J-A10043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                   v.

JOE SAM VAZQUEZ

                         Appellant                  No. 1272 MDA 2014


                  Appeal from the PCRA Order July 9, 2014
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0004041-2010


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED APRIL 06, 2015

      Joe Sam Vazquez appeals from an order dismissing his petition for

relief under the Post Conviction Relief Act (“PCRA”) without a hearing. He

argues, inter alia, that his attorney coerced him into agreeing to a

negotiated plea of 8-20 years’ imprisonment. We affirm.

      On May 30, 2010, Vazquez had a physical confrontation with Pedro

Rivera-Rosario in which Rivera-Rosario prevailed.    N.T., 9/7/12, pp. 18-20

(guilty plea hearing).   As Rivera-Rosario walked away, Vazquez shot him

three times with a .22 caliber handgun. Id. Vazquez also shot Daria Rivera,

Rivera-Rosario’s sister, once with the same handgun. Id.

      A series of attorneys represented Vazquez following his arrest,

resulting in a two-year delay between his arrest and his guilty plea. Finally,

on September 7, 2012, Vazquez entered a negotiated plea agreement in
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which he pled guilty to attempted murder,1 aggravated assault,2 and

firearms not to be carried without a license 3 in return for an aggregate

sentence of 8-20 years’ imprisonment. Vazquez filed a timely post-sentence

motion requesting inclusion in the RRRI program.      On December 3, 2012,

the court denied Vazquez’s motion.

        At an unspecified point during December 2012, Vazquez mailed a pro

se motion for reconsideration to the court alleging that guilty plea counsel

(1) failed to request a presentence investigation, which Vazquez claims

would have demonstrated his good citizenship; (2) failed to present

character witnesses at sentencing; and (3) denied Vazquez his right of

allocution at sentencing by telling him not to say anything to the judge,

because he is “grumpy”, “doesn’t want to hear anything”, and “lives in the

city and doesn’t like people that own guns.”     Vazquez did not file a direct

appeal.

        On July 15, 2013, Vazquez filed a timely pro se PCRA petition alleging

that guilty plea counsel ignored his requests to file for reconsideration of

sentence, thus preventing Vazquez from “challeng[ing] the discretionary




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1
    18 Pa.C.S. § 901(a).
2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 6106(a)(1).



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aspects of his sentence.”   The court appointed PCRA counsel to represent

Vazquez.

     On December 6, 2013, PCRA counsel submitted a “no-merit” letter to

the court pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).              PCRA

counsel reasoned that Vazquez could not mount a legitimate challenge to the

discretionary aspects of his sentence, because it was the product of a

negotiated guilty plea.   PCRA counsel also rejected Vazquez’s claim that

guilty plea counsel failed to request reconsideration of Vazquez’s sentence,

noting that guilty plea counsel filed a post-sentence motion to admit

Vazquez into the RRRI program. PCRA counsel added that Vazquez entered

into a valid negotiated guilty plea, because his guilty plea was supported by

a full written colloquy form and extensive oral colloquy in court.   Finally,

PCRA counsel advised that he could find no meritorious issues despite a

conscientious review of the record.

     PCRA counsel sent the no-merit letter to Vazquez and informed him he

had the right to provide any information or argument he deemed relevant to

the court within twenty days. Vazquez submitted responses to the no-merit

letter on December 27, 2013 and March 14, 2014 arguing that guilty plea

counsel failed to highlight threats made by the victim, the fact that the

victim was the aggressor, and Vazquez’s claim of self-defense. On April 7,

2014, counsel submitted a supplemental no-merit letter in which he wrote

that the trial court explicitly advised Vazquez at sentencing that he was

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giving up his self-defense claims at sentencing in return for receiving a

negotiated sentence of 8-20 years’ imprisonment.             Thus, PCRA counsel

concluded, Vazquez voluntarily gave up his right to pursue claims of self-

defense. PCRA counsel mailed a copy of his supplemental no-merit letter to

Vazquez.

      On May 1, 2014, the court issued a detailed notice of intent to dismiss

Vazquez’s PCRA petition without a hearing under Pa.R.Crim.P. 907 (“notice

of intent”).   On May 22, 2014, Vazquez filed a response to the notice of

intent. In an opinion and order dated July 9, 2014 (“order of dismissal”),

the court dismissed Vazquez’s petition without a hearing and granted PCRA

counsel leave to withdraw. On July 30, 2014, Vazquez filed a timely appeal.

On August 18, 2014, without ordering Vazquez to file a Pa.R.A.P. 1925(b)

statement, the court filed a Pa.R.A.P. 1925(a) opinion incorporating by

reference its notice of intent and its order of dismissal.

      Because    Appellant   alleged   PCRA   counsel   ineffectiveness   in   his

response to the PCRA court’s notice of intent, we will review the PCRA

court’s determination that counsel complied with Turner/Finley and review

whether the PCRA court properly granted counsel’s request to withdraw.

See Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super.2012) (reviewing

PCRA Court’s grant of withdrawal and Turner/Finley analysis where

appellant challenged it in opposition to notice of intent to dismiss).

