Com. v. Aptiliasimov, F.

J-S51020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FIKRI APTILIASIMOU :
:
Appellant : No. 1886 MDA 2018
Appeal from the PCRA Order Entered October 18, 2018
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002876-2014
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED DECEMBER 24, 2019
Appellant, Fikri Aptiliasimou,1 appeals from the order entered in the
Luzerne County Court of Common Pleas, which denied his first petition brought
pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. We affirm and grant counsel’s petition to withdraw.
In its opinion, the PCRA court correctly set forth the relevant facts and
most of the procedural history of this case. Therefore, we have no reason to
restate them.2 We add that on June 23, 2019, counsel filed in this Court a
____________________________________________
1 Appellant’s last name appears variously throughout the certified record as
“Aptiliasimou” and “Aptiliasimov.”
2 PCRA counsel filed a timely notice of appeal on November 2, 2018, which
this Court docketed at No. 1816 MDA 2018. Appellant filed a pro se notice of
appeal on Monday, November 5, 2018, which this Court docketed at No. 1886
J-S51020-19
petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On August 2, 2019, Appellant
filed pro se in this Court an application for writ of mandamus. This Court
initially entered an order that deferred disposition of Appellant’s mandamus
application to the merits panel but subsequently vacated that order on August
21, 2019, and forwarded the mandamus application to counsel pursuant to
Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032 (2011). On August 28,
2019, Appellant filed a pro se response to counsel’s Anders brief.
Initially, in the context of a PCRA petition and request to withdraw, the
appropriate filing is a “no-merit” letter/brief. Commonwealth v. Turner,
518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213(Pa.Super. 1988) (en banc). But see Commonwealth v. Fusselman, 866
A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied, 584 Pa. 691, 882 A.2d
477 (2005) (stating Superior Court can accept Anders brief in lieu of
Turner/Finley letter, where PCRA counsel seeks to withdraw on PCRA
appeal).
“Before an attorney can be permitted to withdraw from representing a
petitioner under the PCRA, Pennsylvania law requires counsel to file and
obtain approval of a ‘no-merit’ letter pursuant to the mandates of
____________________________________________
MDA 2018. The PCRA court appointed new appellate counsel on November 6,
2018, who proceeded at No. 1886 MDA 2018, and this Court, on January 4,
2019, dismissed the appeal at No. 1816 MDA 2018.
-2-
J-S51020-19
Turner/Finley.” Commonwealth v. Karanicolas, 836 A.2d 940, 947
(Pa.Super. 2003) (emphasis in original).
[C]ounsel must…submit a “no-merit” letter to the trial court,
or brief on appeal to this Court, detailing the nature and
extent of counsel’s diligent review of the case, listing the
issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
petition to withdraw and advise the petitioner of his right to proceed
immediately either pro se or with new counsel. Id. To withdraw, counsel
must assure this Court of the substantial compliance with these technical
requirements. Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa.Super.
2016).
Instantly, counsel filed an Anders brief on appeal and a petition to
withdraw as counsel. Although designated as an Anders brief, counsel’s brief
is a Turner/Finley brief in the context of the PCRA. Counsel listed the issues
Appellant wished to raise and explained why Appellant’s claims merit no relief.
In counsel’s petition to withdraw, counsel states that she sent Appellant
another copy of the brief, a copy of the petition to withdraw, and a letter
advising Appellant of his right to proceed immediately pro se or with private
counsel to raise additional points he deems worthy of review. Thus, appellate
counsel has now substantially complied with the Turner/Finley requirements.
See Karanicolas, supra. Appellant responded pro se to counsel’s
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Turner/Finley brief on August 28, 2019. Appellant’s response, however, did
not raise additional issues. Accordingly, we proceed to an independent
evaluation. See Turner, supra at 494-95, 544 A.2d at 928-29 (stating
appellate court must conduct independent analysis and agree with counsel
that appeal is frivolous).
