Com. v. Thach, T.

Opinion

J-S20042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TAI THACH : : Appellant : No. 2641 EDA 2016

Appeal from the Judgment of Sentence February 6, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004527-2013

BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 15, 2017

Tai Thach appeals, nunc pro tunc, from the judgment of sentence

imposed on February 6, 2014, in the Court of Common Pleas of Philadelphia

County, after Thach pled guilty to charges of aggravated assault and

conspiracy.1 Thach was sentenced to a term of five to ten years’ incarceration.

In this appeal, Thach claims his guilty plea was unknowing and involuntary in

that it lacked the mandatory elements for a guilty plea, the Cambodian

interpreter lacked the ability to translate and he was not informed of the

possibility he would be deported after he had served his sentence. Counsel

has filed an Anders2 brief along with a motion to withdraw as counsel. After

____________________________________________

1 18 Pa.C.S. §§ 2702(a) and 903, respectively.

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1981); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). J-S20042-17

a thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm and grant counsel’s motion to withdraw.

Initially, we must examine counsel’s motion to withdraw.

Counsel having filed a petition to withdraw, we reiterate that “[w]hen presented with an Anders brief, this court may not review the merits of the underlying issues without first passing on the request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc) (citation omitted). In order for counsel to withdraw from an appeal pursuant to Anders, certain requirements must be met, and counsel must:

(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Id., quoting Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349, 361 (2009).

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.

-2- J-S20042-17

Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016) quoting Commonwealth v. Wrecks, 931 A.2d 717, 720-721 (Pa. Super. 2007)(citations omitted).

Commonwealth v. Blauser, 166 A.3d 428, 431 (Pa. Super. 2017).

Counsel has satisfied all of the requirements needed to fulfill his duty.

Additionally, following remand,3 counsel has certified he presented Thach with

copies of all relevant material translated by a certified translator into

Cambodian to ensure Thach understood the proceedings. Thach has not filed

a response to counsel’s Anders brief.

Because counsel has fulfilled his duty to Thach and Thach has filed no

reply, we will now examine the substance of the claim to determine if any of

the issues are not wholly frivolous.

First and foremost, Thach’s claims all address the voluntariness of his

guilty plea. Thach did not seek to withdraw his plea either prior to or after

sentencing. Therefore, all issues have been waived by failing to preserve the

claim below. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”) See also

Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa. Super.

2017) (In order to preserve an issue related to a guilty plea, an appellant must

either object at the plea colloquy or file a post-sentence motion seeking to

withdraw his plea.) Because the claims have not been preserved, we have

nothing to review, making those claims wholly frivolous. ____________________________________________

3 This panel previously remanded this matter with instructions to counsel to either certify Thach had been given a certified translation of the Anders brief or to provide Thach with a certified translation of the Anders brief.

-3- J-S20042-17

However, even if the claims had been properly preserved, Thach would

not be entitled to relief. In this regard, we rely on the trial court’s opinion

which explains why Thach’s claims are substantively without merit. We

highlight the facts that Thach responded appropriately to all questioning

during the guilty plea, a fact that demonstrates the interpreter was competent

and that Thach understood what was said at the hearing. Additionally, the

certified record demonstrates that Thach was, in fact, told of the risk of

deportation. Specifically, there is a notice of that possibility in the written

guilty plea colloquy that was translated for Thach and signed by him. Further,

at sentencing, Thach asked for consideration of a sentence of less than one

year, which would make it less likely that he would be deported. Finally, Thach

does not indicate what element or elements were missing from the colloquy,

thereby waiving that issue, as well. Nonetheless, the trial court noted that

reviewed in toto, the oral and written colloquies addressed all of the guilty

plea requirements.

In the event of further proceedings, the parties shall attach a copy of

the trial court opinion, dated December 1, 2016, pages 4-6, which discuss the

substantive aspects of Thach’s claims.

In light of the foregoing, we affirm the judgment of sentence.

Judgment of sentence affirmed. Application to withdraw as counsel

granted.

Judge Bowes concurs in the result.

President Judge Emeritus Elliott concurs in the result.

