J-S20042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
TAI THACH                                      :
                                               :
                  Appellant                    :   No. 2641 EDA 2016

               Appeal from the Judgment of Sentence February 6, 2014
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0004527-2013


BEFORE:        BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 15, 2017

        Tai Thach appeals, nunc pro tunc, from the judgment of sentence

imposed on February 6, 2014, in the Court of Common Pleas of Philadelphia

County, after Thach pled guilty to charges of aggravated assault and

conspiracy.1 Thach was sentenced to a term of five to ten years’ incarceration.

In this appeal, Thach claims his guilty plea was unknowing and involuntary in

that it lacked the mandatory elements for a guilty plea, the Cambodian

interpreter lacked the ability to translate and he was not informed of the

possibility he would be deported after he had served his sentence. Counsel

has filed an Anders2 brief along with a motion to withdraw as counsel. After


____________________________________________


1   18 Pa.C.S. §§ 2702(a) and 903, respectively.

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396                    (1981);
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
J-S20042-17



a thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm and grant counsel’s motion to withdraw.

     Initially, we must examine counsel’s motion to withdraw.

     Counsel having filed a petition to withdraw, we reiterate that
     “[w]hen presented with an Anders brief, this court may not
     review the merits of the underlying issues without first passing on
     the request to withdraw.” Commonwealth v. Daniels, 999 A.2d
     590, 593 (Pa. Super. 2010), citing Commonwealth v. Goodwin,
     928 A.2d 287, 290 (Pa. Super. 2007) (en banc) (citation omitted).
     In order for counsel to withdraw from an appeal pursuant to
     Anders, certain requirements must be met, and counsel must:

         (1) provide a summary of the procedural history and facts,
         with citations to the record;
         (2) refer to anything in the record that counsel believes
         arguably supports the appeal;
         (3) set forth counsel's conclusion that the appeal is
         frivolous; and
         (4) state counsel's reasons for concluding that the appeal
         is frivolous. Counsel should articulate the relevant facts of
         record, controlling case law, and/or statutes on point that
         have led to the conclusion that the appeal is frivolous.

     Id., quoting Commonwealth v. Santiago, 602 Pa. 159, 978
     A.2d 349, 361 (2009).

         If counsel does not fulfill the aforesaid technical
         requirements of Anders, this Court will deny the petition
         to withdraw and remand the case with appropriate
         instructions (e.g., directing counsel either to comply with
         Anders or file an advocate's brief on Appellant's behalf).
         By contrast, if counsel's petition and brief satisfy Anders,
         we will then undertake our own review of the appeal to
         determine if it is wholly frivolous. If the appeal is frivolous,
         we will grant the withdrawal petition and affirm the
         judgment of sentence. However, if there are non-frivolous
         issues, we will deny the petition and remand for the filing
         of an advocate's brief.




                                      -2-
J-S20042-17


       Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016)
       quoting Commonwealth v. Wrecks, 931 A.2d 717, 720-721 (Pa.
       Super. 2007)(citations omitted).

Commonwealth v. Blauser, 166 A.3d 428, 431 (Pa. Super. 2017).

       Counsel has satisfied all of the requirements needed to fulfill his duty.

Additionally, following remand,3 counsel has certified he presented Thach with

copies of all relevant material translated by a certified translator into

Cambodian to ensure Thach understood the proceedings. Thach has not filed

a response to counsel’s Anders brief.

       Because counsel has fulfilled his duty to Thach and Thach has filed no

reply, we will now examine the substance of the claim to determine if any of

the issues are not wholly frivolous.

       First and foremost, Thach’s claims all address the voluntariness of his

guilty plea. Thach did not seek to withdraw his plea either prior to or after

sentencing. Therefore, all issues have been waived by failing to preserve the

claim below. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”)          See also

Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa. Super.

