J-S53022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALEX MARTINEZ                              :
                                               :
                       Appellant               :   No. 375 EDA 2018

                  Appeal from the PCRA Order January 3, 2018
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0002999-2014


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 24, 2018

        Alex Martinez appeals from the order of the Court of Common Pleas of

Bucks County, entered January 3, 2018, that denied his first petition filed

under the Post Conviction Relief Act (“PCRA”).1 In this timely appeal, Martinez

raises two claims regarding his alleged inability to effectively communicate

with his lawyer due to a lack of a certified translator. We affirm.

        On September 10, 2014, Martinez pleaded nolo contendere to one count

of criminal attempt to commit murder of the first degree, four counts of

aggravated assault, one count of possession of instruments of crime (“PIC”),

two counts of recklessly endangering another person, two counts of simple

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541–9546.
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assault, and one count of disorderly conduct.2       During the plea hearing,

Martinez was represented by a public defender and communicated with the

trial court through a certified Spanish interpreter, who was sworn prior to the

proceeding.     N.T., 9/10/2014, at 2-3, 14.     Martinez was also sworn and

confirmed that he was able to communicate effectively through the

interpreter. During his plea colloquy, Martinez agreed that the Commonwealth

would be able to present sufficient evidence to prove the charges against him

beyond a reasonable doubt. Martinez also affirmed that he understood that a

nolo contendere plea is still a conviction, the crimes to which he was pleading,

the maximum penalties that could be imposed, and his post-sentence rights.

Id. at 14-15. He answered affirmatively when asked if he was entering his

plea knowingly, voluntarily, intelligently, and of his own free will. Id. After

the Commonwealth gave a summary of the facts, id. at 16-19, trial counsel

asked Martinez if he had heard the facts as stated by the Commonwealth and

if he agreed that the facts were sufficient to prove the charges beyond a

reasonable doubt, and Martinez replied affirmatively to both questions. Id. at

19-20.    When asked if he had any questions about those facts, Martinez

responded negatively and again confirmed that he understood that he was

entering a plea of “no contest.” Id. at 19. Sentencing was delayed in order

to obtain an evaluation of Martinez’s immigration status. Id. at 24.


____________________________________________


2 18 Pa.C.S. §§ 901(a), 2702(a), 907(a), 2705, 2701(a)(1), and 5503(a)(1),
respectively.


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      At his sentencing hearing on November 6, 2014, Martinez again

communicated with the trial court through a certified interpreter, who was

sworn prior to the proceeding. N.T., 11/6/2014, at 2. Under oath, Martinez

stated that he could communicate with the interpreter and could understand

what the interpreter said to him. Id. at 3. Martinez was sentenced to six to

twelve years of confinement for criminal attempt to commit murder followed

by four to ten years of confinement for one count of aggravated assault, for

an aggregate sentence of confinement of ten to twenty-two years; Martinez

was also sentenced to a consecutive period of probation for five years for PIC.

He received no further penalty on the remaining counts. The trial court also

ordered restitution.

      On November 14, 2014, Martinez’s counsel filed a motion for

reconsideration of sentence. On December 17, 2014, Martinez sent a pro se

handwritten letter in English addressed to the trial court requesting

reconsideration of his sentence (“Letter 12/17/2014”).

      On December 22, 2014, the trial court held a hearing on the

reconsideration motion, during which a sworn interpreter was present for

Martinez.   N.T., 12/22/2014, at 2.    The trial court vacated the order of

restitution but did not otherwise change Martinez’s sentence. Id. at 4, 7.

      On December 23, 2014, Martinez sent a pro se handwritten letter in

English to the Bucks County Clerk of Courts, requesting documents from the

record (“Letter 12/23/2014”).     In a pro se, handwritten, undated letter,

received by the Clerk of Courts on January 20, 2015, Martinez wrote in English

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that he had lost his counsel’s information and asked if the Clerk could send

him his counsel’s address (“Letter 1/20/2015”).       In a pro se, handwritten,

undated letter, received by the Clerk of Courts on July 31, 2015, Martinez

wrote in English to the Clerk, asking about deductions for his court fees and

fines (“Letter 7/31/2015”).

       On November 12, 2015, Martinez timely filed, pro se, his first PCRA

petition, written in English. The PCRA court appointed counsel and granted

permission to file two amended petitions.           See PCRA Court Opinion,

3/12/2018, at 2.

