J-S71008-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

ELOY SOLORIO-FLORES

                         Appellant                   No. 376 EDA 2015


          Appeal from the Judgment of Sentence August 11, 2014
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0008424-2013


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 19, 2017

      Eloy Solorio-Flores appeals from the judgment of sentence of four to

eight years incarceration plus a concurrent ten-year period of probation

imposed following a negotiated guilty plea. We affirm.

      During an ongoing investigation into drug trafficking organizations

operating in Montgomery and Berks counties, Detective Erick Echevarria,

acting undercover, contacted Jose DeJesus Montilla to purchase cocaine and

methamphetamine.         Over the course of the investigation, Detective

Echevarria made a series of purchases from a number of individuals

functioning in concert to deliver the illicit substances. Mr. Montilla operated

as the point of contact and would communicate with these other individuals

to arrange the purchases.


* Former Justice specially assigned to the Superior Court.
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      In August 2013, the detective agreed to buy one and a half pounds of

methamphetamine for forty-three thousand dollars. In preparation for the

transaction, officers conducted surveillance on individuals and locations tied

to suspects in the investigation. While observing the targets, Apellant was

seen parked in a gray Dodge Charger interacting with some of the suspects.

      On August 31, 2013, Detective Echevarria met with an individual sent

by Mr. Montilla to facilitate the sale of methamphetamine.             Detective

Echevarria located Mr. Montilla’s courier sitting in a blue Kia and initiated the

sale. That individual intimated to the detective that other members of the

organization were observing the meeting, and then looked toward a gray

Dodge Charger, occupied by Appellant and one other individual, parked in

the vicinity.   After Detective Echevarria provided cash for the product and

ensured it was on location, officers apprehended the drug-courier, Appellant,

and the other person sitting in the Dodge Charger.       From the Kia, officers

seized one-and-a-half pounds of methamphetamine, the prerecorded buy

money, a fully-loaded Glock 9mm, and three cellular telephones. Within the

Dodge Charger, officers recovered an additional four cellular telephones, one

of which belonged to Appellant.

      A subsequent search of Appellant’s phone revealed communications

with the courier and Mr. Montilla and various other phone numbers

connected to Appellant’s co-conspirators.     Notably, Appellant’s phone also

contained the two numbers utilized by Detective Echevarria during the

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investigation,    despite    the   fact    that   the    detective      never   directly

communicated with Appellant.

      Based      on   the   foregoing,    Appellant     was   charged    with   corrupt

organizations, possession of a controlled substance with intent to deliver

(“PWID”), conspiracy to commit PWID, and various other related offenses.

Appellant filed three pre-trial motions including a motion to bar application

of mandatory minimum sentence pursuant to Alleyne v. United States,

133 S.Ct. 2151 (2013), a motion to suppress physical evidence, and a

motion to sever the trial from co-defendants. Before the court could render

a decision regarding Appellant’s motions, Appellant agreed to a negotiated

guilty plea.

      A plea hearing was held on August 11, 2014.               Appellant entered a

negotiated guilty plea to two counts of PWID, and one count of conspiracy to

commit PWID.          The trial court conducted the mandatory colloquy, and

Appellant’s written guilty plea colloquy was entered into the record.

Appellant confirmed that he reviewed, understood, and signed the written

colloquy. The court accepted Appellant’s guilty plea and proceeded directly

to sentencing. The court sentenced Appellant in accordance with the terms

of the negotiated plea to four to eight years incarceration and ten years

probation to run concurrently, plus a fine and costs.            Appellant’s counsel

noted for the record that she had advised Appellant that, as a permanent




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resident of the United States, he may be subject to deportation as a

collateral consequence of his plea.

       Appellant filed a post-sentence motion seeking to withdraw his guilty

plea. The court held a hearing on that motion wherein plea counsel testified

to the circumstances surrounding Appellant’s plea, including numerous

conversations regarding the immigration ramifications of a guilty plea. The

court denied Appellant’s post-sentence motion and Appellant filed a timely

notice of appeal.      Appellant filed an untimely Rule 1925(b) statement of

matters complained of on appeal. However, the trial court disregarded that

error and addressed the merits of Appellant’s appeal in its Rule 1925(a)

opinion.1 This matter is now ready for our review.

       Appellant presents four issues for our consideration:

             I.   Did the Trial Court err when it denied [Appellant’s]
                  Motion to Withdraw his Guilty Plea although the taking
                  of the Plea violated constitutional principals [sic] in
                  Alleyne v. United States[, supra] and a host of
                  Pennsylvania appellate cases as well all because
                  [Appellant] was never apprised of the fact that the
                  mandatory     minimum    laws     had    been     ruled
                  unconstitutional?

            II.   Did the Trial Court err when it failed to permit
                  [Appellant] to withdraw his Plea, where the Plea was
____________________________________________


1
   Where an appellant has filed an untimely Rule 1925(b) statement of
matters complained of on appeal and the trial court has addressed those
issues, this Court need not remand and may address the merits of the issues
presented. Commonwealth v. Brown, 145 A.3d 184, 186 (Pa.Super.
2016).



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                  not entered in a knowing, intelligent and voluntary
                  fashion and all where [Appellant] had not been
                  properly apprised of the collateral effects of his Plea on
                  his immigration status?

          III.    Did the Trial Court err when it failed to permit
                  [Appellant] to withdraw his Guilty Plea where
                  [Appellant’s] plea was not made in a knowing,
                  intelligent and voluntary fashion where [Appellant] was
                  never told that his pretrial motions, although filed were
                  never litigated?

