Com. v. Calderon, R.

• Court: Superior Court of Pennsylvania
• Decided: May 12, 2015
• Docket: 1750 EDA 2014
• Status: Unpublished

Opinion

J-S10028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ROBERTO CALDERON

Appellant No. 1750 EDA 2014

Appeal from the PCRA Order entered May 19, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: 51-CP-CR-0007641-2007

BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 12, 2015

Appellant, Roberto Calderon, appeals from the May 19, 2014 order of

the Court of Common Pleas of Philadelphia County denying relief under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review,

we affirm.

We summarized the relevant factual and procedural background of the

instant matter in Appellant’s nunc pro tunc direct appeal:

On February 11, 2007, a large crowd of people was gathered at the 2800 block of Rosehill Street, Philadelphia, near [Appellant]’s residence. [Appellant] came out of his home with a loaded nine millimeter handgun and fired five shots towards the crowd. One of the gunshots hit Hector Lopez, Sr., in the chest, causing his death. Lopez’s son saw [Appellant], who he knew as “B,” fire ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S10028-15

the handgun. An arrest warrant was issued for [Appellant]. After two months as a fugitive, he was apprehended on April 4, 2007. Upon his arrest, he gave a statement in Spanish to Philadelphia Police Officer Cruz, admitting he had a loaded nine millimeter handgun and that he fired it upwards towards the church. In his written statement, he maintained that he fired the gun up in the air. He also informed the police as to where he had hidden the gun.

On March 3, 2009, [Appellant] entered a negotiated guilty plea to the charges of third-degree murder and [possessing an instrument of crime (“PIC”)]. Directly following the guilty plea proceeding, the trial court sentenced [Appellant] to a term of 15 to [3]0 years’ imprisonment for the murder conviction and a concurrent term of two-and-one half to five years’ incarceration for the PIC crime.

On March 13, 2009, [Appellant] through [new] defense counsel[1], provided the trial court with an unfiled copy of his post-sentence motion to withdraw his guilty plea. The Commonwealth responded to the motion. A hearing was originally scheduled for April 17, 2009 but was continued several times due to clerical error, a scheduling conflict, and defense counsel’s failure to appear. The hearing was eventually set for June 25, 2009. On that date, the court denied the post- sentence motion without a hearing when defense counsel again failed to appear.

[Appellant] filed a notice of appeal but this Court dismissed the appeal on November 23, 2009 because he failed to file a brief in conformity with the docketing schedule. On February 8, 2010, [Appellant] filed a [PCRA] petition, alleging ineffective assistance of counsel. On March 30, 2010, the court reinstated his direct appeal rights nunc pro tunc. . . .

Commonwealth v. Calderon, No. 883 EDA 2010, unpublished

memorandum at 1-2 (Pa. Super. filed March 14, 2011) (footnotes omitted).

____________________________________________

1 See Trial Court Opinion, 8/11/14, at 1.

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On direct appeal, Appellant argued that the trial court “erred in

denying his post-sentence motion to withdraw his guilty plea for the

following reasons: (1) he did not knowingly and voluntarily enter his

negotiated guilty plea based on translator error and (2) the court failed to

inquire as to whether he understood and voluntarily pled guilty.” Id. at 3-4.

Upon review, we found these two issues waived because Appellant failed to

preserve them by “objecting at the sentence colloquy or otherwise raising

the issues at the sentencing hearing or through a post-sentence motion.”

Id. at 4. We nonetheless also concluded these claims were meritless

because Appellant “was provided an official Spanish interpreter, who was

sworn in during his guilty plea hearing. A review of the guilty plea

proceeding and his written guilty plea colloquy reveals that based on the

totality of the circumstances, he entered a voluntary, knowing, and

intelligent plea.” Id. at n.7 (citation omitted). Finally, we declined to

address Appellant’s claim of ineffective assistance of counsel (plea counsel)

and deferred it until collateral review. Id. at 5.

