J-S27022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JAVIER ARTACHE
Appellant No. 2753 EDA 2014
Appeal from the PCRA Order of September 17, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0010405-2008
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015
Appellant, Javier Artache, appeals from an order dismissing his petition
for post-conviction relief. On appeal, he claims that the court below erred in
rejecting his claim that ineffective assistance of trial counsel caused him to
invalidly waive his right to a jury trial. We affirm.
On September 20, 2006, Appellant fatally shot David Delgado once in
the head. The killing occurred in the Spring Garden neighborhood of
Philadelphia. Appellant fled to Puerto Rico, but later turned himself in, and
authorities extradited him to Pennsylvania to face charges.
On March 29, 2010, Appellant, whose first language is Spanish,
appeared before the trial court represented by trial counsel and assisted by ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S27022-15
an interpreter. Appellant executed a written jury trial waiver colloquy, and
two shorter waiver documents, one of which was in Spanish. The trial court
also colloquied Appellant on the record, after which Appellant waived his
right to a jury trial. Following trial, the trial court found Appellant guilty of
first-degree murder, 18 Pa.C.S.A. § 2502(a), and other crimes, and imposed
a life sentence. On direct appeal, Appellant unsuccessfully challenged the
weight and sufficiency of the evidence. See Commonwealth v. Artache,
34 A.3d 228 (Pa. Super. 2011) (unpublished memorandum), appeal denied,
40 A.3d 119 (Pa. 2012).
On March 14, 2012, Appellant filed pro se a timely first petition under
the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46. The PCRA court
appointed counsel, who filed an amended petition claiming that Appellant’s
jury trial waiver was invalid because trial counsel had misinformed Appellant
as to the penalty for first-degree murder. The PCRA court later issued a
Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing. Appellant,
through counsel, filed a response, which included a handwritten, unsworn
affidavit. On September 17, 2014, the PCRA court issued a final order
dismissing the petition.
On appeal, Appellant presents one question for review:
Did the [PCRA] court err in denying the [A]ppellant an evidentiary hearing when [A]ppellant alleged that his waiver of his state and federal constitutional right to a jury trial was not knowing, intelligent[,] and voluntary because of a failure to advise the [Appellant] that a conviction of first[-]degree murder required a life sentence and other misrepresentations of trial
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defense counsel to the [Appellant] that coerced the [Appellant] to waive his right to a jury trial?
Appellant’s Brief at 2.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determinations are supported by the record and are free of legal
error.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation
omitted). “The PCRA court’s credibility determinations, when supported by
the record, are binding on this Court; however, we apply a de novo standard
of review to the PCRA court’s legal conclusions.” Id. A PCRA petitioner does
not have an absolute right to an evidentiary hearing. Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa. Super. 2012). Rather, a PCRA court may
dismiss a petition without a hearing if the claim is frivolous and has no
support in the record. Id.
“When a presumptively-valid [jury trial] waiver is collaterally attacked
under the guise of ineffectiveness of counsel, it must be analyzed like any
other ineffectiveness claim.” Commonwealth v. Mallory, 941 A.2d 686,
698 (Pa. 2008). “To prevail on an [ineffective assistance of counsel] claim,
a PCRA petitioner must plead and prove by a preponderance of the evidence
that (1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for acting or failing to act; and (3) the petitioner suffered
resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
780 (Pa. Super. 2015) (en banc). In the context of a jury trial waiver,
“prejudice” means that but for counsel’s ineffectiveness, the results of the
waiver proceeding would have been different. Mallory, 941 A.2d at 702-03;
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see also Commonwealth v. Birdsong, 24 A.3d 319, 340 (Pa. 2011)
(noting that a PCRA petitioner must show that, but for counsel’s
ineffectiveness, he would have chosen not to waive his right to a jury trial).
Here, Appellant claims he waived his right to a jury trial because trial
counsel made several misrepresentations. In his PCRA petition, Appellant
pled that trial counsel failed to apprise him that first-degree murder carries a
mandatory life sentence, because ¶ 39 of his written waiver colloquy
(regarding mandatory minimum sentences) was left blank. In his affidavit
filed in response to the PCRA court’s Rule 907 notice, Appellant contended
that trial counsel told him the jury would give him the death penalty even
though the Commonwealth had not sought the death penalty; the trial judge
would sentence Appellant to only 20 to 40 years in prison; and the jury
would find Appellant guilty merely because he had been arrested and
charged with a crime.
A jury trial waiver must be knowing and voluntary, and must inform
the defendant that (1) he has a right to participate in selecting a jury; (2)
chosen from his peers; and (3) the jury’s verdict must be unanimous.
