J. S42035/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                    v.                       :
                                             :
NELSON LUIS RUIZ MARTINEZ,                   :          No. 1937 MDA 2016
                                             :
                           Appellant         :


               Appeal from the PCRA Order, November 28, 2016,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0004920-2015


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED AUGUST 15, 2017

        Nelson Luis Ruiz Martinez appeals pro se from the November 28, 2016

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

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this appeal,

PCRA counsel has requested leave to withdraw in accordance with

Commonwealth          v.     Turner,   544       A.2d   927   (Pa.   1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

After careful review, we grant PCRA counsel leave to withdraw and affirm the

order of the PCRA court.

        The relevant facts and procedural history of this case are as follows.

On April 1, 2016, appellant pled guilty to one count of burglary 1 and was



1
    18 Pa.C.S.A. § 3502.
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sentenced to 10 to 20 years’ imprisonment on May 2, 2016.2 At all relevant

times during his guilty plea and sentencing, appellant was represented by

Erin Thompson, Esq. (hereinafter, “Attorney Thompson”). Appellant did not

file a direct appeal. On June 3, 2016, appellant filed a pro se PCRA petition

and the PCRA court appointed Christopher Moore, Esq. (hereinafter,

“counsel” or “PCRA counsel”) to represent appellant shortly thereafter.

Following several continuances, the PCRA court conducted an evidentiary

hearing on appellant’s petition on November 28, 2016.         The PCRA court

summarized the testimony adduced at this hearing as follows:

           [] Appellant testified during the PCRA hearing.
           During his testimony, [a]ppellant clarified that he
           was alleging in his petition that Attorney Thompson
           was ineffective and that he would have withdrawn
           his guilty plea if he had been informed about the
           mandatory sentence.         Appellant testified that
           Attorney Thompson had advised [a]ppellant of the
           mandatory sentence that was filed by the
           Commonwealth after [a]ppellant had pled guilty but
           before sentencing and did not advise him that he
           could withdraw the guilty plea before sentencing.

                 On cross-examination, [a]ppellant admitted
           that [he] had filled out a guilty plea colloquy prior to
           sentencing, where he initialed each page and
           indicated that he completed it on March 30, 2016.
           Appellant said he did not review the colloquy on the
           day of sentencing.       Appellant admitted that on
           page 7 of the colloquy, it is stated that the maximum

2
 The record reflects that appellant’s offense gravity score in this case was 9
and his prior record score was REVOC. Thus, the standard range under the
Pennsylvania Sentencing Guidelines and mandatory range were both 10 to
20 years’ imprisonment, a difference that the PCRA court and PCRA counsel
characterized as “academic.” (See notes of testimony, 11/28/16 at 2,
27-28; PCRA court opinion, 1/17/17 at 8.)


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          term of confinement is twenty years.         Further,
          [a]ppellant agreed that the original offer was ten to
          twenty years and that he was sentenced to ten to
          twenty years.

                Then, the Commonwealth called [Attorney
          Thompson].        Around September 16, 2015,
          Attorney Thompson discussed with [a]ppellant his
          prior record score and told him that that [sic] he
          may be sentenced to a ten to twenty year standard
          range sentence for the burglary, and she stated that
          [a]ppellant was very unhappy about that and told
          her why he did not like that sentence. During that
          meeting,    Attorney   Thompson     mentioned     to
          [a]ppellant that because [he] had prior crimes of
          violence and is a REVOC, the Commonwealth could
          seek    a    mandatory    sentence.        However,
          Attorney Thompson does not believe that she
          mentioned the possibility of a mandatory sentence
          when they were later discussing the open plea.
          During her testimony, Attorney Thompson stated
          that she had communicated an offer made by the
          Commonwealth of ten to twenty years to [a]ppellant.

                 Prior to pleading guilty, Attorney Thompson
          had explained the difference between an open and
          negotiated      plea      with      the     [a]ppellant.
          Attorney Thompson discussed with [a]ppellant that if
          the charges were consecutive, she told [a]ppellant
          that it was in his best interest to plea[d] rather than
          have a trial. Attorney Thompson also indicated that
          she had met with [a]ppellant on March 30, 2016 to
          complete the guilty plea colloquy and to discuss the
          guilty plea. She stated that “when I have clients
          complete colloquies beforehand at the prison, I
          always give them the colloquy to review in court
          before their plea so if they have any last minute
          questions, they can be addressed before entering the
          plea,” and she noted that they reviewed the colloquy
          on April 1, 2016 as well.

                Appellant pled guilty on April 1, 2016 to the
          burglary count, and it was an open plea. At no point
          did [a]ppellant tell Attorney Thompson that “[he] did


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           not understand the nature of the proceedings or any
           rights he was giving up by pleading guilty.” At no
           point did he indicate that the plea was not voluntary,
           although he did express how unhappy he was about
           pleading and that he did not want to be imprisoned
           for ten to twenty years.

