Com. v. Contis, A.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. : : ANGEL CONTIS, : No. 574 WDA 2014 : Appellant :

Appeal from the PCRA Order, March 11, 2014, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0010001-2011

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 13, 2015

Angel Contis appeals from the order denying his first petition for post-conviction relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Appellant was arrested on March 4, 2011, and charged with one count of possession with intent to deliver cocaine, one count of possession of cocaine, one count of possession of drug paraphernalia, one count of possession of a small amount of marijuana, and a summary count of driving in excess of the maximum speed limit.1 On August 16, 2012, appellant appeared before the Honorable Randal B. Todd and entered a negotiated guilty plea to all four counts related to possession of a controlled substance;

1 As the facts underlying the crimes are not pertinent to the issues raised on appeal, they will not be reviewed.

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the remaining count was withdrawn. Judge Todd accepted the plea and sentenced appellant to the agreed-upon term of 2 to 4 years’ incarceration and an RRRI sentence of 18 months. No motion to withdraw a guilty plea was filed on his behalf, nor was a direct appeal filed.

On October 18, 2012, the United States Department of Homeland Security filed an Immigration Detainer and sought removal of appellant from the United States.2 Thereafter, on September 8, 2013, appellant filed a pro se PCRA petition. The court appointed counsel for appellant, and an amended petition was filed on January 27, 2014.

An evidentiary hearing was held on March 6, 2014, at which time a certified Spanish interpreter was provided for appellant. Guilty plea counsel testified, as did appellant on his own behalf. The matter was taken under advisement; by order of court, the petition was dismissed on March 11, 2014. A timely notice of appeal was filed on April 10, 2014. Appellant complied with the trial court’s order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

The following issues have been presented for our review:

I. SINCE [APPELLANT] WAS GIVEN INCORRECT LEGAL ADVICE ABOUT THE DEPORTATION CONSEQUENCES OF ENTERING A GUILTY PLEA, HIS PLEA WAS ENTERED UNKNOWINGLY AND INVOLUNTARILY.

2 Appellant, a native of Mexico, immigrated to the United States approximately 15 years ago. (Notes of testimony, 3/6/14 at 13.)

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II. [APPELLANT] SHOULD HAVE HAD AN INTERPRETER AT HIS GUILTY PLEA AND SENTENCING AS HIS PRIMARY LANGUAGE IS SPANISH AND HE WAS NOT SUFFICIENTLY PROFICIENT IN ENGLISH.

III. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESERVE THE WITHIN ISSUES BY POST-SENTENCE MOTION, A MOTION TO WITHDRAW GUILTY PLEA AND FOR FAILING TO FILE A NOTICE OF APPEAL.

Appellant’s brief at i.3

Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court’s determination, and whether the PCRA court’s determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. Id.

Moreover, as some of appellant’s issues on appeal are stated in terms of ineffective assistance of counsel, we note that appellant is required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v.

3 Other claims presented in appellant’s amended PCRA petition have been abandoned on appeal.

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Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

Turning to appellant’s first issue concerning whether his guilty plea was invalid because counsel ineffectively gave him inadequate advice as to his deportation risk, we find no error with the PCRA court’s decision. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, it is our determination that there is no merit to the question raised on appeal. The PCRA court’s opinion thoroughly discusses and properly disposes of this issue. We will adopt it as our own and affirm on that basis.

The next issue presented is whether the PCRA court properly denied appellant’s claim that prior counsel was ineffective for failing to secure the presence of a Spanish-speaking interpreter at the guilty plea hearing. (Appellant’s brief at 23.)

Pennsylvania law holds that the decision whether to use an interpreter rests in the sound discretion of the trial judge. Commonwealth v. Wallace, 641 A.2d 321, 324 (Pa.Super. 1994).

[W]here the court is put on notice that a defendant has difficulty understanding or speaking the English language, it must make unmistakably clear to him that he has a right to have a competent translator

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assist him, at state expense if need be. Where, on the other hand, no request for an interpreter has been made and the defendant appears to comprehend the nature of the proceedings and the charges against him, the trial court does not abuse its discretion by proceeding without appointing an interpreter.

Id., quoting People v. Navarro, 134 A.D.2d 460, 461 (1987) (internal quotation marks omitted).

