Com. v. Serrano, A.

• Court: Superior Court of Pennsylvania
• Decided: October 25, 2016
• Docket: 697 MDA 2016
• Status: Unpublished

Opinion

J-S72012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ALEX SERRANO

Appellant No. 697 MDA 2016

Appeal from the PCRA Order March 24, 2016 In the Court of Common Pleas of Union County Criminal Division at No(s): CP-60-CR-0000063-2014

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 25, 2016

Appellant, Alex Serrano, appeals from the order entered in the Union

County Court of Common Pleas, which denied his first petition brought

pursuant to the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§

9541-9546. We affirm.

The relevant facts and procedural history of this case are as follows.

On March 17, 2015, Appellant entered a no-contest plea to one count of

possession with intent to distribute (“PWID”), dealing in proceeds of unlawful

activity, criminal conspiracy, and two counts of corrupt organizations. 1 The

trial court sentenced Appellant to four (4) to fifteen (15) years’ ____________________________________________

1 35 P.S. § 780-113; 18 Pa.C.S.A. §§ 5111(a)(1), 903, 911(b)(3), and 911(b)(4), respectively.

_____________________________

*Retired Senior Judge assigned to the Superior Court. J-S72012-16

incarceration, in accordance with the negotiated plea. Appellant did not

pursue direct appellate review.

On May 13, 2015, Appellant filed a pro se motion to “modify and

correct illegal sentence nunc pro tunc.” The court denied Appellant’s motion

in an order issued on May 28, 2015. Appellant filed an identical motion on

June 24, 2015, which the court again denied on June 26, 2015. Appellant

then timely filed a pro se PCRA petition on September 2, 2015. In it,

Appellant claimed the court improperly obstructed Appellant’s right of appeal

by failing to provide notice when it denied his previous motions. The PCRA

court appointed counsel, who filed an amended PCRA petition on December

31, 2015. Appellant’s amended PCRA petition argued his plea was not

knowing, intelligent, and voluntary because the court failed to advise him of

potential fines he faced. On March 24, 2016, the court conducted a hearing.

The court denied Appellant PCRA relief at the conclusion of the hearing.

Appellant timely filed a notice of appeal on Monday, April 25, 2016.

On April 29, 2016, the court ordered Appellant to file a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant

timely complied.

Appellant raises a single issue for our review:

DID THE TRIAL COURT ERR IN NOT PROVIDING A FULL HEARING ON A PCRA PETITION WHEN APPELLANT PRESENTED AN ISSUE OF MERIT?

(Appellant’s Brief at 4).

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Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s

determination and whether its decision is free of legal error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,

however, to the court’s legal conclusions. Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a

PCRA hearing as a matter of right; the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact, the

petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338

(Pa.Super. 2012).

On appeal, Appellant argues the sentencing court denied Appellant his

constitutional rights when it failed to advise him of potential financial

penalties he faced in his no-contest plea. Appellant contends the written

plea colloquy form stated the maximum fine possible for each charge was

$25,000.00. Appellant avers the maximum fine possible for the charges of

PWID and criminal conspiracy was actually $250,000.00 each. Appellant

indicates the court initially stated the potential fine for each charge correctly.

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Later in the plea hearing, the court misstated the fines as $25,000.00 per

offense. Appellant insists the court’s mistake rendered Appellant’s plea

invalid. Appellant concludes he is entitled to a full evidentiary hearing on his

issue. We disagree.

As a preliminary matter, “to preserve their claims for appellate review,

appellants must comply whenever the trial court orders them to file a

Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925.

[As a general rule, a]ny issues not raised in a [Rule] 1925(b) statement will

be deemed waived.” Commonwealth v. Castillo, 585 Pa. 395, 403, 888

A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420,

719 A.2d 306, 309 (1998)). Additionally,

When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.

In other words, a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all. While Lord and its progeny have generally involved situations where an appellant completely fails to mention an issue in his Concise Statement, for the reasons set forth above we conclude that Lord should also apply to Concise Statements which are so vague as to prevent the court from identifying the issue to be raised on appeal.

Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001).

Failure to include an issue in a Rule 1925(b) statement generally waives that

issue for purposes of appellate review. Commonwealth v. Pantalion, 957

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A.2d 1267, 1270 n.6 (Pa.Super. 2008).

