Com. v. Quinones, A. ( 2018 )

J-S61006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ANGEL QUINONES,
Appellant No. 3126 EDA 2016
Appeal from the PCRA Order Entered September 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015036-2009
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 20, 2018
Appellant, Angel Quinones, appeals from the post-conviction court’s
September 21, 2016 order denying his first petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant’s counsel,
Peter A. Levin, Esq., has filed a Turner/Finley1 ‘no-merit’ letter and a petition
to withdraw from representing Appellant, to which Appellant has filed a pro se
response. After careful review, we grant counsel’s petition to withdraw and
affirm the order denying Appellant PCRA relief.
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Briefly, Appellant was arrested and charged with various sexual offenses
after his 12-year-old step-daughter disclosed to her school counselor that
Appellant had been having sexual intercourse with her several times a week
since she was 10 years old. In a statement to police, Appellant admitted that
he had sex with the victim, but claimed that he did not force her to do so.
Appellant was arrested on November 20, 2009.
On August 23, 2010, [Appellant] appeared before the
Honorable Lisa Rau, for a guilty plea hearing and signed a Colloquy
for Plea of Guilty/Nolo Contendere for the charges of rape,
unlawful contact with a minor, and corruption of a minor. On
September 2, 2010, [Appellant] filed a Motion to Withdraw Guilty
Plea. The Motion was granted by … [Judge] Rau and an Order was
issued on December 2, 2010. On August 15, 2010, [Appellant]
litigated a Motion To Suppress Physical Evidence[,] statements,
oral and written[,] and identification. On August 15, 2011, the
Honorable Earl W. Trent, Jr. heard and denied said Motion To
Suppress Physical Evidence. On August 15, 2011, [Appellant]
entered into a negotiated guilty plea. At said guilty plea hearing,
[Appellant pled] … guilty of the charges of rape, [involuntary
deviate sexual intercourse (IDSI) by] [f]orcible [c]ompulsion, and
unlawful contact with a minor. Following the guilty plea hearing,
[Appellant] was sentenced to a term of not less than seven (7)
years[’] and not more than eighteen (18) years[’] incarceration at
a state correctional institution, followed by ten (10) years[’]
reporting probation. [Appellant] was [also ordered] to pay court
costs of $852.50 and must register under Megan’s Law as a sex
offender when released.
On February 6, 2012, [Appellant] filed a Pro Se Petition
under the [PCRA], alleging a violation of the Constitution of this
Commonwealth or the Constitution or laws of the United States,
etc., and he more poignantly alleged ineffective assistance of
counsel. After being appointed counsel, [Attorney] Levin, …
[Appellant] filed an Amended Petition and Memorandum of Law
under the PCRA alleging that trial counsel was ineffective for
giving [Appellant] erroneous information about his right[] to
appeal and [for] failing to file a motion to withdraw his guilty plea.
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PCRA Court Opinion, 1/8/18, at 1-3 (footnote omitted).
The PCRA court conducted an evidentiary hearing on September 21,
2016. After that proceeding, the court entered an order denying Appellant’s
petition. Appellant filed a timely notice of appeal, and he also timely complied
with the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On May 9, 2018, Attorney Levin filed with this Court
his no-merit letter and a petition to withdraw. Appellant filed a pro se
response on June 11, 2018.
We must begin by determining if Attorney Levin has satisfied the
requirements for withdrawal. In Turner, our Supreme Court “set forth the
appropriate procedures for the withdrawal of court-appointed counsel in
collateral attacks on criminal convictions[.]” Turner, 544 A.2d at 927. The
traditional requirements for proper withdrawal of PCRA counsel, originally set
forth in Finley, were updated by this Court in Commonwealth v. Friend,
896 A.2d 607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts, 981
A.2d 875 (Pa. 2009),2 which provides:
1) As part of an application to withdraw as counsel, PCRA counsel
must attach to the application a “no-merit” letter[;]
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2 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such issue.”
Pitts, 981 A.2d at 879. In this case, Attorney Levin filed his petition to
withdraw and no-merit letter with this Court and, thus, our Supreme Court’s
holding in Pitts is inapplicable.
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2) PCRA counsel must, in the “no-merit” letter, list each claim the
petitioner wishes to have reviewed, and detail the nature and
extent of counsel’s review of the merits of each of those claims[;]
3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner’s issues are meritless[;]
4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the trial
court grants the application of counsel to withdraw, the petitioner
has the right to proceed pro se, or with the assistance of privately
retained counsel;
5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA counsel
to withdraw; and
6) the court must agree with counsel that the petition is meritless.
Friend, 896 A.2d at 615 (footnote omitted).
Instantly, Attorney Levin has complied with the requirements of
Turner/Finley. Specifically, in his no-merit letter, counsel details the nature
and extent of his review, addresses the claims Appellant raised in his PCRA
petition, and discusses his conclusion that those issues lack merit. See No-
merit Letter, 5/9/18, at 4-9. Additionally, counsel served Appellant with a
copy of the petition to withdraw and Turner/Finley no-merit letter, advising
Appellant that he had the right to proceed pro se or with privately retained
counsel. Thus, we will conduct an independent review of the merits of
Appellant’s claims.