Instantly, one of appellant’s trial counsel testified at the PCRA hearing about appellant’s ability to speak and understand the English language. Counsel stated that appellant communicated with him regularly, and they discussed the facts and circumstances of the case. (Notes of testimony, 3/6/14 at 11.) Counsel testified there was no need for an interpreter, as appellant spoke English when he called and he understood everything counsel told him. (Id. at 8.) “My understanding was that there were issues with his reading, but never communication.” (Id.)

In its opinion, the PCRA court found the record replete with evidence that appellant does, indeed, understand English. The PCRA court noted that appellant’s inability to read English was addressed at the plea hearing and that, at the hearing, appellant acknowledged on the record that each of the questions concerning the plea colloquy were read to him and he understood them. (Id. at 12.) At the PCRA hearing, the court read a portion of the guilty plea transcript into the record, wherein appellant was asked how far he went in his education; appellant responded that he had completed some

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college. (Id.) In his Rule 1925(a) opinion, Judge Todd specifically stated that at the guilty plea hearing, he spoke with and observed appellant and was “satisfied that [appellant] understood the proceedings and everything that was being said to him. At no time did [appellant], by his words, actions or demeanor express any difficulty in understanding the proceedings.” (PCRA opinion, 7/15/14 at 8.) In its opinion, the PCRA court made a credibility finding that appellant understood the English language and the guilty plea proceedings. (Id.) We find the record supports the PCRA court’s determination; appellant has failed to establish that his understanding of the English language was so impaired that the absence of an interpreter compromised his decision to plead guilty. Consequently, counsel cannot be found to have been ineffective in allowing a guilty plea hearing to proceed without an interpreter.

The final claim presented is whether counsel was ineffective for failing to file a post-sentence motion to withdraw his guilty plea. The PCRA court found that there was no evidence that appellant requested a post-sentence motion be filed or that there was any basis for counsel to believe appellant would have wanted such a motion to be filed. (Id.) Further, when considering this claim, an appellant must establish prejudice. Commonwealth v. Liston, 977 A.2d 1098, 1092 (Pa. 2009). Specifically,

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an appellant must establish that the court would have granted a post-sentence motion if one were filed. Pursuant to our analysis herein appellant has not demonstrated that counsel’s actions prejudiced him; he has not shown that he would have been able to meet the strict standard for seeking withdrawal of a guilty plea post-sentence.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/13/2015

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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF ) CRIMINAL DIY ISION PENNSYLVANIA ) ) v. ) NO: CC20 111000 I ) ANGEL CONTIS. ) ) Petitioner. )

July 15. 2014

TODD. J.

OPINION

ThIS is an appeal by Petitioner, Angel Contis, from an order entered on March 11, 2014 dismissing Petitioner's PCRA Petition after an evidentiary hearing held on March 6, 2014 . On April 10,2014 Petitioner filed a Notice of Appeal to the Superior Court. On April 10,2014 Petitioner was also ordered (0 file a Concise Statement of Matters Complained of on Appeal pursuanlla Pa. R.A.P. § 1925(b). On April 11. 2014 Petitioner filed his Concise Statement which set forth the following issues:

"a. The PCRA Court erred In denying the Petition on the following grounds :

J. Trial counsel rendered ineffective assistance by not adequately advising Mr. Contis thai he could or would be depon.ed upon entering his guilty plea in thiS maHer;

II. Trial counsel rendered ineffective assistance by failing to provide for an interpreter at any coun proceedings when Mr. Conris' first language is Spanish;

III. Trial counsel was ineffective for failing to object and failing to preserve the above issues by post-sentence motion. a motion to withdraw gu ih y plea and for failing 10 file a notice of appeal."

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BACKGROUND This matter arises out of Pelitioner's arrest on March 4. 2011 after which he was charged

with one count of Possession with mien! to Deliver cocair,e In violation of 35 P.S. § 780-J 13(a)(30); one CQum of Possession of cocaine In violation of 35 P.S . § 780- 113(a)( 16); one count of Possession of Drug Paraphernaha In violatIOn of 35 P.S . § 780·113(a)(32); one count of Possession of a Small Amounl of marijuana in violation of 35 P.S. § 780-113(a)(31); and, a summary offense.

