J. S17002/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
ANGEL ULICES MOLINA,                        :
                                            :
                          Appellant         :     No. 1849 WDA 2013

            Appeal from the Judgment of Sentence February 12, 2008
               In the Court of Common Pleas of Allegheny County
               Criminal Division No(s).: CP-02-CR-0005565-2006

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 28, 2015

        Appellant, Angel Ulices Molina, appeals nunc pro tunc from the

judgment of sentence entered in the Allegheny County Court of Common

Pleas after he pleaded guilty to murder of the third degree and endangering

the welfare of a child.1    Appellant claims he is entitled to a post-sentence

withdrawal of his guilty plea and the aggregate sentence of twenty to forty

years’ imprisonment was manifestly excessive.2 We affirm.

        The trial court has summarized the factual and procedural background

of this appeal.



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502(c), 4304.
2
    We have reordered Appellant’s arguments for the purposes of this appeal.
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                On or about October 15th, 2007, [Appellant] pled
             guilty to 3rd degree Homicide and Endangering [ ]
             the Welfare of a Child for the death of his 21-month
             old son.[3] The child was found dead on April 1st,
             2006 from blunt force trauma to his abdomen. An
             autopsy also revealed fractures to the child’s ribs as
             well as blunt force trauma to the child’s face. After
             the autopsy, [Appellant] was taken to the homicide
             division, waived his Miranda[4] Rights and admitted
             to having struck the child five days before the
             infant’s death.[5]

                The    Allegheny    County    Medical     Examiner
             determined that the force of the blow inflicted on the
             child caused his intestines to strike the back of his
             spinal column, which lacerated his organs and
             caused internal bleeding.

                The child’s mother, a co-defendant, charged with
             Endangering the Welfare of a Child, knew [Appellant]
             had struck his child. . . . [T]he child’s mother [gave
             statements] that the child made a bowel movement
             on [Appellant]’s couch.         This incident enraged
             [Appellant], who struck the child repeatedly. The
             child could not eat because of the injuries inflicted
             upon him by [Appellant. Appellant] had, at one
             point prior to the child’s death, attempted to funnel
             V8 juice down into the child’s stomach. The child
             subsequently vomited.        After one or two failed
             attempts to get the child to eat, the child died on
             April 1st, 2006.       The medical examiner also
             determined that the child could have been saved by
             prompt medical care.

3
 Appellant’s plea did not include an agreement on sentencing.         Appellant
was nineteen years old at the time of the child’s death.
4
    Miranda v. Arizona, 384 U.S. 436 (1966).
5
  Appellant was charged on April 2, 2006, with one count of homicide,
generally, see 18 Pa.C.S. § 2501, and one count of endangering the welfare
of a child, graded as a misdemeanor of the first degree.




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             [Appellant], an illegal immigrant whose native
          tongue is Spanish, had an interpreter with him at the
          time of his plea hearing. He swore under oath that
          he understood English, and that he was able to rely
          on the court interpreter for anything he did not
          understand.         Throughout      the     proceedings,
          [Appellant] addressed the court in very functional
          English. He verified that the summary given by the
          District Attorney was correct, that he used to drink,
          and that the child’s mother did not actually see him
          hit his child. [Appellant’s plea counsel] stated that
          she felt confident in [Appellant]’s ability to fill out his
          colloquy forms, to understand the terms of his guilty
          plea, and that he had answered the questions on his
          colloquy form truthfully.

           On February 12, 2008, [Appellant] was sentenced to
       20-40 years in prison for 3rd Degree Homicide and [no
       further penalty for] Endangerment in the Welfare of a
       child. On February 19th, post-sentencing motions were
       filed, seeking a modification of the sentence [and
       withdrawal of the plea]. A clerical error that listed the
       sentence as 10-20 years was corrected[, and the post-
       sentence motions were denied]. No appeal was taken
       challenging the sentence, and [Appellant, on July 11,
       2008,] then petitioned for relief under the Post Conviction
       Relief Act [(PCRA) , 42 Pa.C.S. §§ 9541-9546]. The Court
       appointed Matthew Debbis, Esquire, as counsel for
       [Appellant]. After reviewing all the records, appointed
       counsel filed a timely Turner/Finley[6] no merit letter,
       and withdrew from representing Mr. Molina. The trial court
       reviewed the Turner/Finley Motion and brief and Court
       records then denied the PCRA Motion.

