Com. v. Contis, A. ( 2015 )

J. S76011/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANGEL CONTIS, : No. 574 WDA 2014
:
Appellant :
Appeal from the PCRA Order, March 11, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0010001-2011
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 13, 2015
Angel Contis appeals from the order denying his first petition for
post-conviction relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Appellant was arrested on March 4, 2011, and charged with one count
of possession with intent to deliver cocaine, one count of possession of
cocaine, one count of possession of drug paraphernalia, one count of
possession of a small amount of marijuana, and a summary count of driving
in excess of the maximum speed limit.1 On August 16, 2012, appellant
appeared before the Honorable Randal B. Todd and entered a negotiated
guilty plea to all four counts related to possession of a controlled substance;
1
As the facts underlying the crimes are not pertinent to the issues raised on
appeal, they will not be reviewed.
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the remaining count was withdrawn. Judge Todd accepted the plea and
sentenced appellant to the agreed-upon term of 2 to 4 years’ incarceration
and an RRRI sentence of 18 months. No motion to withdraw a guilty plea
was filed on his behalf, nor was a direct appeal filed.
On October 18, 2012, the United States Department of Homeland
Security filed an Immigration Detainer and sought removal of appellant from
the United States.2 Thereafter, on September 8, 2013, appellant filed a
pro se PCRA petition. The court appointed counsel for appellant, and an
amended petition was filed on January 27, 2014.
An evidentiary hearing was held on March 6, 2014, at which time a
certified Spanish interpreter was provided for appellant. Guilty plea counsel
testified, as did appellant on his own behalf. The matter was taken under
advisement; by order of court, the petition was dismissed on March 11,
2014. A timely notice of appeal was filed on April 10, 2014. Appellant
complied with the trial court’s order to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.,
and the trial court has filed an opinion.
The following issues have been presented for our review:
I. SINCE [APPELLANT] WAS GIVEN INCORRECT
LEGAL ADVICE ABOUT THE DEPORTATION
CONSEQUENCES OF ENTERING A GUILTY
PLEA, HIS PLEA WAS ENTERED UNKNOWINGLY
AND INVOLUNTARILY.
2
Appellant, a native of Mexico, immigrated to the United States
approximately 15 years ago. (Notes of testimony, 3/6/14 at 13.)
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II. [APPELLANT] SHOULD HAVE HAD AN
INTERPRETER AT HIS GUILTY PLEA AND
SENTENCING AS HIS PRIMARY LANGUAGE IS
SPANISH AND HE WAS NOT SUFFICIENTLY
PROFICIENT IN ENGLISH.
III. TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO PRESERVE THE WITHIN ISSUES
BY POST-SENTENCE MOTION, A MOTION TO
WITHDRAW GUILTY PLEA AND FOR FAILING
TO FILE A NOTICE OF APPEAL.
Appellant’s brief at i.3
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.Moreover, as some of appellant’s issues on appeal are stated in terms
of ineffective assistance of counsel, we note that appellant is required to
make the following showing in order to succeed with such a claim: (1) that
the underlying claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and (3) 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.
3
Other claims presented in appellant’s amended PCRA petition have been
abandoned on appeal.
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Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any
prong of this test will cause the entire claim to fail. Commonwealth v.
Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed
to be effective, and appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
Turning to appellant’s first issue concerning whether his guilty plea
was invalid because counsel ineffectively gave him inadequate advice as to
his deportation risk, we find no error with the PCRA court’s decision. After a
thorough review of the record, the briefs of the parties, the applicable law,
and the well-reasoned opinion of the trial court, it is our determination that
there is no merit to the question raised on appeal. The PCRA court’s opinion
thoroughly discusses and properly disposes of this issue. We will adopt it as
our own and affirm on that basis.
The next issue presented is whether the PCRA court properly denied
appellant’s claim that prior counsel was ineffective for failing to secure the
presence of a Spanish-speaking interpreter at the guilty plea hearing.
(Appellant’s brief at 23.)
