J-S27022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAVIER ARTACHE

                            Appellant                   No. 2753 EDA 2014


              Appeal from the PCRA Order of September 17, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0010405-2008


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED JUNE 23, 2015

        Appellant, Javier Artache, appeals from an order dismissing his petition

for post-conviction relief. On appeal, he claims that the court below erred in

rejecting his claim that ineffective assistance of trial counsel caused him to

invalidly waive his right to a jury trial. We affirm.

        On September 20, 2006, Appellant fatally shot David Delgado once in

the head.      The killing occurred in the Spring Garden neighborhood of

Philadelphia. Appellant fled to Puerto Rico, but later turned himself in, and

authorities extradited him to Pennsylvania to face charges.

        On March 29, 2010, Appellant, whose first language is Spanish,

appeared before the trial court represented by trial counsel and assisted by
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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an interpreter. Appellant executed a written jury trial waiver colloquy, and

two shorter waiver documents, one of which was in Spanish. The trial court

also colloquied Appellant on the record, after which Appellant waived his

right to a jury trial. Following trial, the trial court found Appellant guilty of

first-degree murder, 18 Pa.C.S.A. § 2502(a), and other crimes, and imposed

a life sentence.   On direct appeal, Appellant unsuccessfully challenged the

weight and sufficiency of the evidence. See Commonwealth v. Artache,

34 A.3d 228 (Pa. Super. 2011) (unpublished memorandum), appeal denied,

40 A.3d 119 (Pa. 2012).

      On March 14, 2012, Appellant filed pro se a timely first petition under

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.        The PCRA court

appointed counsel, who filed an amended petition claiming that Appellant’s

jury trial waiver was invalid because trial counsel had misinformed Appellant

as to the penalty for first-degree murder.      The PCRA court later issued a

Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing.       Appellant,

through counsel, filed a response, which included a handwritten, unsworn

affidavit.   On September 17, 2014, the PCRA court issued a final order

dismissing the petition.

      On appeal, Appellant presents one question for review:

      Did the [PCRA] court err in denying the [A]ppellant an
      evidentiary hearing when [A]ppellant alleged that his waiver of
      his state and federal constitutional right to a jury trial was not
      knowing, intelligent[,] and voluntary because of a failure to
      advise the [Appellant] that a conviction of first[-]degree murder
      required a life sentence and other misrepresentations of trial


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      defense counsel to the [Appellant] that coerced the [Appellant]
      to waive his right to a jury trial?

Appellant’s Brief at 2.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determinations are supported by the record and are free of legal

error.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation

omitted). “The PCRA court’s credibility determinations, when supported by

the record, are binding on this Court; however, we apply a de novo standard

of review to the PCRA court’s legal conclusions.” Id. A PCRA petitioner does

not have an absolute right to an evidentiary hearing. Commonwealth v.

Wah, 42 A.3d 335, 338 (Pa. Super. 2012).         Rather, a PCRA court may

dismiss a petition without a hearing if the claim is frivolous and has no

support in the record. Id.

      “When a presumptively-valid [jury trial] waiver is collaterally attacked

under the guise of ineffectiveness of counsel, it must be analyzed like any

other ineffectiveness claim.”   Commonwealth v. Mallory, 941 A.2d 686,

698 (Pa. 2008). “To prevail on an [ineffective assistance of counsel] claim,

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

that (1) the underlying legal claim has arguable merit; (2) counsel had no

reasonable basis for acting or failing to act; and (3) the petitioner suffered

resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,

780 (Pa. Super. 2015) (en banc).      In the context of a jury trial waiver,

“prejudice” means that but for counsel’s ineffectiveness, the results of the

waiver proceeding would have been different. Mallory, 941 A.2d at 702-03;

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see also Commonwealth v. Birdsong, 24 A.3d 319, 340 (Pa. 2011)

(noting   that   a   PCRA   petitioner   must   show   that,   but   for   counsel’s

ineffectiveness, he would have chosen not to waive his right to a jury trial).

