J-S05004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
ANGEL ULICES MOLINA                      :
                                         :
                   Appellant             :   No. 19 WDA 2017

              Appeal from the PCRA Order December 16, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0005565-2006


BEFORE:    OLSON, J., OTT, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 20, 2018

      Appellant, Angel Ulices Molina, appeals from the December 16, 2016

order denying his petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The factual background of this case is as follows. In late-March 2006,

Appellant became angry because his 21-month-old son (“Victim”) would not

walk and struck Victim in the abdomen several times. These strikes caused

the laceration of Victim’s intestines by his spine. On April 1, 2006, Victim

died as a result of the internal bleeding caused by these lacerations.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        The procedural history of this case is as follows. On October 15, 2007,

Appellant pled guilty to third-degree murder1 and endangering the welfare of

a child.2   On February 12, 2008, the trial court sentenced Appellant to an

aggregate term of 20 to 40 years’ imprisonment.        Appellant did not file a

direct appeal.

        On July 11, 2008, Appellant filed a pro se PCRA petition. Counsel was

appointed and subsequently filed a motion to withdraw as counsel together

with a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d

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

1988) (en banc). On September 19, 2011, the PCRA court granted counsel’s

motion to withdraw and dismissed Appellant’s PCRA petition.           Appellant

appealed that dismissal to this Court. This Court vacated the dismissal order

and remanded for an evidentiary hearing to determine whether Appellant’s

plea counsel failed to properly consult with Appellant regarding filing a direct

appeal or whether plea counsel failed to file a direct appeal despite

Appellant’s request to do so.         Commonwealth v. Molina, 83 A.3d 1060,

2013 WL 11255538 (Pa. Super. 2013) (unpublished memorandum).

        On remand, the PCRA court granted Appellant’s PCRA petition and

reinstated his direct appeal rights nunc pro tunc.      Thereafter, this Court

____________________________________________


1   18 Pa.C.S.A. § 2502(c).

2   18 Pa.C.S.A. § 4304(a).



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affirmed Appellant’s judgment of sentence.          Commonwealth v. Molina,

121 A.3d 1141, 2015 WL 6164878 (Pa. Super. 2015) (unpublished

memorandum), appeal denied, 131 A.3d 491 (Pa. 2016).

       On March 9, 2016, Appellant filed the instant pro se PCRA petition.

Counsel was appointed and filed an amended petition.           On November 21,

2016, the PCRA court issued notice of its intent to dismiss the petition

without an evidentiary hearing.         See Pa.R.Crim.P. 907. On December 16,

2016, the PCRA court dismissed the petition. This timely appeal followed.3

       Appellant presents one issue for our review:

       [Did the PCRA court err in dismissing Appellant’s PCRA petition
       without an evidentiary hearing to determine if plea counsel was
       ineffective in her advice regarding the sentence Appellant would
       receive if he pled guilty?]

Appellant’s Brief at 3.

       “We review the denial of a PCRA [p]etition to determine whether the

record supports the PCRA court’s findings and whether its [o]rder is

otherwise free of legal error.” Commonwealth v. McGarry, 172 A.3d 60,

65 (Pa. Super. 2017) (citation omitted).         Appellant’s lone issue challenges

the effectiveness of his plea counsel.


____________________________________________


3 Appellant filed a concise statement of errors complained of on appeal
(“concise statement”) contemporaneously with his notice of appeal. See
Pa.R.A.P. 1925(b). On November 7, 2017, the PCRA court issued its Rule
1925(a) opinion.    Appellant’s lone issue was included in his concise
statement.



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      “[T]he Sixth Amendment to the United States Constitution and Article

I, [Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to

effective counsel.    This right is violated where counsel’s performance so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Simpson,

112 A.3d 1194, 1197 (Pa. 2015) (cleaned up).      “In the context of a plea, a

claim of ineffectiveness may provide relief only if the alleged ineffectiveness

caused an involuntary or unknowing plea.”      Commonwealth v. Orlando,

156 A.3d 1274, 1281 (Pa. Super. 2017) (citation omitted).

      “Counsel is presumed to have been effective.”       Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017).             To prevail on an

ineffective assistance of counsel claim, a “petitioner must plead and prove

that: (1) the underlying legal claim is of arguable merit; (2) counsel’s action

or inaction lacked any objectively reasonable basis designed to effectuate his

[or her] client’s interest; and (3) prejudice, to the effect that there was a

reasonable probability of a different outcome if not for counsel’s error.”

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017)

(citation omitted).   “Failure to satisfy any prong of the test will result in

rejection of the [petitioner’s] ineffective assistance of counsel claim.”

Commonwealth v. Smith, 167 A.3d 782, 787-788 (Pa. Super. 2017)

(citation omitted).




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     Appellant contends that his plea counsel advised him that he would be

sentenced to 7 to 14 years’ imprisonment if he pled guilty.        Appellant

contends that this advice led him to plead guilty. We agree with the PCRA

court that the record reflects that counsel did not advise Appellant that he

would be sentenced to 7 to 14 years’ imprisonment if he pled guilty.

     The prosecutor, in response to the trial court’s question at the guilty

plea hearing, stated that there was no agreement with respect to the

sentence Appellant would receive for pleading guilty to third-degree murder.

N.T., 10/15/17, at 3.       The trial court immediately responded to the

prosecutor’s comments by noting that the maximum sentence Appellant

could receive was 20 to 40 years’ imprisonment. Id. A few minutes later,

the trial court directly addressed Appellant and informed him that the

maximum penalty he could receive for the third-degree murder conviction

was 20 to 40 years’ imprisonment. Id. at 4.

     This was consistent with the statements Appellant agreed to in his

written guilty plea colloquy.   Specifically, Appellant acknowledged that his

plea counsel informed him of the maximum possible penalty for third-degree

murder and that the trial court could impose any sentence, up to and

including that maximum, it deemed appropriate.       See Written Guilty Plea

Colloquy, 10/15/17, at 7.

     Plea counsel’s statements also indicate that she did not advise

Appellant that he would receive 7 to 14 years’ imprisonment. Attached to


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Appellant’s amended PCRA petition was a certification from PCRA counsel.

In that certification, PCRA counsel averred that plea counsel “has no

recollection of telling [Appellant] that he would likely get a sentence of 7-14

years[.]” Amended PCRA Petition, 8/17/16, at Exhibit 1. The certification

also indicates that plea counsel “doesn’t believe that she would have told

[Appellant] that he would likely get a 7-14 year sentence.” Id. Thus, the

only thing that supports Appellant’s argument is his own bald assertion that

plea counsel told him he would receive 7 to 14 years’ imprisonment for

third-degree murder. The record does not establish that there is a genuine

issue of fact regarding whether plea counsel provided that advice.

      Appellant also tangentially argues that counsel was ineffective for

failing to secure a Spanish interpreter to assist in communicating with

Appellant. The record reflects, however, that Appellant was notified that a

Spanish interpreter was available if he believed that an interpreter would be

helpful. See N.T., 10/15/07, at 2. Appellant informed the trial court that he

could understand the English language and did not need an interpreter. See

id.   Thus, to the extent that Appellant argues that he misunderstood his

counsel’s advice regarding the potential sentence for third-degree murder

because of counsel’s failure to secure an interpreter, that argument is

without merit.    Hence, the PCRA court properly dismissed the petition

without an evidentiary hearing.

      Order affirmed.


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     Judge Ott joins.

     Judge Strassburger files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2018




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