          [Appellant] appealed the denial for relief at No. 1645
       WDA 2011, and the Superior Court vacated the trial court
       order and remanded for an evidentiary hearing to


6
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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         determine whether [Appellant] asked trial counsel to file a
         direct appeal.

            The trial court appointed Scott Coffey, Esquire, to
         represent [Appellant] in the PCRA evidentiary hearing
         scheduled for 10/23/13.       On that day, [plea] counsel
         conceded she did not file the direct appeal, and the court
         reinstated [Appellant]’s direct appeal rights, nunc pro tunc.

Trial Ct. Op., 11/20/14, at 2-4 (record citations and footnotes omitted).

Appellant filed a timely notice of appeal and complied with the trial court’s

order to submit a Pa.R.A.P. 1925(b) statement.         The trial court filed a

responsive opinion.

      Appellant presents two questions in this appeal, which we have

reordered as follows:

         [ ] DID THE TRIAL COURT ERR IN DENYING APPELLANT'S
         REQUEST TO WITHDRAW HIS GUILTY PLEA SINCE
         APPELLANT IS INNOCENT OF THE INSTANT CRIMES, AND
         THE PLEA WAS INVOLUNTARY SINCE (A) APPELLANT,
         WHO[SE] FIRST LANGUAGE IS SPANISH, WAS NOT
         ADVISED OF THE ELEMENTS OF THE CRIME, MURDER 3,
         TO WHICH HE WAS PLEADING AND APPELLANT WAS NOT
         ADVISED OF AND DID NOT UNDERSTAND THE CONCEPT
         OF “MALICE”, AN ESSENTIAL ELEMENT OF MURDER 3,
         AND, (B) THE TRIAL COURT DID NOT ADVISE APPELLANT
         THAT HE COULD BE DEPORTED BACK TO MEXICO FOR
         PLEADING TO THESE CRIMES?

         [ ] DID THE TRIAL COURT ERR IN DENYING APPELLANT'S
         POST SENTENCING MOTIONS SINCE HIS 20-40 YEAR
         SENTENCE OF IMPRISONMENT FOR MURDER 3 WAS
         MANIFESTLY EXCESSIVE IN LIGHT OF HIS GUILTY PLEA
         RATHER THAN PROCEEDING TO TRIAL, AND HIS
         ACCEPTANCE OF RESPONSIBILITY AND EXPRESSION OF
         REMORSE FOR HIS CRIME?

Appellant’s Brief at 3.



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      Appellant first contends the trial court erred in denying his post-

sentence request to withdraw his guilty plea.       Id. at 20-22.       He asserts

actual innocence to murder of the third degree and claims his plea was

unknowing because the trial court failed to provide a Spanish-speaking

interpreter. Appellant also claims the plea colloquy was inadequate because

it failed to apprise him of the elements of that crime, in particular, malice.

Lastly, Appellant asserts the plea colloquy was defective because he was not

informed of the possibility of deportation.   No relief is due.

      “When considering the propriety of a trial court’s denial of a motion to

withdraw a guilty plea, we are bound by the determination of that court

unless we find that it committed an abuse of discretion.” Commonwealth

v. Mobley, 581 A.2d 949, 952 (Pa. Super. 1990) (citation omitted).

         Post-sentence motions for withdrawal are subject to higher
         scrutiny [than presentence motions] since courts strive to
         discourage entry of guilty pleas as sentence-testing
         devices. A defendant must demonstrate that manifest
         injustice would result if the court were to deny his post-
         sentence motion to withdraw a guilty plea.        Manifest
         injustice may be established if the plea was not tendered
         knowingly, intelligently, and voluntarily. In determining
         whether a plea is valid, the court must examine the totality
         of circumstances surrounding the plea. A deficient plea
         does not per se establish prejudice on the order of
         manifest injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009)

(citations   and   punctuation   omitted).    “[W]here    the     totality   of   the

circumstances establishes that a defendant was aware of the nature of the

charges, the plea court’s failure to delineate the elements of the crimes at


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the oral colloquy, standing alone, will not invalidate an otherwise knowing

and voluntary guilty plea.”   Commonwealth v. Morrison, 878 A.2d 102,

107 (Pa. Super. 2005) (en banc) (citing, inter alia, Commonwealth v.

