Com. v. Santiago, J. ( 2015 )

J-S59032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE MANUEL SANTIAGO,
Appellant No. 808 EDA 2014
Appeal from the PCRA Order Entered February 26, 2014
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002649-2011,
CP-15-CR-0002721-2010
BEFORE: SHOGAN, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 04, 2015
Jose Manuel Santiago (Appellant) appeals from the February 26, 2014
order which denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the facts of the case as follows.
On March 26, 2012, Appellant pled guilty to three counts
of rape, three counts of involuntary deviate sexual intercourse,
and one count of aggravated indecent assault.[1] At his plea
hearing, Appellant admitted that he engaged in sexual
intercourse and deviate sexual intercourse with his daughter and
with two of his nieces, all of whom were minors at the time of
his crimes. He also admitted to digitally penetrating the genitals
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*
Retired Senior Judge assigned to the Superior Court.
1
In exchange for his guilty pleas to these counts, the Commonwealth
withdrew over 1,600 additional counts against Appellant. N.T., 3/26/2012,
at 12.
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of another daughter, who was also a minor at the time of the
crime. He was sentenced that day to a term of imprisonment of
twelve and one-half to twenty-five years.
On February 21, 2013, Appellant filed a pro se PCRA
petition. [The PCRA court] appointed him PCRA counsel on
February 27, 2013. On April 29, 2014, counsel moved to
withdraw his representation, having found no issue that would
entitle Appellant to post-conviction relief. [The PCRA c]ourt also
conducted an independent review of the file and of the record,
which review revealed that Appellant’s plea was entered into
knowingly, voluntarily and intelligently, and that his sentence
was legal. Thus, on June 6, 2013, [the PCRA court] entered an
order giving Appellant the mandatory twenty day notice of [its]
intention to dismiss his PCRA petition without a hearing.
Appellant responded to this notice on June 27, 2013. In
his response he raised a somewhat ambiguous claim that he
requested his trial counsel to file a direct appeal of his sentence.
… Accordingly, [the PCRA court] scheduled a hearing on this
issue [alone and ordered PCRA counsel to continue to represent
Appellant].
Appellant’s PCRA hearing was held on October 1, 2013.
The evidence presented at the hearing revealed that Appellant
never requested his trial counsel to file a direct appeal of his
sentence. For that reason, on February 26, 2014, [the PCRA
court] denied Appellant’s petition under the [PCRA]. …
PCRA Court Opinion, 4/7/2014, at 1-2 (citations omitted).
Appellant, pro se, filed a notice of appeal on March 6, 2014. On March
18, 2014, the PCRA court entered an order granting PCRA counsel leave to
withdraw, and Appellant proceeded pro se in this Court. For reasons stated
in our memorandum of October 7, 2014, we remanded the case for the
appointment of counsel and retained panel jurisdiction. Counsel was
appointed, both counsel and the PCRA court thereafter complied with
Pa.R.A.P. 1925, and the parties have submitted new briefs to this Court.
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We may now address the merits of the issue Appellant raises on
appeal: “Whether the trial court erred in accepting [A]ppellant’s guilty plea?”
Appellant’s Brief at 7 (unnecessary capitalization omitted).
The Commonwealth argues that Appellant has waived the claim that
his plea was not knowing and voluntary by failing to raise it on direct appeal.
Commonwealth’s Brief at 8. We agree.
To be eligible for relief under the PCRA, a petitioner must
establish, as a threshold matter, that his allegations have not
been waived. An allegation is deemed waived “if the petitioner
could have raised it but failed to do so before trial, at trial,
during unitary review [or] on appeal....” 42 Pa.C.S. § 9544(b).
Commonwealth v. Abdul-Salaam, 808 A.2d 558, 560 (Pa. 2001) (holding
claims of trial court error were waived because “Appellant could have raised
each of these claims in his direct appeal to this Court but failed to do so”).
Appellant could have filed a direct appeal challenging the validity of his
plea, but failed to do so. Accordingly, Appellant is ineligible for relief on this
claim under the PCRA. See Commonwealth v. Turetsky, 925 A.2d 876,
879 (Pa. Super. 2007) (“We conclude that Appellant’s [claims that (1) his
pleas were not entered knowingly, intelligently, and voluntarily and (2) that
the trial court erred in failing to order a presentence investigation report]
could have been raised in a direct appeal, but since no direct appeal was
taken, they are both deemed waived for purposes of this PCRA appeal.”).
To the extent that Appellant is claiming that counsel was ineffective in
failing to file a post-sentence motion or direct appeal challenging the validity
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of his plea, we discern no error or abuse of discretion by the PCRA court in
rejecting Appellant’s claims.2
Counsel is presumed to be effective. Commonwealth v. Simpson,
112 A.3d 1194, 1197 (Pa. 2015). To prevail on a claim of ineffective
assistance of counsel, a PCRA petitioner must prove each of the following:
“(1) the underlying legal claim was of arguable merit; (2) counsel had no
reasonable strategic basis for his action or inaction; and (3) the petitioner
was prejudiced—that is, but for counsel’s deficient stewardship, there is a
reasonable likelihood the outcome of the proceedings would have been
different.” Id.
