J-S74043-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                 Appellee              :
                                       :
            v.                         :
                                       :
JORGE LUIS RAMOS-AYALA,                :
                                       :
                 Appellant             :     No. 1582 EDA 2014

             Appeal from the PCRA Order Entered May 12, 2014
            in the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0002721-2012

BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED JANUARY 23, 2015

      Jorge Luis Ramos-Ayala (Appellant) appeals pro se from the order

entered on May 12, 2014, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.     Upon review, we

affirm.

      The factual and procedural history underlying this case can be

summarized as follows. Appellant was arrested and charged with numerous

counts related to corrupt organizations and possession and delivery of

heroin. The Commonwealth offered Appellant a plea bargain, which included

a minimum of 40 months of incarceration, but no limit on the maximum

sentence.    Appellant rejected the offer and proceeded to a bench trial.

Appellant was convicted on all counts and sentenced to an aggregate term of

seven-and-a-half to fifteen years’ incarceration.   Appellant did not file a



* Retired Senior Judge assigned to the Superior Court.
J-S74043-14


direct appeal, but on September 13, 2013, Appellant timely filed a pro se

PCRA petition.

      The PCRA court appointed Attorney John Walko to represent Appellant.

Attorney Walko filed an amended petition, which asserted one claim of

ineffective assistance of trial counsel.   Specifically, Appellant asserted that

trial counsel advised Appellant that if Appellant “were convicted at a bench

trial, the worst outcome would be [one] additional year of incarceration,

instead of the [three-and-a-half] years he received.” PCRA Petition,

11/1/2013, at ¶ 10.      Thus, Appellant asserted that, but for counsel’s

erroneous advice, Appellant would have accepted the plea bargain offered by

the Commonwealth.

      The PCRA court scheduled a hearing for March 17, 2014. On that day,

Attorney Walko informed the PCRA court that upon further discussion with

Appellant, Attorney Walko learned “facts that seemed to have been

misconstrued or were misunderstood by myself that I set forth in my

petition.” N.T., 3/17/2014, at 3. Thus, Attorney Walko believed it would not

be prudent to proceed with an evidentiary hearing, and instead wished to

withdraw the amended petition and ask for time to file a petition to withdraw

and no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc).




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     At that point, the PCRA court confirmed, on the record, with Appellant

that Appellant understood that counsel would file a Turner/Finely letter and

Appellant would have time to respond. On March 24, 2014, Attorney Walko

submitted his petition to withdraw and no-merit letter. Specifically, Attorney

Walko stated that, in his conversation with Appellant on the morning of the

scheduled evidentiary hearing, Appellant told Attorney Walko that “at no

time prior to trial did [trial counsel] advise [Appellant] that [Appellant]

would receive no more than five (5) years [of] incarceration if convicted.

Rather, even assuming that this communication was made by [trial counsel],

that communication was made after trial but before [Appellant’s] sentencing

date.” No-Merit Letter, 3/24/2014, at 3 (emphasis in original).    The letter

went on to detail the other claims set forth in Appellant’s pro se PCRA

petition and why they do not have merit, as well as detail the independent

review of the record by counsel. On April 8, 2014, the PCRA court filed a

notice of intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907

and permitted counsel to withdraw.

     On April 21, 2014, Appellant filed a response to the PCRA court’s Rule

907 notice. In that response, Appellant contended, inter alia, that he has a

“language barrier and consistently asserted that he had to have a translator

in his interactions with counsel and the court system.” Response to Rule 907

Notice, 4/21/2014, at 1 (unnumbered). Appellant went on to aver that he

told Attorney Walko that trial counsel “never advised [Appellant] of any



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offer” made by the Commonwealth. Id. at 3 (unnumbered). Appellant also

stated that he told trial counsel “that he would accept the 4 year plea offer.”

Id. Thus, Appellant requested leave to amend his original PCRA petition and

requested an evidentiary hearing. Id. at 8.     On May 12, 2014, the PCRA

court dismissed Appellant’s PCRA petition. Appellant timely filed a notice of

appeal. Both Appellant and the PCRA court complied with Pa.R.C.P. 1925.

      Preliminary, we note that when reviewing an order dismissing a PCRA

petition, we must determine whether the ruling of the PCRA court is

supported by record evidence and is free of legal error. Commonwealth v.

Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010). “Great deference is granted

to the findings of the PCRA court, and these findings will not be disturbed

unless they have no support in the certified record.” Commonwealth v.

Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted).

      On appeal, Appellant’s first two issues implicate the alleged ineffective

assistance of both trial and PCRA counsel. We consider these issues mindful

of the following.

      The law presumes that counsel is effective and the burden of
      proving otherwise rests with Appellant. In order to establish a
      claim of ineffective assistance of counsel, Appellant must
      demonstrate by a preponderance of evidence that (1) the
      underlying claim has substantive merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) that Appellant
      suffered prejudice as a result of that counsel’s deficient
      performance. In reviewing counsel’s stewardship, we do not
      employ a hindsight evaluation of the record to determine
      whether other alternatives were more reasonable. Rather,
      counsel will be deemed to be effective so long as the course


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      chosen by counsel had some reasonable basis designed to
      effectuate his or her client's interests. Also, when it is clear that
      the party asserting a claim of ineffectiveness has failed to meet
      the prejudice prong, the claim may be dismissed on that basis
      alone without a determination of whether the first two prongs of
      the ineffectiveness standard have been met.

Commonwealth v. Zook, 887 A.2d 1218, 1227 (Pa. 2005) (citations

omitted).     “To   establish   the    prejudice   prong,    the   petitioner    must

demonstrate that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel's ineffectiveness.”

Commonwealth        v.   Elliott,   80   A.3d   415,   427    (Pa.    2013)     (citing

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012)).

      First, Appellant argues that trial counsel was ineffective in failing to

communicate accurately the Commonwealth’s plea offer. Appellant’s Brief at

11-16. Specifically, Appellant contends that he rejected the offer only “after

[trial counsel] convinced him that, if he were to proceed with a bench trial

instead of a jury trial, the maximum sentence he would [] receive if he was

convicted would be five to ten (5-10) years, RRRI eligible.” Appellant’s Brief

at 12-13.

      This argument was presented for the first time in the amended petition

filed by PCRA counsel. However, PCRA counsel withdrew that petition, and

substituted a Turner/Finley no-merit letter in its place.            Accordingly, we

must turn to Appellant’s pro se PCRA petition to determine whether this

issue is preserved properly.          In that petition, Appellant asserted the

following: “My lawyer illy [sic] advised me that I had a great chance of


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getting 3-8 years or beating trial[.]” PCRA Petition, 9/10/2013, at 3. Such a

claim is clearly different than what Appellant is now claiming on appeal.

Accordingly, we conclude that Appellant has failed to preserve properly

before the PCRA court the issue he presents on appeal; therefore, it is

waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”).1

      Appellant next argues that Attorney Walko provided ineffective

representation, particularly in using Appellant’s “language barrier against”

Appellant and “diametrically changing the version of events originally

delineated in the body of his November 1, 2013 Amended PCRA petition.”

Appellant’s Brief at 19-20.2 Specifically, Appellant argues that immediately

prior to the PCRA hearing, “PCRA counsel … discovered that [Appellant] had

a   ‘language   barrier’   which   precludes   him   from   fully   understanding/


1
   This argument appears once again in Appellant’s Pa.R.A.P. 1925(b)
statement, where he contended, inter alia, that trial counsel “advised
[Appellant] that the worst outcome of a bench trial would be one additional
year of confinement[.]” Concise Statement, 6/13/2014, at 1. However, it is
well settled that “[a] party cannot rectify the failure to preserve an issue by
proffering it in response to a Rule 1925(b) order.” Commonwealth v.
Watson, 835 A.2d 786, 791 (Pa. Super. 2003).
2
  Although the PCRA court found this issue to be waived, we conclude that it
has been preserved properly as Appellant raised it in response to the PCRA
court’s Rule 907 notice. See Commonwealth v. Rykard, 55 A.3d 1177,
1186 (Pa. Super. 2012) (holding that allegations of PCRA counsel
ineffectiveness can be raised in response to the PCRA court’s Rule 907
notice). Thus, we address it on its merits. Moreover, it is well-settled that
“this Court may affirm the decision of the PCRA Court if it is correct on any
basis.” Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa. Super. 2000).



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comprehending        the   English   language.      As    a     result,   PCRA    counsel

misinterpreted their pre-hearing conversation, and thus misstated the facts

of that conversation to the PCRA court.” Id. at 19.

      First,    we    observe      that   issues   with       respect     to   Appellant’s

comprehension of the English language and ability to communicate were

addressed, on the record, prior to Appellant’s trial.