Pennsylvania law holds that the decision whether to use an interpreter
rests in the sound discretion of the trial judge. Commonwealth v.
Wallace, 641 A.2d 321, 324 (Pa.Super. 1994).
[W]here the court is put on notice that a defendant
has difficulty understanding or speaking the English
language, it must make unmistakably clear to him
that he has a right to have a competent translator
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assist him, at state expense if need be. Where, on
the other hand, no request for an interpreter has
been made and the defendant appears to
comprehend the nature of the proceedings and the
charges against him, the trial court does not abuse
its discretion by proceeding without appointing an
interpreter.
Id., quoting People v. Navarro, 134 A.D.2d 460, 461 (1987) (internal
quotation marks omitted).
Instantly, one of appellant’s trial counsel testified at the PCRA hearing
about appellant’s ability to speak and understand the English language.
Counsel stated that appellant communicated with him regularly, and they
discussed the facts and circumstances of the case. (Notes of testimony,
3/6/14 at 11.) Counsel testified there was no need for an interpreter, as
appellant spoke English when he called and he understood everything
counsel told him. (Id. at 8.) “My understanding was that there were issues
with his reading, but never communication.” (Id.)
In its opinion, the PCRA court found the record replete with evidence
that appellant does, indeed, understand English. The PCRA court noted that
appellant’s inability to read English was addressed at the plea hearing and
that, at the hearing, appellant acknowledged on the record that each of the
questions concerning the plea colloquy were read to him and he understood
them. (Id. at 12.) At the PCRA hearing, the court read a portion of the
guilty plea transcript into the record, wherein appellant was asked how far
he went in his education; appellant responded that he had completed some
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college. (Id.) In his Rule 1925(a) opinion, Judge Todd specifically stated
that at the guilty plea hearing, he spoke with and observed appellant and
was “satisfied that [appellant] understood the proceedings and everything
that was being said to him. At no time did [appellant], by his words, actions
or demeanor express any difficulty in understanding the proceedings.”
(PCRA opinion, 7/15/14 at 8.) In its opinion, the PCRA court made a
credibility finding that appellant understood the English language and the
guilty plea proceedings. (Id.) We find the record supports the PCRA court’s
determination; appellant has failed to establish that his understanding of the
English language was so impaired that the absence of an interpreter
compromised his decision to plead guilty. Consequently, counsel cannot be
found to have been ineffective in allowing a guilty plea hearing to proceed
without an interpreter.
The final claim presented is whether counsel was ineffective for failing
to file a post-sentence motion to withdraw his guilty plea. The PCRA court
found that there was no evidence that appellant requested a post-sentence
motion be filed or that there was any basis for counsel to believe appellant
would have wanted such a motion to be filed. (Id.) Further, when
considering this claim, an appellant must establish prejudice.
Commonwealth v. Liston, 977 A.2d 1098, 1092 (Pa. 2009). Specifically,
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an appellant must establish that the court would have granted a
post-sentence motion if one were filed. Pursuant to our analysis herein
appellant has not demonstrated that counsel’s actions prejudiced him; he
has not shown that he would have been able to meet the strict standard for
seeking withdrawal of a guilty plea post-sentence.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2015
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF ) CRIMINAL DIY ISION
PENNSYLVANIA )
)
v. ) NO: CC20 111000 I
)
ANGEL CONTIS. )
)
Petitioner. )
July 15. 2014
TODD. J.
OPINION
ThIS is an appeal by Petitioner, Angel Contis, from an order entered on March 11, 2014
dismissing Petitioner's PCRA Petition after an evidentiary hearing held on March 6, 2014 . On
April 10,2014 Petitioner filed a Notice of Appeal to the Superior Court. On April 10,2014
Petitioner was also ordered (0 file a Concise Statement of Matters Complained of on Appeal
pursuanlla Pa. R.A.P. § 1925(b). On April 11. 2014 Petitioner filed his Concise Statement
which set forth the following issues:
"a. The PCRA Court erred In denying the Petition on the following grounds :
J. Trial counsel rendered ineffective assistance by not adequately advising
Mr. Contis thai he could or would be depon.ed upon entering his guilty
plea in thiS maHer;
II. Trial counsel rendered ineffective assistance by failing to provide for an
interpreter at any coun proceedings when Mr. Conris' first language is
Spanish;
III. Trial counsel was ineffective for failing to object and failing to preserve
the above issues by post-sentence motion. a motion to withdraw gu ih y
plea and for failing 10 file a notice of appeal."