                 Attorney Thompson also stated that it was
           [a]ppellant’s choice whether to plea[d] or go to trial,
           and, if he wanted a trial, they would not have
           completed the colloquy or done the guilty plea.
           [Appellant] was also colloquied on the record by
           th[e] Court about any rights that he’d be giving up
           by pleading guilty.

                 On April 27, [2016,] before sentencing,
           Attorney Thompson met with [a]ppellant advising
           him that the Commonwealth was seeking the
           mandatory, that it was her error, and that “his
           options would be to see if they would withdraw the
           mandatory, possibly withdraw his guilty plea, or
           argue that [she] was ineffective now and try to get
           him a new attorney who may be able to convince the
           Commonwealth to not seek the mandatory given the
           new counsel.”

                 Appellant did not ask Attorney Thompson to
           withdraw the guilty plea.

PCRA court opinion, 1/17/17 at 4-7 (footnotes and citations to notes of

testimony omitted; internal quotation marks in original).

     Following   the   hearing,   the    PCRA    court   entered   an   order   on

November 28, 2016 denying appellant’s petition.          On November 29, 2016,

appellant filed a timely notice of appeal.      On December 5, 2016, the trial

court entered an order directing appellant to file a Pa.R.A.P. 1925(b)

statement within 21 days.    Appellant complied with the trial court’s order

and filed a timely Rule 1925(b) statement on December 16, 2016.


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Thereafter, on January 17, 2017, the trial court filed its Rule 1925(a)

opinion.

      On March 14, 2017, counsel subsequently filed a “no-merit” letter and

a petition to withdraw, in accordance with Turner/Finley.              Thereafter, on

March 22, 2017, this court issued a per curiam order granting appellant

permission to file a response to counsel’s petition, either pro se or through

privately retained counsel, within 30 days.       On March 30, 2017, appellant

filed a pro se response to counsel’s request to withdraw, requesting a

continuance so that he could retain new counsel and retain his appellate

rights. Thereafter, on April 18, 2017, appellant indicated that he would be

proceeding pro se and filed a motion for an extension of time to file his

response to counsel’s withdrawal petition.        On April 21, 2017, this court

granted appellant’s request, and appellant filed his pro se response brief on

May 17, 2017.

      Counsel raises the following issue on appellant’s behalf: “Whether the

[PCRA] Court abused its discretion in denying [a]ppellant’s PCRA Petition

and Relief Requested?”       (Turner/Finley letter brief at 1.)         Appellant, in

turn, argues that Attorney Thompson rendered ineffective assistance in

failing to move to withdraw his guilty plea on the basis that it was

involuntary.     (Appellant’s response brief at 2.)     In support of this claim,

appellant highlights the fact that he does not speak or understand English

and   that     this   language   barrier   precluded   his   ability   to   effectively



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communicate with Attorney Thompson, particularly in the absence of an

interpreter. (Id. at 3.)3

        Prior to considering appellant’s arguments, we must address PCRA

counsel’s “no-merit” letter and petition to withdraw from representation.

See Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). In

Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016), a panel of this

court recently reiterated the procedure to be followed when PCRA counsel

files   a   “no-merit”   letter   and   seeks   permission   to   withdraw   from

representation:

                    Counsel petitioning to withdraw from PCRA
              representation     must      proceed    ...     under
              [Turner/Finley] and . . . must review the case
              zealously. Turner/Finley counsel must then submit
              a “no-merit” letter to the trial court, or brief on
              appeal to this Court, detailing the nature and extent
              of counsel’s diligent review of the case, listing the
              issues which petitioner wants to have reviewed,
              explaining why and how those issues lack merit, and
              requesting permission to withdraw.

                          Counsel must also send to the
                   petitioner: (1) a copy of the “no merit”
                   letter/brief; (2) a copy of counsel’s
                   petition to withdraw; and (3) a
                   statement advising petitioner of the right
                   to proceed pro se or by new counsel.

                   ....

                        Where counsel submits a petition
                   and no[ ]merit letter that . . . satisfy the

3
  The record reflects that neither counsel’s Turner/Finley letter brief nor
appellant’s pro se response brief contain pagination; however, for the ease
of our discussion, we have assigned each page a corresponding number.


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                 technical demands of Turner/Finley, the
                 court—trial court or this Court—must
                 then conduct its own review of the merits
                 of the case. If the court agrees with
                 counsel that the claims are without
                 merit, the court will permit counsel to
                 withdraw and deny relief.

Id. at 510-511 (some bracketed internal citations amended; case citations

omitted).

     Herein, we find that counsel’s filing with this court complied with the

requirements of Turner/Finley.      Specifically, counsel’s “no-merit” letter

detailed the nature and extent of counsel’s review.        In preparing the

“no-merit” letter, counsel addressed the issues appellant raised in his PCRA

petition and determined that they lack merit. Thereafter, counsel provided a

discussion of appellant’s claim, explaining why the issue is without merit.

