J-S61006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    ANGEL QUINONES,

                             Appellant                No. 3126 EDA 2016


           Appeal from the PCRA Order Entered September 21, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0015036-2009


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED NOVEMBER 20, 2018

       Appellant, Angel Quinones, appeals from the post-conviction court’s

September 21, 2016 order denying his first petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant’s counsel,

Peter A. Levin, Esq., has filed a Turner/Finley1 ‘no-merit’ letter and a petition

to withdraw from representing Appellant, to which Appellant has filed a pro se

response. After careful review, we grant counsel’s petition to withdraw and

affirm the order denying Appellant PCRA relief.


____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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     Briefly, Appellant was arrested and charged with various sexual offenses

after his 12-year-old step-daughter disclosed to her school counselor that

Appellant had been having sexual intercourse with her several times a week

since she was 10 years old. In a statement to police, Appellant admitted that

he had sex with the victim, but claimed that he did not force her to do so.

Appellant was arrested on November 20, 2009.

            On August 23, 2010, [Appellant] appeared before the
     Honorable Lisa Rau, for a guilty plea hearing and signed a Colloquy
     for Plea of Guilty/Nolo Contendere for the charges of rape,
     unlawful contact with a minor, and corruption of a minor. On
     September 2, 2010, [Appellant] filed a Motion to Withdraw Guilty
     Plea. The Motion was granted by … [Judge] Rau and an Order was
     issued on December 2, 2010. On August 15, 2010, [Appellant]
     litigated a Motion To Suppress Physical Evidence[,] statements,
     oral and written[,] and identification. On August 15, 2011, the
     Honorable Earl W. Trent, Jr. heard and denied said Motion To
     Suppress Physical Evidence. On August 15, 2011, [Appellant]
     entered into a negotiated guilty plea. At said guilty plea hearing,
     [Appellant pled] … guilty of the charges of rape, [involuntary
     deviate sexual intercourse (IDSI) by] [f]orcible [c]ompulsion, and
     unlawful contact with a minor. Following the guilty plea hearing,
     [Appellant] was sentenced to a term of not less than seven (7)
     years[’] and not more than eighteen (18) years[’] incarceration at
     a state correctional institution, followed by ten (10) years[’]
     reporting probation. [Appellant] was [also ordered] to pay court
     costs of $852.50 and must register under Megan’s Law as a sex
     offender when released.

           On February 6, 2012, [Appellant] filed a Pro Se Petition
     under the [PCRA], alleging a violation of the Constitution of this
     Commonwealth or the Constitution or laws of the United States,
     etc., and he more poignantly alleged ineffective assistance of
     counsel. After being appointed counsel, [Attorney] Levin, …
     [Appellant] filed an Amended Petition and Memorandum of Law
     under the PCRA alleging that trial counsel was ineffective for
     giving [Appellant] erroneous information about his right[] to
     appeal and [for] failing to file a motion to withdraw his guilty plea.


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PCRA Court Opinion, 1/8/18, at 1-3 (footnote omitted).

       The PCRA court conducted an evidentiary hearing on September 21,

2016. After that proceeding, the court entered an order denying Appellant’s

petition. Appellant filed a timely notice of appeal, and he also timely complied

with the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. On May 9, 2018, Attorney Levin filed with this Court

his no-merit letter and a petition to withdraw.      Appellant filed a pro se

response on June 11, 2018.

       We must begin by determining if Attorney Levin has satisfied the

requirements for withdrawal. In Turner, our Supreme Court “set forth the

appropriate procedures for the withdrawal of court-appointed counsel in

collateral attacks on criminal convictions[.]” Turner, 544 A.2d at 927. The

traditional requirements for proper withdrawal of PCRA counsel, originally set

forth in Finley, were updated by this Court in Commonwealth v. Friend,

896 A.2d 607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts, 981

A.2d 875 (Pa. 2009),2 which provides:

       1) As part of an application to withdraw as counsel, PCRA counsel
       must attach to the application a “no-merit” letter[;]


____________________________________________


2 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such issue.”
Pitts, 981 A.2d at 879. In this case, Attorney Levin filed his petition to
withdraw and no-merit letter with this Court and, thus, our Supreme Court’s
holding in Pitts is inapplicable.


