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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J., OTT, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 20, 2018
Appellant, Angel Ulices Molina, appeals from the December 16, 2016
order denying his petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The factual background of this case is as follows. In late-March 2006,
Appellant became angry because his 21-month-old son (“Victim”) would not
walk and struck Victim in the abdomen several times. These strikes caused
the laceration of Victim’s intestines by his spine. On April 1, 2006, Victim
died as a result of the internal bleeding caused by these lacerations.
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S05004-18
The procedural history of this case is as follows. On October 15, 2007,
Appellant pled guilty to third-degree murder1 and endangering the welfare of
a child.2 On February 12, 2008, the trial court sentenced Appellant to an
aggregate term of 20 to 40 years’ imprisonment. Appellant did not file a
direct appeal.
On July 11, 2008, Appellant filed a pro se PCRA petition. Counsel was
appointed and subsequently filed a motion to withdraw as counsel together
with a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). On September 19, 2011, the PCRA court granted counsel’s
motion to withdraw and dismissed Appellant’s PCRA petition. Appellant
appealed that dismissal to this Court. This Court vacated the dismissal order
and remanded for an evidentiary hearing to determine whether Appellant’s
plea counsel failed to properly consult with Appellant regarding filing a direct
appeal or whether plea counsel failed to file a direct appeal despite
Appellant’s request to do so. Commonwealth v. Molina, 83 A.3d 1060,
2013 WL 11255538 (Pa. Super. 2013) (unpublished memorandum).
On remand, the PCRA court granted Appellant’s PCRA petition and
reinstated his direct appeal rights nunc pro tunc. Thereafter, this Court
____________________________________________
1 18 Pa.C.S.A. § 2502(c).
2 18 Pa.C.S.A. § 4304(a).
-2- J-S05004-18
affirmed Appellant’s judgment of sentence. Commonwealth v. Molina,
121 A.3d 1141, 2015 WL 6164878 (Pa. Super. 2015) (unpublished
memorandum), appeal denied, 131 A.3d 491 (Pa. 2016).
On March 9, 2016, Appellant filed the instant pro se PCRA petition.
Counsel was appointed and filed an amended petition. On November 21,
2016, the PCRA court issued notice of its intent to dismiss the petition
without an evidentiary hearing. See Pa.R.Crim.P. 907. On December 16,
2016, the PCRA court dismissed the petition. This timely appeal followed.3
Appellant presents one issue for our review:
[Did the PCRA court err in dismissing Appellant’s PCRA petition without an evidentiary hearing to determine if plea counsel was ineffective in her advice regarding the sentence Appellant would receive if he pled guilty?]
Appellant’s Brief at 3.
“We review the denial of a PCRA [p]etition to determine whether the
record supports the PCRA court’s findings and whether its [o]rder is
otherwise free of legal error.” Commonwealth v. McGarry, 172 A.3d 60,
65 (Pa. Super. 2017) (citation omitted). Appellant’s lone issue challenges
the effectiveness of his plea counsel.
3 Appellant filed a concise statement of errors complained of on appeal (“concise statement”) contemporaneously with his notice of appeal. See Pa.R.A.P. 1925(b). On November 7, 2017, the PCRA court issued its Rule 1925(a) opinion. Appellant’s lone issue was included in his concise statement.
-3- J-S05004-18
“[T]he Sixth Amendment to the United States Constitution and Article
I, [Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to
effective counsel. This right is violated where counsel’s performance so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Simpson,
112 A.3d 1194, 1197 (Pa. 2015) (cleaned up). “In the context of a plea, a
claim of ineffectiveness may provide relief only if the alleged ineffectiveness
caused an involuntary or unknowing plea.” Commonwealth v. Orlando,
156 A.3d 1274, 1281 (Pa. Super. 2017) (citation omitted).
“Counsel is presumed to have been effective.” Commonwealth v.
Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017). To prevail on an
ineffective assistance of counsel claim, a “petitioner must plead and prove
that: (1) the underlying legal claim is of arguable merit; (2) counsel’s action
or inaction lacked any objectively reasonable basis designed to effectuate his
[or her] client’s interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s error.”
Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017)
(citation omitted). “Failure to satisfy any prong of the test will result in
rejection of the [petitioner’s] ineffective assistance of counsel claim.”
