J-S79017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                           Appellee

                     v.

HECTOR MELENDEZ CADIZ

                           Appellant               No. 3266 EDA 2013


                Appeal from the PCRA Order October 30, 2013
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0008883-2007


BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.:

MEMORANDUM BY OLSON, J.:                      FILED FEBRUARY 09, 2015

      Appellant, Hector Melendez Cadiz, appeals from an order entered on

October 30, 2013 in the Criminal Division of the Court of Common Pleas of

Montgomery County that denied his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      This Court has previously summarized the relevant procedural history

in this case as follows:

      On August 21, 2008, Appellant entered a guilty plea to charges
      of rape, involuntary deviate sexual intercourse and terroristic
      threats for his knifepoint sexual assault of the complainant on
      November 10, 2007. Appellant was provided with a Spanish-




*Retired Senior Judge assigned to the Superior Court.
J-S79017-14


       speaking interpreter during the oral plea colloquy, 1 and, prior to
       the hearing, had completed a written plea colloquy in Spanish.
       In exchange for Appellant’s open guilty plea to the above-stated
       charges, the Commonwealth withdrew twelve other counts, and
       agreed not to invoke the mandatory [minimum] sentence of
       imprisonment of 25 years to 50 years that could have been
       applicable based upon appellant’s 1990 conviction of rape in
       Puerto Rico. On March 18, 2009, Appellant was sentenced to a
       term of imprisonment of from 10 years to 20 years for the
       charge of rape, and a consecutive 5 years to 10 years for the
       charge of involuntary deviate sexual intercourse, a sentence that
       was agreed to by both Appellant and the Commonwealth, in
       exchange for the Commonwealth’s agreement not to seek
       Appellant’s designation as a sexually violent predator.

       On March 30, 2009, Appellant filed a timely, pro se motion to
       withdraw     his  guilty    plea,2  contending   that  counsel’s
       ineffectiveness caused him to enter an involuntary plea. The
       trial court denied the motion on its merits by order dated April
       28, 2009. That same day, appellant filed a second, pro se
       motion to withdraw his guilty plea – a document identical to
       the first motion. The trial court treated the second motion as a
       petition for post-conviction collateral relief pursuant to [the
       PCRA]. On May 26, 2009, the trial court entered an order, which
       provided, in relevant part:

         John Armstrong, Esquire, is appointed to represent
         [Appellant], to determine whether [Appellant] may be
         entitled to relief under the [PCRA], and to amend the
         application as necessary to obtain any relief to which
         [Appellant] may be entitled under the [collateral relief
         statute].

____________________________________________


1
  His interpreter, in fact, was his attorney Joanna Cruz. Although it appears
that another attorney assisted Ms. Cruz at the plea hearing, Ms. Cruz signed
the written plea colloquy as Appellant’s attorney and represented Appellant
at the sentencing hearing.
2
  Although Appellant’s post sentence motion was filed 12 days after
sentencing, it was timely filed since the 10th day following sentencing fell on
a Saturday.



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           In the event counsel concludes [Appellant’s] petition lacks
           merit and cannot be amended to raise a claim of arguable
           merit, counsel shall so advise in writing, in accordance with
           Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
           (1988)[.]

        [PCRA Court Order, 5/26/09, at ¶¶ 1-2].

        [Mr. Armstrong] took no action on Appellant’s behalf, and in
        September of 2009, Appellant filed with the [PCRA] court (1) a
        pro se application for relief, contending that appointed counsel
        “ha[d] not been diligent in his representation,” 3 and (2) a pro se
        motion for writ of mandamus, which sought to challenge the
        voluntariness of his guilty plea.