Turner/Finley provides a mechanism for post-conviction counsel to



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withdraw.   Rykard, 55 A.3d at 1184. Competent PCRA counsel must

conduct an independent review of the record before a PCRA or appellate

court can authorize counsel’s withdrawal. Id. This independent review

            requires counsel to file a ‘no-merit’ letter detailing
            the nature and extent of his review[,] [listing] each
            issue the petitioner wishes to have examined, [and]
            explaining why those issues are meritless. The PCRA
            court, or an appellate court if the no-merit letter is
            filed before it, then must conduct its own
            independent evaluation of the record and agree with
            counsel that the petition is without merit.

Id. Here, PCRA counsel’s first no-merit letter provided a cogent response to

the issue raised in Vazquez’s PCRA petition, reasoning that Vazquez waived

any challenge to the “discretionary aspects of his sentence” by entering into

a valid negotiated plea.   PCRA counsel observed that the plea was valid

because Vazquez signed a guilty plea colloquy form and underwent an

extensive oral colloquy during which he testified that he understood all

components of the agreement and apologized to the court for his criminal

conduct. PCRA counsel’s supplemental no-merit letter cogently responded to

Vazquez’s additional communications to the court, reasoning that the trial

court advised Vazquez at sentencing that he was giving up his self-defense

claims at sentencing in return for receiving a negotiated sentence.      The

PCRA court’s notice of intent demonstrates that it carefully reviewed all

documents submitted by Vazquez and PCRA counsel and found that

Vazquez’s petition was devoid of merit. Therefore, we conclude that counsel




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complied with Turner/Finley, and that the PCRA court properly granted

PCRA counsel leave to withdraw.

       Vazquez’s disjointed pro se brief boils down to the claims that he acted

in self-defense, and that his attorneys “collectively” forced him to plead

guilty to a higher sentence than originally promised.4         We agree with the

PCRA court that these arguments lack arguable merit.

       Our standard of review from the denial of post-conviction relief “is

limited to examining whether the court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley,     21   A.3d    1238     (Pa.Super.2011)   (citing   Commonwealth    v.

Morales, 701 A.2d 516, 520 (Pa.1997)).

       “A plea of guilty constitutes a waiver of all nonjurisdictional defects

and defenses. When a defendant pleads guilty, he waives the right to

challenge anything but the legality of his sentence and the validity of his

plea.” Commonwealth v. Jones, 929 A.2d 205, 212 (Pa.2007) (quoting

Commonwealth v. Montgomery, 401 A.2d 318, 319 (Pa.1979)). Further,

“[a]llegations 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 an involuntary or unknowing plea.” Commonwealth v.
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4
  Vazquez waived all other claims previously raised in the lower court due to
his failure to argue them in his appellate brief. Lackner v. Glosser, 892
A.2d 21, 29–30 (Pa.Super.2006) (“arguments which are not appropriately
developed are waived”).



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Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (quoting Commonwealth v.

Allen, 557 Pa. 135, 732 A.2d 582 (Pa.1999)).

       For ineffective assistance of counsel claims, the petitioner must

establish: “(1) that the underlying claim has merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) but for

the errors or omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.” Ousley, 21 A.3d at

1244    (quoting   Commonwealth       v.   Rivera,   10   A.3d   1276,    1279

(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove

any one of the three [ineffectiveness] prongs results in the failure of

petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

       The record demonstrates that Vazquez signed a guilty plea agreement

agreeing to a sentence of 8-20 years’ imprisonment and waiving all rights

that he would have enjoyed had he gone to trial.          Moreover, the court

conducted an extensive colloquy in which it recited each right that Vazquez

was giving up.     Vazquez knowingly, intelligently and voluntarily answered

that he understood these rights and agreed to waive them.        In particular,

the court asked: “When you plead guilty, you admit you committed these

offenses, you give up the right to present any defense to these charges,

such as self-defense or anything else, and I can find you guilty based on

your admission of guilt in open court without hearing testimony under oath


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from witnesses. Do you understand that?” N.T., 9/7/12, p. 14 (emphasis

added). Vazquez answered: “Yes, your Honor.” Id. Vazquez admitted that

the decision to plead guilty was his, and that nobody forced, threatened or

pressured him to plead guilty.   Id. at 15. Vazquez further stated that he

was satisfied with the work that guilty plea counsel did on his behalf and had

no complaints about what he did or did not do.      Id. at 16-17.   After the

Commonwealth recited the facts underlying the charges, the court asked:

“Mr. Vazquez, are those the offenses described by the Assistant District

Attorney to which you’re pleading guilty?” Id. at 20. Vazquez answered:

“Yes, your Honor.” Id. Vazquez then stated: “I just want to say sorry to

the victims and sorry to the Commonwealth.”        Id.   The court thereupon

accepted the plea agreement. Id.

      The record belies Vazquez’s present claims that his attorneys

collectively forced him to plead guilty and that he acted in self-defense. He

admitted on the record that he was guilty of all offenses, and he expressly

waived the right to argue self-defense as part of his guilty plea. Jones, 929

A.2d at 212. He also admitted that he voluntarily entered his guilty plea,

and that nobody forced him to plead guilty. Thus, the PCRA court correctly

determined that Vazquez’s PCRA petition lacked merit and properly

dismissed his petition without a hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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