J-S27004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    CARLOS UBEN-SANCHEZ                        :
                                               :
                      Appellant                :       No. 1929 EDA 2016


                    Appeal from the PCRA Order June 9, 2016
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000887-2013


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

MEMORANDUM BY GANTMAN, P.J.:                               FILED MAY 24, 2017

        Appellant, Carlos Uben-Sanchez, appeals from the order entered in the

Lehigh County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court correctly set forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.     We add only the following facts: Appellant and plea counsel had a

video conference on March 28, 2014, after sentencing. Appellant did not ask

plea counsel to withdraw the plea or file a direct appeal. Procedurally, the

court denied Appellant PCRA relief on June 9, 2016. Appellant timely filed a
____________________________________________


1
     42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S27004-17


notice of appeal and a concise statement of errors complained of on appeal

per Pa.R.A.P. 1925(b) on June 22, 2016.

       Appellant raises two issues for our review:

          WHETHER THE PCRA COURT ERRED BY FINDING THAT
          [PLEA] COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
          CONSULT WITH [APPELLANT] REGARDING HIS DESIRE TO
          APPEAL THE SENTENCE AND TO TAKE THAT APPEAL?

          WHETHER THE PCRA COURT ERRED BY FINDING THAT
          [PLEA] COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
          MORE FULLY LITIGATE THE MOTION TO SUPPRESS?

(Appellant’s Brief at 6).2

       Our standard of review of a grant or denial of a PCRA petition is limited

to   examining     whether     the   evidence      of   record    supports    the    court’s

determination      and     whether     its     decision   is     free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over

the PCRA court’s legal conclusions. Commonwealth v. Spotz, 610 Pa. 17,

44, 18 A.3d 244, 259 (2011). Traditionally, credibility issues are resolved by
____________________________________________


2
  Appellant concedes in his brief on appeal that his second issue lacks
arguable merit; plea counsel had a reasonable basis for not pursuing the
suppression motion further; and this Court should not address this issue on
appeal. (See Appellant’s Brief at 11-12). Therefore, we give Appellant’s
second issue no further attention.



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J-S27004-17


the trier of fact who had the opportunity to observe the witnesses’

demeanor.     Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79

(1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999).

Where the record supports the PCRA court’s credibility resolutions, they are

binding on this Court. Id.

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable James T.

Anthony, we conclude Appellant’s remaining issue merits no relief.         The

PCRA court opinion comprehensively discusses and properly disposes of the

question presented. (See PCRA Court Opinion, filed June 9, 2016, at 3-6)

(finding: Appellant’s letter to plea counsel indicated Appellant wanted

something appealed to expedite his deportation proceedings; record does

not indicate Appellant wanted to appeal his judgment of sentence; Appellant

received   sentence   within   standard   range   of   sentencing   guidelines;

Commonwealth withdrew Appellant’s more serious charges in exchange for

plea; rational defendant would not appeal judgment of sentence under these

circumstances).   We agree.    In Commonwealth v. Lantzy, 558 Pa. 214,

736 A.2d 564 (1999), our Supreme Court made clear that counsel can be

deemed ineffective if counsel is unjustified in failing to file a requested

appeal. Appellant had the burden to plead and prove he asked counsel to

file an appeal and counsel ignored or rejected the request. Appellant failed

to carry his burden in this respect. See Commonwealth v. Maynard, 900


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J-S27004-17


A.2d 395 (Pa.Super. 2006) (stating petitioner is entitled to reinstatement of

direct appeal rights if he can establish that he requested direct appeal and

counsel unjustifiably disregarded request; affirming dismissal of PCRA

petition where PCRA court conducted evidentiary hearing and found

petitioner had not requested appeal).     Here, Appellant asked counsel for

assistance on deportation.    The PCRA court found no basis to conclude

Appellant wanted to file a direct appeal from his judgment of sentence.

Therefore, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2017




                                    -4-
                                                                         Circulated 05/19/2017 02:49 PM




   IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                         CRIMINAL DIVISION


COMMONWEAL TH OF PENNSYLVANIA                            No.    0887-2013

                vs.

CARLOS UBEN-SANCHEZ,

                      Defendant

                                      **********
APPEARANCES:
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Anna-Kristie M. Marks, Esquire, Senior Deputy District Attorney,
                                                                                 ,, ..•·
      For the Commonwealth                                                       ::.r.,-·· .
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                                                                                      .....

Robert E. Sletvold, Esquire, Conflict Counsel                                    ··~~--,..~
                                                                                     -- r··,  '·
                                                                                    --::. ... ,.
      For the defendant                                                           -i.

