Com. v. Torres, J.

J-S43025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN TORRES :
:
Appellant : No. 685 EDA 2021
Appeal from the Order Entered March 10, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0006471-2013,
CP-51-CR-0006624-2013, CP-51-CR-0008305-2013.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN TORRES :
:
Appellant : No. 686 EDA 2021
Appeal from the Order Entered March 10, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0006471-2013,
CP-51-CR-0006624-2013, CP-51-CR-0008305-2013.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN TORRES :
:
Appellant : No. 688 EDA 2021
J-S43025-22
Appeal from the Order Entered March 10, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0006471-2013,
CP-51-CR-0006624-2013, CP-51-CR-0008305-2013.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 22, 2023
Juan Torres appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
46. We affirm.
The pertinent facts and procedural history are as follows: Between
October 2012 and April 2013, Torres committed three unrelated crimes
charged at three different dockets. At No. 685 EDA 2021, Torres sexually
assaulted his niece (“sexual assault case”), at No. 686 EDA 2021, he shot at
a police officer (“attempted murder case”), and at No. 688 EDA 2021, he
robbed a distant relative (“robbery case”). A different attorney represented
Torres at each docket.1
____________________________________________
1Prior counsel filed three notices of appeal in which he listed all three docket
numbers and stated on each that the appeal was from the judgment of
sentence imposed on August 29, 2016. On May 13, 2021, in each appeal, this
Court issued a rule to show cause why the appeal should not be dismissed as
untimely. On May 17, 2021, current counsel filed an “Amended and Corrected
Notice of Appeal” at each docket number, which listed only one trial court
docket number and stated the appeal is from the PCRA order entered on March
10, 2021. While current counsel first did not seek permission to amend, we
use his identification of the docket number for each appeal and we have
(Footnote Continued Next Page)
-2-
J-S43025-22
On May 24, 2016, in the robbery case, Torres entered a plea of nolo
contendere to both possession of instruments of crime (“PIC”) and robbery.
At that time, the trial court sentenced Torres on the PIC conviction to three
years of probation. Pursuant to plea counsel’s request, the trial court deferred
sentencing on the robbery conviction to a later date.
On June 9, 2016, Torres entered pleas at the two remaining dockets. In
the sexual assault case, Torres entered a plea of nolo contendere to unlawful
contact with a minor, corrupting the morals of a minor, indecent assault,
terroristic threats, and intimidation of a witness. That day, the trial court
sentenced Torres on the corrupting the morals of minor conviction to five years
of probation and deferred sentencing on the remaining convictions to a later
date.
In the attempted murder case, Torres entered a guilty plea to attempted
murder, assault of a law enforcement officer, three firearm violations, and
possession of instruments of crime. That day, the trial court sentenced Torres
on one of the firearm violations to three years of probation and deferred
sentencing on the remaining convictions to a later date.
____________________________________________
corrected the caption to reflect the correct order being appealed. We further
note that prior counsel’s listing of all three dockets on each notice of appeal
does not require quashal. See generally, Commonwealth v. Johnson, 236
A.3d 1141 (Pa. Super. 2020) (en banc).
-3-
J-S43025-22
On August 29, 2016, the trial court sentenced Torres for his remaining
convictions at all three dockets. In sum, the trial court sentenced Torres to
an aggregate term of 20 to 40 years of imprisonment, and a consecutive
probationary term. Torres did not file an appeal at any docket.
On August 3, 3017, Torres filed a timely PCRA petition pro se. The PCRA
court appointed counsel, and PCRA counsel filed an amended petition on
January 31, 2018. In the amended petition, Torres first sought reinstatement
of his post-sentence and appellate rights nunc pro tunc on the grounds that
Torres requested an appeal at each docket, but each attorney failed to file the
requested appeal. As to his robbery case, Torres further claimed that plea
counsel’s ineffectiveness caused him to enter an involuntary plea. The PCRA
court held evidentiary hearings regarding Torres appeal request at which
Torres and each attorney presented conflicting evidence. On January 30,
2020, the PCRA court held another evidentiary hearing to address the
additional claim raised in his robbery case. The court took the matter under
advisement.
Thereafter, the PCRA court issued several continuances while waiting for
the transcription of testimony. On January 15, 2021, the PCRA court held a
hearing and ultimately issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Torres’ PCRA petition as meritless. On February 26, 2021, Torres filed a pro
se response. By order entered March 10, 2021, the PCRA court dismissed
-4-
J-S43025-22
Torres’ amended petition. This appeal followed. Both Torres and the PCRA
court have complied with Pa.R.A.P. 1925.
Torres raises the following three issues on appeal, which we have
reordered as follows:
Did the PCRA Court err and/or abuse its discretion when
it denied [Torres’ amended petition] under the PCRA seeking
leave to file a direct appeal nunc pro tunc where plea
counsel failed to file an appeal?
Did the PCRA Court err and/or abuse its discretion when
it denied [Torres’ amended petition] under the PCRA seeking
relief where [his] counsel was ineffective for failing to file a
motion to withdraw his guilty plea which was not knowing,
intelligent, and voluntary?