Martinez, 453 A.2d 940, 942-44 (Pa. 1982)).

         A defendant wishing to challenge the voluntariness of a
         guilty plea on direct appeal must either object during the
         plea colloquy or file a motion to withdraw the plea within
         ten    days   of   sentencing.    Pa.R.Crim.P.    720(A)(1),
         (B)(1)(a)(i). Failure to employ either measure results in
         waiver. Historically, Pennsylvania courts adhere to this
         waiver principle because it is for the court which accepted
         the plea to consider and correct, in the first instance, any
         error which may have been committed.

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (some

citations and punctuation omitted), appeal denied, 87 A.3d 319 (Pa. 2014).

      As to Appellant’s assertion that his plea was unknowing because of

possible language barriers, our review reveals the following.        Appellant

confirmed he was able to read, write, and understand the English language

in his written plea colloquy. Written Guilty Plea Explanation of Def.’s Rights,

10/15/07, ¶ 4 (“written colloquy”).    During the oral colloquy by the trial

court, the presiding judge twice noted that a Spanish interpreter was

available and advised Appellant to “[t]ell us to stop” if he did not understand

anything. N.T., 10/15/07, at 2. The court asked Appellant if he understood

English, and Appellant responded, “Yes.”     Id.   Appellant did not stop the

proceedings based on a language barrier. The transcript also indicates the

court used the interpreter only when it clarified Appellant’s history of mental



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health treatment and whether that history affected his ability to enter the

underlying plea. Id. at 22-23.

       Appellant was also able to respond to the Commonwealth’s lengthy

recitation of the factual basis of the plea. Id. at 8-17. He admitted striking

the child, but asserted his girlfriend did not see him commit such acts. Id.

at 15, 17.     We further note the trial court discussed with plea counsel

whether Appellant was able to understand the written colloquy.       Id. at 6.

Plea counsel averred she sat with Appellant while completing the written

colloquy and observed he had some difficulty understanding certain words,

such as “threat.”   Id.   She stated, however, that she was “confident to a

certain extent” that he understood the contents of the questions asked of

him.    Id. at 6-7. Thus, having reviewed the record, we discern no abuse of

discretion in the trial court’s determination that the alleged language barrier

did not affect the entry of Appellant’s plea.

       As to Appellant’s assertion that he was not apprised of the elements of

murder of the third degree, our review reveals neither the written colloquy,

nor the trial court’s oral colloquy expressly stated the elements of that

offense or defined malice.     Nevertheless, Appellant acknowledged in the

written colloquy that he “discussed with [plea counsel] the elements of each

charged offense[,]” “the factual basis of each charged offense[,]” and “how

the facts in [his] case prove the elements of each charged offense.” Written

Colloquy, at ¶¶ 6-8. At the guilty plea hearing, the Commonwealth informed



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Appellant the plea was “to Third Degree Murder,” and summarized the

factual basis for the plea in detail.     N.T., 10/15/07, at 3, 8-14.        That

summary included allegations Appellant struck his twenty-one month old

child with sufficient force to cause “the child’s intestines to strike the back of

the spinal column” and lacerate the organs.         Id., at 10-11.     The child

subsequently bled to death.        Id. at 11.     Appellant did not deny the

substance of the Commonwealth’s allegations. Id. at 14-17.

