J-S56009-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                    v.

CHRISTOPHER DIAZ

                         Appellant                     No. 2148 EDA 2016


                 Appeal from the PCRA Order June 22, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0014503-2009


BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED OCTOBER 26, 2017

      Christopher Diaz appeals from the June 22, 2016 order denying PCRA

relief. He alleges that the PCRA court erred in dismissing his petition without

an evidentiary hearing. We affirm.

      Appellant and his two cohorts committed a home invasion robbery on

August 28, 2009, and seriously injured the two residents of the home. At

approximately 2:45 a.m., Alexis Rodriguez and Waleska Figueroa were

awakened    by   Appellant,   his    co-defendant    Ray   Torres,   and   a   third

unidentified co-conspirator. Appellant stabbed Mr. Rodriguez three times in

the stomach with a knife while Torres struck Ms. Figueroa in the head

several times with a baseball bat. They stole $2,100 and fled the home.




* Retired Senior Judge specially assigned to the Superior Court.
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      Following an oral colloquy, Appellant entered a negotiated nolo

contendere plea to robbery, conspiracy, and possession of an instrument of

crime on January 31, 2011.      He was sentenced that day to a negotiated

term of imprisonment of four to ten years.      Appellant did not file a direct

appeal.

      On May 4, 2011, Appellant filed a timely pro se PCRA petition.

Attorney J. Matthew Wolfe was appointed as PCRA counsel, and counsel filed

an amended petition on Appellant’s behalf on October 24, 2014. Appellant

claimed therein that his plea was not knowing and voluntary due to his “lack

of total comprehension of the English language,” and that plea counsel was

ineffective for failing to ensure that he understood the plea. PCRA Petition,

10/24/14, at 2. He requested an evidentiary hearing. The Commonwealth

moved to dismiss the amended petition without a hearing pursuant to Rule

907, and on June 22, 2015, the PCRA court granted the motion and

dismissed the petition.

      Appellant filed a timely appeal on July 8, 2016.     Appellant presents

one issue for our review: Did the Lower Court err in dismissing the

Appellant’s PCRA Petition without holding an evidentiary hearing where the

Appellant raised significant issues of material fact relating to whether his

plea was knowing and voluntary and whether counsel was ineffective in

failing to ensure that the plea was proper? Appellant’s brief at 8.




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      In reviewing the denial of relief under the PCRA, we are limited to

determining whether the record supports the findings of the PCRA court and

whether the court’s order is otherwise free of legal error. Commonwealth

v. Treiber, 121 A.3d 435, 444 (Pa. 2015); Commonwealth v. Roane, 142

A.3d 79, 86 (Pa.Super. 2016). A petitioner is not entitled to an evidentiary

hearing. If the PCRA court is satisfied there is no genuine issue of material

fact, that no purpose would be served by such a hearing, and that petitioner

is not entitled to relief, it may dismiss the petition without a hearing.

Pa.R.Crim.P. 907(1); Commonwealth v. Albrecht, 994 A.2d 1091(Pa.

2010).

      Furthermore, “counsel is presumed effective, and in order to overcome

that presumption, a PCRA petitioner must plead and prove that: (1) the legal

claim underlying the ineffectiveness claim has arguable merit; (2) counsel's

action or inaction lacked any reasonable basis designed to effectuate

petitioner's interest; and (3) counsel's action or inaction resulted in prejudice

to petitioner.” Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).

      The following principles apply to plea proceedings.                A criminal

defendant   is   entitled   to   effective   counsel   during   the   plea   process.

Commonwealth v. Bedell, 954 A.2d 1209 (Pa.Super. 2009).                  There is a

presumption that when a defendant enters a plea, “he was aware of what he

was doing, and the burden of proving involuntariness is upon him.”

Commonwealth v. Nelson, 666 A.2d 714, 717 (Pa.Super. 1995).

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However, after imposition of sentence, a defendant is not permitted to

withdraw his plea unless he shows prejudice that results in a manifest

injustice.   Bedell, supra.    That entails proof that a plea was entered

involuntarily, or unknowingly, which involves a determination that is made

by examining the totality of circumstances surrounding entry of the plea.

Commonwealth v. Eichinger, 108 A.3d 821 (Pa. 2014).               “[C]laims of

counsel’s ineffectiveness in connection with a guilty plea will provide a basis

for relief only if the ineffectiveness caused an involuntary or knowing plea.”

Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa.Super. 1996) (en

banc).

      Appellant alleges that plea counsel was ineffective because she failed

to determine the impact of his lack of English comprehension on his ability to

knowingly, intelligently and voluntarily enter a plea. He contends that this

claim raised an issue of material fact that required an evidentiary hearing to

enable the court to make the ineffectiveness determination.

      The Commonwealth counters that the record of the plea colloquy

refutes Appellant’s claim. Appellant testified under oath that he read, wrote,

and comprehended English, and he answered the court’s questions without

hesitation or need for an interpreter. Counsel for Appellant represented to

the court that she had discussed the consequences of the plea and was

satisfied that Appellant was competent to enter the plea.