Did the PCRA Court err and/or abuse its discretion when
it denied [Torres’ amended petition] under the PCRA seeking
relief where [his] plea was the result of ineffectiveness of
plea counsel?
Torres’ Brief at 4.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
Torres’ issues assert the ineffectiveness of plea counsel. To obtain relief
under the PCRA premised on a claim that counsel was ineffective, a petitioner
must establish by a preponderance of the evidence that counsel’s
ineffectiveness so undermined the truth determining process that no reliable
-5-
J-S43025-22
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) the petitioner was prejudiced by counsel's act or
omission. Id. at 533. A finding of "prejudice" requires the petitioner to show
"that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different." Id. A failure
to satisfy any prong of the test for ineffectiveness will require rejection of the
claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
In his first two issues, Torres asserts that each plea counsel was
ineffective for failing to file a post-sentence motion to withdraw his plea and
a direct appeal even though he asked counsel to do so. As this Court has
recently summarized:
Our Supreme Court has held that where “there is an
unjustified failure to file a requested appeal, the conduct of
counsel falls beneath the range of competence demanded of
attorneys in criminal cases” and denies the accused the
assistance of counsel that is guaranteed by the Sixth
Amendment and Article I, Section 9 of the Pennsylvania
Constitution. Commonwealth v. Lantzy, 558 Pa. 214,
736 A.2d 564, 572 (Pa. 1999). Such an oversight
constitutes prejudice and per se ineffectiveness under the
PCRA. Id. However, “[b]efore a court will find
ineffectiveness of trial counsel for failing to file a direct
appeal, [the petitioner] must prove that he requested an
-6-
J-S43025-22
appeal and that counsel disregarded this request.”
Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa.
Super. 2001)(emphasis added).
Commonwealth v. Mojica, 242 A.3d 949, 955 (Pa. Super. 2020).
Here, the PCRA court found no merit to either claim based upon the
testimony presented at the first two evidentiary hearings. As to Torres’ first
issue, the court explained:
[Torres] alleged he mailed three letters to each of his
attorneys within days after sentencing, requesting they file a
direct appeal. However, testimony from counsel revealed that
none of them received any such letter. Further, [plea counsel in
the attempted murder case] was able to provide two other letters
he received from [Torres] within the same month the letter in
question was allegedly sent. Neither of these letters referenced
the existence of the letter in question, nor was there any indication
in those letters that [Torres] desired counsel to file an appeal.
Additionally, [Torres] was unable to provide any postage or copies
of the alleged letters sent to counsel. The only evidence [Torres]
was able to present of these letters even existing were carbon
copies.
This court credited statements from [all three counsel] that
[Torres] never requested a direct appeal with them and that,
given their experience in the field, if [Torres] had done so, they
would have filed an appeal on his behalf. This court therefore
concluded, based on the testimony of counsel and [Torres’]
inability to prove that any letters requesting an appeal were ever
sent, that [Torres] failed to prove that he ever requested his
counsel file a direct appeal. As [Torres] cannot satisfy his burden
of proving that any of his counsel were ineffective, no relief is due
on this claim.
PCRA Court Opinion, 3/9/22, at 10-11 (excess capitalization omitted).
As to Torres’ second issue, the PCRA court similarly explained:
[Torres] next claims that all of his counsel were ineffective
for failing to file a motion to withdraw his guilty and nolo
contendere pleas. [Torres] maintains he requested this of his
-7-
J-S43025-22
attorneys in the same letters that he allegedly sent requesting
that they also file direct appeals. [Torres] is unable to prove that
any letters requesting counsel to file a motion to withdraw his
pleas were ever mailed to any of his counsel. [All three attorneys]
testified under oath that they never received such a letter from
[Torres]. This court, therefore, properly concluded that [Torres’]
counsel were never informed of [Torres’] apparent intention to
withdraw all his pleas. Counsel cannot be deemed ineffective for
failing to take actions in which they were never informed. Because
[Torres] cannot satisfy his burden of proving that any of his
counsel were ineffective, no relief is due on [Torres’] second claim.
PCRA Court Opinion, 3/9/22, at 11 (excess capitalization omitted).
Our review of the record and PCRA hearing transcripts support the
court’s conclusions. As a matter of credibility, the PCRA court believed each
plea counsel’s version of the contested facts. We cannot disturb this
determination. See Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa.
Super. 1999) (explaining that when a PCRA court’s determination of credibility
is supported by the record, it cannot be disturbed on appeal).
In arguing to the contrary, Torres relies on the purported letter he
allegedly sent to each plea counsel and explains why he could not provide any
other evidence of mailing. See Appellant’s Brief at 24. Once again, the PCRA
court credited the testimony of counsel over the testimony and other
allegations made by Appellant at the hearings. We must defer to this
determination. See Commonwealth v Todd, 820 A.2d, 707 712 (Pa. Super.
2003) (explaining that Superior Court “must defer to the credibility
determinations made by the [PCRA] court that observed a witness’s demeanor
first hand”).