Appellant raises three issues in the Turner/Finley brief:
WHETHER…APPELLANT’S GUILTY PLEA WAS KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY ENTERED AS ENGLISH
IS NOT [APPELLANT’S] FIRST LANGUAGE AND A
BULGARIAN INTERPRETER HAD BEEN PREVIOUSLY
REQUESTED AND WAS NOT PRESENT AT THE TIME OF THE
PLEA?
WHETHER APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE
FOR [FAILING] TO ENSURE AN INTERPRETER WAS PRESENT
AT THE TIME OF THE PLEA TO ENSURE [APPELLANT]
UNDERSTOOD THE PROCEEDINGS?
WHETHER [APPELLANT’S] APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF
[APPELLANT’S] PLEA NOT BEING KNOWINGLY AND
INTELLIGENTLY ENTERED AS HE DID NOT HAVE A
BULGARIAN INTERPRETER?
(Turner/Finley Brief at 3).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
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J-S51020-19
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no similar deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012). Traditionally, credibility issues are resolved by the trier of fact who
had the opportunity to observe the witnesses’ demeanor. Commonwealth
v. Abu-Jamal, 553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied, 528
U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports
the PCRA court’s credibility resolutions, they are binding on this Court. Id.After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable David W.
Lupas, we conclude Appellant’s issues merit no relief. The PCRA court opinion
comprehensively discusses and properly disposes of the questions presented.
(See PCRA Court Opinion, filed March 4, 2019, at 4-12) (finding: (1) before
sentencing, Appellant moved to withdraw his plea, but not based on absence
of interpreter; on direct appeal from judgment of sentence, Appellant did not
challenge his guilty plea; as presented, this issue is waived; (2-3) both claims
of ineffectiveness fail, because underlying allegation that Appellant needed
interpreter at plea stage lacks arguable merit; record shows Appellant
specifically indicated he understood guilty plea proceedings without
interpreter; throughout proceedings in trial and PCRA courts, Appellant wrote
to court in English and answered questions with cogent responses in English;
further, during January 2016 guilty plea hearing, Appellant responded in
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J-S51020-19
English throughout guilty plea colloquy, specifically denied needing interpreter
for hearing, and indicated he understood English; at sentencing, Appellant did
not indicate his English ability prevented him from entering valid guilty plea
agreement; record shows Appellant did not need interpreter, and trial and
appellate counsel did not render ineffective assistance in relation to
Appellant’s alleged need for language assistance). The record supports the
reasoning of the PCRA court. After an independent examination of the record,
we conclude the appeal is frivolous. See Turner, supra. Accordingly, we
affirm based on the PCRA court’s opinion and grant counsel’s petition to
withdraw.
Order affirmed; counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2019
-6-
Circulated 11/25/2019 02:17 PM
<
COMMONWEALTH OF PENNSYLVANIA
11 TH JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
v.
CRIMINAL DIVISION
FIKRI APTILIASIMOV
Defendant I Appellant
No. 2876 of 2014
OPINION
BY: THE HONORABLE DAVID W. LU PAS
I. FACTS AND PROCEDURAL HISTORY:
This matter originated with a one (1) count Criminal Information filed against the
above-named Defendant by the District Attorney of Luzerne County on November 13,
2014.1 The Defendant was charged with Possession with Intent to Deliver (PWID), 35 §
780-113(A)(30), an ungraded felony, and trial counsel was appointed to represent him.
While represented by counsel, the Defendant signed a written plea agreement with the
Commonwealth and appeared before this Court on January 5, 2016, to formally enter a
guilty plea to the PWID charge.2 Following a full guilty plea colloquy, we accepted the
Defendant's guilty plea to PWID, sentencing was scheduled for a separate date, and a
pre-sentence investigation (PSI) was ordered to be completed by the Luzerne County
Adult Probation and Parole Department. N.T. 1/5/16 at 2-7.
1 The Defendant is a foreign born citizen of the United States, and has been a resident of
Luzerne County, Pennsylvania since 1972. N.T. 1/5/16 at4; N.T. 10/4/18 at 19.