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      2) PCRA counsel must, in the “no-merit” letter, list each claim the
      petitioner wishes to have reviewed, and detail the nature and
      extent of counsel’s review of the merits of each of those claims[;]

      3) PCRA counsel must set forth in the “no-merit” letter an
      explanation of why the petitioner’s issues are meritless[;]

      4) PCRA counsel must contemporaneously forward to the
      petitioner a copy of the application to withdraw, which must
      include (i) a copy of both the “no-merit” letter, and (ii) a
      statement advising the PCRA petitioner that, in the event the trial
      court grants the application of counsel to withdraw, the petitioner
      has the right to proceed pro se, or with the assistance of privately
      retained counsel;

      5) the court must conduct its own independent review of the
      record in the light of the PCRA petition and the issues set forth
      therein, as well as of the contents of the petition of PCRA counsel
      to withdraw; and

      6) the court must agree with counsel that the petition is meritless.

Friend, 896 A.2d at 615 (footnote omitted).

      Instantly, Attorney Levin has complied with the requirements of

Turner/Finley. Specifically, in his no-merit letter, counsel details the nature

and extent of his review, addresses the claims Appellant raised in his PCRA

petition, and discusses his conclusion that those issues lack merit. See No-

merit Letter, 5/9/18, at 4-9. Additionally, counsel served Appellant with a

copy of the petition to withdraw and Turner/Finley no-merit letter, advising

Appellant that he had the right to proceed pro se or with privately retained

counsel.     Thus, we will conduct an independent review of the merits of

Appellant’s claims.

      First, “[t]his Court’s standard of review from the grant or denial of post-

conviction    relief   is   limited   to   examining   whether   the   lower   court’s



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determination is supported by the evidence of record and whether it is free of

legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has stated that:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.”             Generally, counsel’s
      performance is presumed to be constitutionally adequate, and
      counsel will only be deemed ineffective upon a sufficient showing
      by the petitioner. To obtain relief, a petitioner must demonstrate
      that counsel’s performance was deficient and that the deficiency
      prejudiced the petitioner. A petitioner establishes prejudice when
      he demonstrates “that there is a reasonable probability that, but
      for counsel’s unprofessional errors, the result of the proceeding
      would have been different.” … [A] properly pled claim of
      ineffectiveness posits that: (1) the underlying legal issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice befell the petitioner
      from counsel’s act or omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      Appellant first contends that his plea counsel acted ineffectively by

erroneously telling him that no direct appeal could be filed on his behalf. More

specifically, Appellant testified at the PCRA hearing that he wished to challenge

his sentence on appeal, but counsel told him “that [he] didn’t have any right

for any appeal.”   N.T. Hearing, 9/21/16, at 9.      However, Appellant’s plea

counsel also testified at the PCRA hearing, stating that he never said that to


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Appellant.    Id. at 19.       The PCRA court was free to credit plea counsel’s

testimony,     and    this    Court   is   bound    by   that   determination.     See

Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999) (stating that an

appellate court is bound by credibility determinations of the PCRA court where

they are supported by the record).

       Moreover, plea counsel testified that Appellant never asked him to file

an appeal, N.T. Hearing at 19, and Appellant also conceded that he did not do

so, id. at 9.3 It is well-settled that, “[b]efore a court will find ineffectiveness

of counsel for failing to file a direct appeal, the defendant must prove that he

requested     an     appeal    and    that     counsel   disregarded   that   request.”

Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006) (citation

omitted). Accordingly, we discern no error in the PCRA court’s dismissing this

ineffectiveness claim.

       Next, Appellant maintains that plea counsel was ineffective for not filing

a motion to withdraw Appellant’s guilty plea. Again, Appellant failed to present

evidence to prove this claim. At the PCRA hearing, Appellant admitted that

after sentencing, he “didn’t ask [counsel] to do anything.” N.T. Hearing at 9.

Moreover,

____________________________________________


3  In Appellant’s pro se response to Attorney Levin’s petition to withdraw,
Appellant claims that he “erroneously” testified that he did not ask for an
appeal because he is “a Spanish speaking defendant who understands very
little [E]nglish….” Appellant’s Pro Se Response, 6/8/18, at 4. However,
Appellant had an interpreter at the PCRA hearing, see N.T. Hearing at 4, and
he never indicated that he was not understanding the questions being asked
of him.