On August 16.2013 Petltioner entered into a negotiated plea agreement which provided that 111 exchange for a plea of guilty the Commonwealth would agree to waive the mandatory minimum sentence for PWID in exchange for a sentence of 2 to 4 years with a recommendation for boot camp and no further penally althe remaining counts. (811612013 T. . p. 2) DUring the colloquy Petitioner acknow ledged that he was 34 years old and that. although he dId not read the English language. he understood the proceedings. He also acknowledged thai he did not suffer from any mental or physical disabilities or infirmities and had no drugs or alcohol whIch Impaired his understanding of the proceedings. (8//6/2013 T. , pp. )-4) Petllioner' s counsel indicated Ihal due to Pelilioner's limited ability to read the English language , counsel had read every question on the Gu ilt y Plea Explanation of Defendant's Rights Form to Petitioner, which Petit ioner acknowledged had OCCUlTed. (8/16/20137:, pp. 10- 11) The Commonwealth provided a summary of the offense which indicated that after a traffic stop. Petitioner was found to be in possession of marijuana, a workmg digital scale with while powder residue. $) ,470.00 In cash and 18.13 grams of rock coca ine . No corrections were made (0 the summary of (he facts . (8/16/20137:, pp. 7- 10)

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Petitioner's plea was accepted and Petitioner was sentenced pursuarlf to the negotiated

plea agreement (81/611013 T . pp. 11 - 13) Ii $houJd he noted lhat throughout the proceeding)O

Petitioner acknowledged that he understood the proceedings and agreed 10 and accepted Ihe plea

agreement. In addition, al no time did Petitioner ex.press any desire or need for an interpreter nor

did he exhibit any difficulty in understanding what was being said by eiLher the Coun. his

counselor the prosecutor.

On September 30, 2013 Petitioner filed his pro se PCRA Petition in which he alleged

roumel never asked for or provided an interpreter for any of his coun appearances; that he was

nOllold that he would be in prison for 2 to 4 years or thaI his guilty plea would resull III

deport.atlon from lhe United States. Petit ioner asserted that couJlScllOfOlmed hIm he would get 6

months in boot camp and then parole. On Oclober 3, 2013 an order was entered appointing

rCRA counsel. On January 27, 20 14 counsel filed an Amended PCRA PetitIon. t On Februar)

6,2014 Ibc Commonwealth fIled an Answer to the Amended PCRA Petition conceding [hat. III

light of the United Siaies Supreme Court decision in PadiU,J v. KemlfcJ... y. _ U,S._. 130 S.O.

1473 (2010), an evidemiary hearing was necessary to resol ve the issue of whether or not counse l

mfonned Petitioner of the possible immigration consequences of his guihy plea. Padilla held

(hal counsel must infonn a ellent whether a plea carries a risk of deportation . On February I J,

2014 an order was entered scheduling a PCRA heanng on March 6, 2014 .

At the PCRA hearing a certified Spanish interpreter was provided fo r Peli!lOner. (T .. pp. 2·3) Altomey O. Scot! Lautner testified thai he was retained by Petitioner to represent him throughout the proceedings inc luding the plea. although he did nOI attend the plea himself, which

I111 the Amended PCRA Petition. Petitioner apparently inserted IWO additional claims, Ihal he was denied the opportunity for a presentence repon and that counsel failed {O file a post-sentence mOl ions or POSI senlence mOllons nunc pro lunc pursuanilO Commollwealrh v USInIl.

Circulated 01/29/2015 09:24 AM was attended by an associate from his office, Anomey Jeff Reis . (T., p. 7) Mr. Lautner [estifled thaI he mel with Petitioner on multiple occasions prior 10 the plea, tncluding meetings with law enforcement officials in an anempt to discuss a pOlenilal plea agreement for his case. Mr. Lautner also testified thai the Jaw enforcement officials also discussed the possibility of deportation with Petitioner.