-8-
J-S43025-22
In addition, we reject Torres claim that he was wrongly advised of his
post-sentence rights because he was not told that he could file an appeal pro
se. Torres’ Brief at 24. We first note that this claim is waived because it is
being raised for the first time on appeal. See generally, Pa.R.A.P. 302(a).
Moreover, at the evidentiary hearings, Torres attempted to prove he acted in
accordance with contacting each attorney, rather than claim he was never told
he could appeal pro se. Thus, Torres’ first two issues fail.
In his third issue, Torres claims that plea counsel’s ineffective assistance
in the robbery case forced him to enter a guilty plea. Regarding claims of
ineffectiveness in relation to the entry of plea, we note:
Ineffective assistance of counsel claims arising from the plea
bargaining-process are eligible for PCRA review. Allegations
of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness
caused the defendant to enter into an involuntary or
unknowing plea. Where the defendant enters his plea on
the advice of counsel, the voluntariness of the plea depends
on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.
The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements
for relief based on a claim of ineffective assistance of plea
counsel, . . . under which the defendant must show that
counsel’s deficient stewardship resulted in a manifest
injustice, for example, by facilitating the entry of an
unknowing, involuntary, or unintelligent plea. This standard
is equivalent to the “manifest injustice” standard applicable
to all post-sentence motions to withdraw a guilty plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations omitted).
-9-
J-S43025-22
Moreover, “[o]ur law presumes that a defendant who enters a guilty
plea was aware of what he was doing,” and “[h]e bears the burden of proving
otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (citations omitted).
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 may not later assert grounds for withdrawing the plea
which contradict the statements he made at his plea colloquy.
Id. On appeal, this Court evaluates the adequacy of the plea colloquy and
the voluntariness of the resulting plea by looking at the totality of the
circumstances. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.
Super. 2011).
Here, the PCRA court found no merit to Torres’ claim. The court first
explained how this claim of ineffectiveness affected all of the pleas he entered:
[Torres’] final claim is two-fold: he alleges that [in the
robbery case plea counsel] failed to discuss any possible trial
strategy with him and thereby coerced him into entering a plea.
Entering a plea in this case effectively poisoned the [sexual assault
case and the attempted murder case], leaving him with no other
option then to enter pleas to those as well. [Torres] contends, for
these reasons, he entered all his pleas unknowingly,
unintelligently and involuntarily.
PCRA Court Opinion, 3/9/22, at 12. The court then summarized Torres’ plea
proceeding as follows:
At the very beginning of [Torres’] plea proceeding in [the
robbery case, plea counsel] immediately informed this court that
[Torres] felt he was being forced to enter a plea. This court
- 10 -
J-S43025-22
appreciated [Torres’] concerns and informed him that this court
was prepared to move forward with trial, indicating that a panel
of jurors was ready for selection downstairs. [Torres] then
advised this court that he didn’t “have a problem with this offer
here,” but that his concern was with how [plea counsel] was
handling the case. [Torres] asserted that she was “not really
going to fight for me.” This court responded by first giving
credence to counsel’s experience and advising [Torres] multiple
times of his right to make a choice in whether to plead or move
forward with trial, stating: “[T]hat’s your right. I never force
anybody to take any non-trial disposition in my courtroom.”
This court further explained what a nolo contendere plea
was, and what it meant for [Torres] were he to move forward with
that option. This court discussed what was being done by his
counsel to minimize his maximum exposure in all three of his
cases were he to be convicted at trial. Only after receiving
confirmation from [Torres] that he understood everything did this
court move forward with the plea proceeding. At that proceeding,
this court reviewed a written plea colloquy signed by [Torres].
This court then performed an oral colloquy with [Torres] wherein
he affirmed he was pleading at his own free will. Both colloquies
clearly established the voluntariness of Torres’ plea.
PCRA Court Opinion, 3/9/22, at 14 (excess capitalization omitted).
Finally, based upon above, the PCRA court rejected Torres’ contention
that his nolo contendere plea was involuntary, unintelligently, and
unknowingly entered. The PCRA court further found that Torres’ claim his plea
in the robbery case left him no choice but to enter pleas on his remaining to
claims lack merit:
[Torres’] argument that his first nolo contendere plea
infected the remaining nolo contendere and guilty pleas in [the
sexual assault case and the attempted murder case] is also
without merit. During the consolidated plea proceeding for the
latter two cases, [Torres] did not indicate that he had any issue
with either of his attorneys[.] In fact, [Torres] conceded he was
satisfied with their representation. [Torres] also signed written
- 11 -
J-S43025-22
plea colloquies and this court subsequently conducted oral
colloquies with [Torres] for both cases.
Id. at 15.
Our review of the certified record, including the plea hearings in all three
of Torres’ cases, supports the PCRA court’s conclusion. As noted above, Torres
is bound by the statements he made with regard to each plea, Pollard, supra,and his attempt to contradict them on appeal fails.
In sum, given the PCRA court’s credibility determinations, as well as the
statements made by Torres when entering his pleas, the PCRA court correctly
determined that Torres’ ineffectiveness claims lacked merit. We therefore
affirm the order denying Torres post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
- 12 -
J-S43025-22
- 13 -