        On November 27, 2009, the [PCRA] court entered an order,
        pursuant to Pa.R.Crim.P. 907, notifying Appellant of its intention
        to dismiss his application for post-conviction relief without a
        hearing. In the order, the [PCRA] court discussed each of the
        claims raised in Appellant’s motion to withdraw his guilty plea, as
        well as the motion for writ of mandamus. The court concluded:

           Upon consideration of the foregoing facts, and after this
           court’s independent review of the record, this court
           concludes [Appellant] has failed to plead a cognizable claim
           for relief and therefore is not entitled to the relief he seeks,
           or otherwise to any relief under the [PCRA], and no purpose
           would be served by any further proceedings unless the
           petition can be amended by counsel to state a claim for
           relief.

        [PCRA Court Order, 9/27/09, at] 5, ¶ 12. The [PCRA] court
        thereafter directed appointed counsel to file a response within 20
        days of the docketing of the order. Id. [at] ¶ 13.

        Appointed counsel again failed to take any action in response to
        the [PCRA] court’s directive. Thereafter, on January 21, 2010,


____________________________________________


3
    Pro Se Application for Relief, 9/9/09.




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       the [PCRA] court, apparently on its own initiative, 4 entered an
       order in which it (1) permitted [A]ttorney Armstrong to
       withdraw, and (2) appointed Joseph J. Hylan, Esquire, to
       represent [A]ppellant and “determine whether or not [Appellant]
       may be entitled to relief under the [PCRA], and to amend the
       application as necessary to obtain any relief to which [he] may
       be entitled under the Act.” [Trial Court Order, 1/21/10, at] 1, ¶
       2.

       Although the record contains no indication that [A]ttorney Hylan
       filed an amended PCRA petition, the [PCRA] court, on May 21,
       2010, held an evidentiary hearing, during which both Appellant
       and trial counsel testified regarding “whether or not [Appellant]
       entered a knowing, intelligent, and voluntary plea.” At the
       conclusion of the hearing, the [PCRA] court entered an order
       denying PCRA relief. []

Commonwealth v. Cadiz, 29 A.3d 840 (Pa. Super. 2011) (unpublished

memorandum) (footnotes and emphasis in original) at 1-5.

       On appeal, counsel for Appellant petitioned to withdraw and filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1968) and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After noting that

Turner, supra and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) governed the procedures for a petition to withdraw in the context of

collateral proceedings, we accepted counsel’s mislabeled filings and found

that he complied with the applicable procedural prerequisites. Nevertheless,

pursuant to our independent review, we found that the record contained “no

explanation as to why [A]ppellant was not provided the assistance of counsel
____________________________________________


4
 The record does not include any application to withdraw from Attorney
Armstrong, nor any reason for Attorney Armstrong’s failure to take any
action on Appellant’s behalf.




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J-S79017-14



to pursue a direct appeal.”      Commonwealth v. Cadiz, 29 A.3d 840 (Pa.

Super. 2011) (unpublished memorandum) at 8. Hence, we denied counsel’s

petition to withdraw, vacated the order of the PCRA court, and remanded for

further proceedings to address a counseled, amended PCRA petition that

raised the issue uncovered by our independent review.

     Pursuant to our remand order, PCRA counsel for Appellant filed an

amended petition and the PCRA court convened a hearing on September 26,

2013. At the hearing, plea counsel testified that she reviewed with Appellant

the Spanish version of the plea colloquy, including the provisions that

addressed Appellant’s post-sentence and appellate rights. N.T., 9/26/14, at

24-25.   Plea counsel also testified that she would have filed an appeal if

Appellant had requested that she do so.       Id. at 25. Appellant, however,

never asked plea counsel to file a direct appeal or a post-sentence motion

seeking to withdraw his guilty plea.      Id. at 25-26.        Lastly, plea counsel

explained that Appellant received several benefits in exchange for his guilty

plea, including the Commonwealth’s agreement to drop many charges, its

agreement to forego Appellant’s designation as a sexually violent predator,

and the Commonwealth’s agreement not to seek a 25-year mandatory

minimum    sentence      based   upon   Appellant’s    prior   Puerto   Rican   rape

conviction. Id. at 26.