Mr. Lautner lestified thaI throughout his representation he never needed a transla tor to be prescnt as Petitioner spoke English and Petitioner "underSfOod eve rything thai was saId to him ." (T, p. 8) As 10 his discussions with Petitioner concerning the effects on his imm igration status, Mr. Lautner testified as follow~:

"Q. Was there any discussion - . dId you ask him about his status 111 the United Slates? A. Yes . Q. And what is it? A Right now? Q. What was his status before he entered his plea? A. I don', recall specifica lly . I know he was nOi a U.S. ci ti zen. Q. Were you aware he was a permanent resident? A. I believe so, yes . Q. And did you do any research on lhe consequences of that plea and proceedings? A. NOI only did I explain it to him, but also one oflhe law enforcement officers in one of our meetings explained it to him, the possibility of deportation if he was convicted. Q. And his response was? A. He was aware." (T .. p. 9)

On cross-examinalion, Mr. Lautner sta ted the following :

"Q. Mr. Lautner, regarding immigration, what did you lell Mr. Contis? A. That if he was to be found guilty or if he pled guilty there were potential immigration sanctions. including deponation." (T" p. 10)

Petitioner testified thaI at the lime of the hearing he was 37 years old and although he had been in the Umled Stales for a lillie more than l5 years, tIis primary language was Spanish. (T., pp. 13-14) Although Petitioneraclmowledged that he mel between 8 10 12 times with counsel,

Circulated 01/29/2015 09:24 AM he only discussed his immigrat ion status o nce: when he gave counsel a copy of his green card (T ., p. 14) Petllioner testifIed that the only sta tement made to hml by cOlIn~el regardIng the consequences of Ins plea on his permanent residency sta tu s was "he believed there waS: not going to be any problems because il was nor a big case, it was a case of possession only." (T" p. ] 4) Peti tioner testified t.l18l o n the day of the plea anOther la wyer was present; ahhough Il was the second or third time he had seen him. Petitioner testi fied tha! he was told to :

.. .... put my mltials al the bouom of thc page, and then he started read in g some things, but [don ' t know how 10 read English. Since I don't speak English. "m not sure whether he was read ing what was reading on the paper 01 he was telling me someth ing els e, because I don ' t have a way to know." (T., p. 15)

Petitioner also testified there was no d iscussion with the second aUorney o n Ihe d<ly of hl ~ plea concemi ng hi s immigration stat us and he was never advised he could be deported based

upon hi~ plea to a dnJg offense. cr.. p. 15) Petitioner further Icstified Ihat tr he had been adv ised, he would not have cmered into the plea agreement. Petitioner testified that his understanding of

the plea agreement was lhat he would rece ive boot camp only with no prison and Lhere was never any diSCUSSion about deportation, wh ich he learned about only when an immignltlo n officer came to visit hIm subsequent [0 his case. (T., p. 16) At the co nclusion of the PCRA hearing the mailer was taken under advise ment and on March I I. 2014 an order was entered dismissing the PCRA Petition

DISCUSSION

It IS clear thai a defendaOi is eOl itled lO effective a~SJstance of counsel during a guihy plea proceeding. In Commonwealth v. Hickman , 799 A.2d 136, 14J (Pa. Super 2002) the Court Slalcd.

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"A criminal defendant has the right to errective counsel during a plea process as well as during a Ifial. Hill v. Lockharl, 474 U.S . 52, 106 S.O. 366. 88 L.Ed.2d 203 (J985). Allegations or ineffectiveness in connection with the entry of a guilry plea wil! serve as a basis for relief only if lhe ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Commonwealth v. Allen , 557 Pa. 135, 732 A.2d 582 (1999) . 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.' " Hill, 474 U.S . at 56, 106 S.O . 366, 88 L.Ed.2d 203 (quoting McMann v. Richardson, 397 U.S. 759, 771, 9OS .Ct. 1441,25 L.Ed.2d 763 (1970)); Commonwealth v. Hickman , 799 A,2d 136, 141 (Pa. Super. 2002)

In order for Petitioner to be entilled 10 relief on the basi s that trial counsel was ineffective, the burden is on Petitioner 10 show by a preponderance of the evidence ineffective assistance of counsel. Counsel is presumed to be effective, however, and Ihe burden res tS with Petilioner to overcome tJ1al presumption.