Mallory, 941 A.2d at 696-97. In Commonwealth v. Boyd, 334 A.2d 610,
614-15 (Pa. 1975), our Supreme Court held that failing to inform a
defendant of the potential sentences does not make a jury trial waiver
invalid, because the potential sentence is not an essential element of a jury
trial. The Supreme Court distinguished Boyd in Commonwealth v. Houck,
948 A.2d 780, 788 (Pa. 2008), holding that “the voluntariness of a jury
-4- J-S27022-15
waiver can be undermined where the defendant is informed of a range of
potential sentences at a jury waiver colloquy that is less than the sentence
eventually imposed.” However, the court held further that “if a defendant
seeks to invalidate an otherwise valid jury waiver based on a trial court’s
recitation of his or her potential sentence, the defendant should be required
to demonstrate that his or her understanding of the length of the potential
sentence was a material factor in making the decision to waive a jury trial.”
Id. (emphasis added).
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J-S27022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JAVIER ARTACHE
Appellant No. 2753 EDA 2014
Appeal from the PCRA Order of September 17, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0010405-2008
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015
Appellant, Javier Artache, appeals from an order dismissing his petition
for post-conviction relief. On appeal, he claims that the court below erred in
rejecting his claim that ineffective assistance of trial counsel caused him to
invalidly waive his right to a jury trial. We affirm.
On September 20, 2006, Appellant fatally shot David Delgado once in
the head. The killing occurred in the Spring Garden neighborhood of
Philadelphia. Appellant fled to Puerto Rico, but later turned himself in, and
authorities extradited him to Pennsylvania to face charges.
On March 29, 2010, Appellant, whose first language is Spanish,
appeared before the trial court represented by trial counsel and assisted by ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S27022-15
an interpreter. Appellant executed a written jury trial waiver colloquy, and
two shorter waiver documents, one of which was in Spanish. The trial court
also colloquied Appellant on the record, after which Appellant waived his
right to a jury trial. Following trial, the trial court found Appellant guilty of
first-degree murder, 18 Pa.C.S.A. § 2502(a), and other crimes, and imposed
a life sentence. On direct appeal, Appellant unsuccessfully challenged the
weight and sufficiency of the evidence. See Commonwealth v. Artache,
34 A.3d 228 (Pa. Super. 2011) (unpublished memorandum), appeal denied,
40 A.3d 119 (Pa. 2012).
On March 14, 2012, Appellant filed pro se a timely first petition under
the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46. The PCRA court
appointed counsel, who filed an amended petition claiming that Appellant’s
jury trial waiver was invalid because trial counsel had misinformed Appellant
as to the penalty for first-degree murder. The PCRA court later issued a
Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing. Appellant,
through counsel, filed a response, which included a handwritten, unsworn
affidavit. On September 17, 2014, the PCRA court issued a final order
dismissing the petition.
On appeal, Appellant presents one question for review:
Did the [PCRA] court err in denying the [A]ppellant an evidentiary hearing when [A]ppellant alleged that his waiver of his state and federal constitutional right to a jury trial was not knowing, intelligent[,] and voluntary because of a failure to advise the [Appellant] that a conviction of first[-]degree murder required a life sentence and other misrepresentations of trial
-2- J-S27022-15
defense counsel to the [Appellant] that coerced the [Appellant] to waive his right to a jury trial?
Appellant’s Brief at 2.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determinations are supported by the record and are free of legal
error.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation
omitted). “The PCRA court’s credibility determinations, when supported by
the record, are binding on this Court; however, we apply a de novo standard
of review to the PCRA court’s legal conclusions.” Id. A PCRA petitioner does
not have an absolute right to an evidentiary hearing. Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa. Super. 2012). Rather, a PCRA court may
dismiss a petition without a hearing if the claim is frivolous and has no
support in the record. Id.
“When a presumptively-valid [jury trial] waiver is collaterally attacked
under the guise of ineffectiveness of counsel, it must be analyzed like any
other ineffectiveness claim.” Commonwealth v. Mallory, 941 A.2d 686,
698 (Pa. 2008). “To prevail on an [ineffective assistance of counsel] claim,
a PCRA petitioner must plead and prove by a preponderance of the evidence
that (1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for acting or failing to act; and (3) the petitioner suffered
resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
780 (Pa. Super. 2015) (en banc). In the context of a jury trial waiver,
“prejudice” means that but for counsel’s ineffectiveness, the results of the
waiver proceeding would have been different. Mallory, 941 A.2d at 702-03;
-3- J-S27022-15
see also Commonwealth v. Birdsong, 24 A.3d 319, 340 (Pa. 2011)
(noting that a PCRA petitioner must show that, but for counsel’s
ineffectiveness, he would have chosen not to waive his right to a jury trial).