     Appellant also testified at the hearing.         In his testimony, Appellant

confirmed that: 1) he never asked plea counsel to withdraw his guilty plea

following the plea hearing; 2) he never asked plea counsel to file a

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J-S79017-14



post-sentence motion or a direct appeal; 3) his pro se submissions did not

allege that he asked plea counsel to file an appeal; and, 4) he never filed a

document with the trial court alleging that he was dissatisfied with plea

counsel’s performance. Id. at 16-19. Appellant explained that he opted to

submit pro se filings because he was dissatisfied with plea counsel’s

representation. Id. at 18.

      PCRA counsel petitioned the PCRA court to withdraw as counsel on

October 15, 2013. That petition was granted by order entered on October

24, 2013.     Thereafter, on October 30, 2013, the PCRA court dismissed

Appellant’s petition, concluding that Appellant failed to plead and prove that

plea counsel was ineffective since he failed to demonstrate that he asked her

to file a direct appeal. See PCRA Court Order, 10/30/13. Appellant filed a

pro se notice of appeal on November 22, 2013 and, subsequently, filed a

concise statement of errors complained of on appeal raising a single issue:

      Did the lower [c]ourt err[] as a matter of law in sentencing
      [Appellant] outside of the suggested standard range by using a
      prior    out[-]of[-]state    criminal   conviction[]   from     the
      Commonwealth of Puerto Rico, in which [the [c]ourt] had no
      [i]nterstate [j]urisdiction to exercise such authority to calculate
      prior record points?

Appellant’s Concise Statement, 12/27/13. This appeal followed.

      In his brief, Appellant raises the four questions for our review:

      Whether or not the [c]ourt of [c]ommon [p]leas failed and[/]or
      refused to comply with and follow the [o]rder(s) of [the]
      Superior Court on [r]emand at 1780 EDA 2010 as filed April 20,
      2011[?]



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J-S79017-14


      Whether or not Appellant’s [a]pplication [f]or [r]elief should be
      granted[?]

      Whether or not the PCRA [c]ourt denied [A]ppellant due process
      by sentencing outside the sentencing guidelines and [pursuant
      to] constitutionally [in]valid [] statutory sentencing procedures?

      Whether or not a foreign conviction, more than ten (10) years
      old[,] is available for sentence guideline calculations under the
      circumstance of this case[?]

Appellant’s Brief at 2.

      Appellant challenges an order that dismissed his petition filed pursuant

to the PCRA.    “Our standard of review of an order denying PCRA relief is

whether the record supports the PCRA court’s findings of fact, and whether

the PCRA court’s determination is free of legal error.” Commonwealth v.

Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citation omitted). “The scope

of review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.”   Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation

omitted).

      Appellant has waived appellate review of his first two claims.       “[T]o

preserve their claims for appellate review, [a]ppellants must comply

whenever the trial court orders them to file a [s]tatement of [m]atters

[c]omplained of on [a]ppeal pursuant to Pa.R.A.P. 1925.        Any issues not

raised in a Pa.R.A.P. 1925(b) statement will be waived.” Commonwealth

v. McBride, 957 A.2d 752, 755 (Pa. Super. 2008).         The first two claims

addressed in Appellant’s brief are entirely unrelated to the lone issue

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J-S79017-14


included in the concise statement that Appellant submitted in response to

the PCRA court’s order.        Hence, Appellant has waived appellate review of

these issues.

       Before we confront the third and fourth claims raised by Appellant, we

address a contention advanced in Appellant’s second issue on appeal.5 Here,

Appellant alleges that his guilty plea was invalid because it was coerced by

the Commonwealth’s threats to seek the imposition of a mandatory sentence

scheme that he claims was deemed unconstitutional in Alleyne v. United

States, 133 S.Ct. 2151 (U.S. 2013) and Commonwealth v. Newman, 99

A.3d 86 (pa. Super. 2014) (en banc).                    See Appellant’s Brief at 7.