On April 20, 2011, Appellant pro se filed a PCRA petition. After the

PCRA court appointed new counsel (current counsel), Appellant filed an

Amended PCRA petition “aver[ring] [Appellant] is actually innocent, his

guilty plea was unlawfully induced by plea counsel, and the guilty plea was

not entered knowingly, intelligently, and voluntarily.” Trial Court Opinion,

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8/11/14, at 3.2 The Commonwealth filed a motion to dismiss Appellant’s

Amended PCRA petition. In response to these filings, the PCRA court

scheduled a hearing for March 17, 2014. “However, neither [Appellant] nor

the Commonwealth wished to present any evidence or argument. Therefore,

the [PCRA court] ruled based upon the parties’ written submissions.” Id. at

3. The same day, the PCRA court issued a notice of intent to dismiss the

PCRA petition pursuant to Pa.R.Crim.P. 907. Subsequently, Appellant filed a

pro se response. The court dismissed the PCRA petition on May 19, 2014.

This appeal followed. Both the PCRA court and Appellant complied with

Pa.R.A.P.1925.3

2 A review of Appellant’s Amended PCRA petition reveals no discussion whatsoever of any of the alleged grounds (namely, violation of state and/or federal constitutions, ineffective assistance of counsel, and guilty plea unlawfully induced) for entitlement to PCRA relief. See Amended Post- Conviction Relief Act Petition, 9/14/12, at 1-2. 3 In his Rule 1925(b) statement, Appellant raised the following claim:

The [PCRA court] erred when it dismissed [Appellant]’s Amended PCRA Petition without a hearing and where [Appellant] properly pled, and would have been able to prove that he was entitled to PCRA relief because his guilty plea was unlawfully induced by counsel and that the plea was not entered in a knowing, intelligent and voluntary fashion.

Appellant’s Rule 1925(b) statement. This statement is premised on a factual misstatement, i.e., the PCRA court denied relief without a hearing. Appellant ignores that he did not wish to present evidence or argument at a hearing specifically set for addressing Appellant’s claims. Instead, he requested the matter be decided by the PCRA court based on the parties’ filings. See Trial Court Opinion, 8/11/14, at 3.

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On appeal, Appellant raises the following issue for our review: “Did the

Honorable PCRA Court err when it dismissed [Appellant]’s Amended PCRA

Petition without granting relief?”4 Appellant’s Brief at 3.5 In the Summary

of the Argument section of his brief, Appellant summarized the sole issue

presented for our review as follows: “[Appellant] properly pled, and actually

proved, that he was entitled to relief in the form of permission to withdraw

Guilty Plea and to proceed to trial. The issue was not waived and the claims

were not refuted by the Commonwealth.” Id. at 6. In essence, therefore,

Appellant is challenging, once again, the trial court’s denial of his post-

sentence motion to withdraw his guilty plea.

Even a cursory review of the record reveals the claim is waived,

litigated, and/or meritless. This Court addressed this same issue on direct

4 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. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. McDermitt, 66 A.3d 810, 813 (Pa. Super. 2013) (internal citations omitted). 5 The purpose of the statement of questions involved is to define the issue or issues to be addressed by this Court. An overbroad allegation of error, without any specificity, like the instant one, generally results in a waiver. See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby”); see also Commonwealth v. Fremd, 860 A.2d 515, 523-24 (Pa. Super. 2004) (“In his brief, appellant also argues that the police conduct was so outrageous as to bar conviction even if entrapment is not found. Appellant failed to raise this issue in the ‘Statement of Questions Involved’ portion of his appellate brief and it is, therefore, waived.”)

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appeal. On direct appeal we found the claims pertaining to the guilty plea as

not being intelligently, knowingly, and voluntarily entered were waived. See

Calderon, No. 883 EDA 2014, at 4. We also found the claim to be

meritless. Id.

Similarly, the PCRA court noted that Appellant waived this claim for

failure to properly raise it on direct appeal, see Trial Court Opinion, 8/11/14,

at 5-6, and, to the extent it could be deemed properly raised, it was

nonetheless meritless because Appellant “was provided an official and duly

sworn-in Spanish interpreter[,] and based on the totality of circumstances,

[Appellant] entered a knowing, intelligent, and voluntary guilty plea.” Id. at

6.