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     post-sentence motions for withdrawal are subject to higher
     scrutiny [than pre-sentence motions,] since courts strive to
     discourage entry of guilty pleas as sentence-testing devices. A
     defendant must demonstrate that manifest injustice would result
     if the court were to deny his post-sentence motion to withdraw a
     guilty plea. Manifest injustice may be established if the plea was
     not tendered knowingly, intelligently, and voluntarily.         In
     determining whether a plea is valid, the court must examine the
     totality of circumstances surrounding the plea. A deficient plea
     does not per se establish prejudice on the order of manifest
     injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (internal

citations and quotation marks omitted).

     Here, while Appellant did not explicitly state on what basis he would

have sought to withdraw his plea after sentencing, his PCRA hearing testimony

suggests that he would have contended that his plea was invalid because he

did not understand the agreed-upon sentence when he entered that plea.

Appellant also claims in his pro se response to Attorney Levin’s petition to

withdraw that he did not enter a knowing or intelligent plea because he does

not speak English. See Appellant’s Pro Se Response at 4.

     Neither of these claims is supported by the record. Initially, on cross-

examination at the PCRA hearing, Appellant acknowledged that the written

plea colloquy stated that his sentence would be 7 to 15 years’ incarceration,

plus 10 years’ probation. N.T. Hearing at 12. Appellant signed that colloquy

just under the words: “I have read all of the above or my lawyer read it to

me; I understand it; my answers are all true and correct.” Id. Moreover,

Appellant also conceded that, at the sentencing proceeding, his attorney

informed him that “the agreement with the district attorney that the Judge


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will review is for a sentence of seven to [fifteen] years to be followed by ten

years[’] probation and also … credit for any time that [Appellant had already]

served.” Id. at 13. Additionally, plea counsel testified at the PCRA hearing

that he speaks fluent Spanish, which is why he was appointed to represent

Appellant.    Id. at 18.    Counsel explained that he and Appellant had

“extensively” discussed the plea agreement and sentence before Appellant

decided to accept that plea agreement. Id. at 19. Given this record, Appellant

has failed to demonstrate that he was prejudiced by his counsel’s not filing a

post-sentence motion seeking to withdraw his plea on the basis that he did

not understand the sentence he would receive.

      In sum, we agree with Attorney Levin that the two ineffectiveness claims

that Appellant seeks to raise on appeal are meritless. However, we must also

briefly address Appellant’s argument in his pro se response to counsel’s no-

merit letter. Therein, Appellant seemingly contends that Attorney Levin acted

ineffectively by seeking to withdraw where Appellant’s issues have merit, and

by not “communicat[ing] with Appellant prior to, and immediate[ly] after the

evidentiary hearing.”   Appellant’s Pro Se Response at 4 (unnumbered).

According to Appellant, had counsel met with him, counsel “would have

known, and therefore would have made a determination that Appellant did not

understand the [E]nglish language well enough to render his guilty plea

‘knowingly and intelligently’….” Appellant’s Pro Se Response at 4.

      First, for the reasons stated supra, Attorney Levin was not ineffective

for concluding that Appellant’s claims are meritless and seeking to withdraw

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on that basis. Additionally, as discussed above, Appellant’s assertion that his

plea was invalid because he does not speak English is not supported by the

record and, thus, Attorney Levin did not err by failing to argue it in his

amended petition.    Nevertheless, even if this issue had arguable merit, it

would be deemed waived, where it could have been presented on direct appeal

but was not. See 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for PCRA

relief, the petitioner must prove that the claim has not been previously

litigated or waived); 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, during

unitary review, on appeal or in a prior state post[-]conviction proceeding.”).

Therefore, Attorney Levin did not act ineffectively.

      For these reasons, we conclude that the issues raised by Appellant in

his PCRA petition are meritless, as are the arguments presented in his pro se

response to Attorney Levin’s petition to withdraw. Therefore, we affirm the

PCRA court’s order dismissing his petition and grant counsel’s petition to

withdraw.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/20/18




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