cases where consideration of a defendant’s nationality was permitted as part of a decision of whether to deviate from sentencing guidelines. In United States v. DeBeir, 186 F.3d 561 (4^th Cir. 1999), the Court considered potential deportability as a factor favoring downward deviation from the support guidelines. In permitting such an analysis, the 4^th Circuit wrote that “although the guidelines prohibit reliance on national origin . . . they do not mention alienage as a departure factor; it therefore serves as a potential basis for departure [from the guidelines].” Id. at 569. Similarly, in United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994), the D.C. Circuit directed a District Court Judge to consider whether “the Defendant’s status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence.”

In U.S. v. Gomez, 797 F.2d 417 (7^th Cir. 1986), the Defendant was a citizen of the country of Columbia. At his sentencing hearing, the prosecutor advised the Court “of the great problem caused by aliens engaging in drug transactions.” He suggested to the Court that the Defendant be sentenced more harshly “to send a deterrence message to others.” In his sentencing decision, the Judge took note of the fact that the Defendant was an illegal alien from South America and that other aliens have been caught trafficking drugs. The Defendant argued that his sentence was illegal because it was unconstitutional for the Court to consider his status as a foreign national.

In addressing the Defendant’s arguments, the 7^th Circuit Court of Appeals recognized that even illegal aliens are entitled to due process protection under the Fifth and Fourteenth Amendments to the United States Constitution. The Court stated: “Constitutional respect for all persons within the territorial jurisdiction is without regard to any differences of race, of color, or of nationality.” Id. at 419. With the above being acknowledged, the Court emphasized “that does not mean, however, that the Court for sentencing persons after the Defendant has entered a plea of guilty to a drug violation may not properly take note of the Defendant’s illegal alien status from a country with a known reputation for illegal drug activity.” Id. at 419. The Court went on to state:

The Defendant objects to what the government labeled a “disturbing trend” in drug cases in that drug cases frequently involve recent immigrants of Cuban and Columbian origin. That does in fact appear to be a disturbing problem publicly recognized, disturbing not just to prosecutors, but to courts and to citizens generally.

Nor need the sentencing judge shut his eyes to the reality of the factual situation before him and pretend that the defendant is not an illegal alien from Columbia who has pleaded guilty to a drug violation. There can be no dispute but that the sentencing judge has wide discretion in considering all reliable and pertinent information which might reasonably bear on a sentencing decision . . .

Faced with the responsibility of sentencing Gomez, the judge could not, and would have been remiss if he did, ignore the realities of the case. He denounced drug trafficking as “despicable business,” as do we. He noted that Gomez came here illegally and not to escape governmental suppression or poverty. The judge expressed concern as well as the concerns of the people of the district about the increasing numbers of people from Latin countries bringing illegal drugs into the district. He expressed the hope that the sentence imposed would serve as a deterrent to others who might contemplate following in the footsteps of Gomez. In our view the court’s explanation of his sentence, far from being a constitutional violation, was well stated.

Id. at 419-420.

Sifting through all of the cases that we read, we reach the following conclusions with respect to whether a Court can consider a defendant’s nationality as part of a sentencing decision:

(1) It would be improper for a sentencing court to exclusively predicate a decision based upon a defendant’s citizenship status.

(2) Where a statute exists that vests deportation authority upon a non-judicial entity, courts cannot fashion a sentence designed to circumvent the administrative decision regarding deportation.

(3) So long as it is only one of several factors, courts may consider a defendant’s status as a non-citizen when rendering a sentencing decision.

In this case, we considered from the very beginning the nature of DEFENDANT’s conduct. We considered the fact that DEFENDANT victimized and/or attempted to victimize dozens of business establishments by passing counterfeit money in an effort to obtain legitimate cash as change, and we considered the fact that DEFENDANT repeated his crime over and over again. We considered the impact of this behavior on the small business owners who were simply trying to earn an honest living in a difficult economy, and we considered the implication to society that necessarily follows the fabrication and use of fake money. In conjunction with all of these factors, we also considered the fact that DEFENDANT was not a United States citizen.

We have yet to impose a sentence upon DEFENDANT because he absconded from the jurisdiction of this Court and is now a fugitive. However, we will stand by our decision to reject the probationary plea agreement that was proffered by the parties. At this point, DEFENDANT can choose to withdraw his plea of guilty and proceed to a trial before a jury of Lebanon County citizens; due process demands nothing less. Alternatively, DEFENDANT can transform his plea of guilty into an open one. If he does so, we will impose some period of incarceration that is within the standard sentencing ranges applicable to the offense that was charged.

III. CONCLUSION

We have and will continue to consider the fact that the Defendant in this case was not a United States citizen when he attempted to pass counterfeit money in order to take legitimate cash out of the Pennsylvania economy. At worst, DEFENDANT was a foreign national who came to this country in order to defraud our own citizens. At best, he was a guest in this country who abused the hospitality of his hosts. Either way, DEFENDANT’s status as a foreign national with no citizenship ties to this country can and should be considered as a sentencing factor. Our decision to do this will not require a change of jurists. DEFENDANT’s Motion for Recusal will therefore be denied.

 

1) This Jurist has no personal bias against non-citizen foreign nationals. In fact, this Jurist has close personal friends who are citizens of Ecuador and Australia and this Jurist has worked on several community projects with foreign citizens. However, we also believe that when a person visits and is a guest of a foreign country, that person should not abuse the hospitality of his hosts.

2) We have absolutely no clue about whether or how DEFENDANT’s conviction of the crime charged in this case can or will affect his immigration status. Whether DEFENDANT will be deported or permitted to remain in this country was not and will not be a consideration of this Court with respect to sentencing.