2 The Defendant previously appeared before the Court to enter a guilty plea to the charge
against him on September 30, 2018, but chose not to do so at that time.
1
On March 21, 2016, the Court proceeded to sentencing.3 With the aid of the PSI,
which had been reviewed by the Defendant and his counsel, the Court sentenced the
Defendant to a standard range sentence of twenty-seven (27) to seventy-two (72) months
incarceration in a State Correctional Institution. N.T. 3/21/16 at 2, 9-10. No post-sentence
motions were filed by the Defendant.
On April 1, 2016, the Defendant filed a timely counseled Notice of Appeal,
asserting that this Court abused its discretion when imposing his sentence. On February
6, 2017, the Superior Court affirmed the Defendant's sentence, finding frivolous his
allegation that the Court abused its discretion in imposing sentence, and finding that there
were no additional meritorious issues. Superior Court Memorandum filed 2/6/17. The
Defendant did not seek review before the Pennsylvania Supreme Court. On November
7, 2017, however, he filed a timely prose petition for relief under the Post Conviction
Collateral Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.4 PCRA counsel was appointed
3
At the commencement of the sentencing hearing, the Defendant sought permission to
withdraw his guilty plea on the grounds that he had not been wearing his glasses when
he signed the plea agreement, he did not read the agreement, and trial counsel did not
tell him the agreement was to PWID. N.T. 3/21/16 at 3-4. This Court denied the
Defendant's request to withdraw his plea on these ·grounds, noting the extensive plea
colloquy that occurred prior to the Court's acceptance of the plea. Id. at 4-5. Additionally,
the Court found credible the statement of trial counsel, who indicated to the Court that (1)
counsel had explained to the Defendant that the charge against him was PWID based on
the quantity of the controlled substance involved; and (2) the Defendant decided to enter
into the plea agreement to PWID after he and counsel discussed the matter in detail. Id.
at 4-5.
4 The November 7, 2017, PCRA petition sought post-conviction relief under Sections
9543(a)(2)(i) ("A violation of the Constitution of this Commonwealth or the Constitution or
laws of the United States 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"); (ii) (".Ineffective 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"); and (iii) ("A plea of
guilty unlawfully induced where the circumstances make it likely that the inducement
2
to represent the Defendant, and a PCRA hearing was held on October 4, 2018.5 The
Defendant testified on his own behalf, and counsel for both parties offered argument in
support of their positions. At the conclusion of the hearing, this Court denied the
Defendant's request for post-conviction relief. On November 2, 2018, the Defendant filed
a timely counseled Notice of Appeal of· the October 4, 2018 denial of post-conviction
relief.6 The Defendant was directed to file a Pennsylvania Rule of Appellate Procedure
1925(b) statement, and, after being granted an extension of time, did so in a timely
manner on December 27, 2018.
II. LAW AND DISCUSSION:
caused the petitioner to plead guilty and the petitioner is innocent"). Specifically, the
PCRA petition alleged that: (1) "[T]rial counsel took advantage of the fact that the
Defendant has difficulty understanding the English language;" (2) "fW]hen trial counsel
had the Defendant sign his guilty plea colloquy, he put his hand over the top of the paper
and told the Defendant to sign it. The Defendant could not see nor did he know what he
was signing;" (3) "There was no interpreter present to discuss the situation as ordered;"
(4) 'Trial counsel originally told the Defendant that he would get a misdemeanor
possession charge;" and (5) "Trial counsel failed to discuss the colloquy. As a result the
Defendant did not know what he was signing." Id. at 4, attachment.
In addition to the November 7, 2017 PCRA petition, and prior to the appointment
of PCRA counsel, the Defendant filed a second prose PCRA petition on March 12, 2018,
asserting eligibility under Section 9543(a)(2)(iv) ("The improper obstruction by
government officials of the petitloner's right of appeal where a meritorious appealable
issue existed and was properly preserved in the trial court"), and claiming that the trial
court improperly conducted the Defendant's plea colloquy without an interpreter being
present, rendering the colloquy inadequate. PCRA_ petition filed 3/12/18 at Attachment.