Finally, the record reflects that counsel served appellant a copy of the

“no-merit” letter and advised appellant of his right to proceed pro se or with

the assistance of privately retained counsel.   Thus, we find that counsel’s

request for leave to withdraw from representation satisfied the requirements

of Turner/Finley.    See Commonwealth v. Karanicolas, 836 A.2d 940,

947 (Pa.Super. 2003) (stating that substantial compliance with requirements

will satisfy the Turner/Finley criteria).   We must now conduct our own

review of the record and render a decision as to whether the appeal is

without merit.




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      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

great deference to the findings of the PCRA court, and we will not disturb

those findings merely because the record could support a contrary holding.”

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016)

(citation omitted). In order to be eligible for PCRA relief, a defendant must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3).

      In Commonwealth v. Lynch, 820 A.2d 728 (Pa.Super. 2003),

appeal denied, 835 A.2d 709 (Pa. 2003), we explained that the PCRA will

provide relief to an appellant if ineffective assistance of counsel caused him

to enter an unknowing and involuntary guilty plea. We conduct our review

of such a claim in accordance with the three-pronged ineffectiveness test

under Section 9543(a)(2)(ii) of the PCRA. See Lynch, 820 A.2d at 732. To

prevail on a claim of ineffective assistance of counsel under the PCRA, a

petitioner must plead and prove by a preponderance of the evidence that

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.”



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42 Pa.C.S.A. § 9543(a)(2)(ii).     Specifically, a petitioner must establish the

following three factors:   “first[,] the underlying claim has arguable merit;

second, that counsel had no reasonable basis for his action or inaction; and

third, that Appellant was prejudiced.” Commonwealth v. Charleston, 94

A.3d 1012, 1020 (Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa.

2014) (citation omitted).     “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.”   Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009)

(citations and internal quotation marks omitted).

      “[C]ounsel   is   presumed     to   be   effective   and   the   burden   of

demonstrating ineffectiveness rests on appellant.”          Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d

487 (Pa. 2011) (citation omitted). Additionally, we note that counsel cannot

be found ineffective for failing to raise a claim that is devoid of merit. See,

e.g., Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

      This court has long recognized that “[a] criminal defendant has the

right to effective counsel during a plea process as well as during trial.”

Patterson, 143 A.3d at 397 (citation omitted). “The law does not require

that appellant be pleased with the outcome of his decision to enter a plea of

guilty[; a]ll that is required is that [appellant’s] decision to plead guilty be

knowingly, voluntarily, and intelligently made.”     Commonwealth v. Diaz,



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913 A.2d 871, 873 (Pa.Super. 2006) (citation and internal quotation marks

omitted), appeal denied, 931 A.2d 656 (Pa. 2007).

            Allegations of ineffectiveness in connection with the
            entry of a guilty plea will serve as a basis for relief
            only if the ineffectiveness caused the defendant to
            enter an involuntary or unknowing plea. Where the
            defendant enters his plea on the advice of counsel,
            the voluntariness of the plea depends on whether
            counsel’s advice was within the range of competence
            demanded of attorneys in criminal cases.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013) (citation

omitted).

      In order to ensure a voluntary, knowing, and intelligent plea, trial

courts are required to ask the following questions in the guilty plea colloquy:

            (1) the nature of the charges to which he is pleading
            guilty; (2) the factual basis for the plea; (3) he is
            giving up his right to trial by jury; (4) and the
            presumption of innocence; (5) he is aware of the
            permissible ranges of sentences and fines possible;
            and (6) the court is not bound by the terms of the
            agreement unless the court accepts the plea.

Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.Super. 2016) (citation

omitted); see also Pa.R.Crim.P. 590.         “Pennsylvania law presumes a

defendant who entered a guilty plea was aware of what he was doing, and

the defendant bears the burden of proving otherwise.” Kpou, 153 A.3d at

1024 (citation omitted). Lastly, we note that,

            after the court has imposed a sentence, a defendant
            can withdraw his guilty plea only where necessary to
            correct a manifest injustice.        [P]ost-sentence
            motions for withdrawal are subject to higher scrutiny



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            since courts strive to discourage the entry of guilty
            pleas as sentencing-testing devices.

            ....

            To be valid [under the “manifest injustice” standard],
            a guilty plea must be knowingly, voluntarily and
            intelligently entered. [A] manifest injustice occurs
            when a plea is not tendered knowingly, intelligently,
            voluntarily, and understandingly.

Id. at 1023 (internal citations and quotation marks omitted).