Commonwealth v. Smith, 167 A.3d 782, 787-788 (Pa. Super. 2017)
(citation omitted).
-4- J-S05004-18
Appellant contends that his plea counsel advised him that he would be
sentenced to 7 to 14 years’ imprisonment if he pled guilty. Appellant
contends that this advice led him to plead guilty. We agree with the PCRA
court that the record reflects that counsel did not advise Appellant that he
would be sentenced to 7 to 14 years’ imprisonment if he pled guilty.
The prosecutor, in response to the trial court’s question at the guilty
plea hearing, stated that there was no agreement with respect to the
sentence Appellant would receive for pleading guilty to third-degree murder.
N.T., 10/15/17, at 3. The trial court immediately responded to the
prosecutor’s comments by noting that the maximum sentence Appellant
could receive was 20 to 40 years’ imprisonment. Id. A few minutes later,
the trial court directly addressed Appellant and informed him that the
maximum penalty he could receive for the third-degree murder conviction
was 20 to 40 years’ imprisonment. Id. at 4.
This was consistent with the statements Appellant agreed to in his
written guilty plea colloquy. Specifically, Appellant acknowledged that his
plea counsel informed him of the maximum possible penalty for third-degree
murder and that the trial court could impose any sentence, up to and
including that maximum, it deemed appropriate.
Free access — add to your briefcase to read the full text and ask questions with AI
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, J., OTT, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 20, 2018
Appellant, Angel Ulices Molina, appeals from the December 16, 2016
order denying his petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The factual background of this case is as follows. In late-March 2006,
Appellant became angry because his 21-month-old son (“Victim”) would not
walk and struck Victim in the abdomen several times. These strikes caused
the laceration of Victim’s intestines by his spine. On April 1, 2006, Victim
died as a result of the internal bleeding caused by these lacerations.
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S05004-18
The procedural history of this case is as follows. On October 15, 2007,
Appellant pled guilty to third-degree murder1 and endangering the welfare of
a child.2 On February 12, 2008, the trial court sentenced Appellant to an
aggregate term of 20 to 40 years’ imprisonment. Appellant did not file a
direct appeal.
On July 11, 2008, Appellant filed a pro se PCRA petition. Counsel was
appointed and subsequently filed a motion to withdraw as counsel together
with a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). On September 19, 2011, the PCRA court granted counsel’s
motion to withdraw and dismissed Appellant’s PCRA petition. Appellant
appealed that dismissal to this Court. This Court vacated the dismissal order
and remanded for an evidentiary hearing to determine whether Appellant’s
plea counsel failed to properly consult with Appellant regarding filing a direct
appeal or whether plea counsel failed to file a direct appeal despite
Appellant’s request to do so. Commonwealth v. Molina, 83 A.3d 1060,
2013 WL 11255538 (Pa. Super. 2013) (unpublished memorandum).
On remand, the PCRA court granted Appellant’s PCRA petition and
reinstated his direct appeal rights nunc pro tunc. Thereafter, this Court
____________________________________________
1 18 Pa.C.S.A. § 2502(c).
2 18 Pa.C.S.A. § 4304(a).
-2- J-S05004-18
affirmed Appellant’s judgment of sentence. Commonwealth v. Molina,
121 A.3d 1141, 2015 WL 6164878 (Pa. Super. 2015) (unpublished
memorandum), appeal denied, 131 A.3d 491 (Pa. 2016).
On March 9, 2016, Appellant filed the instant pro se PCRA petition.
Counsel was appointed and filed an amended petition. On November 21,
2016, the PCRA court issued notice of its intent to dismiss the petition
without an evidentiary hearing. See Pa.R.Crim.P. 907. On December 16,
2016, the PCRA court dismissed the petition. This timely appeal followed.3
Appellant presents one issue for our review:
[Did the PCRA court err in dismissing Appellant’s PCRA petition without an evidentiary hearing to determine if plea counsel was ineffective in her advice regarding the sentence Appellant would receive if he pled guilty?]
Appellant’s Brief at 3.
“We review the denial of a PCRA [p]etition to determine whether the
record supports the PCRA court’s findings and whether its [o]rder is
otherwise free of legal error.” Commonwealth v. McGarry, 172 A.3d 60,
65 (Pa. Super. 2017) (citation omitted). Appellant’s lone issue challenges
the effectiveness of his plea counsel.