Generously      construed,    Appellant        seems   to   suggest   that,   under   the

circumstances of the present case, plea counsel was ineffective either in

failing to advise him about the validity of the mandatory sentencing statute


____________________________________________


5
  In his second issue on appeal, Appellant alludes to an application for relief
that he filed in June, 2014 and an order entered by this Court on July 15,
2014 in which we denied the application for relief without prejudice to
Appellant’s right to raise the issues in his brief. Appellant’s June, 2014
application for relief sought consolidation of the present appeal with the prior
appeal that resulted in a remand of this matter. However, a second
application for relief, filed by Appellant in September, 2014, sought remand
to allow Appellant to challenge certain mandatory minimum sentencing
issues allegedly implicated in this case.        Again, we denied Appellant’s
application for relief without prejudice to Appellant’s right to raise these
issues in his brief in this appeal. In view of the statements included in our
prior order, we briefly address the issues set forth in Appellant’s second
issue.




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J-S79017-14


or in failing to advise him to challenge his plea by way of a post-sentence

motion or direct appeal. These contentions are meritless.

      Appellant’s claim asserts that his plea counsel rendered ineffective

assistance. Our Supreme Court has explained:

      [T]o prove counsel ineffective, [a PCRA] petitioner must
      demonstrate: (1) the underlying claim has arguable merit; (2)
      no reasonable basis existed for counsel’s actions or failure to
      act; and (3) the petitioner suffered prejudice as a result of
      counsel’s error such that there is a reasonable probability that
      the result of the proceeding would have been different absent
      such error. Counsel is presumed to have rendered effective
      assistance.

      A court is not required to analyze the elements of an
      ineffectiveness claim in any particular order of priority; instead,
      if a claim fails under any necessary element of the
      ineffectiveness test, the court may proceed to that element first.
      Finally, counsel cannot be deemed ineffective for failing to raise
      a meritless claim.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations

omitted).    An unjustified failure to file a requested direct appeal may

constitute ineffective assistance of counsel.    Commonwealth v. Lantzy,

736   A.2d   564,   571   (Pa.   1999).    Moreover,   counsel   may   owe   a

constitutionally-imposed duty to consult with a defendant about an appeal

when there is reason to think either:      1) that a rational defendant would

want to appeal (for example, because there are nonfrivolous grounds for

appeal), or 2) that a particular defendant reasonably demonstrated to

counsel that he was interested in appealing.     Roe v. Flores-Ortega, 528

U.S. 470, 480 (2000).


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J-S79017-14


      We are not persuaded that there is arguable merit in Appellant’s

ineffective assistance claim.   It is undisputed in this case that Appellant

never communicated his desire to file a post-sentence motion or a direct

appeal to plea counsel.    In addition, Appellant pled guilty on August 21,

2008 and was sentenced on March 18, 2009, approximately four years

before the United States Supreme Court issued its 2013 decision in

Alleyne. It is well-settled that “[c]ounsel cannot be deemed ineffective for

failing to predict developments or changes in the law.” Commonwealth v.

Gribble, 863 A.2d 455, 464 (Pa. 2004) (where claim sounds in ineffective

assistance of counsel, appellant must demonstrate that counsel was

incompetent under the law in existence at the time of trial).

      Moreover, the law in this Commonwealth presently allows the use of a

prior conviction to enhance a defendant’s mandatory minimum sentence

without a jury determination beyond a reasonable doubt.         Almendarez–

Torres v. United States, 523 U.S. 224 (1998) (prior conviction does not

need to be submitted to jury and found beyond a reasonable doubt);

Alleyne, supra at 2160 n.1 (noting that Almendarez–Torres remained

valid law but observing that the Court did not revisit that decision since the

parties had not contested its vitality); Commonwealth v. Miller, 102 A.3d

988, 995 n.5 (Pa. Super. 2014) (noting that, even if the PCRA petition were

timely, petitioner would not be entitled to relief because a prior conviction

did not need to be submitted to the jury and found beyond reasonable


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J-S79017-14


doubt); see Commonwealth v. Aponte, 855 A.2d 800, 811 (Pa. 2004)

(where a judicial finding which results in punishment beyond the statutory

maximum is the fact of a prior conviction, submission to a jury is

unnecessary, since the prior conviction is an objective fact that initially was

cloaked in all the constitutional safeguards, and is now a matter of public

record); but see Commonwealth v. Watley, 81 A.3d 108, 117 n.3 (Pa.