Although the Defendant did not specifically request permission to amend his
original PCRA petition, this Court accepted the issues collectively raised by both petitions.
5
Prior to the PCRA hearing, appointed counsel filed ·a motion to withdraw, but the motion
was not granted and counsel was present at the hearing to represent. the Defendant.
6
The Defendant also filed a prose Notice of Appeal on November 5, 2018, which this
Court will disregard, as a defendant is not entitled to hybrid representation.
Commonwealth v. Johnson, 179 A.3d 1153, 1157 (Pa. Super. 2018) (citing
Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 10 n.4 (2008) ("[A] criminal
defendant currentlyfopresented by counsel is not entitled to hybrid representation)).
3
The Defendant's counseled Rule 1925(b) statement indicates that he intends to
argue the following three issues on appeal before the Superior Court:
a. Defendant's guilty plea was not knowingly, intelligently and voluntarily entered as
English is not the Defendant's first language, a Bulgarian interpreter had been
previously requested and was not present at the time of the plea.
b. Defendant's trial counsel was ineffective for failing to ensure an Interpreter was
present at the time of the plea to ensure the Defendant understood the
proceedings; and
c. Defendant's appellate counsel was ineffective for failing to raise the issue of
Defendant's plea not being knowingly and intelligently entered as he did not have
a Bulgarian Interpreter.
Rule 1925(b} Statement filed 12/27/18.
In order to be eligible for post-conviction relief, a petitioner must establish by a
preponderance of the evidence that his conviction or sentence resulted from one or more
of the grounds enumerated in 42 Pa.C.S.A. § 9543(a}(2}, and that the allegations of error
have not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). "[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." 42 Pa.C.S.A. §
9544(b}; Commonwealth.v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007) (A claim that
the defendant's guilty plea was not knowingly, intelligently and voluntarily made was
found waived on the grounds that the claim could have been raised on direct appeal but
was not}).
4
As such, with regard to the Defendant's first issue, he must establish by a
preponderance of the evidence that his plea of guilty was unlawfully induced because he
requested, but was not provided, an interpreter and that such circumstances make it.likely
that the inducement caused the petitioner to plead guilty and the petitioner is innocent,
AND that he must show that this issue was not previously litigated or waived. 42
Pa.C.S.A. §§ 9543(a)(2)(iii), (3). "Ordinarily, failure to petition to withdraw a plea,
combined with failure to pursue direct appeal will bar consideration of an attack on one's
plea in collateral proceedings." Commonwealth v. Rachak, 62 A.3d 389, 395 (Pa. Super.
2012).
As noted above, the Defendant sought to withdraw his plea, but not based on the
absence of an interpreter. Further, although the Defendant filed a direct appeal of his
sentence, it did not challenge the validity of. his guilty plea on any ground. Because the
Defendant could have, but did not, challenge the validity of his plea based on the lack of
an interpreter, the Defendant has waived the challenge. 42 Pa.C.S.A. §§ 9543(a)(3);
9544(b)); Rachak, 62 A.3d at 396.
In addition to the above issue, however, the Defendant also layers his request for
post-conviction relief by alleging that trial counsel was ineffective for failing to secure an
interpreter for the guilty plea hearing and that appellate counsel was ineffective for failing
to raise the validity of the Defendant's plea in the absence of an interpreter.
Generally speaking, in order to establish that counsel rendered ineffective
assistance, a defendant must establish (1) that the underlying issue has arguable merit;
(2) that counsel did not have a reasonable basis for his or her actions; and (3) that
prejudice resulted from counsel's performance. Commonwealth v. Reyes, 582 Pa. 317,
5
330, 870 A.2d 888, 896 (2005) {citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
973 {1987)). To preserve a layered ineffective assistance of counsel claim, appellant
must plead and prove that: (1) trial counsel was ineffectiv_e for a certain action or failure
to act; and (2) direct appeal counsel was ineffective for failing to raise trial counsel's
ineffectiveness. Commonwealth v. Thomas, 615 Pa. 477, 486, 44 A.3d 12, 17 {2012).