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BACKGROUND
This matter arises out of Pelitioner's arrest on March 4. 2011 after which he was charged
with one count of Possession with mien! to Deliver cocair,e In violation of 35 P.S. § 780-
J 13(a)(30); one CQum of Possession of cocaine In violation of 35 P.S . § 780- 113(a)( 16); one
count of Possession of Drug Paraphernaha In violatIOn of 35 P.S . § 780·113(a)(32); one count of
Possession of a Small Amounl of marijuana in violation of 35 P.S. § 780-113(a)(31); and, a
summary offense.
On August 16.2013 Petltioner entered into a negotiated plea agreement which provided
that 111 exchange for a plea of guilty the Commonwealth would agree to waive the mandatory
minimum sentence for PWID in exchange for a sentence of 2 to 4 years with a recommendation
for boot camp and no further penally althe remaining counts. (811612013 T. . p. 2) DUring the
colloquy Petitioner acknow ledged that he was 34 years old and that. although he dId not read the
English language. he understood the proceedings. He also acknowledged thai he did not suffer
from any mental or physical disabilities or infirmities and had no drugs or alcohol whIch
Impaired his understanding of the proceedings. (8//6/2013 T. , pp. )-4) Petllioner' s counsel
indicated Ihal due to Pelilioner's limited ability to read the English language , counsel had read
every question on the Gu ilt y Plea Explanation of Defendant's Rights Form to Petitioner, which
Petit ioner acknowledged had OCCUlTed. (8/16/20137:, pp. 10- 11) The Commonwealth provided
a summary of the offense which indicated that after a traffic stop. Petitioner was found to be in
possession of marijuana, a workmg digital scale with while powder residue. $) ,470.00 In cash
and 18.13 grams of rock coca ine . No corrections were made (0 the summary of (he facts .
(8/16/20137:, pp. 7- 10)
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Petitioner's plea was accepted and Petitioner was sentenced pursuarlf to the negotiated
plea agreement (81/611013 T . pp. 11 - 13) Ii $houJd he noted lhat throughout the proceeding)O
Petitioner acknowledged that he understood the proceedings and agreed 10 and accepted Ihe plea
agreement. In addition, al no time did Petitioner ex.press any desire or need for an interpreter nor
did he exhibit any difficulty in understanding what was being said by eiLher the Coun. his
counselor the prosecutor.
On September 30, 2013 Petitioner filed his pro se PCRA Petition in which he alleged
roumel never asked for or provided an interpreter for any of his coun appearances; that he was
nOllold that he would be in prison for 2 to 4 years or thaI his guilty plea would resull III
deport.atlon from lhe United States. Petit ioner asserted that couJlScllOfOlmed hIm he would get 6
months in boot camp and then parole. On Oclober 3, 2013 an order was entered appointing
rCRA counsel. On January 27, 20 14 counsel filed an Amended PCRA PetitIon. t On Februar)
6,2014 Ibc Commonwealth fIled an Answer to the Amended PCRA Petition conceding [hat. III
light of the United Siaies Supreme Court decision in PadiU,J v. KemlfcJ... y. _ U,S._. 130 S.O.
1473 (2010), an evidemiary hearing was necessary to resol ve the issue of whether or not counse l
mfonned Petitioner of the possible immigration consequences of his guihy plea. Padilla held
(hal counsel must infonn a ellent whether a plea carries a risk of deportation . On February I J,
2014 an order was entered scheduling a PCRA heanng on March 6, 2014 .
At the PCRA hearing a certified Spanish interpreter was provided fo r Peli!lOner. (T .. pp.