2017) (In order to preserve an issue related to a guilty plea, an appellant must

either object at the plea colloquy or file a post-sentence motion seeking to

withdraw his plea.) Because the claims have not been preserved, we have

nothing to review, making those claims wholly frivolous.
____________________________________________


3 This panel previously remanded this matter with instructions to counsel to
either certify Thach had been given a certified translation of the Anders brief
or to provide Thach with a certified translation of the Anders brief.

                                           -3-
J-S20042-17



      However, even if the claims had been properly preserved, Thach would

not be entitled to relief. In this regard, we rely on the trial court’s opinion

which explains why Thach’s claims are substantively without merit.         We

highlight the facts that Thach responded appropriately to all questioning

during the guilty plea, a fact that demonstrates the interpreter was competent

and that Thach understood what was said at the hearing. Additionally, the

certified record demonstrates that Thach was, in fact, told of the risk of

deportation. Specifically, there is a notice of that possibility in the written

guilty plea colloquy that was translated for Thach and signed by him. Further,

at sentencing, Thach asked for consideration of a sentence of less than one

year, which would make it less likely that he would be deported. Finally, Thach

does not indicate what element or elements were missing from the colloquy,

thereby waiving that issue, as well. Nonetheless, the trial court noted that

reviewed in toto, the oral and written colloquies addressed all of the guilty

plea requirements.

      In the event of further proceedings, the parties shall attach a copy of

the trial court opinion, dated December 1, 2016, pages 4-6, which discuss the

substantive aspects of Thach’s claims.

      In light of the foregoing, we affirm the judgment of sentence.

      Judgment of sentence affirmed.       Application to withdraw as counsel

granted.

      Judge Bowes concurs in the result.

      President Judge Emeritus Elliott concurs in the result.

                                     -4-
J-S20042-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2017




                          -5-
                                                                                        Circulated 10/13/2017 10:19 AM




            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                    FIRST WDICIAL DISTRICT OF PENNSYLVANIA
                           TRIAL DIVISION - CRIMINAL

COMMONWEALTH OF PENNSYLVANIA                                                CP-51-CR-0004527-2013

                VS.
                              CP-51-CR-0004527-2013   Comm. v. Thach, Tai
                                                Opinion
                                                                            2641 EDA 2016        FILED
TAI THACH
                                                                                                  DEC O 1 2016
                                  .1111111111111111111111111
                                           7871240761                                         CriminalAppeals Unit
                                                OPINION                                     FirstJudicialDistrictof PA
       Defendant Tai Thach pleaded guilty to aggravated assault and criminal conspiracy. The

trial court sentenced Defendant to a guideline sentence of five to ten years of incarceration. On

appeal, Defendant claims that his guilty plea was not knowing, intelligent and voluntary because

(1) the plea lacked the mandatory elements required by Pa.R.Crim.P. 590, (2) the interpreter

lacked the ability to translate from English to Cambodian and Vietnamese, and (3) Defendant

was not advised as to his potential deportation until after sentencing.

FACTUAL BACKGROUND

       1.       Defendant Reviewed And Signed A Written Guilty Plea Form

       Defendant reviewed and. signed a written guilty plea form, which was docketed and made

part of the record. The written guilty plea form contained all six of the areas required by Rule 590.

Additionally, the written guilty plea form contained the following:

            •   On page 1, Defendant "can read and write English as interpreted" with the words
                "as interpreted" handwritten on the form by Defendant's attorney.

            •   On page 3, a paragraph entitled, "RISK OF DEPORATION (If an Alien)," and the
                following sentence: "I know that ifl am not a United States Citizen, it is possible
                that I might be deported ifl plead guilty to the crirne(s) charged against me."

            •   On page 3, it states "I HA VE READ ALL OF THE ABOVE, OR MY LA WYER
                READ IT TO ME. I UNDERSTAND IT. MY ANSWERS ARE TRUE AND
                CORRECT."