Super. 2013) (en banc) (noting that “[t]he constitutionality of statutes

permitting prior convictions to automatically increase a defendant's sentence

beyond the statutory maximum absent a jury finding has been called into

question based on a similar rationale discussed in Alleyne”). Thus, at the

present time, prior convictions do not trigger the Sixth Amendment concerns

that Alleyne addressed.

        Lastly, taking into account all of the information plea counsel knew or

should have known, we are not convinced that Appellant’s desire to file an

appeal or a post-sentence motion was something that plea counsel should

rationally have foreseen. Appellant’s conviction followed a guilty plea, not a

trial, and the plea may have indicated to counsel that Appellant desired an

end to judicial proceedings. Although Appellant filed pro se challenges to his

guilty plea, he did not communicate these sentiments to counsel and he

never    advised   the   trial   court   of   his   dissatisfaction   with   counsel’s

performance. Leaving aside Appellant’s concern about the use of his prior

conviction in the determination of a potentially applicable sentence and the


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influence this may have had upon his decision to plead guilty, the record is

clear that Appellant entered his guilty plea in exchange for the withdrawal of

several charges, as well as the Commonwealth’s agreement not to pursue

his classification as a sexually violent predator. In view of these factors, it

does not appear that a rational defendant in Appellant’s position would have

wanted to challenge the plea or that Appellant (in particular) sufficiently

demonstrated to plea counsel his interest in an appeal. Hence, Appellant is

not entitled to relief on this claim.

       Appellant’s third and fourth claims raise related contentions; hence,

we shall address them in a single discussion. Here, Appellant claims that the

trial court erred in considering sentencing guideline calculations that

included his 1990 Puerto Rican rape conviction.          Specifically, Appellant

argues that his Puerto Rican conviction should not have been included in his

prior record score because it was too remote in time and emanated from a

“foreign” country.6 This claim fails.


____________________________________________


6
  Appellant supports his final claims with citations to federal appellate
decisions that construe provisions of the federal sentencing guidelines. As
these decisions have no precedential or persuasive value in this case
because they address legal issues unique to federal law, Appellant’s claim is
subject to waiver since he has failed to cite pertinent authority in violation of
our appellate rules. See Commonwealth v. Sammuel, 102 A.3d 1001,
1005 (Pa. Super. 2014) (citing Pa.R.A.P. 2119 and concluding that appellant
waived review of suppression challenge where he failed to identify precise
factual basis of claim and failed to explain how citations to federal appellate
authorities offered interpretive guidance on Pennsylvania wiretap law).



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J-S79017-14


      To be eligible for relief under the PCRA, a petitioner asserting a

standalone sentencing challenge -- i.e. one that is not couched in terms of

ineffective   assistance   of   counsel   --   must    plead      and   prove   by   a

preponderance of the evidence that the trial court imposed a sentence

greater   than   the   lawful   maximum.       42     Pa.C.S.A.    § 9543(a)(2)(vii).

“Challenges to the discretionary aspects of [a] sentence are not cognizable

under the PCRA[.]” Commonwealth v. Evans, 866 A.2d 442, 444-445 (Pa.

Super. 2005). A challenge to the calculation of a sentencing guideline range

raises a question regarding the discretionary aspects of a sentence, not the

legality of the punishment. Commonwealth v. Keiper, 887 A.2d 317, 319

(Pa. Super. 2005).

      Here, Appellant challenges the calculation of his prior record score, but

does not do so under the guise that plea counsel was ineffective. Because

such a freestanding objection to the discretionary aspects of a sentence is

not cognizable under the PCRA, Appellant is not eligible for relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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