3 Appellant filed a concise statement of errors complained of on appeal (“concise statement”) contemporaneously with his notice of appeal. See Pa.R.A.P. 1925(b). On November 7, 2017, the PCRA court issued its Rule 1925(a) opinion. Appellant’s lone issue was included in his concise statement.
-3- J-S05004-18
“[T]he Sixth Amendment to the United States Constitution and Article
I, [Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to
effective counsel. This right is violated where counsel’s performance so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Simpson,
112 A.3d 1194, 1197 (Pa. 2015) (cleaned up). “In the context of a plea, a
claim of ineffectiveness may provide relief only if the alleged ineffectiveness
caused an involuntary or unknowing plea.” Commonwealth v. Orlando,
156 A.3d 1274, 1281 (Pa. Super. 2017) (citation omitted).
“Counsel is presumed to have been effective.” Commonwealth v.
Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017). To prevail on an
ineffective assistance of counsel claim, a “petitioner must plead and prove
that: (1) the underlying legal claim is of arguable merit; (2) counsel’s action
or inaction lacked any objectively reasonable basis designed to effectuate his
[or her] client’s interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s error.”
Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017)
(citation omitted). “Failure to satisfy any prong of the test will result in
rejection of the [petitioner’s] ineffective assistance of counsel claim.”
Commonwealth v. Smith, 167 A.3d 782, 787-788 (Pa. Super. 2017)
(citation omitted).
-4- J-S05004-18
Appellant contends that his plea counsel advised him that he would be
sentenced to 7 to 14 years’ imprisonment if he pled guilty. Appellant
contends that this advice led him to plead guilty. We agree with the PCRA
court that the record reflects that counsel did not advise Appellant that he
would be sentenced to 7 to 14 years’ imprisonment if he pled guilty.
The prosecutor, in response to the trial court’s question at the guilty
plea hearing, stated that there was no agreement with respect to the
sentence Appellant would receive for pleading guilty to third-degree murder.
N.T., 10/15/17, at 3. The trial court immediately responded to the
prosecutor’s comments by noting that the maximum sentence Appellant
could receive was 20 to 40 years’ imprisonment. Id. A few minutes later,
the trial court directly addressed Appellant and informed him that the
maximum penalty he could receive for the third-degree murder conviction
was 20 to 40 years’ imprisonment. Id. at 4.
This was consistent with the statements Appellant agreed to in his
written guilty plea colloquy. Specifically, Appellant acknowledged that his
plea counsel informed him of the maximum possible penalty for third-degree
murder and that the trial court could impose any sentence, up to and
including that maximum, it deemed appropriate. See Written Guilty Plea
Colloquy, 10/15/17, at 7.
Plea counsel’s statements also indicate that she did not advise
Appellant that he would receive 7 to 14 years’ imprisonment. Attached to
-5- J-S05004-18
Appellant’s amended PCRA petition was a certification from PCRA counsel.
In that certification, PCRA counsel averred that plea counsel “has no
recollection of telling [Appellant] that he would likely get a sentence of 7-14
years[.]” Amended PCRA Petition, 8/17/16, at Exhibit 1. The certification
also indicates that plea counsel “doesn’t believe that she would have told
[Appellant] that he would likely get a 7-14 year sentence.” Id. Thus, the
only thing that supports Appellant’s argument is his own bald assertion that
plea counsel told him he would receive 7 to 14 years’ imprisonment for
third-degree murder. The record does not establish that there is a genuine
issue of fact regarding whether plea counsel provided that advice.
Appellant also tangentially argues that counsel was ineffective for
failing to secure a Spanish interpreter to assist in communicating with
Appellant. The record reflects, however, that Appellant was notified that a
Spanish interpreter was available if he believed that an interpreter would be
helpful. See N.T., 10/15/07, at 2. Appellant informed the trial court that he
could understand the English language and did not need an interpreter. See
id. Thus, to the extent that Appellant argues that he misunderstood his
counsel’s advice regarding the potential sentence for third-degree murder
because of counsel’s failure to secure an interpreter, that argument is
without merit. Hence, the PCRA court properly dismissed the petition
without an evidentiary hearing.
Order affirmed.
-6- J-S05004-18
Judge Ott joins.
Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/20/2018
-7-