      Here, Appellant claims he waived his right to a jury trial because trial

counsel made several misrepresentations.        In his PCRA petition, Appellant

pled that trial counsel failed to apprise him that first-degree murder carries a

mandatory life sentence, because ¶ 39 of his written waiver colloquy

(regarding mandatory minimum sentences) was left blank. In his affidavit

filed in response to the PCRA court’s Rule 907 notice, Appellant contended

that trial counsel told him the jury would give him the death penalty even

though the Commonwealth had not sought the death penalty; the trial judge

would sentence Appellant to only 20 to 40 years in prison; and the jury

would find Appellant guilty merely because he had been arrested and

charged with a crime.

      A jury trial waiver must be knowing and voluntary, and must inform

the defendant that (1) he has a right to participate in selecting a jury; (2)

chosen from his peers; and (3) the jury’s verdict must be unanimous.

Mallory, 941 A.2d at 696-97. In Commonwealth v. Boyd, 334 A.2d 610,

614-15 (Pa. 1975), our Supreme Court held that failing to inform a

defendant of the potential sentences does not make a jury trial waiver

invalid, because the potential sentence is not an essential element of a jury

trial. The Supreme Court distinguished Boyd in Commonwealth v. Houck,

948 A.2d 780, 788 (Pa. 2008), holding that “the voluntariness of a jury

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waiver can be undermined where the defendant is informed of a range of

potential sentences at a jury waiver colloquy that is less than the sentence

eventually imposed.” However, the court held further that “if a defendant

seeks to invalidate an otherwise valid jury waiver based on a trial court’s

recitation of his or her potential sentence, the defendant should be required

to demonstrate that his or her understanding of the length of the potential

sentence was a material factor in making the decision to waive a jury trial.”

Id. (emphasis added).

      The PCRA court did not err in dismissing Appellant’s claim. The oral

and written waiver colloquies belie Appellant’s contention that he was

unaware of the maximum sentence for first-degree murder. “In his written

jury trial waiver colloquy form, [Appellant] answered that he understood

that he was charged with ‘Murder H1’ and that he faced a maximum

sentence of life in prison.” PCRA Court Opinion, 12/3/14, at 6; see also id.

at 8 (finding “incredulous” Appellant’s claim that trial counsel misled him into

believing the maximum sentence for first-degree murder is 40 years).

Additionally, unlike in Houck, the trial court here did not misinform

Appellant of the potential sentences he could receive. In fact, the trial court

did not discuss possible minimum or maximum sentences at all during the

oral waiver colloquy. Finally, the lack of any mandatory minimum sentence

on ¶ 39 of Appellant’s written jury trial waiver colloquy is easily explained.

Appellant was charged with murder generally, meaning that he could have

been convicted of third-degree murder. See Information, 3/29/10, Count 1;

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N.T. Trial, 3/29/10, at 7-8. There is no mandatory minimum sentence for

third-degree murder, so ¶ 39, left blank, correctly reflects the applicable

mandatory minimum sentence: none.

      Moreover, Appellant cannot rely on his claims that trial counsel

misrepresented the nature of the proceedings.      During his oral colloquy,

Appellant stated he understood the essential elements of a jury trial, was

satisfied with counsel’s representation, and expressed—repeatedly—his

desire to waive a jury trial. See N.T. Trial, 3/29/10, at 3-7. Appellant also

executed three written waivers, one of which was in Spanish.       We reject

Appellant’s reliance on his recently-produced affidavit, which contradicts his

statements made under oath during the colloquy. Cf. Commonwealth v.

Willis, 68 A.3d 997, 1009 (Pa. Super. 2013) (stating, regarding a guilty pela

colloquy, that an appellant is bound by the statements made in his colloquy

and “may not now asserts grounds for withdrawing the plea which contradict

the statements”). Finally, Appellant has not stated how his understanding of

the potential sentences was material to his decision to waive a jury trial.

Thus, assuming Appellant did not understand the potential sentences, he

cannot meet the Houck standard.




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       In sum, Appellant’s claim lacks arguable merit,1 and the PCRA court

did not err in dismissing Appellant’s PCRA petition without a hearing.

Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




____________________________________________


1
  We additionally note that Appellant failed to plead or argue prejudice, i.e.,
that but for trial counsel’s ineffectiveness he would have chosen a jury
trial. See Mallory, 941 A.2d at 702-03; see also Birdsong, 24 A.3d at
340 (“Appellant must demonstrate . . . that, but for counsel’s
ineffectiveness, he would have insisted upon a jury.”).



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