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      The record reveals the following. Lenora Clayton, Esquire, represented

Appellant at the plea hearing.   The court placed Appellant under oath and

conducted an extensive colloquy.     Appellant repeatedly acknowledged that

he understood the information conveyed and the questions asked.            He

confirmed that he was pleading no contest to two counts of robbery, felonies

of the first degree, and one count each of conspiracy as a felony of the first

degree and possessing an instrument of crime, in this case, a knife.       He

professed his understanding that the Commonwealth would recommend a

sentence of four to ten years and restitution.

      The following exchange occurred between the court and Appellant:

      Q. How old are you, sir?

      A. 21.

      Q. How far have you gone in school?

      A. I was in my last year before I caught this case.

      Q. So you’ve completed 11th grade?

      A. Yes, yes.

      Q. And I assume you read, write and understand the English
      language?

      A. Yes.

      Q. And as you appear in court today right now, are you under
      the influence of drugs, alcohol, or medication?

      A. No.

      Q. Have you ever been treated for a mental illness?

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      A. No.

      Q. Do you understand that you do have the absolute right to
      plead not guilty to the charges against you and go to trial? Do
      you understand that?

      A. Yes.

N.T. Guilty Plea, 1/31/11, at 4-6.

      The court went on to explain the presumption of innocence, the

Commonwealth’s burden of proof, Appellant’s right to call witnesses on his

own behalf and cross-examine Commonwealth witnesses, and Appellant

confirmed his understanding of these rights on the record. At that point, the

court explained the appellate rights Appellant was foregoing by pleading nolo

contendere:

      Q. When you plead no contest, your right to file an appeal is
      limited to three grounds. The first is that your plea of no contest
      was not made voluntarily. So I'm going to ask you directly, are
      you pleading no contest today voluntarily and of your own free
      will? Are you pleading no contest voluntarily today, sir?

      A. Yes.

      Q. Are you pleading no contest of your own free will?

      A. Yes.

      Q. Has anyone threatened you or forced you in any way to make
      you plead no contest?

      A. No.

      Q. Aside from the understanding that in exchange for the
      Commonwealth's recommendation of a sentence of four to ten
      years and restitution of $1050, aside from that, is there any
      other understanding or agreement that exists between you and

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     the Assistant District Attorney that would cause or induce you to
     enter into this plea of no contest?

         Is that the entire agreement between you and the
     Commonwealth?

     A. Yes.

     Q. Four to ten and the restitution?

     A. Yes.

     Q. And are you satisfied with her advice and her representation?

     A. Yes.

N.T. Guilty Plea, 1/31/11, at 12-13.

     Counsel represented to the court that she discussed with Appellant his

right to plead not guilty and go to trial, he understood his rights, and that

she was satisfied that he was competent and qualified to enter into the

negotiated nolo contendere plea. Appellant professed his understanding of

the consequences of the plea. The court stated that it was satisfied, “based

on your answers and those of your attorney . . . that your plea today is

offered on a voluntary basis.” Id. at 14.

     The attorney for the Commonwealth defined each of the crimes to

which Appellant was pleading no contest, the elements, and the maximum

sentences that could be imposed.       Again, the court asked Appellant if he

wished to enter the plea of no contest, and he responded in the affirmative.

Following a summarization of the evidence, the court asked Appellant

whether he was able to hear and understand that summary, and Appellant

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responded in the affirmative.    When asked how he pled to each of the

charges, Appellant responded “No contest.”     Id. at 23.   The pre-sentence

report having been waived, the court proceeded to sentencing.      Appellant

declined to speak on his own behalf.      Following his sentencing, Appellant

was informed of his post-sentence and appeal rights.

      The PCRA court found that Appellant’s assertion that he did not have a

full grasp of the English language was “belied by the record.” PCRA Court

Opinion, 1/17/17, at 9.   The court pointed to Appellant’s testimony under

oath that he that read, wrote, and understood English, and that he

completed the eleventh grade in school. He had not been treated for mental

illness, was not under the influence of any medications, and he repeatedly

represented in open court that he understood the nature and consequences

of his plea.   He stated that he was pleading voluntarily and that no one

induced him to plead against his wishes. Appellant confirmed the summary

of facts and acknowledged the maximum possible sentences for the

offenses. The PCRA court found that Appellant was competent and qualified

to enter into the plea, he understood the consequences of his plea, and

entered it knowingly, voluntarily, and intelligently.   It concluded further,

since Appellant was bound by statements made under oath during his guilty

plea and could not withdraw the plea based upon new representations, there

were no genuine issues concerning any material fact. Hence, “no purpose




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would be served by any further proceedings.”            Pa.R.Crim.P. 907(1); see

also Commonwealth v. Yeomans, 24 A.3d 1044 (Pa.Super. 2011).

      The record supports the PCRA court’s finding that Appellant’s nolo

contendere    plea   was   knowingly,    voluntarily,   and     intelligently   made.

Appellant’s responses to the court’s questions at the plea hearing were

appropriate, he conveyed the information requested in English without

hesitation,   and    demonstrated   that      he   understood     the   nature    and

consequences of the plea.        Appellant, who was born in Philadelphia,

repeatedly acknowledged under oath that he understood English, knew what

he was doing in entering the plea, and that he did so voluntarily. Since he is

bound by those representations, dismissal of Appellant’s petition without an

evidentiary hearing was appropriate. No relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2017




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