      It is undisputed that the written and oral colloquies in this case were

inadequate because they did not define third-degree murder as a killing

committed with malice or the term malice.        Nevertheless, the trial court’s

failure to explain the elements of the offense on the record does not

constitute per se prejudice amounting to manifest injustice. See Martinez,

453 A.2d at 942-44; Broaden, 980 A.2d at 129; Morrison, 878 A.2d at

108-09.     In light of Appellant’s acknowledgement that plea counsel

explained the elements of the offense to him and our review of the plea

proceeding as a whole, we are constrained to conclude that the trial court

did not err or abuse its discretion when denying Appellant’s post-sentence

request to withdraw his plea.7


7
  Our case law mandates that we review the totality of the circumstances of
a guilty plea to discern whether a defendant understood the elements of the
offense to which he was pleading guilty. See Martinez, 453 A.2d at 942-
44; Broaden, 980 A.2d at 129; Morrison, 878 A.2d at 108-09. However,
our courts and the interests of justice are better served when the trial judge
apprises the defendant of “the nature of the charge to which he or she is



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      Appellant’s final challenge to the validity of his guilty plea is that he

was not apprised of the possibility of deportation.     For the reasons that

follow, we are compelled to conclude this claim is waived.

      Although not discussed by Appellant or the trial court, we note that

before 2010, our courts regarded deportation as a “collateral consequence”

of a guilty plea. See Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa.

1989), abrogated by Padilla v. Kentucky, 559 U.S. 356 (2010).           Under

Frometa, “a defendant’s lack of knowledge of the collateral consequences of

pleading guilty d[id] not undermine the validity of his guilty plea.”      Id.

Subsequently, on March 31, 2010, the United States Supreme Court decided

Padilla, which addressed counsel’s duties to advise her client on adverse

immigration consequences of a plea. See Padilla, 559 U.S. at 369. As we

discussed in Commonwealth v. Descardes, 101 A.3d 105 (Pa. Super.

2014) (en banc), Padilla held “that the Sixth Amendment requires defense

counsel to advise defendant about the risk of deportation arising from a

guilty plea. This particular claim of ineffective assistance of counsel did not

exist until 2010 when the Supreme Court decided Padilla.”         Descardes,

101 A.3d at 108-09. Padilla thus abrogated the narrow holding of Frometa

that deportation is a collateral consequence of a plea. See Commonwealth

v. Abraham, 62 A.3d 343, 347 (Pa. 2012).

pleading guilty” on the record. See Pa.R.Crim.P. 590 cmt. Conducting a
complete on-the-record colloquy is especially advisable where English is not
the defendant’s primary language.



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      Instantly, on February 19, 2008, plea counsel filed a timely post-

sentence motion on Appellant’s behalf, asserting he “alleged that his plea

was not knowingly nor intelligently made[, and he] now maintains that he is

innocent of these charges and wishes to proceed to trial.” Appellant’s Post

Sentencing Mot., 2/19/08, at 2-3.        At that time, Frometa stated the

governing law.    The United States Supreme Court did not decide Padilla

until more than two years after Appellant entered his plea and plea counsel

filed the post-sentence motion.      Although Padilla was decided during

Appellant’s five-year effort to have his direct appeal reinstated through the

PCRA, he did not request leave to amend or file a supplemental post-

sentence motions nunc pro tunc. Instead, Appellant raised this issue for the

first time in his Pa.R.A.P. 1925(b) statement.

      Given the unique circumstances of this case, we conclude Appellant did

not preserve his claim his plea was invalid due to the trial court’s failure to

advise him of the possibility of deportation.      Therefore, we decline to

entertain this argument for the first time in this direct appeal. See Lincoln,

72 A.3d 606, 609-10; Commonwealth v. Evans, 901 A.2d 528, 534 (Pa.

Super. 2006). Thus, no relief is due.8


8
  In any event, we note Padilla concerned the effective assistance of
counsel and no Pennsylvania court has held that Padilla applies to the
adequacy of the trial court’s plea colloquy. Therefore, Padilla claims should
generally be deferred until a post conviction relief proceeding.         See
Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). We note,
however, some of our trial courts have included notice of possible



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      Appellant,   in   his   second    question    presented,   challenges   the

discretionary aspects of the twenty-to-forty year sentence imposed on the

count of murder of the third degree.9           Appellant has complied with the

procedural rules for preserving a discretionary sentencing claim by (1)

securing permission to appeal nunc pro tunc, (2) preserving his sentencing

claim in the post-sentence motions filed by plea counsel, and (3) including in

his brief a Pa.R.A.P. 2119(f) statement. See Evans, 901 A.2d at 533-34.

