J-A28040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSE BARRIOS-LEON

                            Appellant                   No. 816 EDA 2014


                     Appeal from the Order February 4, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000249-2013


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED DECEMBER 11, 2014

        Jose Barrios-Leon has filed a direct appeal from an order denying his

post-sentence motion to withdraw his guilty plea for simple assault and

indirect criminal contempt.         We dismiss this appeal without prejudice to

Barrios-Leon’s right to raise claims of ineffective assistance of counsel in a

petition under the Post Conviction Relief Act (“PCRA”)1.

        On June 26, 2013, Barrios-Leon entered into a negotiated guilty plea

to one count of simple assault2, and he pled guilty to indirect criminal

contempt3 stemming from his violation of a Protection From Abuse order. He

admitted that he slapped his wife across the face multiple times and then

____________________________________________


1
    42 Pa.C.S. § 9541 et seq.
2
    18 Pa.C.S. § 2701.
3
    42 Pa.C.S. § 4136.
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dragged her down the street by her hair and clothing. N.T. 6/26/13, p. 3.

The court sentenced him to 3-6 months’ imprisonment followed by two years

of probation.

      Barrios-Leon is not a United States citizen and is an illegal alien.

During his guilty plea hearing, his attorney informed the court that she had

discussed possible immigration consequences of Barrios-Leon’s guilty plea

with him and advised him that he was subject to deportation.              N.T.,

6/26/13, p. 4.

      Ten days after his guilty plea, through new counsel, Barrios-Leon filed

a post-sentence motion to withdraw his guilty plea, claiming that his

attorney provided ineffective assistance under Padilla v. Kentucky, 559

U.S. 356 (2010), by failing to adequately investigate or communicate the

immigration consequences of his guilty plea.     Barrios-Leon also contended

that prior counsel provided ineffective assistance by failing to investigate the

charges against him. Had possible defenses been investigated, Barrios-Leon

asserted, he might have been acquitted of all charges.

      At the conclusion of an evidentiary hearing on February 4, 2014, the

court denied Barrios-Leon’s motion to withdraw his guilty plea. On March 6,

2014, Barrios-Leon filed a timely notice of appeal.     Both Barrios-Leon and

the court complied with Pa.R.A.P. 1925.

      Barrios-Leon’s first argument on appeal is that the court erroneously

denied his motion to withdraw his guilty plea, because defense counsel failed

to provide adequate advice as to the immigration consequences of pleading

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guilty. In so many words, Barrios-Leon contends that the court should have

permitted withdrawal of his guilty plea because his attorney provided

ineffective assistance under Padilla.

      Barrios-Leon cannot raise this claim on direct appeal. Generally, the

defendant must wait until the PCRA stage before raising claims of ineffective

assistance.    Commonwealth v. Grant, 813 A.2d 726 (Pa.2002).            Two

exceptions exist to this rule:

              First, we appreciate that there may be extraordinary
              circumstances where a discrete claim (or claims) of
              trial counsel ineffectiveness is apparent from the
              record and meritorious to the extent that immediate
              consideration best serves the interests of justice;
              and we hold that trial courts retain their discretion to
              entertain such claims.

              Second, with respect to other cases and claims,…
              where the defendant seeks to litigate multiple or
              prolix claims of counsel ineffectiveness, including
              non-record-based claims, on post-verdict motions
              and direct appeal, we repose discretion in the trial
              courts to entertain such claims, but only if (1) there
              is good cause shown,1 and (2) the unitary review so
              indulged is preceded by the defendant's knowing and
              express waiver of his entitlement to seek PCRA
              review from his conviction and sentence, including
              an express recognition that the waiver subjects
              further collateral review to the time and serial
              petition restrictions of the PCRA.2 In other words, we
              adopt a paradigm whereby unitary review may be
              available in such cases only to the extent that it
              advances (and exhausts) PCRA review in time; unlike
              the so-called Bomar exception, unitary review would
              not be made available as an accelerated, extra round
              of collateral attack as of right. This exception follows
              from the suggestions of prior Court majorities
              respecting review of prolix claims, if accompanied by
              a waiver of PCRA review. See Commonwealth v.

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            Wright [599 Pa. 270], 961 A.2d 119, 148 n. 22
            (Pa.2008); Commonwealth v. Liston [602 Pa.
            10], 977 A.2d 1089, 1095–1101 (Pa.2009) (Castille,
            C.J., concurring, joined by Saylor and Eakin, JJ.).
            1
               [I]n short sentence cases the trial court's
            assessment of good cause should pay particular
            attention to the length of the sentence imposed and
            the effect of the length of the sentence will have on
            the defendant's realistic prospect to be able to avail
            himself of collateral review under the PCRA.
            2
               Unitary review describes the defendant's ability to
            pursue both preserved direct review claims and
            collateral claims of trial counsel ineffectiveness on
            post-sentence motions and direct appeal, and could
            aptly describe both exceptions we recognize today.
            However, for purposes of [Holmes], we intend the
            term only to describe the second exception, i.e., that
            hybrid review which would encompass full-blown
            litigation of collateral claims (including non-record-
            based claims).

Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa.2013).

      Neither of the Holmes exceptions applies in this case. The court held

an evidentiary hearing on Barrios-Leon’s claim of ineffectiveness without first

considering whether either exception applied.        The court did not address

whether extraordinary circumstances warranted immediate review of the

ineffectiveness issue in the interests of justice.   Nor did the court address

whether good cause existed to review all direct appeal and ineffectiveness

issues at the same time and then obtain Barrios-Leon’s express waiver of his

right to seek PCRA relief after his conviction and sentence.




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      Therefore, the trial court should have refrained from addressing the

claim of ineffective assistance included within Barrios-Leon’s post-sentence

motion to withdraw his guilty plea.      We dismiss Barrios-Leon’s claim of

ineffective assistance without prejudice to his right to raise this claim in a

PCRA petition. Commonwealth v. Burno, 94 A.3d 956, 970-71 (Pa.2014)

(dismissal of defendant's ineffective assistance claims without prejudice to

defendant's ability to raise claims in postconviction proceedings was

appropriate remedy for trial court's error in addressing ineffectiveness claims

raised in post-verdict motion, where trial court failed to determine whether

good cause existed to litigate the two claims on post-verdict motion and

failed to require defendant to waive postconviction review of claims litigated

on post-verdict motion).

      Barrios-Leon’s second argument on appeal is that the trial court denied

him due process during the hearing on his motion to withdraw his guilty plea

by (1) refusing to continue the hearing to procure witnesses who failed to

honor their subpoenas to attend the hearing; (2) setting time limits on direct

and cross examination; and (3) demanding that counsel “wrap…up” their

questioning.   Barrios-Leon contends that these acts prevented him from

developing claims of ineffective assistance of counsel for failing to

investigate issues that might have proved his innocence.

      Since this argument is integrally related to a claim of ineffective

assistance, it belongs in a PCRA petition instead of in a direct appeal.     It


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does not fit within either of the narrow exceptions under which the appellant

may present ineffective assistance claims on direct appeal. Holmes, supra.

Therefore, we dismiss this argument without prejudice to Barrios-Leon’s

right to raise it in a PCRA petition.

      Appeal dismissed without prejudice to appellant’s right to raise claims

in PCRA petition. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2014




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