Com. v. Rosado-Cintron, H. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HIRAM ROSADO CINTRON :
:
Appellant : No. 110 MDA 2020
Appeal from the PCRA Order Entered December 20, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005451-2016
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 23, 2020
Hiram Rosado-Cintron appeals from the denial of his Post Conviction
Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. Rosado-Cintron
failed to preserve his appellate issues below. We therefore affirm.
In April 2018, Rosado-Cintron entered a negotiated plea of nolo
contendere to numerous sex crimes: Rape of a Child, Involuntary Deviate
Sexual Intercourse with a Child, Statutory Sexual Assault, Indecent Assault
Person Less Than 13 Years of Age, Indecent Exposure, Unlawful Contact with
Minor, and Corruption of Minors.1 The trial court sentenced him in June 2018
pursuant to the negotiated plea agreement to four to eight years’ incarceration
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3122.1(b), 3126(a)(7), 3127(a),
6318(a)(1), and 6301(a)(1)(ii), respectively.
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and five years of state supervision. Rosado-Cintron did not file a post-sentence
motion or direct appeal.
In July 2019, Rosado-Cintron filed a timely pro se PCRA petition, raising
claims of unlawful inducement into pleading guilty, ineffective assistance of
counsel, and suppression of evidence by the Commonwealth. He claimed he
was innocent and coerced into pleading guilty. The PCRA court appointed
counsel, who filed a Turner/Finley2 letter and a Petition to Withdraw.
Counsel’s Turner/Finley brief stated that a claim Rosado-Cintron wished to
raise was ineffective assistance of counsel because trial counsel did not explain
the nolo contendere plea or its impact. The PCRA court granted the Petition to
Withdraw as counsel and issued notice of its intent to dismiss Rosado-Cintron’s
petition without a hearing. See Pa.R.Crim.P. 907. Rosado-Cintron responded
to the notice by filing an objection, raising, among other things, the validity
of the plea due to ineffective assistance of counsel, noting a language barrier.
The PCRA court dismissed Rosado-Cintron’s petition. This timely appeal
followed.
Rosado-Cintron raises the following issues on appeal:
a. Did Plea Counsel’s actions constitute per se
ineffectiveness, pursuant to U.S. v. Cronic, 466 U.S. 648(1984) when Mr. Rosado-Cintron requested that counsel file
a reconsideration of sentence or direct appeal, Counsel
assured said action would be completed, yet said
reconsideration was never filed?
____________________________________________
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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b. Did Plea Counsel’s per se ineffectiveness constitute an
invalid Plea Colloquy when Rosado-Cintron was incapable of
making such a plea knowing, intelligent, and voluntary when
Counsel’s instructions and lack of a translator violated Mr.
Rosado-Cintron’s right to adequate Counsel guaranteed to
him by both Article 1 § 9 of the Pennsylvania Constitution
and the Sixth Amendment of the United States Constitution?
Rosado-Cintron’s Br. at 4.
In his first issue, Rosado-Cintron claims his counsel was ineffective for
failing to file a motion to reconsider the sentence and a direct appeal. Rosado-
Cintron claims that there was ineffective assistance of counsel because if he
“had been afforded the opportunity to file an appeal, the sentence could have
been modified, and the outcome of the matter dramatically changed.” Rosado-
Cintron’s Br. at 8-9.
Rosado-Cintron did not raise this issue in his PCRA petition and it is
therefore waived. “[A] claim not raised in a PCRA petition cannot be raised for
the first time on appeal.” Commonwealth v. Santiago, 855 A.2d 682, 691
(Pa. 2004). This is because “[p]ermitting a PCRA petitioner to append new
claims to the appeal already on review would wrongly subvert the time
limitation and serial petition restrictions of the PCRA.” Id. (quoting
Commonwealth v. Bond, 819 A.2d 33, 52 (Pa. 2002)). Because Rosado-
Cintron did not raise this claim before the PCRA court, we cannot review it.
In his second issue, Rosado-Cintron challenges the validity of his plea,
claiming he was unable to enter a knowing, intelligent, and voluntary plea
because counsel did not provide proper instruction and he lacked a translator.
Rosado-Cintron’s Br. at 4. Rosado-Cintron claims that “there [was] a viable
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‘language barrier’” and he “was incapable of understanding the charges
against him.” Id. at 12-13. He claims the “colloquy was invalid from the start
since it is well understood that an individual cannot enter into a plea of guilty
without understanding implications of said plea bargain.” Id. at 12-13.
Rosado-Cintron states that counsel’s instructions and lack of a translator
caused him to enter a plea unknowingly. Id. at 4.
Rosado-Cintron also waived this issue by not raising it in his PCRA
petition. His PCRA petition claimed his plea was unlawfully induced in three
ways: (1) the victim’s grandmother, Rosado-Cintron’s ex-wife, fabricated the
case and threatened to kill him; (2) his attorney was ineffective for not
challenging allegedly false evidence, presenting character witnesses or
evidence of his peaceful character, or explaining the plea or its impact; and
(3) the Commonwealth suppressed a tape that contained exculpatory
evidence. None of those reasons claimed Rosado-Cintron needed a translator
and did not have one during the plea proceedings. Rosado-Cintron failed to
preserve his appellate claims below, and we therefore affirm the order denying
his PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020
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