Com. v. Molina, A. ( 2018 )


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  • J-S05004-18
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
    COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                    :
    :
    ANGEL ULICES MOLINA                         :
    :
    Appellant                :
    :
    :      No. 19 WDA 2017
    Appeal from the PCRA Order December 16, 2016
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0005565-2006
    BEFORE:     OLSON, OTT, and STRASSBURGER,* JJ.
    DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED APRIL 20,2018
    I would vacate the PCRA court’s order and remand for an evidentiary
    hearing. Accordingly, I respectfully dissent.
    A PCRA court may decline to hold a hearing if the petitioner’s
    claim is patently frivolous and is without a trace of support in
    either the record or from other evidence. A reviewing court on
    appeal must examine each of the issues raised in the PCRA
    petition in light of the record in order to determine whether the
    PCRA court erred in concluding that there were no genuine issues
    of material fact and denying relief without an evidentiary hearing.
    Commonwealth v. Jordan, 
    772 A.2d 1011
    , 1014 (Pa. Super. 2001) (citation
    omitted). “Thus, to obtain reversal of a PCRA court’s decision to dismiss a
    petition without a hearing, an appellant must show that he raised a genuine
    issue of fact which, if resolved in his favor, would have entitled him to relief,
    or that the court otherwise abused its discretion in denying a hearing.”
    *Retired Senior Judge assigned to the Superior Court.
    J-S05004-18
    Commonwealth v. D'Amato, 
    856 A.2d 806
    , 820 (Pa. 2004).                See also
    Commonwealth v. Paddy, 
    15 A.3d 431
    , 467 (Pa. 2011).
    In seeking collateral review of his sentence, Appellant claims that his
    guilty plea was involuntarily entered as a result of plea counsel’s advice that
    he would receive a sentence of 7-14 years of incarceration if he pled guilty
    instead of proceeding to trial. The PCRA court credited plea counsel’s unsworn
    certification that “she doesn’t believe that she would have told [Appellant] that
    he would likely get a 7-14 year sentence[,]” and denied his PCRA petition
    without a hearing.      Amended PCRA Petition, 8/17/2016, at Exhibit 1.
    However, I find that Appellant’s claim raises a genuine issue of material fact
    that was not resolvable on the existing record. Thus, he was entitled to an
    evidentiary hearing.
    Accordingly, I would vacate the trial court’s order denying the PCRA
    petition without a hearing, and remand for an evidentiary hearing on
    Appellant’s claim of ineffective assistance of counsel. See Commonwealth
    v. Walls, 
    993 A.2d 289
    , 296–97 (Pa. Super. 2010) (“[W]hen an arguable
    claim of ineffective assistance of counsel has been made, and there has been
    no evidentiary hearing in the [PCRA court] to permit the defendant to develop
    evidence on the record to support the claim, and to provide the
    Commonwealth an opportunity to rebut the claim, this Court will remand for
    such a hearing.”).
    -2-
    

Document Info

Docket Number: 19 WDA 2017

Filed Date: 4/20/2018

Precedential Status: Precedential

Modified Date: 4/20/2018