          IV.     Did the Court err when it failed to grant [Appellant]
                  permission to withdraw Plea and all where [Appellant]
                  demonstrated legal cause therefor?

Appellant’s brief at 3.

      Appellant raises various challenges to the court’s denial of his request

to withdraw his guilty plea. Preliminarily, we note that Appellant’s second

and third claims of error implicate plea counsel’s failure to inform him of

purportedly necessary information.       We have long held that an attorney

representing a defendant in a criminal case bears the duty to advise her

client on important decisions. Commonwealth v. Bradley, 715 A.3d 1121

(Pa. 1998).      The decision to enter a guilty plea or take a case to trial is

clearly important.        Indeed, counsel has a duty to explain the relative

advantages and disadvantages of accepting or rejecting plea offers.

Commonwealth v. Lewis, 708 A.2d 497, 502 (Pa.Super. 1998).                     The

failure to do so may render counsel ineffective. Id.

      Here, although Appellant does not expressly challenge counsel’s

effectiveness on appeal, his second and third issues raise exactly that claim.

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In his second issue, Appellant argues that counsel failed to inform him of the

status of his pre-trial motions. In his third issue, Appellant claims counsel

failed to advise him of the collateral effects of his guilty plea on his

immigration status. In each scenario, Appellant concludes that this failure

rendered his plea involuntary, unknowing, and unintelligent.           However,

rather than finding fault in the trial court’s or plea counsel’s administration of

the plea colloquy, Appellant pinpoints counsel’s alleged failures prior to the

guilty plea hearing. Thus, these claims properly sound in ineffectiveness of

counsel. Bradley, supra; Lewis, supra.

      Since Appellant’s second and third claims involve allegations of

ineffective assistance of plea counsel, they must be reserved for post-

conviction proceedings.    See Commonwealth v. Fowler, 893 A.2d 758,

764 (Pa.Super. 2006) (stating “Our Supreme Court has indicated that it does

not approve of a piecemeal approach to litigation of ineffectiveness claims

and prefers that they all be channeled into post-conviction proceedings.”).

Hence, Appellant’s second and third issues are dismissed without prejudice

to be raised on post-conviction collateral review.

      We turn now to Appellant’s first issue. Appellant challenges the court’s

denial of his request to withdraw his guilty plea. We observe that once the

court has imposed a sentence, a defendant may withdraw his guilty plea

“only where necessary to correct a manifest injustice.” Commonwealth v.

Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (citations omitted). Moreover,

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“post-sentence motions for withdrawal are subject to higher scrutiny since

the courts strive to discourage the entry of guilty pleas as sentence-testing

devices.”    Id.    To be valid, a guilty plea must be entered knowingly,

voluntarily, and intelligently. Id. Thus, “a manifest injustice occurs when a

plea    is   not    tendered   knowingly,   intelligently,   voluntarily,   and

understandingly.”    Id. Since we presume that “a defendant who enters a

guilty plea is aware of his actions[,] [h]e bears the burden of proving

otherwise.” Commonwealth v. Reid, 117 A.3d 777, 783 (Pa.Super. 2015).

       When reviewing the validity of a guilty plea, we consider whether the

court ensured the defendant was properly informed of certain information in

determining whether the plea was voluntary and that the defendant was

acting knowingly and intelligently.   Thus, we have found that in order to

accept a guilty plea as valid, the court is mandated to communicate: 1) the

nature of the charges, 2) the factual basis of the plea, 3) the right to a jury

trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) the

plea court’s power to deviate from any recommended sentence. Id. at 782;

Pa.R.Crim.P. 590, comment. Furthermore, where a written plea colloquy is

read, completed, and signed by the defendant and made part of the record,

it may serve as the defendant’s plea colloquy when supplemented by an

oral, on-the-record examination. Reid, supra at 782.

       Appellant contends that his decision to plead guilty was premised upon

his understanding that he faced a minimum mandatory sentence of five to

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ten years if he went to trial.        Appellant asserts that mandatory minimum

sentences were found unconstitutional in Alleyne, supra.        He posits that,

due to the change in the law during the pendency of his case, he was not

subject to a mandatory sentence despite his beliefs to the contrary at the

time of his plea.      Thus, Appellant maintains that his guilty plea was not

knowingly, intelligently, and voluntarily entered since the court did not

inform him that the mandatory minimum sentence would not apply to his

conviction.2

       Instantly, Appellant’s purported belief that he was subject to a

mandatory minimum sentence when he entered his guilty plea is belied by

the record. Appellant filed a pre-trial motion seeking to bar the application

of a mandatory minimum sentence based on Alleyne, supra.                     As

Appellant’s position prior to his decision to plead guilty was that he could not

be subject to a mandatory minimum sentence pursuant to Alleyne, his

argument now to the contrary rings hollow. Hence, relief is not warranted.

       Appellant’s fourth argument references his first three arguments and

alleges that on this basis the court’s failure to grant his motion to withdraw

his guilty plea amounts to manifest injustice.        Given our disposition on
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2
  Insofar as Appellant’s contentions in this regard implicate plea counsel’s
duty to inform him of the applicability of a mandatory minimum sentence
prior to his guilty plea, such a claim would sound in ineffectiveness
assistance of counsel and must be raised in collateral proceedings as
discussed infra.



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Appellant’s first three issues, this challenge necessarily fails. Appellant has

not established manifest injustice or any other reason to reverse the trial

court’s decision. Accordingly, we affirm.

      Appellant’s   ineffective-assistance-of-counsel   claims   are   dismissed

without prejudice. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2017




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