J
An appellant must meet all three prongs of the Pierce test as to each relevant layer of
representation, and if the appellant fails to prove any ofthe three Pierce prongs as to trial
counsel's ineffectiveness, he will have failed to establish the arguable merit prong of the
layered claim of appellate counsel's ineffectiveness, and the claim fails. Thomas, supra;
Reves. supra.
.....
It is also well-settled that counsel will not be deemed ineffective for failing to raise
a baseless issue and it is only when the underlying issue is of arguable merit that further
inquiry must be made into the reasonableness for counsel's actions and the prejudice
� that counsels actions may have caused. Reves, supra.
Here, because the lengthy record before this Court shows that the Defendant's
underlying allegation that he needed an interpreter is baseless and without arguable
merit, he cannot succeed in his ineffectiveness of counsel claims and is not entitled to
post-conviction relief. As detailed below, a thorough review of the record shows that the
Defendant specifically indicated that he understood the guilty plea proceedings without
an interpreter. At no point during the guilty plea, sentencing, or PCRA hearings did the
Defendant exhibit any sign that he did not understand the questions posed to him in
English. During each and every proceeding before this Court the Defendant was able to
provide cogent and often lengthy answers, in English, to the questions posed to him. Any
6
self-professed difficulty understanding spoken or written English stands in direct contrast
to the Defendant's own words. Instead, the evidence shows that the Defendant has a full
grasp of the English language, and that he specifically denied needing an interpreter.
Specifically, as the record clearly reflects, the Defendant is a U.S. Citizen and has
been a resident of Pennsylvania since 1972. N.T. 1/5/16 at 4; N.T. 10/4/18 at 19. While
living in Pennsylvania, the Defendant owned and operated an auto repair business. N.T.
10/4/18 at 18-19. The Defendant hasthree English.speaking children, and acknowledges
that he communicates with them in English. Id. at 18. He was arraigned on November
14, 2014, and appeared before the Court on five occasions without the issue of an
interpreter being raised. 2/17/15 hearing; 3/2/15 hearing; 4/7/15 hearing; 5/12/15 hearing;
5/18/15 hearing. In addition, on May 5, 2015, the Defendant wrote to this Court to provide
the Court with "incite" into his background, Letter dated 5/5/15, forwarded to defense
counsel via letter dated 5/29/15. In this letter the Defendant specifically indicated to the
Court that he can read English. Id.
It was not until September 30, 2015 (after the matter had been proceeding in
spoken English without an interpreter as detailed above, and after the Defendant
indicated to the Court that he can also read English) that the issue of an interpreter
appears anywhere of record. On that date, a notation appeared on a disposition sheet
that the Defendant "needs a Bulgarian interpreter." Disposition sheet dated 9/30/15.
Significantly, however, at the subsequent guilty plea hearing held on January 5, 2016, the
Defendant specifically denied needing an interpreter.
A review of the guilty plea hearing transcript reveals the following: At the
commencement of the hearing, the Court inquired of the Defendant, in English, if it was
7
the Defendant's intention to enter into a guilty plea agreement to the charge of possession
with intent to deliver heroin,· an ungraded felony. N.T. 1/5/16 at 3. The Defendant
responded, "yes, your Honor." Id. The Court then indicated to the Defendant that he
would be asked a series of questions before his plea could be accepted, and directed the
Defendant to let the Court know if anything was said that the Defendant did not
understand. Id. The Defendant acknowledged this instruction, and proceeded to answer,
in detailed and grammatically correct English, each of the Court's questions regarding his
age, level of education, employment history, his United States citizenship, his parole
status, and his awareness that parole may be revoked in light of a conviction in the current
matter. Id. at 3-4.