Accordingly, we proceed to consider whether Appellant’s claims raise a

substantial question. See id.

      The following principles are well settled:

            The determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis. A
         substantial question exists only when the appellant
         advances a colorable argument that the sentencing judge's
         actions were either: (1) inconsistent with a specific
         provision of the Sentencing Code; or (2) contrary to the
         fundamental norms which underlie the sentencing process.

            As to what constitutes a substantial question, this Court
         does not accept bald assertions of sentencing errors. An
         appellant must articulate the reasons the sentencing
         court’s actions violated the sentencing code.

immigration consequences in their written plea colloquies. In the instant
case, the written colloquy did not include such notice, nor were immigration
consequences discussed during the oral colloquy.
9
  As noted above, Appellant entered an “open” plea to the charges.
Therefore, his challenge to the discretionary aspects of the sentence are
cognizable. See Commonwealth v. Dalberto, 648 A.2d 16, 19-21 (Pa.
Super. 1994). We reiterate that the trial court imposed no further penalty
on the misdemeanor count of endangering the welfare of a child.




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                                 *     *      *

           When imposing a sentence, a court is required to
        consider the particular circumstances of the offense and
        the character of the defendant. In particular, the court
        should refer to the defendant’s prior criminal record, his
        age, personal characteristics and his potential for
        rehabilitation. Where the sentencing court had the benefit
        of a presentence investigation report (“PSI”), we can
        assume the sentencing court was aware of relevant
        information regarding the defendant’s character and
        weighed those considerations along with mitigating
        statutory factors. Further, where a sentence is within the
        standard range of the guidelines, Pennsylvania law views
        the sentence as appropriate under the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 170-71 (Pa. Super. 2010)

(citations and punctuation omitted).

     Appellant, in his Pa.R.A.P. 2119(f) statement, alleges: (1) the “20-40

year sentence was manifestly excessive[;]” (2) the trial court “did not

provide sufficient reasons for the excessive sentence[;]” and (3) the trial

court inadequately considered mitigating factors, such as his acceptance of

responsibility and decision to plead guilty. Appellant’s Brief at 12-13. We

also note the suggested standard range minimum sentence was six years to

the statutory limit of twenty years.10 Thus, Appellant’s twenty-to-forty year

sentence at the upper end of the standard range.




10
   Appellant had a prior record score of zero. The offense gravity score for
murder of the third degree was fourteen. The maximum penalty for murder
of the third degree was forty years. 18 Pa.C.S. § 1103(d).



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      Following our review, we conclude that Appellant has not established a

substantial question warranting review. See Moury, 992 A.2d at 171. In

any event, having reviewed the entire record, we decline to disturb the

assumption     that   the   trial   court    considered   Appellant’s   mitigating

circumstances when it reviewed the presentence investigation report. See

id.; accord Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa. Super.

2005); see also N.T., 2/12/08, at 4 (indicating trial court reviewed the

presentence investigation report).          Moreover, although the trial court’s

statement of reasons for the sentence was brief, the maximum sentence

imposed fell within the standard suggested range of the Sentencing

Guidelines. Thus, the court was not required to provide a detailed statement

of reasons for its sentence.11 See Hunzer, 868 A.2d at 514. Accordingly,

under the prevailing law, we have no basis to disturb the trial court’s

sentencing scheme.

      Judgment of sentence affirmed.

11
   Although no appellate relief is due based on the Appellant’s arguments,
we note that there is no aggravated range sentence in the Sentencing
Guideline for offenses with an offense gravity score of fourteen. Where, as
here the Sentencing Guidelines suggest a wide range of standard minimum
sentences, i.e., from six years to twenty years, a more complete statement
of reasons would assist this Court in reviewing the trial court’s exercise of
discretion when selecting a statutory maximum sentence.

      We also note that it appears Appellant will not be eligible for early
parole for deportation. See 61 Pa.C.S. § 6143(a)(1), (3). Thus, there is
support for Appellant’s contention that he will remain in in Pennsylvania
custody until at least the expiration of the minimum sentence set by the trial
court. Appellant’s Brief at 22.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2015




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