Here, Appellant claims he waived his right to a jury trial because trial
counsel made several misrepresentations. In his PCRA petition, Appellant
pled that trial counsel failed to apprise him that first-degree murder carries a
mandatory life sentence, because ¶ 39 of his written waiver colloquy
(regarding mandatory minimum sentences) was left blank. In his affidavit
filed in response to the PCRA court’s Rule 907 notice, Appellant contended
that trial counsel told him the jury would give him the death penalty even
though the Commonwealth had not sought the death penalty; the trial judge
would sentence Appellant to only 20 to 40 years in prison; and the jury
would find Appellant guilty merely because he had been arrested and
charged with a crime.
A jury trial waiver must be knowing and voluntary, and must inform
the defendant that (1) he has a right to participate in selecting a jury; (2)
chosen from his peers; and (3) the jury’s verdict must be unanimous.
Mallory, 941 A.2d at 696-97. In Commonwealth v. Boyd, 334 A.2d 610,
614-15 (Pa. 1975), our Supreme Court held that failing to inform a
defendant of the potential sentences does not make a jury trial waiver
invalid, because the potential sentence is not an essential element of a jury
trial. The Supreme Court distinguished Boyd in Commonwealth v. Houck,
948 A.2d 780, 788 (Pa. 2008), holding that “the voluntariness of a jury
-4- J-S27022-15
waiver can be undermined where the defendant is informed of a range of
potential sentences at a jury waiver colloquy that is less than the sentence
eventually imposed.” However, the court held further that “if a defendant
seeks to invalidate an otherwise valid jury waiver based on a trial court’s
recitation of his or her potential sentence, the defendant should be required
to demonstrate that his or her understanding of the length of the potential
sentence was a material factor in making the decision to waive a jury trial.”
Id. (emphasis added).
The PCRA court did not err in dismissing Appellant’s claim. The oral
and written waiver colloquies belie Appellant’s contention that he was
unaware of the maximum sentence for first-degree murder. “In his written
jury trial waiver colloquy form, [Appellant] answered that he understood
that he was charged with ‘Murder H1’ and that he faced a maximum
sentence of life in prison.” PCRA Court Opinion, 12/3/14, at 6; see also id.
at 8 (finding “incredulous” Appellant’s claim that trial counsel misled him into
believing the maximum sentence for first-degree murder is 40 years).
Additionally, unlike in Houck, the trial court here did not misinform
Appellant of the potential sentences he could receive. In fact, the trial court
did not discuss possible minimum or maximum sentences at all during the
oral waiver colloquy. Finally, the lack of any mandatory minimum sentence
on ¶ 39 of Appellant’s written jury trial waiver colloquy is easily explained.
Appellant was charged with murder generally, meaning that he could have
been convicted of third-degree murder. See Information, 3/29/10, Count 1;
-5- J-S27022-15
N.T. Trial, 3/29/10, at 7-8. There is no mandatory minimum sentence for
third-degree murder, so ¶ 39, left blank, correctly reflects the applicable
mandatory minimum sentence: none.
Moreover, Appellant cannot rely on his claims that trial counsel
misrepresented the nature of the proceedings. During his oral colloquy,
Appellant stated he understood the essential elements of a jury trial, was
satisfied with counsel’s representation, and expressed—repeatedly—his
desire to waive a jury trial. See N.T. Trial, 3/29/10, at 3-7. Appellant also
executed three written waivers, one of which was in Spanish. We reject
Appellant’s reliance on his recently-produced affidavit, which contradicts his
statements made under oath during the colloquy. Cf. Commonwealth v.
Willis, 68 A.3d 997, 1009 (Pa. Super. 2013) (stating, regarding a guilty pela
colloquy, that an appellant is bound by the statements made in his colloquy
and “may not now asserts grounds for withdrawing the plea which contradict
the statements”). Finally, Appellant has not stated how his understanding of
the potential sentences was material to his decision to waive a jury trial.
Thus, assuming Appellant did not understand the potential sentences, he
cannot meet the Houck standard.
-6- J-S27022-15
In sum, Appellant’s claim lacks arguable merit,1 and the PCRA court
did not err in dismissing Appellant’s PCRA petition without a hearing.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/23/2015
____________________________________________
1 We additionally note that Appellant failed to plead or argue prejudice, i.e., that but for trial counsel’s ineffectiveness he would have chosen a jury trial. See Mallory, 941 A.2d at 702-03; see also Birdsong, 24 A.3d at 340 (“Appellant must demonstrate . . . that, but for counsel’s ineffectiveness, he would have insisted upon a jury.”).
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