In the argument section of his brief, Appellant argues the trial court’s

analysis is misplaced because it incorrectly assumes Appellant raised here

the same issue he raised on direct appeal. Appellant argues that in this

appeal he is raising a claim of ineffective assistance of plea counsel in

connection with the plea, i.e., “whether trial counsel was requested to file a

Motion to Withdraw the Guilty Plea, and . . . whether he ignored the

request.” Appellant’s Brief at 8. Once again, even a cursory review of the

brief belies the argument.

As noted above, in the statement of questions involved on appeal

Appellant nowhere raised a claim for ineffective assistance of counsel.

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Appellant raises it in the argument section, which is insufficient for appellate

review. See Pa.R.A.P. 2116; see also Fremd, supra.

Even if we were to overlook Appellant’s failure to comply with Rule

2116, Appellant fails to provide any analysis on any of the three prongs for

an ineffectiveness review.6 This, alone, is sufficient for concluding the issue

is waived for failing to adequately develop this claim. Commonwealth v.

Reyes-Rodriguez, --- A.3d ----, 2015 WL 1068995, at *3 (Pa. Super.

March 11, 2015) (failure to adequately develop argument results in waiver).

Even if we were to conclude the claim is preserved for appellate

review, the claim nonetheless fails. Appellant states—again, in the

argument section—that he pled and proved that plea counsel was ineffective

for failing to

object to the Guilty Plea and all where [Appellant] did not have the necessary information upon which to base the plea. [Appellant] clearly claimed through his pro se and amended petitions that he did not ____________________________________________

6 It is well-established that

[A]ppellant is required to make the following showing in order to succeed with [a claim of ineffective assistance of counsel]: (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. The failure to satisfy any prong of this test will cause the entire claim to fail. Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise.

McDermitt, 66 A.3d 810, 813 (internal citations omitted).

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know what he was doing at the time of the plea and further claimed . . . that [he] wanted the plea withdrawn.

Appellant’s Brief at 9. As noted, earlier in his brief, Appellant also argued

plea counsel was ineffective because he did not pursue his request to

withdraw his guilty plea. Id. at 8.

Appellant apparently believes he was able to plead and prove counsel’s

ineffectiveness despite the fact he declined to present any evidence or

argument on this matter.7 We cannot agree. Appellant, in fact, failed to

plead and prove, inter alia, he suffered prejudice from the alleged

ineffectiveness. As the PCRA court noted, “[Appellant]’s Amended PCRA

Petition completely ignores the fact a [timely] post-sentence motion to

withdraw the guilty plea was filed on behalf of [Appellant], the trial court

denied the motion, the matter was raised on direct appeal, and the Superior

Court affirmed the judgment of sentence.”8 Trial Court Opinion, 8/11/14, at

3; see also Calderon, No. 883 EDA 2010, at 2-3.

7 Interestingly, Appellant couches this fact as follows: “From the record it appears that the parties submitted this matter to the [PCRA court] on the papers. Thus, the written submission substituted for a hearing.” Appellant’s Brief at 7 (emphasis added). It is unclear how it would only “appear” that the matter was decided on the filings. Appellant does not mention the fact he declined to present evidence or argument on counsel’s ineffectiveness despite the fact the PCRA court scheduled a hearing on this matter. It is much more than an appearance; it is a fact that Appellant declined to present evidence and argument at the scheduled hearing. 8 Similarly, Appellant ignores this fact in his appellate brief.

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Finally, Appellant also states that “the Commonwealth could not and

did not refute those claims.” Appellant’s Brief at 9. The legal relevance of

this allegation is unclear, nor does Appellant provide any authority for the

point he is intending to make. We merely note that Appellant seems to

ignore that the burden is on Appellant to prove by a preponderance of the

evidence that he was entitled to relief. See, e.g., 42 Pa.C.S.A. § 9543(a).

The Commonwealth’s alleged failure to refute these allegations does not

entitle Appellant to relief.

In light of the foregoing, we conclude the PCRA court properly denied

Appellant’s Amended PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/12/2015

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