J-S11043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE ELIA DIAZ,                            :
                                               :
                       Appellant               :      No. 1465 EDA 2017

                   Appeal from the PCRA Order April 4, 2017
                in the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0002870-2011,
                            CP-39-CR-0002871-2011

BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 29, 2018

        Jose Elia Diaz (“Diaz”), pro se, appeals from the Order denying his first

Motion for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We

affirm.

        In a prior appeal, this Court summarized the relevant factual history

underlying the instant appeal as follows:

              On the morning of April 25, 1997, [Diaz], wearing a mask
        and armed with a knife, snuck into the home where his 15-year
        old stepdaughter lived with her aunt, and attacked, bound,
        gagged, and perpetrated two violent rapes on his stepdaughter in
        her upstairs bedroom.

              One of the victim’s friends entered the bedroom, saw the
        victim bound on the bed, saw and identified [Diaz] as the victim’s
        stepfather, screamed, and ran down the stairs. [Diaz] followed,
        grabbed the friend by the hair, and dragged her back upstairs to
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1   42 Pa.C.S.A. §§ 9541-9546.
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     the victim’s room while attempting to stab her with a knife. As
     [Diaz] chased the friend, the victim freed her hands, pulled down
     her gag, and retrieved a gun from a drawer in her room. The
     victim pointed the gun at [Diaz] and yelled at him to release her
     friend. When the friend was free, the victim instructed her to call
     911. The friend ran out of the house and called 911. The victim
     attempted to shoot [Diaz], but the safety was engaged on the
     gun. Next, the victim grabbed various household items, including
     vases and perfume bottles, and threw them at [Diaz], who turned
     and fled. Before he fled, the victim was able to identify [Diaz] as
     her stepfather. [Diaz] remained at large until his apprehension in
     2011.

           On March 5, 2012, [Diaz] pled guilty to rape, burglary, and
     aggravated assault. Following the preparation of a presentence
     report and a Megan’s Law evaluation, on June 5, 2012, the trial
     court sentenced [Diaz] to an aggregate term of 25 to 50 years’
     imprisonment. On June 15, 2012, [Diaz] filed a post-sentence
     [M]otion for reconsideration of sentence, which the trial court
     denied on June 25, 2012….

Commonwealth v. Diaz, 151 A.3d 1154 (Pa. Super. 2016), unpublished

memorandum at 1-3 (footnotes omitted). Ultimately, Diaz was permitted to

file a direct appeal, nunc pro tunc. This Court affirmed Diaz’s judgment of

sentence on May 20, 2016. See id. Diaz did not petition for allowance of

appeal to the Pennsylvania Supreme Court.

     In its Opinion, the PCRA court described what next transpired as follows:

     [O]n August 23, 2016, [Diaz] filed a Motion for Post Conviction
     Collateral Relief. On September 19, 2016, [the PCRA court]
     appointed Sean Poll, Esquire [(“Attorney Poll”)], to represent
     [Diaz] on his Motion for Post Conviction Collateral Relief. Later,
     on October 4, 2016, Attorney Poll authored a “[N]o [M]erit”
     [L]etter pursuant to the requirements of Commonwealth v.




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       Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988).[2] A hearing
       relative to [Diaz’s] [M]otion was conducted before [the PCRA
       court] on December 5, 2016.          At the evidentiary hearing,
       [Attorney Poll] represented to [the PCRA court] that after
       thoroughly reviewing the file, he found no legal basis on which to
       proceed with [Diaz’s] Motion for Post Conviction Collateral Relief.
       Therefore, [the PCRA court] permitted Attorney Poll’s withdrawal
       from the matter. Additionally, [Diaz] indicated his desire to
       proceed at a later date with his Motion …, and that he would try
       to retain private counsel. The hearing was continued to February
       22, 2017, and then to April 3, 2017, at the request of [Diaz].
       Then, on April 3, 2017, [after a hearing, the PCRA court] denied
       [Diaz’s] Motion for Post Conviction Collateral Relief. The within
       appeal followed on May 5, 2017.