As nOled above, the Commonweallh concedes and the law is clear thai plea counsel must advise a defendant of the possible consequences of a guilty plea on the defendant 's immigral ion slat us. mcluding the possibility of deportation . In Commonwealth II. Garcia , 23 A.3d 1059, 1064 (Pa. Super. 2011) the Superior Court, in discussing Padilla. stated:

"Thus, the United Slates Supreme Court clarified the following with regard 10 a criminal defense attorney's obligation to a client. who is inlending to enter a guilty plea; When the (deponationllaw is not succinCl and straightforward ... , a criminal defense attorney need do no more than advise a nonClllzen that pending criminal charges may carry a risk of adverse immigration consequences. But when deponation consequence is truly clear, as it was in [Padilla], the duty 10 give correci advice is equaUy clear. Padi/Ja, 130 S.C!. at 1483." Commonwealth v. Garcia. 23 A,3d 1059, 1064 (Pa. Super. 2011)

The Court went on to state:

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"With regard to Pennsylvani a precedent , the United States Su preme Court's holding in Padilla abrogated Commol1wealrh v. Fromeia, 520 Pa. 552, 555 A.2d 92 (1989), in which the Pennsylvania Sup reme Co un held that coun sel, m prov iding adequate assistance to a criminal defendant contemplating a guil ty plea, is nOI required to advise a defendant of the collateral conseque nces of plead ing guilty, includmg the Immigrati on consequences which may result from the plea." Commonweal,,, v. Garcia, 23 A.3d 1059. 1064 (Pa Super. 2011)

In this case there is absolutely no evidence that cou nsel was ineffccllve in faili ng 10 advise Petitioner of tJle possi bility that he might be deponed as a result of his guih y plea. Counse l credi bly testified that he not only adVIsed Petitioner of the possibility of deponation bUi that law en force ment offi cers who met with counsel and Pelilioner also discussed the possibility of deportati on There is no evidence to support the position any conduct on the palt of counsel caused Petitioner to enter into an unknowing or un intelligent plea.

Despite PetilJOnCf's contention that the poss ibilit y of deportation was never discussed, Petit ioner admitted that counsel said "he believed that there was not go ing to be any problems because it was not a big case, it was a case of possession only." (T .. p. 14) This admission by Petitioner clearly indicates that the possibility of deportation, or some Impact on his immigration status, was discussed with counsel even if counsel's assessment was nOt correct. In add ition , this testimony suggests that there were di scussions of tJ1C impact of the plea on hiS Slaws depending on whether or nOl the plea was fo r simple possession or PWlD . Petitioner's testimony that counsel never informed him that he cou ld possibly be. deported as a result of his plea IS s impl y nO! cred ible.

Pelilioner has a lso raise the iss ue that counse l was ineffective for failing to make arrangements for an Interpreter during the proceedings. However, as noted above. the record clearly demonstrates th at Petitioner fully underst ood the proceedings and thaI his pl ea was

Circulated 01/29/2015 09:24 AM knov.llng , voluntary and imeiligeni Petitioner's inabililY 10 read the Engll'ih langua ge waS spccilically addressed at the plea hearing by assuring thlll each of the queSl!ons In the Guilty Plei:l Explanation of Rights Foml were read to Petitioner. Pctitiol1cr acknowledged on Ihe record thai . m facl, each of the questions had been read tu him and he understood them In addilton , (his Coun spoke wjlh <lnd observed Pet itioner dUfing the plea and was sat isfied that Petitioner understood the proceedings and ever},thing that was being sa id to him . At no time did Pctilloncr, by his words , actions or demeanor express any difficulty in understanding the proceedings. Petitioner's testimony ilial he has difficulty underslanding spoken English is nOI credible. In facl. il was noted during the peRA hearing thaI Petitioner answered several questions. regardmg the proceedings without the (1'Ssistance of a transJator. Consequently. any claim tbat counsel wa . . ineffective In failing to provide an interpreter !~ without meri t

Pet itioner nexl claims thaI counsel was ineffective in fai ling to request a presentence n:por! However, the record establishes thaI a negotiated plea agreement was accepled as to the only count at which Petitioner was sentenced There was no penalry imposed at !.he other charges and a presentence repon would have had no impact on the oUlcome of the proceeding s. Therefore, counsel was not ineffective for failing to request a presentence report .

Finaliy. Petilioner's claim thaI counsel was ineffective in failing LO file a post sentence motion is without meril as there was no evidence that Petitioner requested that post sentence motions be filed or thai Lhere was any basis for counsel (0 believe Pecifloner would have wanted <Iny such !I 101 ions to be flied. Therefore. based on all of the above. the Amended PCRA petition was appropnately dismissed.