To determine whether there is arguable merit to a claim that counsel
was ineffective in failing to file a post-sentence motion to withdraw
Appellant’s guilty plea, we consider the following.
The Pennsylvania Rules of Criminal Procedure mandate pleas be
taken in open court and require the court to conduct an on-the-
record colloquy to ascertain whether a defendant is aware of his
rights and the consequences of his plea. Under Rule 590, the
court should confirm, inter alia, that a defendant understands:
(1) the nature of the charges to which he is pleading guilty; (2)
the factual basis for the plea; (3) he is giving up his right to trial
by jury; (4) and the presumption of innocence; (5) he is aware
of the permissible ranges of sentences and fines possible; and
(6) the court is not bound by the terms of the agreement unless
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2
“Our standard of review of a trial court order granting or denying relief
under the PCRA calls upon us to determine ‘whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.’”
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).
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the court accepts the plea. The reviewing Court will evaluate the
adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the circumstances
surrounding the entry of that plea. Pennsylvania law presumes a
defendant who entered a guilty plea was aware of what he was
doing, and the defendant bears the burden of proving otherwise.
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (internal
citations and quotation marks omitted).
The PCRA court offered the following explanation for its determination
that Appellant’s plea was in fact knowing, intelligent, and voluntary.
The only issue raised instantly regarding the validity of
Appellant’s plea is premised on his one word response to a
question posed to him at the beginning of his guilty plea
colloquy. After Appellant had answered affirmatively to the
question of whether he was satisfied with his attorney, the
[c]ourt asked Appellant if the plea he was about to enter into
was “knowing and voluntary [on his] part.[”] Appellant
responded “No.” N.T. 3/26/12, p.4. Obviously, this answer
required further examination. Accordingly, the [c]ourt
immediately asked Appellant if he was pleading guilty of his own
free will, to which Appellant responded “Yes,” and if anyone was
forcing him or threatening him in any way to plead guilty, to
which Appellant responded “No.” N.T. 3/26/12, p.4. We then
continued with inquiry into all other required areas. A review of
the circumstances surrounding Appellant’s plea reveals that he
entered into his plea knowingly, intelligently and voluntarily.
In his written guilty plea colloquy, and at his guilty plea
hearing, Appellant admitted under oath that he raped his
daughter and two nieces and that he sexually abused another
daughter. He also admitted that his daughters and his nieces
were all minors at the time they were victimized. N.T. 3/26/12,
pp. 9-10, 13. He acknowledged that the decision to plea[d]
guilty was his own, and that no one had used any force or
threats against him in order to get him to enter into the guilty
plea. N.T. 3/26/12, p. 4; Guilty Plea Colloquy ¶¶ 17, 41. He
stated that [he] understood all of the rights that he was giving
up in pleading guilty. N.T. 3/26/12, pp. 5-6. He also stated that
he was satisfied with the amount of time his attorney had spent
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on his case and that he was satisfied with his attorney’s
representation. N.T. 3/26/12, pp. 3-4; Guilty Plea Colloquy
¶ 39. At the conclusion of Appellant’s guilty plea hearing the
Court specifically asked him, once again, whether he was
entering into his plea agreement voluntarily. He responded
“Yes, sir.” N.T. 3/26/12, p. 27. The [PCRA c]ourt was satisfied
then, and is satisfied now, of the validity of Appellant’s guilty
plea.
Trial Court Opinion, 3/9/2015, at 4-5.
The PCRA court’s factual findings are supported by the record.
Further, the PCRA court appropriately applied the following rule of law.
The longstanding rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting that he
lied while under oath, even if he avers that counsel induced the
lies. A person who elects to plead guilty is bound by the
statements he makes in open court while under oath and he may
not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citations
omitted). Accordingly, Appellant cannot establish that counsel was
ineffective in failing to file a post-sentence motion seeking to withdraw the
plea as involuntary.
Appellant likewise cannot establish that the PCRA court erred in
denying him relief on the claim that counsel was ineffective in failing to file a
direct appeal. “[B]efore a court will find ineffectiveness of counsel for failing
to file a direct appeal, the defendant must prove that he requested an
appeal and that counsel disregarded that request.” Commonwealth v.
Bath, 907 A.2d 619, 622 (Pa. Super. 2006) (internal quotation omitted).
The PCRA court made the factual determination “that Appellant never
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requested his trial counsel to file a direct appeal of his sentence.” Trial
Court Opinion, 3/9/2015, at 2. As that determination is supported by the
record and is based upon the PCRA court’s credibility determinations, this
Court is bound by it. Commonwealth v. Hutchinson, 25 A.3d 277, 284
(Pa. 2011) (“The PCRA court’s credibility determinations are binding on this
Court when they are supported by the record.”). Therefore, plea counsel
was not ineffective in failing to file a direct appeal.
Appellant has not convinced this Court that the PCRA court erred in
denying him relief. Commonwealth v. Miner, 44 A.3d 684, 688 (2012)
(“It is an appellant’s burden to persuade us that the PCRA court erred and
that relief is due.”). Accordingly, we affirm the order denying Appellant’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2015
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