The Court then specifically asked the Defendant whether he had "difficulty reading,
writing or understanding the English language," and whether he could "understand
everything without the use of an interpreter." Id. at 4 (emphasis added). The Defendant
responded, "I understand." Id. Following this exchange, the Defendant responded to
additional questions from the Court, in English, indicating that he was not under the
influence of drugs of alcohol, that he had discussed and reviewed the matter with his
attorney, that he reviewed and signed the written plea agreement, and that he understood
the possible ranges of sentence and the applicable statutory maximum sentence. Id. at
4-5.
After the Commonwealth read into the record a brief recitation of the facts leading
to the charges against the Defendant, the Defendant indicated to the Court that he was
admitting to the things described. Id. at 5-6. Finally, the Defendant acknowledged to the
Court that he understood that he did not have to plead guilty, that he had a right to plead
8
not guilty and request a trial, that if he did request a trial the burden would be on the
Commonwealth to prove each element of the crimes charged beyond a reasonable doubt,
that by pleading guilty he was waiving his right to trial. Id. at 6. Before accepting the
Defendant's plea, the Court asked him if he had any questions or if there was anything
that he didn't understand about what he was pleading to. Id. at 7. The Defendant
unequivocally responded in the negative, and the plea was accepted. ld.7
Prior to the sentencing hearing, a PSI was completed. The preparer noted the
Defendant's age, height, weight, eye and hair color, as well as indicating that the
. Defendant's physical health was poor and he was seeking medical treatment for a bad
back. PSI dated 3/9/16 at p. 4. The preparer also noted that the Defendant denied any
mental health issues. Id. Nowhere in the PSI, however, did the preparer indicate that the
Defendant requested an interpreter to assist him in participating in PSI process, nor did
the preparer indicate that the Defendant was unable to participate in the process without
an interpreter.
At the commencement of the Defendant's March 21, 2016 sentencing hearing, his
counsel indicated to the Court that against counsel's advice, the Defendant wished to
withdraw his guilty plea. N.T. 3/21/16 at 3. When the Court asked why the Defendant
wished to withdraw his plea the Defendant's responses clearly demonstrated his
understanding of the English language. Specifically, the Defendant stated as follows:
7 The transcript of the Defendant's January 5, 2016 guilty plea hearing will only allow the
Superior Court to view the words used by the Defendant to answer the Court's questions.
With regard to the manner in which the Defendant responded, however, this Court can
unequivocally state for the record that nothing in the way in which the Defendant
responded caused the Court to doubt that the Defendant fully understands written and
spoken English.
9
I'm withdrawing the plea, Your Honor, because I signed something that I
already did six months ago, withdraw the same PWID. I was kind of hoping
[trial counsel] got me a simple possession, and that's why I signed the
paperwork. I apologize for my misunderstanding.
[Trial counsel] never told me I was signing PWID. I didn't have my glasses,
and I didn't read the paper. I kind of trusted him. I'm not signing PWID,
Your Honor. You know, six months ago, I went through the same thing; and
I will take it today, simple possession and time served and forfeit the money.
That's the only thing - I'm tired of it. I want to spend time with my
grandchildren instead of prisoners out there.
Id. at 3-4.8 At no point during the sentencing hearing did the Defendant indicate that an
inability to understand English had prevented him from entering into a valid guilty plea
agreement or that it prevented him from understanding the sentencing proceedings. At
no point during the sentencing hearing did the Defendant ask for an interpreter.
Following the affirmance of the Defendant's sentence on direct appeal, he filed two
PCRA petitions, in English, raising the issues set forth above. At the commencement of
the October 4, 2018 PCRA hearing, PCRA counsel addressed whether the Defendant
needed an interpreter. Counsel indicated that before the hearing began the Defendant
had asked if his interpreter was present. N.T. 10/4/18 at 2. Counsel acknowledged to
the Court, however, that the record clearly revealed that not only had the Defendant failed
to request an interpreter for the hearing, but that he had previously expressly indicated to
the Court, on the record, that he did not need an interpreter. Id. Counsel further
acknowledged to the Court that prior to the morning of the PCRA hearing, the Defendant
e The Court denied the Defendant's request to withdraw his plea, noting that the
Defendant had already entered and withdrawn his plea once before in this matter, that he
had re-entered it after a full guilty plea colloquy, and that he was clearly well aware of the
nature of the legal proceedings in which he was participating. N.T. 3/21/16 at 5-6.