2·3) Altomey O. Scot! Lautner testified thai he was retained by Petitioner to represent him
throughout the proceedings inc luding the plea. although he did nOI attend the plea himself, which
I111 the Amended PCRA Petition. Petitioner apparently inserted IWO additional claims, Ihal he
was denied the opportunity for a presentence repon and that counsel failed {O file a post-sentence
mOl ions or POSI senlence mOllons nunc pro lunc pursuanilO Commollwealrh v USInIl.
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was attended by an associate from his office, Anomey Jeff Reis . (T., p. 7) Mr. Lautner [estifled
thaI he mel with Petitioner on multiple occasions prior 10 the plea, tncluding meetings with law
enforcement officials in an anempt to discuss a pOlenilal plea agreement for his case. Mr.
Lautner also testified thai the Jaw enforcement officials also discussed the possibility of
deportation with Petitioner.
Mr. Lautner lestified thaI throughout his representation he never needed a transla tor to be
prescnt as Petitioner spoke English and Petitioner "underSfOod eve rything thai was saId to him ."
(T, p. 8) As 10 his discussions with Petitioner concerning the effects on his imm igration status,
Mr. Lautner testified as follow~:
"Q. Was there any discussion - . dId you ask him about his status 111 the United
Slates?
A. Yes .
Q. And what is it?
A Right now?
Q. What was his status before he entered his plea?
A. I don', recall specifica lly . I know he was nOi a U.S. ci ti zen.
Q. Were you aware he was a permanent resident?
A. I believe so, yes .
Q. And did you do any research on lhe consequences of that plea and
proceedings?
A. NOI only did I explain it to him, but also one oflhe law enforcement
officers in one of our meetings explained it to him, the possibility of
deportation if he was convicted.
Q. And his response was?
A. He was aware." (T .. p. 9)
On cross-examinalion, Mr. Lautner sta ted the following :
"Q. Mr. Lautner, regarding immigration, what did you lell Mr. Contis?
A. That if he was to be found guilty or if he pled guilty there were potential
immigration sanctions. including deponation." (T" p. 10)
Petitioner testified thaI at the lime of the hearing he was 37 years old and although he had
been in the Umled Stales for a lillie more than l5 years, tIis primary language was Spanish. (T.,
pp. 13-14) Although Petitioneraclmowledged that he mel between 8 10 12 times with counsel,
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he only discussed his immigrat ion status o nce: when he gave counsel a copy of his green card
(T ., p. 14) Petllioner testifIed that the only sta tement made to hml by cOlIn~el regardIng the
consequences of Ins plea on his permanent residency sta tu s was "he believed there waS: not going
to be any problems because il was nor a big case, it was a case of possession only." (T" p. ] 4)
Peti tioner testified t.l18l o n the day of the plea anOther la wyer was present; ahhough Il was the
second or third time he had seen him. Petitioner testi fied tha! he was told to :
.. .... put my mltials al the bouom of thc page, and then he started read in g some
things, but [don ' t know how 10 read English. Since I don't speak English. "m
not sure whether he was read ing what was reading on the paper 01 he was telling
me someth ing els e, because I don ' t have a way to know." (T., p. 15)
Petitioner also testified there was no d iscussion with the second aUorney o n Ihe d799 A.2d 136, 14J (Pa. Super 2002) the Court
Slalcd.
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"A criminal defendant has the right to errective counsel during a plea process as
well as during a Ifial. Hill v. Lockharl, 474 U.S . 52, 106 S.O. 366. 88 L.Ed.2d
203 (J985). Allegations or ineffectiveness in connection with the entry of a guilry
plea wil! serve as a basis for relief only if lhe ineffectiveness caused the defendant
to enter an involuntary or unknowing plea. Commonwealth v. Allen , 557 Pa. 135,
732 A.2d 582 (1999) . Where the defendant enters his plea on the advice of
counsel, "the voluntariness of the plea depends on whether counsel's advice 'was
within the range of competence demanded of attorneys in criminal cases.' " Hill,
474 U.S . at 56, 106 S.O . 366, 88 L.Ed.2d 203 (quoting McMann v. Richardson,
397 U.S. 759, 771, 9OS .Ct. 1441,25 L.Ed.2d 763 (1970));
Commonwealth v. Hickman , 799 A,2d 136, 141 (Pa. Super. 2002)
In order for Petitioner to be entilled 10 relief on the basi s that trial counsel was ineffective, the
burden is on Petitioner 10 show by a preponderance of the evidence ineffective assistance of
counsel. Counsel is presumed to be effective, however, and Ihe burden res tS with Petilioner to
overcome tJ1al presumption.
