J-S37039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ASLY FRANKLIN DIAZ

                         Appellant                  No. 3023 EDA 2014


              Appeal from the PCRA Order September 23, 2014
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0002797-2012


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JUNE 23, 2015

     Asly Franklin Diaz appeals from the order of the Court of Common

Pleas of Lehigh County dismissing his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.      Upon review,

we affirm.

     On November 27, 2012, Diaz entered an open plea of guilty to one

count each of robbery and criminal conspiracy. The Commonwealth agreed

only that Diaz’ sentences would run concurrently to each other. On January

9, 2013, the trial court sentenced Diaz to concurrent terms of nine to twenty

years’ imprisonment.     Diaz filed a motion for reconsideration of sentence,

which the trial court denied on March 25, 2013. Diaz did not file a direct

appeal.
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      On June 7, 2013, Diaz filed a pro se PCRA petition.             The court

appointed counsel, who filed an amended petition on April 7, 2014, in which

Diaz claimed that counsel’s ineffectiveness caused him to enter an

involuntary guilty plea. A hearing was held on June 18, 2014, at which Diaz

and his plea counsel, David Ritter, Esquire, testified.          By order dated

September 23, 2014, the court dismissed Diaz’ PCRA petition. This timely

appeal followed, in which Diaz raises the following issues for our review:

      Did the [PCRA] court err in finding that trial counsel was not
      ineffective and that [Diaz’] plea was knowing and voluntary for
      the following reasons:

         A. The attorney failed to supply an interpreter to [Diaz]
            when he consulted with him in prison;

         B. The attorney failed to take into consideration [Diaz’]
            mental illness . . .; [and]

         C. The attorney coerced [Diaz] into pleading guilty by
            telling him he would receive a 3 to 6 year sentence.

Brief of Appellant, at 4.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.




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     Diaz’ claims all raise issues of ineffectiveness of counsel. To establish

counsel’s ineffectiveness, a petitioner must demonstrate: (1) the underlying

claim has arguable merit; (2) counsel had no reasonable basis for the course

of action or inaction chosen; and (3) counsel’s action or inaction prejudiced

the petitioner. See Commonwealth v. Burno, 94 A.3d 956, 964 n.5 (Pa.

2014); Strickland v. Washington, 466 U.S. 668 (1984).

     A failure to satisfy any prong of the ineffectiveness test requires
     rejection of the claim. The burden of proving ineffectiveness
     rests with Appellant. To sustain a claim of ineffectiveness,
     Appellant must prove that the strategy employed by trial counsel
     was so unreasonable that no competent lawyer would have
     chosen that course of conduct. Trial counsel will not be deemed
     ineffective for failing to pursue a meritless claim.

Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2007).

     Diaz asserts that he entered an involuntary plea.           In order to

determine whether a defendant entered a plea knowingly, intentionally and

voluntarily, we must examine the plea colloquy.      At a minimum, a plea

colloquy must inform a defendant of: (1) the nature of the charges; (2) the

factual basis for the plea; (3) the right to be tried by a jury; (4) the

presumption of innocence; (5) the permissible range of sentences; and (6)

the fact that the judge is not bound by the terms of any plea agreement.

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008). The

adequacy of the plea colloquy and the voluntariness of the resulting plea

must be ascertained based on the totality of the circumstances surrounding

the entry of the plea. Commonwealth v. Muhammad, 794 A.2d 378, 383-


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84 (Pa. Super. 2002).         During the course of a plea colloquy, a defendant

has a duty to answer questions truthfully and cannot later assert that he lied

under oath.      Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super.

2007).

       Here, Diaz claims that counsel was ineffective for failing to supply an

interpreter when he met with Diaz in prison to discuss the case.1 He also

believes Attorney Ritter coerced him into pleading guilty by telling him he

would receive a sentence of either 3 to 6 or 4 to 10 years. These claims are

meritless.

       At the PCRA hearing, Attorney Ritter testified that he met with Diaz in

prison on multiple occasions. He stated that, although “[i]t was obvious that

[Diaz’] primary language was Spanish, . . . I had no trouble communicating

with him in English.” N.T. PCRA Hearing, 6/18/14, at 31. He testified that

Diaz was able to provide him with a life history and that they discussed the

various stages of Diaz’ case, his options, the applicable sentencing range,

and the concept of an open plea. Attorney Ritter stated that he returned to

the prison to speak to Diaz on multiple occasions, which he would not have

done had he been unable to communicate with him.           Attorney Ritter also

testified that, although Diaz repeatedly told him that he wanted a minimum

sentence of two or three years, Attorney Ritter informed him “that was going
____________________________________________


1
  Diaz is a native Spanish speaker and claims that he has limited knowledge
of English.



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to be a tough objective.” Id. at 37. Finally, Attorney Ritter confirmed that

Diaz appeared to understand that he could face a sentence of 10 to 20 years

under the plea agreement.              The PCRA court found Attorney Ritter’s

testimony to be credible.

       Diaz also asserts that counsel failed to take into consideration his

alleged mental illness. This claim is belied by the record. First, we note that

Diaz has presented no evidence that he suffers from any mental illness that

might affect his ability to understand his plea.2       More importantly, even

though Diaz never raised any mental health issues with Attorney Ritter

during their conversations, id. at 34, Attorney Ritter requested a pre-

sentencing psychological evaluation, because he noted that Diaz had “a very

flat affect and monotone speech,” id., which caused him some concern.3

       Finally, prior to entering his plea, Diaz completed a written plea

colloquy that was printed in English and Spanish. At his guilty plea hearing,

the trial court engaged him in a lengthy and detailed colloquy, which was

conducted through an interpreter. The court apprised Diaz of the charges,
____________________________________________


2
 Diaz stated during his plea colloquy that he was being treated in prison for
depression.
3
  The psychiatric evaluation concluded that Diaz’ cognitive functions were
intact, his thought processes were “a bit slow,” he had no abnormality in
thought content or perceptual problems, he was of average intelligence and
his insight and judgment appeared poor.       See Psychiatric Evaluation,
12/9/12, at 2.       The evaluator, Dr. Sreenivasa Rao Pinnamaneni,
recommended, inter alia, a psychotropic medication evaluation and
individual and group therapy for anger management.



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maximum sentences and fines he was facing and confirmed that Diaz

understood     the   terms   of   his   plea   agreement.   Counsel     for   the

Commonwealth asked Diaz if he understood that the sentence was up to the

judge, and Diaz affirmed that he did and that he understood that the only

part of the plea agreement that was binding was the concurrency of his

sentences.

      Diaz also indicated that he had read the written plea colloquy, gone

over it with Attorney Ritter, understood the questions, and answered them

truthfully.   Diaz confirmed for the court that he was “a little” fluent in

English, N.T. Guilty Plea, 11/27/12, at 9, and that he had no physical or

mental problems that would affect his ability to understand his plea.     Id. at

10.   The trial court confirmed that Diaz understood the elements of the

crimes and counsel for the Commonwealth recited the factual basis for Diaz’

plea. Diaz admitted to the crimes. Id. at 19. He also confirmed that no

one had promised him anything in exchange for his plea, id., that he was

pleading guilty of his own free will, id. at 20, and that he was satisfied with

the services of Attorney Ritter. Id.

      Here, Diaz’ claim that he entered an involuntary plea are clearly belied

by his statements made under oath, as well as the trial court’s thorough and

comprehensive written and oral plea colloquies. Diaz cannot prevail on an

ineffectiveness claim simply because he did not receive the sentence he had

hoped to receive or believed he should have received based upon the


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sentences received by his co-defendants.   Accordingly, the PCRA court

properly denied relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




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