Additionally, the Court specifically found the Defendant's assertions to contrary to be not
credible. Id. at 7
10
had never indicated to counsel that he needed an interpreter, and counsel further
explained that during the Defendant's lengthy conversations with counsel the Defendant
did not appear to counsel to have any problem communicating without the aid of an
interpreter. Id. at 3-4. Following a discussion with the Defendant regarding his ability to
understand the English language, the Court noted for the record that the Defendant was
communicating in perfect English, and obviously understood "the process, the
procedures, what felonies are, what simple possession versus possession with intent is
... legal terms and legal concepts." Id. at 4-5. As such, the Court determined that the
Defendant did not need an interpreter. Id. at 5.
The PCRA hearing continued, and the Defendant testified that he did not
understand the guilty plea agreement that he signed because "[a]t the time I couldn't read
it. I didn't see anything in writing. Nobody showed me." Id. at 8. Additionally, the
Defendant reiterated his claim that he signed the plea agreement because trial counsel
did not tell him· it was to a felony charge. Id. When the Defendant was asked why he had
indicated to the Court at the time of the guilty plea hearing that he did not need an
interpreter, the Defendant initially indicated that he was merely doing what trial counsel
told him to do. Id. at 9-10. Then, for the first time in the entire course of this lengthy
matter, the Defendant asserted that he "couldn't even hear anything," and that he had
been reading lips in order to answer questions. Id at 10.9
9 The Court found this assertion to be incredible, and noted for the record that the
Defendant had appropriately answered all questions posed to him by PCRA counsel,
even though the Defendant had not been watching PCRA counsel speak. N.T. 10/4/18
at 11-12. The Court viewed this assertion to be nothing more than a "change in tactics"
that further evidenced that the Defendant was fully aware of what was going on during
the course of this matter, and was attempting to manipulate the system to avoid the
consequences of his earlier knowing, voluntary, and intelligent decision to plead guilty.
11
..
In addition to the above referenced testimony demonstrating the Defendant's grasp
of the English language, we note that during the course of the PCRA hearing the
Defendant coherently and concisely explained to the Court, in English, the circumstances
under which he filed his second PCRA petition, and offered lengthy, coherent answers to
the questions posed to him, in English, without the aid of an interpreter. N.T. 10/4/18 at
6-7, 13-15, 18-19.
Because the record overwhelmingly belies the Defendant's assertion that he needs
an interpreter, it was well within this Court's discretion to conduct the proceedings in this
matter, including the guilty plea hearing, in the absence of such an interpreter. In re
, Garcia, 984 A.2d 506, 511 (Pa. Super. 2009) (Explaining that "[a]s a general rule, the
determination of whether an interpreter is warranted in a particular case is within the
sound discretion of the [trial] court.").'? Further, the record fully supports the conclusion
that the Defendant knowingly, voluntarily, and intelligently entered into a guilty plea
agreement despite the lack of an interpreter. Because the record clearly shows that the
Defendant did not need an interpreter, neither his trial counsel nor his appellate counsel
rendered ineffective assistance in relation to the failure to provide the Defendant with an
interpreter, and the Defendant is not entitled to post-conviction relief.
END OF OPINION
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The facts of Garcia are very similar to the case at hand, in that the defendant therein
initially voiced no difficulty in understanding the proceedings, but then requested an
interpreter, before finally engaging the court and his counsel in English during numerous
subsequent proceedings. In re Garcia, 984 A.2d at 511. The trial court refused to provide
an interpreter, explaining that "[t]he demeanor and responses made by [Appellant]
evidenced an effort to stymie the proceedings, rather than a genuine inability to
comprehend the proceedings," and the Superior Court found no abuse of discretion in
this decision. Id. i,.-t s 11 �
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