First, “[t]his Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
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determination is supported by the evidence of record and whether it is free of
legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.” Generally, counsel’s
performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel’s performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” … [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
Appellant first contends that his plea counsel acted ineffectively by
erroneously telling him that no direct appeal could be filed on his behalf. More
specifically, Appellant testified at the PCRA hearing that he wished to challenge
his sentence on appeal, but counsel told him “that [he] didn’t have any right
for any appeal.” N.T. Hearing, 9/21/16, at 9. However, Appellant’s plea
counsel also testified at the PCRA hearing, stating that he never said that to
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Appellant. Id. at 19. The PCRA court was free to credit plea counsel’s
testimony, and this Court is bound by that determination. See
Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999) (stating that an
appellate court is bound by credibility determinations of the PCRA court where
they are supported by the record).
Moreover, plea counsel testified that Appellant never asked him to file
an appeal, N.T. Hearing at 19, and Appellant also conceded that he did not do
so, id. at 9.3 It is well-settled that, “[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) (citation
omitted). Accordingly, we discern no error in the PCRA court’s dismissing this
ineffectiveness claim.
Next, Appellant maintains that plea counsel was ineffective for not filing
a motion to withdraw Appellant’s guilty plea. Again, Appellant failed to present
evidence to prove this claim. At the PCRA hearing, Appellant admitted that
after sentencing, he “didn’t ask [counsel] to do anything.” N.T. Hearing at 9.
Moreover,
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3 In Appellant’s pro se response to Attorney Levin’s petition to withdraw,
Appellant claims that he “erroneously” testified that he did not ask for an
appeal because he is “a Spanish speaking defendant who understands very
little [E]nglish….” Appellant’s Pro Se Response, 6/8/18, at 4. However,
Appellant had an interpreter at the PCRA hearing, see N.T. Hearing at 4, and
he never indicated that he was not understanding the questions being asked
of him.
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post-sentence motions for withdrawal are subject to higher
scrutiny [than pre-sentence motions,] since courts strive to
discourage entry of guilty pleas as sentence-testing devices. A
defendant must demonstrate that manifest injustice would result
if the court were to deny his post-sentence motion to withdraw a
guilty plea. Manifest injustice may be established if the plea was
not tendered knowingly, intelligently, and voluntarily. In
determining whether a plea is valid, the court must examine the
totality of circumstances surrounding the plea. A deficient plea
does not per se establish prejudice on the order of manifest
injustice.
Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (internal
citations and quotation marks omitted).
Here, while Appellant did not explicitly state on what basis he would
have sought to withdraw his plea after sentencing, his PCRA hearing testimony
suggests that he would have contended that his plea was invalid because he
did not understand the agreed-upon sentence when he entered that plea.
Appellant also claims in his pro se response to Attorney Levin’s petition to
withdraw that he did not enter a knowing or intelligent plea because he does
not speak English. See Appellant’s Pro Se Response at 4.
Neither of these claims is supported by the record. Initially, on cross-
examination at the PCRA hearing, Appellant acknowledged that the written
plea colloquy stated that his sentence would be 7 to 15 years’ incarceration,
plus 10 years’ probation. N.T. Hearing at 12. Appellant signed that colloquy
just under the words: “I have read all of the above or my lawyer read it to
me; I understand it; my answers are all true and correct.” Id. Moreover,
Appellant also conceded that, at the sentencing proceeding, his attorney
informed him that “the agreement with the district attorney that the Judge
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will review is for a sentence of seven to [fifteen] years to be followed by ten
years[’] probation and also … credit for any time that [Appellant had already]
served.” Id. at 13. Additionally, plea counsel testified at the PCRA hearing
that he speaks fluent Spanish, which is why he was appointed to represent
Appellant. Id. at 18. Counsel explained that he and Appellant had
“extensively” discussed the plea agreement and sentence before Appellant
decided to accept that plea agreement. Id. at 19. Given this record, Appellant
has failed to demonstrate that he was prejudiced by his counsel’s not filing a
post-sentence motion seeking to withdraw his plea on the basis that he did
not understand the sentence he would receive.
In sum, we agree with Attorney Levin that the two ineffectiveness claims
that Appellant seeks to raise on appeal are meritless. However, we must also
briefly address Appellant’s argument in his pro se response to counsel’s no-
merit letter. Therein, Appellant seemingly contends that Attorney Levin acted
ineffectively by seeking to withdraw where Appellant’s issues have merit, and
by not “communicat[ing] with Appellant prior to, and immediate[ly] after the
evidentiary hearing.” Appellant’s Pro Se Response at 4 (unnumbered).
According to Appellant, had counsel met with him, counsel “would have
known, and therefore would have made a determination that Appellant did not
understand the [E]nglish language well enough to render his guilty plea
‘knowingly and intelligently’….” Appellant’s Pro Se Response at 4.
First, for the reasons stated supra, Attorney Levin was not ineffective
for concluding that Appellant’s claims are meritless and seeking to withdraw
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on that basis. Additionally, as discussed above, Appellant’s assertion that his
plea was invalid because he does not speak English is not supported by the
record and, thus, Attorney Levin did not err by failing to argue it in his
amended petition. Nevertheless, even if this issue had arguable merit, it
would be deemed waived, where it could have been presented on direct appeal
but was not. See 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for PCRA
relief, the petitioner must prove that the claim has not been previously
litigated or waived); 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state post[-]conviction proceeding.”).
Therefore, Attorney Levin did not act ineffectively.
For these reasons, we conclude that the issues raised by Appellant in
his PCRA petition are meritless, as are the arguments presented in his pro se
response to Attorney Levin’s petition to withdraw. Therefore, we affirm the
PCRA court’s order dismissing his petition and grant counsel’s petition to
withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/18
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