            •   On page 3, directly underneath the above quoted language, Defendant signed his
                name.
       2.      The Trial Court's Colloquy of Defendant During The Guilty Plea Hearing

       In addition to the written guilty plea form, the trial court conducted an oral colloquy to

ensure that Defendant understood the entire guilty plea hearing. During the guilty plea hearing,

the trial court utilized an official court reporter, Danielle Kao, to interpret for Defendant. The

oral colloquy between the trial court and Defendant included the following exchanges:

       The Court:      Mr. Thach, how old are you today?

       Defendant:      I'm 41.

       Mr. Birley:     Thirty-one?

       Defendant:      Forty-one.

       The Court:      How far did you go in school?

       Defendant:      No formal education.

       The Court:      Can you read and write the English language?

       Defendant:      No.

       The Court:      Can you read and write the Cambodian language?

       Defendant:      No.

       The Court:      Can you understand the Cambodian language?

       Defendant:      Yes.

       The Court:      And I have in my hand a written guilty plea form. I see a signature that
                       says "Signature of the defendant." Is that your signature?

       Defendant:      Yes.

       The Court:      Was this form translated orally to you?

       Defendant:      Yes.

       The Court:      And did you understand the form as it was translated to you?

       Defendant:      Yes.




                                                 -2-
          The Court:         Mr. Thach, having heard the Commonwealth's recitation of the facts it
                             believes it can prove at trial beyond a reasonable doubt, do you agree with
                             that statement of facts?

          Defendant:         Yes.

          Court crier:       Mr. Thach, on this common pleas Docket No. CP-51-CR-0004527-2013,
                             charging with aggravated assault, how do you plead?

          Defendant:         Guilty.

          Court crier:       Charging you with criminal conspiracy, how do you plead?

          Defendant:         Guilty.

 N.T. 12/06/2013 at 3-4, 9-10.

          3.      The Sentencing Hearing

          During the sentencing hearing, the trial court utilized an official court reporter, Leende

 Vakouv, to interpret for Defendant. At the sentencing hearing, Defendant's attorney argued to the

 trial court that "as Your Honor is aware, any sentence that is over a year is likely to cause my client

 deportation. So when you consider the guidelines in this case, those kinds of collateral consequences

 aren't considered, the fact that he will be removed from his children." N.T. 02/06/2014 at 5. The trial

 court gave Defendant the opportunity to speak during the sentencing hearing:

         The Court:          Mr. Thach, is there anything you want to say prior to me imposing sentence
                             today?

         Defendant:          I leave it up to you Your Honor, what you think is right.

 Id. at 10.

         Finally, after the trial court imposed its sentence, Defendant's attorney advised Defendant

· of his appellate rights.

         Mr. Birley:         Mr. Thach, the Honorable Judge Anders just sentenced you to 5 to 10 years
                             for aggravated assault and conspiracy. Do you understand the sentence?

         Defendant:          I understand.

         Mr. Birley:         You have ten days to petition to His Honor to change his mind about that
                             sentence and 3 0 days to appeal based on the facts that we reviewed. If you

                                                      -3-
- ·- - ------   ---~--·-   - - -·---   --------------   · ---- - ·_.__ ._. _.,   . __. ..   ·_.•1-···· · .:·   ·;."·_.;.,.· •. , ..· . ·:·.,.1,·c·· ··.·~.· ·   ,_.;.   · · .• · · ·.:·.: .. ·   :   -.:...C:...........:.......-···
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                                           wish to do either of those things, they must be done by in writing by an
                                           attorney and if you want them done, just tell me within that time period. Do
                                           you understand that?

                Defendant:                 How can I write? I don't know how to write anything.

                Mr. Birley:                Right. I'm asking you, if you understand the need to ask for those things.

                Defendant:                 Okay.

                Mr. Birley:                And I'll speak with you in a second about that.

       Id at 12.