           [Trial Counsel:] Now, you’ve indicated that you would be
      more comfortable with an interpreter here, correct?

               [Appellant:] Yes.

            [Trial Counsel:] All right. We talked about that yesterday
      in my office, correct?

               [Appellant:] Uh-huh.

            [Trial Counsel:] You understand everything I’m saying to
      you, though, right?

               [Appellant:] Yeah, I know what you’re saying.

            [Trial Counsel:] All right. So up to this stage, you have
      had no difficulty understanding what I’m saying to you in
      English?

               [Appellant:] No, I know what you’re saying.

               [Trial Counsel:] Okay.

           [Appellant:] Sometimes I get it. Sometimes I get it, but I
      know what you’re saying.

                                             ***

            [Trial Counsel:] All right. If you have any issues today,
      bring that to my attention immediately, okay? You and I have
      had 50, 60 discussions since we have met, right?



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           [Appellant:] Yes.

         [Trial Counsel:] And we have always been able to
     communicate, correct?

           [Appellant:] Yes.

                                       ***

           [The Court:] Okay. I have been listening to you, and I’ve
     been watching you, and it appears to me that you do understand
     English.

           [Appellant:] Yes.

          [The Court:] And that it seems to help if we speak a little
     slower; is that correct?

            [Appellant:] Yes. They talk a little bit slow, I can get it,
     but if they talk too fast, I would not get it.

           [The Court:] Okay. So I know, listening to your lawyer,
     just now, he’s speaking medium, not too fast, not too slow.

           [Appellant:] Yes.

           [The Court:] Did you understand him?

           [Appellant:] Yes.

N.T., 6/3/2013, at 13-15.

     Thus, the trial court determined that Appellant’s understanding of

English and ability to communicate with his attorney were adequate at the

time of trial. Moreover, at the PCRA hearing, the PCRA court confirmed with

Appellant that he understood the proceedings. N.T., 3/17/2014, at 5.

Accordingly, we conclude there is no arguable merit to the proposition that

Appellant was unable to communicate effectively with PCRA counsel.



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     We now turn to consider what transpired between Attorney Walko and

Appellant prior to the PCRA hearing. In his response to the Rule 907 notice,

Appellant asserted that he told Attorney Walko that trial counsel advised

Appellant not to take the plea offer prior to the bench trial, not after the

bench trial as Attorney Walko asserted. Response to 907 Notice, 4/21/2014,

at 2 (unnumbered). However, such assertions are belied by the record.

     At the scheduled PCRA hearing, Attorney Walko made the following

statement to the PCRA court with Appellant present and listening:

          As Your Honor knows, I did file an amended petition under
     the PCRA act on November 1st of 2013, after I was court
     appointed to represent [Appellant].

         We are here today for evidentiary hearing on that
     amended petition.

           This morning I had the opportunity to meet with
     [Appellant] in detention facility downstairs. This is the first time
     I was able to meet with him in person, as he is currently housed
     at SCI Albion in Erie County, Pennsylvania. I met with him for a
     decent amount of time, enough to answer all of his questions, to
     talk about the hearing. The purpose of the meeting was to
     prepare for the evidentiary hearing.

           During the course of that meeting, I then learned facts
     that seemed to have been misconstrued or were misunderstood
     by myself that I set forth in my petition.

          Based upon the facts, after speaking with [Appellant], I
     would be of the position that the PCRA would be meritless, and it
     would be not prudent to proceed to an evidentiary hearing.

                                        ***

           I did explain all of this previously to [Appellant], that this
     is the way it had panned out here today, that this is what I
     would have to do.


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           I then got a second chance to speak to him about this prior
     to Your Honor taking the bench. Obviously he is disappointed on
     the case, but he does seem to understand that this is what
     needs to be done based upon the facts that would be set forth at
     the hearing today.

          [The Court:] Okay.       [Appellant,] you have had an
     opportunity to talk to Mr. Walko? Did you talk to your lawyer
     today?

             [Appellant:] Yes, I talked to him.

             [The Court:] And he talked to you in the holding area
     here?

             [Appellant:] Yes.

             [The Court:] And also in the courtroom today?

             [Appellant:] Yes.

             [The Court:] Do you need anymore time to talk to him?

             [Appellant:] No. It’s all right.

           [The Court:] Anything you want to ask at this point? I
     want to make sure that he has had enough time to consult with
     counsel and he understands. You understand what is going on
     here today?