As nOled above, the Commonweallh concedes and the law is clear thai plea counsel must
advise a defendant of the possible consequences of a guilty plea on the defendant 's immigral ion
slat us. mcluding the possibility of deportation . In Commonwealth II. Garcia , 23 A.3d 1059, 1064
(Pa. Super. 2011) the Superior Court, in discussing Padilla. stated:
"Thus, the United Slates Supreme Court clarified the following with regard 10 a
criminal defense attorney's obligation to a client. who is inlending to enter a guilty
plea;
When the (deponationllaw is not succinCl and straightforward ... ,
a criminal defense attorney need do no more than advise a
nonClllzen that pending criminal charges may carry a risk of
adverse immigration consequences. But when deponation
consequence is truly clear, as it was in [Padilla], the duty 10 give
correci advice is equaUy clear. Padi/Ja, 130 S.C!. at 1483."
Commonwealth v. Garcia. 23 A,3d 1059, 1064 (Pa. Super. 2011)
The Court went on to state:
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"With regard to Pennsylvani a precedent , the United States Su preme Court's
holding in Padilla abrogated Commol1wealrh v. Fromeia, 520 Pa. 552, 555 A.2d
92 (1989), in which the Pennsylvania Sup reme Co un held that coun sel, m
prov iding adequate assistance to a criminal defendant contemplating a guil ty plea,
is nOI required to advise a defendant of the collateral conseque nces of plead ing
guilty, includmg the Immigrati on consequences which may result from the plea."
Commonweal,,, v. Garcia, 23 A.3d 1059. 1064 (Pa Super. 2011)
In this case there is absolutely no evidence that cou nsel was ineffccllve in faili ng 10
advise Petitioner of tJle possi bility that he might be deponed as a result of his guih y plea.
Counse l credi bly testified that he not only adVIsed Petitioner of the possibility of deponation bUi
that law en force ment offi cers who met with counsel and Pelilioner also discussed the possibility
of deportati on There is no evidence to support the position any conduct on the palt of counsel
caused Petitioner to enter into an unknowing or un intelligent plea.
Despite PetilJOnCf's contention that the poss ibilit y of deportation was never discussed,
Petit ioner admitted that counsel said "he believed that there was not go ing to be any problems
because it was not a big case, it was a case of possession only." (T .. p. 14) This admission by
Petitioner clearly indicates that the possibility of deportation, or some Impact on his immigration
status, was discussed with counsel even if counsel's assessment was nOt correct. In add ition , this
testimony suggests that there were di scussions of tJ1C impact of the plea on hiS Slaws depending
on whether or nOl the plea was fo r simple possession or PWlD . Petitioner's testimony that
counsel never informed him that he cou ld possibly be. deported as a result of his plea IS s impl y
nO! cred ible.
Pelilioner has a lso raise the iss ue that counse l was ineffective for failing to make
arrangements for an Interpreter during the proceedings. However, as noted above. the record
clearly demonstrates th at Petitioner fully underst ood the proceedings and thaI his pl ea was
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knov.llng , voluntary and imeiligeni Petitioner's inabililY 10 read the Engll'ih langua ge waS
spccilically addressed at the plea hearing by assuring thlll each of the queSl!ons In the Guilty Plei:l
Explanation of Rights Foml were read to Petitioner. Pctitiol1cr acknowledged on Ihe record thai .
m facl, each of the questions had been read tu him and he understood them In addilton , (his
Coun spoke wjlh