       In a pro se letter written in English and dated December 16, 2015,

Martinez requested an updated copy of the docket (“Letter 12/16/2015”). On

April 18, 2016, and May 6, 2016, Martinez sent pro se letters in English to his

PCRA counsel (“Letter 4/18/2016” and “Letter 5/6/2016,” respectively).

       The PCRA evidentiary hearing was originally scheduled for June 22,

2016, but the PCRA court granted a continuance due to the absence of a

certified interpreter for Martinez. Bucks Cty. Crim. Ct. Sheet, 6/22/2016.

       On September 15, 2016, and January 25, 2017, Martinez sent additional

pro se letters in English to the Clerk of Courts (“Letter 9/15/2016” and “Letter

1/25/2017,” respectively).        On February 23, 2017, Martinez sent a pro se

letter in English to the PCRA court (“Letter 2/23/2017”).3
____________________________________________


3 Letter 12/17/2014, Letter 12/23/2014, Letter 1/20/2015, Letter 7/31/2015,
Letter 12/16/2015, Letter 4/18/2016, Letter 5/6/2016, Letter 9/15/2016,
Letter 1/25/2017, and Letter 2/23/2017 are part of the certified record.


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       At the PCRA evidentiary hearing on November 30, 2017, a certified

interpreter was provided to Martinez and sworn at the beginning of the

proceeding. N.T., 11/30/2017, at 2. Trial counsel testified that three of the

meetings he had with Martinez were conducted through a certified interpreter.

Id. at 14. According to trial counsel, when a certified interpreter was not

available, another inmate translated their conversation; the same inmate

served as interpreter throughout their meetings.         Id. at 8, 13, 26.   Trial

counsel testified that he informed Martinez that there was no attorney-client

privilege when another inmate served as interpreter. Id. at 10. Trial counsel

also stated the he had no difficulty communicating with Martinez. Id. at 26.

Martinez testified that he thought that trial counsel had an interpreter with

him “once or twice” during their private meetings but admitted that he

“[did]n’t remember well.” Id. at 49. At the conclusion of the hearing, the

PCRA court allowed the parties to file memoranda of law. Id. at 81-82.4 On

January 3, 2018, the court denied PCRA relief. This appeal followed.5

       Martinez raises the following issues on appeal:

       I.  Did the [PCRA c]ourt err in denying [Martinez]’s [Second]
       Amended PCRA Petition, following a hearing and legal
____________________________________________


4  “The Memorandum of Law on behalf of [Martinez] focused solely on [his]
lack of a certified interpreter at all meetings between [Martinez] and trial
counsel.” PCRA Court Opinion, 3/12/2018, at 2.
5  On February 9, 2018, the PCRA court ordered Martinez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within twenty-one days, and Martinez complied on February 23, 2018. On
March 12, 2018, the PCRA court filed an opinion pursuant to Pa.R.A.P.
1925(a).

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      memoranda, on the subject of whether [Martinez]’s guilty plea in
      this matter was knowing and voluntary, when trial counsel failed
      to obtain the services of a certified Spanish/English interpreter to
      translate between trial counsel and [Martinez] during meetings in
      advance of the trial date and eventual guilty plea; counsel instead
      utilizing other inmates to translate between himself and
      [Martinez]?

      II.  Did the [PCRA c]ourt err in failing to recognize that trial
      counsel’s failure to adequately communicate with [Martinez] in
      advance of the guilty plea constituted ineffective assistance of
      counsel?

Martinez’s Brief at 6.

      Martinez contends that his trial counsel was ineffective, because counsel

did not always use a certified interpreter when communicating with Martinez

outside the courtroom. Martinez’s Brief at 14-21. He argues that the PCRA

court should have found that his plea was not knowing and voluntary, because

trial counsel had “failed to obtain the services of a certified Spanish/English

interpreter to translate between trial counsel and [Martinez] during meetings

in advance of the trial date and eventual [nolo contendere] plea.” Id. at 14.

He alleges that he was prejudiced, because he “did not understand the

potential defense or what the Commonwealth would have to prove or what

the nature of the charges against him were.” Id. at 21.

      In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

the PCRA court and whether the ruling is free of legal error.” Commonwealth

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).