PCRA Court Opinion, 5/30/17, at 3 (footnote added). Thereafter, Diaz, pro

se, filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

       Diaz presents the following claims for our review:

       I.     Did the PCRA court err in denying relief[,] finding [that] plea
              counsel was not ineffective?

       II.    Did the PCRA court err when it failed to address appellate
              counsel’s ineffectiveness?

       III.   Did the PCRA court err when it did not address [Diaz’s] claim
              [that] he was denied due process of law by [Attorney Poll’s]
              ineffective assistance?

       IV.    Did the PCRA court deny [Diaz] due process of law by
              requiring [Diaz] to represent himself during a hearing on the
              matter when the PCRA court had full knowledge [that Diaz]
              is an uneducated, non-English speaking defendant with no
              knowledge of the legal process?
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2 See also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (providing
the appropriate procedures for the withdrawal of appointed counsel in
collateral proceedings).


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Brief for Appellant at 5.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted). This Court’s scope of review is limited to

the findings of the PCRA court and the evidence on the record of the PCRA

court’s hearing, viewed in the light most favorable to the prevailing party, in

this case, the Commonwealth. Commonwealth v. Fahy, 959 A.2d 312, 316

(Pa. 2008).

      In his first claim, Diaz argues that his plea counsel rendered ineffective

assistance by not preparing for trial or investigating his case.       Brief for

Appellant at 15. Diaz further argues that his plea counsel did not communicate

with him, and failed to give him a copy of materials produced by the

Commonwealth during discovery. Id. Diaz asserts that if counsel was unable

to develop his case because of the 14-year delay, “then counsel should have

moved for a dismissal of the charges due to the inordinate delay by the

government in executing the warrant when the government was fully aware

of [Diaz’s] residency [during] the entire fourteen[-]year period.” Id. Diaz

argues that counsel was unable to mount a defense because of the inordinate

delay, and points out that he had voluntarily turned himself in to police upon

discovering the outstanding warrant for his arrest. Id. at 16.




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       Regarding his claim of an unknowing plea, Diaz contends that his

counsel misrepresented to him that Diaz would most likely be sentenced to

five years in prison, but no more than eight and one-half years.     Id. at 15.

Diaz argues that no rational person would plead guilty, when the outcome

would be the same as going to trial. Id. at 18.

       In its Opinion, the PCRA court set forth the appropriate law, addressed

Diaz’s claim, and concluded that it lacks merit.     See PCRA Court Opinion,

4/4/17, at 5-8. We agree with the sound reasoning of the PCRA court, and

affirm on the basis of its Opinion with regard to Diaz’s first claim.3 See id.

       In his second claim, Diaz argues that the PCRA court erred when it did

not address whether his direct appeal counsel rendered ineffective assistance

by failing to file a motion to withdraw his guilty plea based upon a claim that

the plea was unknowing and involuntary. Brief for Appellant at 21. As set

forth above, however, we conclude that Diaz’s claim of ineffective assistance

of plea counsel, resulting in an unknowing and involuntary plea, lacks merit.

Consequently, Diaz’s ineffectiveness claim premised upon plea counsel’s

ineffectiveness lacks merit.       See Commonwealth v. Fears, 86 A.3d 795,

804 (Pa. 2014) (holding that counsel cannot be deemed ineffective for failing



____________________________________________


3 We further point out that, “[u]pon entry of a guilty plea, a defendant waives
all claims and defenses other than those sounding in the jurisdiction of the
court, the validity of the plea, and what has been termed the ‘legality’ of the
sentence imposed.” Commonwealth v. Eisenberg, 98 A.3d 1268, 1275
(Pa. 2014).

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to raise a claim that lacks merit). Therefore, we cannot grant Diaz relief on

his second claim of error.