      The record reflects that on March 30, 2016, appellant executed a

12-page written guilty plea colloquy that was translated in both English and

Spanish. Appellant acknowledged in this written guilty plea colloquy that he

understood he was pleading guilty to burglary and that Attorney Thompson

had explained the elements of this crime to him.             (Guilty plea colloquy,

3/30/16 at 4, ¶¶ 15-16.) The written guilty plea colloquy also explained to

appellant, inter alia, the permissible range of sentences and the fact that

he could be sentenced to a mandatory term of 10 to 20 years’ imprisonment

for the burglary charge. (Id. at 7-8, ¶ 25.) Appellant acknowledged in the

written guilty plea colloquy that no promises or representations were made

to him with regard to his guilty plea or sentence. (Id. at 8-9, ¶¶ 29, 34.)

Additionally,   appellant    indicated     that      he      was     satisfied    with

Attorney Thompson’s representation. (Id. at 11, ¶ 42.)

      Thereafter,   on   April   1,   2016,    the   trial   court    conducted    an

on-the-record colloquy, as mandated by Rule 590.              The transcript of the

guilty plea colloquy demonstrates that the trial court inquired at great length


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with regard to appellant’s decision to plead guilty, and a court interpreter

was present at this hearing. Appellant indicated during this hearing that he

can read Spanish and understood all the questions in the written plea

colloquy.   (Notes of testimony, 4/1/16 at 4.)    Appellant further reiterated

that he reviewed the written plea colloquy with Attorney Thompson prior to

signing it and was satisfied with her representation, specifically noting that,

“the lawyer explained everything to me.”        (Id. at 14.)    Appellant also

acknowledged that he had understood the explanation of his trial and

appellate rights. (Id. at 6-9.)

      With respect to the imposition of sentence, appellant again indicated

that he understood the trial court could impose a sentence of 10 to 20 years’

imprisonment for the crime of burglary, a felony of the first-degree.

Specifically, the following exchange took place during the plea hearing:

            THE COURT: Do you understand that in this case it’s
            a felony, the Court may impose the sentence in
            accordance     with    the    sentencing   guidelines
            established by the legislature, the Commonwealth of
            Pennsylvania, that places a suggested length of
            sentence for the type of crimes and increase[s] that
            length of sentence if the person has been previously
            convicted of other crimes, either as a juvenile or as
            an adult, and that the maximum sentence of
            confinement or fine or fines applicable to crimes to
            which you are pleading is as follows:

                  In this case the burglary would carry with it a
            maximum sentence of 20 years, the theft would
            carry with it a maximum sentence of seven years,
            fines in the amount of [$]25,000 and [$]10,000
            respectively for a total of 27 years in jail. Those



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           sentences could be consecutive, added to each
           other. Do you understand that?

           [APPELLANT]: (No Response)

           THE COURT: So the total sentence you could get
           would be 27 years and a $35,000 fine, do you
           understand that?

           [APPELLANT]: Yes.

           ATTORNEY THOMPSON: Your Honor, if I may, just to
           be clear? I think why [appellant] is hesitating, he
           only pled to the burglary, so the maximum would be
           the 20, $25,000.

           THE COURT: I’m going to adjust that. I guess you
           filled that out before --

           ATTORNEY THOMPSON: I did, Your Honor.

           THE COURT: -- we withdrew the theft charge. . . .

Id. at 9-10.   Thereafter, appellant informed the trial court that he was

pleading guilty of his own free will, that he understood the consequence of

entering a guilty plea, and that no one had promised him anything in

exchange for entering this plea. (Id. at 11-12.)

     Upon review, it is apparent that appellant understood that if he pled

guilty to burglary, he could be sentenced to 10 to 20 years’ imprisonment.

To the extent that appellant contends that the statements he made during

his written and oral guilty plea colloquies were untrue or were a result of

Attorney Thompson’s purported ineffectiveness, we note that this argument

is not legally permissible to show an involuntary plea. See Commonwealth

v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007) (stating, “[a] person who


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elects to plead guilty is bound by the statements he makes in open court

while under oath and he may not later assert grounds for withdrawing the

plea which contradict the statements he made at his plea colloquy.” (citation

omitted)), appeal denied, 940 A.2d 365 (Pa. 2007).          Moreover, it is well

settled that disappointment in the sentence actually imposed does not

represent a manifest injustice. Commonwealth v. Muhammad, 794 A.2d

378, 383 (Pa.Super. 2002) (citation omitted). Based on the foregoing, we

find that appellant failed to demonstrate a “manifest injustice” in this

instance and knowingly, voluntarily, and intelligently entered his guilty plea.

See Kpou, 153 A.3d at 1023.          Attorney Thompson, therefore, was not

ineffective in failing to move to withdraw said plea on this basis.

      Accordingly, we affirm the November 28, 2016 order of the PCRA court

and grant PCRA counsel’s petition for leave to withdraw as counsel.

      Order affirmed. Petition for leave to withdraw as counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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