      Counsel is presumed to have been effective. To overcome this
      presumption, a PCRA petitioner must plead and prove that: (1)

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      the underlying legal claim is of arguable merit; (2) counsel’s action
      or inaction lacked any objectively reasonable basis designed to
      effectuate his 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.

Id. (citation and internal quotation marks omitted). “A failure to satisfy any

of the three prongs of [this] test requires rejection of a claim of ineffective

assistance of trial counsel[.]”   Commonwealth v. Chmiel, 30 A.3d 1111,

1128 (Pa. 2011). The right to effective assistance of counsel extends to the

plea process. Commonwealth v. Wah, 42 A.3d 335, 338-339 (Pa. Super.

2012); see also Commonwealth v. Allen, 833 A.2d 800, 801-802 (Pa.

Super. 2003) (right to effective counsel applicable to nolo contendere pleas).

      The PCRA court concluded that Martinez had failed to establish “that he

was prejudiced by the lack of a certified interpreter at all meetings” between

himself and trial counsel. PCRA Court Opinion, 3/12/2018, at 7. As the PCRA

court noted, id., a certified interpreter was present for some of the meetings

between Martinez and trial counsel and another inmate served as interpreter

for the remaining meetings. N.T., 11/30/2017, at 8, 13-14, 26, 49. More

importantly, a certified interpreter translated for Martinez at his plea hearing,

his sentencing hearing, and his reconsideration hearing. N.T., 9/10/2014, at

2-3; N.T., 11/6/2014, at 2-3; N.T., 12/22/2014, at 2.

      We agree with the PCRA court that Martinez has failed to demonstrate

how the outcome would have been different if an interpreter were present

throughout all of his meetings with trial counsel and, accordingly, has failed

to establish the requisite element of prejudice. See Andrews, 158 A.3d at


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1263. In addition to the reasons discussed by the PCRA court, we observe

that the record is replete with examples of Martinez’s use and comprehension

of the English language.        His initial pro se PCRA petition and all of his

numerous correspondence with the trial court, the Clerk of Courts, PCRA

counsel, and the PCRA court were in English. See Letter 12/17/2014; Letter

12/23/2014; Letter 1/20/2015; Letter 7/31/2015; PCRA Pet., 11/12/2015;

Letter 12/16/2015; Letter 4/18/2016; Letter 5/6/2016; Letter 9/15/2016;

Letter 1/25/2017; Letter 2/23/2017.        There is no indication any of these

documents, some of which were handwritten, were composed with the

assistance of an interpreter.

      Furthermore,

      The longstanding rule of Pennsylvania law is that a defendant may
      not challenge his guilty plea by asserting that he lied while under
      oath, even if he avers that counsel induced the lies.

      A person who elects to plead guilty is bound by the
      statements he makes in open court while under oath and
      may not later assert grounds for withdrawing the plea which
      contradict the statements he made at his plea colloquy.

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)

(emphasis added) (citation omitted); see Commonwealth v. Hart, 174 A.3d

660, 664, 668 (Pa. Super. 2017) (applying Yeomans to request to withdraw

plea of nolo contendere). Here, Martinez stated under oath at both his plea

and sentencing hearings that he understood and could communicate with the

certified interpreter. N.T., 9/10/2014, at 3; N.T., 11/6/2014, at 3. Through

that interpreter, Martinez stated that he understood the crimes charged, the



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effects of entering a plea, the maximum penalties, his post-sentence rights,

the Commonwealth’s summary of the facts, and that he was entering a plea

of “no contest.” N.T., 9/10/2014, at 14-15, 19. He also agreed that the facts

presented by the Commonwealth were sufficient to prove the charges beyond

a reasonable doubt and that he was entering the plea knowingly, voluntarily,

intelligently, and of his own free will. Id. at 14-15, 19-20. Martinez is bound

by these statements and cannot now assert that he did not understand the

charges against him, the Commonwealth’s proof, or the nature of his plea.

See Martinez’s Brief at 21; Yeomans, 24 A.3d at 1047.              Consequently,

Martinez’s argument that he suffered prejudice is not supported by the record.

          By failing to satisfy one prong of the ineffective assistance of counsel

test – i.e., prejudice, Martinez’s entire ineffectiveness claim fails.        See

Chmiel, 30 A.3d at 1128. Accordingly, we affirm the order denying PCRA

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/18




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