                                      **********
                                                                                        ,. ·-·
                                                                                   '""-....

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                                                                                              -. .   ..
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                                                                                  ~... ,:,-_;
                                         OPINION
James T. Anthony, Judge:

       On December 20, 2013, the defendant pleaded nolo contendere to one count of

Statutory Sexual Assault. As part of the plea, charges of Rape of a Child, Rape,

Indecent Assault, and Corruption of Minors were dismissed. I ordered a Pre-sentence

Investigation Report (PSI), and on March 26, 2014, I sentenced the defendant to a

period of confinement of 14 months to 10 years in a State Correctional Institution. No

post-sentence motion or direct appeal was filed. At all relevant times, the defendant was

represented by Carol Marciano, Esquire, Deputy Public Defender.

       On April 2, 2015, the defendant filed a pro se petition pursuant to the Post-

Conviction Relief Act (PCRA), and I appointed Robert E. Sletvold, Esquire, to represent

the defendant. In an amended petition filed by counsel, the defendant alleges Attorney

Marciano was ineffective for (1) failing to fully litigate a motion to suppress statements;



                                           1
(2) failing to file a motion to withdraw the defendant's plea; and (3) failing to file a notice

of appeal. A hearing was held on December 22, 2015, at which time the defendant and

Attorney Marciano testified. Following the hearing, I took the petition under advisement

and this opinion follows.

                                       Relevant Facts

       At his PCRA hearing, the defendant testified that he is innocent of the charges

and only pleaded guilty to avoid a long sentence. He stated he did not pursue the

suppression issue because Attorney Marciano told him that the judge never suppresses

evidence. The defendant said Attorney Marciano advised him that he could get a long

term sentence if he went to trial and lost, but if he pleaded, he would get a time served

sentence. Additionally, the defendant testified that he asked Attorney Marciano to

appeal the case, but was advised by her that it was too late. Admittedly, the defendant

did not ask Attorney Marciano to withdraw his nolo contendere plea.

       Attorney Marciano testified that a critical point in this case was when the

defendant gave a statement to police in which he confessed to the crime. She stated

she filed a motion to suppress the statement on the basis that they were obtained in

violation of the defendant's constitutional rights, and a hearing on the motion was held

on two dates. Attorney Marciano indicated that in the time between the last hearing and

the time for filing briefs, there were ongoing plea negotiations. The defendant initially

rejected a plea, but Attorney Marciano explained to him the risks of going to trial. She

advised that if they pursued the pretrial motions and lost, his confession could be used

against him at trial. She also explained that even if they won on the motion, a jury could

still convict him based on the victim's testimony, and the plea offer could be lost. She




                                            2
also testified that based on the plea agreement, she advised the defendant a time-

served sentence was possible, but never guaranteed he would get that. Attorney

Marciano said the defendant ultimately made the decision to plead guilty.

       Following his plea, but prior to his sentencing, Attorney Marciano received a

letter from the defendant in which he indicated he was not getting a good deal. Attorney

Marciano set up a video conference with the defendant, and asked him if he wanted to

withdraw his plea. The defendant told her he just wanted to get it over .with. Two days

before the sentencing, Attorney Marciano spoke with the defendant, and again asked

him if he wanted to withdraw his plea. She also explained that it would be more difficult

to do so once he was sentenced. The defendant told her he wanted to go forward with

sentencing and did not want to withdraw his plea. The defendant was sentenced on

March 26, 2014.

       On April 22, 2014, Attorney Marciano received a letter from the defendant, which

had to be translated from Spanish, wherein the defendant stated he wanted help with

his deportation matter. Attorney Marciano testified that there was nothing she could do

in regards to the defendant's deportation, so she contacted Tamayo Tejada, a consular

official at the Dominican Consulate in New York, and provided him with the defendant's

contact information. She further testified there were no viable appeal issues as the

defendant pleaded guilty and was sentenced within the standard range of the

sentencing guidelines.

                                              Discussion

       Generally speaking, trial counsel is presumed effective and the burden to prove

otherwise rests with the defendant. Commonwealth v. McNeil, 487 A.2d 802 (Pa.




                                          3
1985). To establish a claim of ineffective assistance, a defendant must prove

that (1) the underlying claim is of arguable merit; (2) there was no reasonable basis for

counsel's action or inaction; and (3) counsel's error prejudiced the defendant. Id.