-4- J-S20042-17

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/15/2017

-5- Circulated 10/13/2017 10:19 AM

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST WDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL

COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0004527-2013

VS. CP-51-CR-0004527-2013 Comm. v. Thach, Tai Opinion 2641 EDA 2016 FILED TAI THACH DEC O 1 2016 .1111111111111111111111111 7871240761 CriminalAppeals Unit OPINION FirstJudicialDistrictof PA Defendant Tai Thach pleaded guilty to aggravated assault and criminal conspiracy. The

trial court sentenced Defendant to a guideline sentence of five to ten years of incarceration. On

appeal, Defendant claims that his guilty plea was not knowing, intelligent and voluntary because

(1) the plea lacked the mandatory elements required by Pa.R.Crim.P. 590, (2) the interpreter

lacked the ability to translate from English to Cambodian and Vietnamese, and (3) Defendant

was not advised as to his potential deportation until after sentencing.

FACTUAL BACKGROUND

1. Defendant Reviewed And Signed A Written Guilty Plea Form

Defendant reviewed and. signed a written guilty plea form, which was docketed and made

part of the record. The written guilty plea form contained all six of the areas required by Rule 590.

Additionally, the written guilty plea form contained the following:

• On page 1, Defendant "can read and write English as interpreted" with the words "as interpreted" handwritten on the form by Defendant's attorney.

• On page 3, a paragraph entitled, "RISK OF DEPORATION (If an Alien)," and the following sentence: "I know that ifl am not a United States Citizen, it is possible that I might be deported ifl plead guilty to the crirne(s) charged against me."

• On page 3, it states "I HA VE READ ALL OF THE ABOVE, OR MY LA WYER READ IT TO ME. I UNDERSTAND IT. MY ANSWERS ARE TRUE AND CORRECT."

• On page 3, directly underneath the above quoted language, Defendant signed his name. 2. The Trial Court's Colloquy of Defendant During The Guilty Plea Hearing

In addition to the written guilty plea form, the trial court conducted an oral colloquy to

ensure that Defendant understood the entire guilty plea hearing. During the guilty plea hearing,

the trial court utilized an official court reporter, Danielle Kao, to interpret for Defendant. The

oral colloquy between the trial court and Defendant included the following exchanges:

The Court: Mr. Thach, how old are you today?

Defendant: I'm 41.

Mr. Birley: Thirty-one?

Defendant: Forty-one.

The Court: How far did you go in school?

Defendant: No formal education.

The Court: Can you read and write the English language?

Defendant: No.

The Court: Can you read and write the Cambodian language?

The Court: Can you understand the Cambodian language?

Defendant: Yes.

The Court: And I have in my hand a written guilty plea form. I see a signature that says "Signature of the defendant." Is that your signature?

The Court: Was this form translated orally to you?

The Court: And did you understand the form as it was translated to you?

-2- The Court: Mr. Thach, having heard the Commonwealth's recitation of the facts it believes it can prove at trial beyond a reasonable doubt, do you agree with that statement of facts?

Court crier: Mr. Thach, on this common pleas Docket No. CP-51-CR-0004527-2013, charging with aggravated assault, how do you plead?

Defendant: Guilty.

Court crier: Charging you with criminal conspiracy, how do you plead?

N.T. 12/06/2013 at 3-4, 9-10.

3. The Sentencing Hearing

During the sentencing hearing, the trial court utilized an official court reporter, Leende

Vakouv, to interpret for Defendant. At the sentencing hearing, Defendant's attorney argued to the

trial court that "as Your Honor is aware, any sentence that is over a year is likely to cause my client

deportation. So when you consider the guidelines in this case, those kinds of collateral consequences

aren't considered, the fact that he will be removed from his children." N.T. 02/06/2014 at 5. The trial

court gave Defendant the opportunity to speak during the sentencing hearing:

The Court: Mr. Thach, is there anything you want to say prior to me imposing sentence today?

Defendant: I leave it up to you Your Honor, what you think is right.

Id. at 10.