             [Appellant:] Yes.

N.T., 3/17/2014, at 2-5.

     Thus, it is disingenuous for Appellant to argue now that Attorney

Walko   somehow       misunderstood     or      misrepresented   him,   when   he

acknowledged to the PCRA court that he did understand what Attorney

Walko was going to do and how his PCRA petition was going to proceed.

Accordingly, we hold that Appellant has not shown arguable merit for his


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contention that Attorney Walko was ineffective.         Thus, Appellant is not

entitled to relief.

      Appellant next argues that the PCRA court abused its discretion when

it denied him permission to amend his PCRA petition. Appellant’s Brief at 23-

26. Specifically, Appellant argues that he “clearly indicated in his response

the intent for good cause, the PCRA should grant permission for leave to

amend.” Id. at 25.3

             Pursuant to our Rules of Criminal Procedure, a PCRA
      petitioner may amend his or her PCRA petition with leave of the
      court:

             Rule 905. Amendment and Withdrawal of
             Petition for Post–Conviction Collateral Relief.

                    (A) The judge may grant leave to amend or
             withdraw a petition for post-conviction collateral
             relief at any time. Amendment shall be freely
             allowed to achieve substantial justice.

      Pa.R.Crim.P. 905(A); see Commonwealth v. Porter, 613 Pa.
      510, 35 A.3d 4, 12 (2012) (reiterating that Rule 905(A)
      “explicitly states that amendment [of a PCRA petition] is
      permitted only by direction or leave of the PCRA court”)
      (emphasis added); Commonwealth v. Flanagan, 578 Pa. 587,
      854 A.2d 489, 499 (2004) (“PCRA courts are invested with
      discretion to permit the amendment of a pending, timely-filed
      post-conviction petition ....”).

3
  The PCRA court concluded that this issue is waived as Appellant requested
leave to amend his original petition, rather than to file a second amended
petition. PCRA Court Opinion, 6/4/2014, at 7. This rationale is in error in
this case because the only petition the PCRA court could evaluate was the
original PCRA petition filed by Appellant. Moreover, whether Appellant asked
for leave to amend his original petition or to file an entirely new petition is a
distinction without a difference in this case. Accordingly, we address the
issue of whether the PCRA court erred in denying Appellant permission to
amend/file a new petition on its merits.


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Commonwealth v. Roney, 79 A.3d 595, 615 (Pa. 2013).

       Instantly, Appellant already had filed a pro se PCRA petition, counsel

was appointed, and a thorough analysis was completed by appointed counsel

pursuant to Turner/Finley.           Appellant requested to add several claims to

his PCRA petition: 1) “substantial evidence that [Appellant] has a ‘language

barrier’ and consistently asserted that he had to have a translator in his

interactions with counsel and the court system;” 2) PCRA counsel’s

ineffectiveness; and that “the trial judge’s advise [sic] amounted to improper

interference with plea negotiations.” Response to 907 Notice, 4/21/2014, at

1-8.

       First,     we   point   out   that   any      issue   regarding   PCRA   counsel’s

ineffectiveness did not need to be presented in an amended PCRA petition;

we have addressed this issue on the merits, supra, and concluded that PCRA

counsel was not ineffective3.           Moreover, Appellant did not request the

services of a translator or interpreter at any time during the litigation of his

PCRA petition, and we have also concluded, supra, that this issue is

meritless. Thus, the PCRA court could not have abused its discretion in not

permitting Appellant to amend his PCRA petition on these bases.

       Finally,    we    consider    Appellant’s      contention   regarding    improper

interference by the trial court at plea negotiations.4 Appellant asserts that


4
 This issue is also the subject of Appellant’s final argument on appeal. See
Appellant’s Brief at 26-28.


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the trial judge improperly admonished Appellant during plea negotiations

and recognized that trial counsel “was giving bad [advice] to Appellant.”

Appellant’s Brief at 26. Appellant suggests that this conduct “amounted to

improper interference with Appellant’s plea negotiating deal.” Id. at 28.

       Once again, Appellant is not entitled to relief, as this issue, which

concerns potential error of the trial court, could have been raised at trial or

on direct appeal. 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, during

unitary review, on appeal or in a prior state postconviction proceeding.”).

Since Appellant did not raise this issue in a timely fashion, it is waived.

       For the foregoing reasons, we affirm the order of the PCRA court

denying Appellant PCRA relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2015




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