      In his third claim, Diaz asserts that his direct appeal counsel should have

challenged the legality of his sentence based upon the United States Supreme

Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013). Brief for

Appellant at 21-22.    According to Diaz, the United States Supreme Court

issued its decision in Alleyne while his direct appeal was pending. Id. at 22.

Diaz asserts that “[t]he Alleyne decision invalidated the mandatory minimum

statutes under 42 Pa.C.S.A. § 9700 et seq.” Brief for Appellant at 22. Diaz

argues that, because his sentence was rendered illegal pursuant to Alleyne,

his direct appeal counsel rendered ineffective assistance by not raising this

claim. Id.

      Our review of the record discloses that at sentencing, the trial court did

not consider or apply any of the mandatory minimum sentencing statutes

rendered unconstitutional as a result of the United States Supreme Court’s

holding in Alleyne. Rather, the trial court chose to sentence Diaz outside of

the guidelines ranges, and explained its reasons for doing so on the record.

See N.T., 6/5/12, at 25-27 (summarizing the facts and heinous nature of the

crimes, and stating its reasons for sentencing Diaz outside of the guidelines

ranges). Because Diaz was not sentenced pursuant to a mandatory minimum

sentencing statute, he is not entitled to relief on this claim.




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      In his fourth claim, Diaz argues that the PCRA court denied him due

process by forcing him to represent himself at the PCRA hearing. Brief for

Appellant at 30.   According to Diaz, the PCRA court knew that he is “an

uneducated, non-English speaking defendant with no knowledge of the legal

process.” Id. (some capitalization omitted). Diaz asserts that the PCRA court

improperly denied him the opportunity to present witnesses and advance his

claims of ineffective assistance of counsel. Id.

      An indigent PCRA petitioner is entitled to the appointment of counsel

during litigation of the petitioner's first PCRA petition, including any appeal.

See Pa.R.Crim.P. 904(C), (F)(2) (explaining that the PCRA court shall appoint

counsel to represent an indigent defendant during litigation of the first PCRA

petition; the appointment of counsel shall be effective throughout post-

conviction collateral proceedings, including any appeal from disposition of

petition for post-conviction collateral relief).   However, where the court

accepts a Turner/Finley no-merit letter and permits counsel to withdraw, the

petitioner is not entitled to the appointment of new PCRA counsel, and he

must retain private counsel or proceed pro se in future proceedings.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 n.1 (Pa. Super. 2012); see

also Commonwealth v. Maple, 559 A.2d 953, 958 (Pa. Super. 1989)

(stating that where appointed post-conviction counsel has been permitted to

withdraw pursuant to Turner/Finley, the appointment of new counsel is

unnecessary and improper).


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          As set forth above, the PCRA court granted the Petition to withdraw from

representation, filed by Diaz’s PCRA counsel in accordance with the

requirements of Turner/Finley. The PCRA court granted Diaz continuances

from December 5, 2016, to February 22, 2017, and from February 22, 2017,

to April 3, 2017, to secure new counsel or proceed pro se. On April 3, 2017,

when Diaz had not secured new counsel, the PCRA court proceeded to a

hearing. N.T., 4/3/17, at 5. At the hearing, Diaz claimed that his plea counsel

had represented that Diaz would receive a sentence of no more than eight

years and two months.         Id. at 6.   The PCRA court then read to Diaz the

transcript from the guilty plea colloquy, wherein Diaz had stated that he

understood the maximum sentences that could be imposed, and that the

sentences could be imposed consecutively.         Id. at 7-9. In response, Diaz

stated, “I admitted to everything.        I admitted to everything….    But they

haven’t given me the evidence, when I asked for evidence on the table.” Id.

at 9.     Diaz offered nothing further that would support his claims for PCRA

relief.

          Under these circumstances, we discern no error or abuse of discretion

by the PCRA court in dismissing Diaz’s PCRA Petition. See Rykard, 55 A.3d

at 1183 n.1. We therefore affirm the Order of the PCRA court.

          Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/18




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