       DISCUSSION

                On appeal, Defendant claims that his guilty plea was not knowing, intelligent and

       voluntary because (1) the plea lacked the mandatory elements required by Pa.R.Crim.P. 590, (2)

       the interpreter lacked the ability to translate from English to Cambodian and Vietnamese, and (3)

       Defendant was not advised as to his potential deportation until after sentencing. See Statement of

       Matters Complained of on Appeal, at                             ,1.
                "A plea of guilty forecloses challenges to all matters except the voluntariness of the plea,

       the jurisdiction of the court, or the legality of the sentence." Commonwealth v. Stewart, 867 A.2d

       589, 591 (Pa. Super. Ct. 2005). The Pennsylvania Supreme Court has explained the following

       standard when evaluating whether a guilty plea is knowing and voluntary:

                              In order for a guilty plea to be constitutionally valid, the guilty plea
                              colloquy must affirmatively show that the defendant understood
                              what the plea connoted and its consequences. This determination is
                              to be made by examining the totality of the circumstances
                              surrounding the entry of the plea. Thus, even though there is an
                              omission or defect in the guilty plea colloquy, a plea of guilty will
                              not be deemed invalid if the circumstances surrounding the entry
                              of the plea disclose that the defendant had a full understanding of
                              the nature and consequences of his plea and that he knowingly and
                              voluntarily decided to enter the plea.

       Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014).




                                                                                                     -4-
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        Additionally, "Pennsylvania Rule of Criminal Procedure 590 requires the court to inquire

into the following areas during the plea colloquy: (1) the nature of the charges; (2) the factual

basis of the plea; (3) the right to trial by jury; (4) the presumption of innocence; (5) the

permissible range of sentences; and (6) the judge's authority to depart from any recommended

sentence." Commonwealth v. Baney, 860 A.2d 127, 131 (Pa. Super. 2004).

        Here, before entering his plea, Defendant reviewed the entire written guilty plea form,

which contained each of the six areas required by Pa.R.Crim.P. 590. He also signed the plea form

on the last page in order to indicate that he understood everything in the plea form. During the

guilty plea hearing, the trial court colloquied Defendant about the contents of the written guilty

plea form, and he affirmed that he understood each of the areas required by Rule 590.

        Defendant signed the written guilty plea form only after a Cambodian interpreter

translated the entire form for him. The trial court also conducted the entire guilty plea and

sentencing hearings with an interpreter. During these hearings, Defendant answered each of the

trial court's questions without hesitation and in a manner that was responsive to each question.

Defendant answered "Yes" when asked ifhe understood the Cambodian language. Defendant also

answered "Yes" when asked if the written guilty plea form was translated orally to him. When

asked by the trial court if he understood the translation of the form, Defendant again answered

"Yes." Defendant never paused or requested for anything stated by the translator to be re-

interpreted or further translated. Finally, Defendant provided answers that indicated that he fully

understood each of the questions that were interpreted for him. For example, when his attorney

advised him of his appellate rights, Defendant interjected, "How can I write? I don't know how to

write anything."

       Defendant was also informed about the risk of deportation. First, Defendant's interpreter

orally translated the written waiver form, which contained a paragraph on page 3 in bold, capital


                                                 -5-
letters that said, "RISK OF DEPORTATION," and the following sentence: "I know that if I am

not a United States Citizen, it is possible that I might be deported ifl plead guilty to the crime(s)

charged against me." Second, during the sentencing hearing, Defendant's attorney argued that the

trial court should consider the collateral consequences that Defendant faced in that he risked

removal from the country if he received a sentence in excess of one year of incarceration. Thus,

Defendant was adequately informed - before he pleaded guilty and also after he was sentenced -

that he faced a risk of deportation. See Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super.

Ct. 2013).1

         Thus, Defendant knowingly, intelligently and voluntarily pleaded guilty to the charges

based upon (1) the written guilty plea form, (2) the trial court's oral colloquy of Defendant during

the guilty plea hearing, (3) Defendant's statements during the guilty plea and sentencing hearings,

and (4) the use of an official court interpreter to translate the written guilty plea form for

Defendant and to interpret during the guilty plea and sentencing hearings.

CONCLUSION

         Based on the foregoing, the judgment of sentence should be affirmed.