To be eligible for relief under the PCRA, the petitioner must plead and

prove his conviction resulted from one or more of the grounds set forth in 42

Pa.C.S.A. § 9543(a)(2)(i-viii). Commonwealth v. Zook, 585 Pa. 11, 887

A.2d 1218 (2005). “Generally, an appellant may not raise allegations of

error in an appeal from the denial of PCRA relief as if he were presenting the

claims on direct appeal.” Commonwealth v. Price, 876 A.2d 988, 995

(Pa.Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert.

denied, 549 U.S. 902, 127 S.Ct. 224, 166 L.Ed.2d 179 (2006);

Commonwealth v. Bell, 706 A.2d 855 (Pa.Super. 1998), appeal denied,

557 Pa. 624, 732 A.2d 611 (1998). Further, “an issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, during

unitary review, on appeal or in a prior state [post-conviction] proceeding.”

42 Pa.C.S.A. § 9544.

“A defendant wishing to challenge the voluntariness of a guilty plea on

direct appeal must either object during the plea colloquy or file a motion to

withdraw the plea within ten days of sentencing.” Commonwealth v.

Lincoln, 72 A.3d 606 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87

A.3d 319 (2014).

The failure to advise a defendant of the possible maximum sentence will not necessarily justify the withdrawal of an otherwise voluntary guilty plea. To amount to manifest injustice justifying withdrawal of the plea, the mistake must be so great as to have a material effect on the defendant’s decision to plead guilty.

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Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa.Super. 2003) (stating

how “in some circumstances, misinformation about the possible maximum

sentence will invalidate a negotiated plea, thereby permitting a defendant to

withdraw the plea even after sentencing”; citing Commonwealth v.

Hodges, 789 A.2d 764 (Pa.Super. 2002), for example, which held that

manifest injustice occurred when plea was entered to avoid death penalty,

which did not apply). “[I]f a defendant enters an open guilty plea and

justifiably believes that the maximum sentence is less than what he could

receive by law, he may not be permitted to withdraw the plea unless he

receives a sentence greater than what he was told.” Commonwealth v.

Warren, 84 A.3d 1092, 1096 (Pa.Super. 2014) (quoting Barbosa, supra at

82).

Instantly, Appellant’s Rule 1925(b) statement asserts, “[Appellant]

respectfully avers that the trial court erred in not permitting him a full

hearing [on] his PCRA petition when he presented an issue of merit.”

(Concise Statement of Matters Complained of on Appeal, 5/24/16, at 1). As

presented, Appellant’s “issue of merit” is unidentifiable. Appellant’s Rule

1925(b) statement failed to raise his current contention that his plea was

invalid because the trial court did not properly inform him of the possible

fines he faced. Appellant’s statement does not comply with the Rules of

Appellate procedure; therefore, his issue is arguably waived. See Castillo,

supra.

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Additionally, Appellant attempted to raise his claim during PCRA review

as if on direct appeal. The PCRA court did schedule an evidentiary hearing

on Appellant’s claim, at which time Appellant had the opportunity to present

his claim. At the hearing, however, Appellant’s PCRA counsel conceded

Appellant should have raised, on direct appeal, his contention that his plea

was not knowing, intelligent, or voluntary. Mid-hearing, Appellant’s counsel

then tried to reframe Appellant’s issue as an ineffective assistance of plea

counsel claim. The court flatly rejected Appellant’s belated effort to re-

characterize his claim as one of ineffective assistance of plea counsel, when

no ineffectiveness claim had been raised in Appellant’s petition or

contemplated at the hearing. The PCRA court agreed with the

Commonwealth that Appellant’s ineffectiveness of counsel claim was waived.

Likewise, Appellant makes no claim that he would not have pled nolo

contendere, but for the court’s misstatement. Here, the court imposed a

total fine of $5,000.00. Given the fine actually imposed, Appellant cannot

claim the court’s inadvertent misstatement regarding the potential fines had

any impact on the plea process. See Warren, supra; Barbosa, supra.

Based upon the foregoing, Appellant is not entitled to a remand for another

evidentiary hearing. Accordingly, we affirm the order denying PCRA relief.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/25/2016

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