Prejudice is established where the defendant shows that "but for the errors and

omissions of counsel, there is a reasonable probability that the outcome of the

proceedings would have been different." Commonwealth v. Kimball, 724 A.2d

326, 333 (Pa. 1999). A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim. Commonwealth v. ·Spatz, 84 A.3d 294, 311 (Pa. 2014).

   I.   Failure to Litigate Motion to Suppress

        The defendant alleges Attorney Marciano was ineffective for failing to fully pursue

the pretrial motion to suppress statements. I do not find any merit to this allegation.

        While I do not specifically recall the merits of the defendant's motion, even

assuming that there was arguable merit to it, I do not find Attorney Marciano ineffective

for failing to pursue it. Attorney Marciano zealously represented the defendant at two

separate hearings on the motion, and was prepared to file a brief. However, due to

ongoing plea negotiations, she chose not to brief the matter, but rather work out a deal

for the defendant, which included not pursuing the motion. Notably, she was able to get

some very serious charges dropped, so her choice clearly had some reasonable basis

designed to effectuate her client's interests. Commonwealth v. Moore, 468 A.2d 791,

795 (Pa.Super. 1983). As such, Attorney Marciano cannot be held ineffective.




                                           4
     II. Failure to File Motion to Withdraw Guilty Plea

         "In the context of a guilty plea, an appellant must show that plea counsel's

ineffectiveness induced him to plea." Commonwealth v. Johnson, 875 A.2d 328, 331

(Pa.Super. 2005).

         '[O]nce a defendant has entered a plea of guilty, it is presumed that he was
         aware of what he was doing, and the burden of proving involuntariness is upon
         him.' Commonwealth v. Myers, 434 Pa.Super. 221, 642 A.2d 1103, 1105 ( 1994)
         (quotation and citations omitted). 'Therefore, '[w]here the record clearly
         demonstrates that a guilty plea colloquy was conducted, during which it became
         evident that the defendant understood the nature of the charges against him, the
         voluntariness of the plea is established.' ' Id. (quotations omitted). A defendant is
         bound by the statements he makes during his plea colloquy, and may not assert
         grounds for withdrawing the plea that contradict statements made when he pied.
          Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super.1998).

Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super.1999).

         The defendant claims he pleaded guilty because Attorney Marciano advised him

he would get a time served sentence and because he wanted to avoid a long sentence.

There is nothing in the record to indicate Attorney Marciano made any promises to the

defendant regarding his sentence. While she indicated a time-served sentence was

possible, the record demonstrates the defendant was fully aware of the minimum and

maximum sentences he was facing.1 Additionally, the defendant admitted he never

asked Attorney Marciano to withdraw his plea. On these facts, I cannot find that counsel

was ineffective.

      Ill. Failure to File Notice of Appeal

          On a claim of ineffective assistance of counsel in the context of an alleged failure

by counsel to file a direct appeal, prejudice will be presumed if a defendant can prove

that he asked counsel to file a direct appeal and counsel failed to do so. Commonwealth


1
    Notes of Testimony, Guilty Plea Colloquy, p.2-3


                                                  5
v, Lantzy, 736 A.2d 564, 571 (Pa. 1999). "Mere allegation will not suffice; the burden is

on [the defendant] to plead and prove that his request for an appeal was ignored or

rejected by trial counsel." Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa.Super.

1999), appeal denied, 753 A.2d 815 (Pa. 2000).

       Even where no request is made, counsel may still be held ineffective if the

attorney does not consult with the client about the client's appellate rights.

Commonwealth     v, Markowitz,   32 A.3d 706, 714 (Pa.Super. 2011) ( citing Roe v. Flores-

Ortega, 528 U.S. 470 (2000)). "Such ineffectiveness, however, will only be found where

a duty to consult arises either because there were issues of merit to raise on direct

appeal or the defendant, in some manner, displayed signs of desiring an appeal." Id.

       First, the letter Attorney Marciano received indicated the defendant wanted

something appealed in order to expedite his deportation proceedings. There was no

indication that the defendant wanted his sentence appealed. Second, I do not find

Attorney Marciano had a duty to consult with the defendant about an appeal. The

defendant received a sentence within the standard range of the sentencing guidelines,

and had the most serious charges dismissed as part of his plea. Under those

circumstances, it is difficult to see how a "rational defendant would want to appeal."

Markowitz, 32 A.3d at 716 ( citations omitted). As such, counsel was not ineffective.

                                         Conclusion

       Based on the foregoing, the defendant is not entitled to relief and his PCRA

petition must be denied.


June 9, 2016




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