BY THE COURT:




            NDERS, JUDGE
Dated: December 1, 2016




1 Counsel must inform a noncitizen defendant whether a plea carries a risk of deportation. Padilla v. Kentucky, 130
S.Ct. 1473, 1486 (2010). When the potential deportation is unclear, counsel need only advise of the risk of
deportation. Id. When the deportation consequences are clear, counsel has a duty to give accurate advice concerning
deportation. Id. The Pennsylvania Superior Court has held that Padilla requires that counsel must inform the client
that a plea makes them deportable, not that deportation is a certainty. Commonwealth v. Escobar, 70 A.3d 838, 841
(Pa. Super. Ct. 2013) (defendant adequately informed of potential for deportation by defendant's execution ofa
written guilty plea form indicating that he understood the risk of deportation and by statements by counsel regarding
the possibility of deportation).
                                                         -6-
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                                     .   .
                                                                    Comm. v. Tai Thach
                                                                    CP-51-CR-0004527-2013
                                                                    2641 EDA 2016


                                                                                                                                                                                                    PROOF OF SERVICE

                                                                    I hereby certify that I am this day caused to be served the foregoing Order upon this person(s):


                                                                    Attorney for Appellant:                                                                                                         Stephen O'Hanlon, Esquire
                                                                                                                                                                                                    2 Penn Center
                                                                                                                                                                                                    1500 JFK Blvd., Ste. 1850
                                                                                                                                                                                                    Philadelphia, PA 19102


                                                                   Type of Service:                                                                                                                 Regular Mail


                                                                  Appellee:                                                                                                                         Hugh J. Bums, Jr., Esquire
                                                                                                                                                                                                    Philadelphia District Attorney's Office
                                                                                                                                                                                                    3 S. Penn Square
                                                                                                                                                                                                    Philadelphia, PA 19107

                                                                  Type of Service:                                                                                                                  CJC Mailbox

                                                                                                                                                                                                                                                                                                                                                                                                                           _..

                                                                                                                                                                                                                                                                     r ,
                                                                                                                                                                                                                                                                      I
                                                                  DATED:                                                                                                                                                                                              I
                                                                                                                                                                                                                                                                 R\ay       . D ri o, Esquire
                                                                                                                                                                                                                                                                 Law Clerk to on. Daniel J. Anders
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                                                                                                                                                                                                                                                                          Filed 11/29/2016


                                                     IN THE SUPERIOR COURT OF PENNSYLVANIA
                                                                EASTERN DISTRICT


                       COMMONWEALTH OF PENNSYLVANIA                                                                                                                               No. 1938 EDA 2016


                                              v.

                       JERLION THORPE
                                                                                                                                                                                                                  CP-5J-CR-0604861-2001Co
                                                                Appellant                                                                                                                                                            SuperiorCourt~~d:~Thorpe, Jertion




                                                                                                                                                ORDER                                                                    IIII IIIII IIIII II /Ill /I I/I
                                                                                                                                                                                                                                     7871219841


                                    The      application                                         to             reinstate                                       appeal                        is GRANTED.                                      This                  Court's

                       November              2, 2016 dismissal                                                               Order is VACATED, and the above-captioned

                       appeal is REINSTATED.

                                    The Brief for Appellant is due by December 29, 2016.                                                                                                                                                  Failure to file a

                       brief by this date will result in re-dismissal                                                                                                             of the appeal, without warning.

                                    Appellant's                 request for copies of the trial court dockets is GRANTED.

                       The Philadelphia                            County                                  Court                           of Common                                            Pleas is directed                                   to provide

                       Appellant            with         a copy of the                                                               relevant                                     dockets.                        Appellant's                       request                             for

                       transcripts is DENIED, without prejudice for Appellant to file proper requests

                       with the Philadelphia County Court of Common Pleas.



                                                                                                                                                                                                                                               PER CURIAM




                                                                                                                                                                        ..    .


                                                                                                                                                                             Deputy Prothonotary'
                                                                                                                                                                                                       .......                             .
                                                                                                                                                                             SUPERIOR COUllT OPPA