Finally, after the trial court imposed its sentence, Defendant's attorney advised Defendant

· of his appellate rights.

Mr. Birley: Mr. Thach, the Honorable Judge Anders just sentenced you to 5 to 10 years for aggravated assault and conspiracy. Do you understand the sentence?

Defendant: I understand.

Mr. Birley: You have ten days to petition to His Honor to change his mind about that sentence and 3 0 days to appeal based on the facts that we reviewed. If you

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wish to do either of those things, they must be done by in writing by an attorney and if you want them done, just tell me within that time period. Do you understand that?

Defendant: How can I write? I don't know how to write anything.

Mr. Birley: Right. I'm asking you, if you understand the need to ask for those things.

Defendant: Okay.

Mr. Birley: And I'll speak with you in a second about that.

Id at 12.

DISCUSSION

On appeal, Defendant claims that his guilty plea was not knowing, intelligent and

voluntary because (1) the plea lacked the mandatory elements required by Pa.R.Crim.P. 590, (2)

the interpreter lacked the ability to translate from English to Cambodian and Vietnamese, and (3)

Defendant was not advised as to his potential deportation until after sentencing. See Statement of

Matters Complained of on Appeal, at ,1. "A plea of guilty forecloses challenges to all matters except the voluntariness of the plea,

the jurisdiction of the court, or the legality of the sentence." Commonwealth v. Stewart, 867 A.2d

589, 591 (Pa. Super. Ct. 2005). The Pennsylvania Supreme Court has explained the following

standard when evaluating whether a guilty plea is knowing and voluntary:

In order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its consequences. This determination is to be made by examining the totality of the circumstances surrounding the entry of the plea. Thus, even though there is an omission or defect in the guilty plea colloquy, a plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea.

Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014).

-4- ·•·""·~----· .. .;.. · ;:_ . .. ; .•. : . . :,_.__ . ·'· ,' ; .;,.:. ~~.,.:.::,;. ._ ... __-· .. -~.··-·--·----·

Additionally, "Pennsylvania Rule of Criminal Procedure 590 requires the court to inquire

into the following areas during the plea colloquy: (1) the nature of the charges; (2) the factual

basis of the plea; (3) the right to trial by jury; (4) the presumption of innocence; (5) the

permissible range of sentences; and (6) the judge's authority to depart from any recommended

sentence." Commonwealth v. Baney, 860 A.2d 127, 131 (Pa. Super. 2004).

Here, before entering his plea, Defendant reviewed the entire written guilty plea form,

which contained each of the six areas required by Pa.R.Crim.P. 590. He also signed the plea form

on the last page in order to indicate that he understood everything in the plea form. During the

guilty plea hearing, the trial court colloquied Defendant about the contents of the written guilty

plea form, and he affirmed that he understood each of the areas required by Rule 590.

Defendant signed the written guilty plea form only after a Cambodian interpreter

translated the entire form for him. The trial court also conducted the entire guilty plea and

sentencing hearings with an interpreter. During these hearings, Defendant answered each of the

trial court's questions without hesitation and in a manner that was responsive to each question.

Defendant answered "Yes" when asked ifhe understood the Cambodian language. Defendant also

answered "Yes" when asked if the written guilty plea form was translated orally to him. When

asked by the trial court if he understood the translation of the form, Defendant again answered

"Yes." Defendant never paused or requested for anything stated by the translator to be re-

interpreted or further translated. Finally, Defendant provided answers that indicated that he fully

understood each of the questions that were interpreted for him. For example, when his attorney

advised him of his appellate rights, Defendant interjected, "How can I write? I don't know how to

write anything."

Defendant was also informed about the risk of deportation. First, Defendant's interpreter

orally translated the written waiver form, which contained a paragraph on page 3 in bold, capital

-5- letters that said, "RISK OF DEPORTATION," and the following sentence: "I know that if I am

not a United States Citizen, it is possible that I might be deported ifl plead guilty to the crime(s)

charged against me." Second, during the sentencing hearing, Defendant's attorney argued that the

trial court should consider the collateral consequences that Defendant faced in that he risked

removal from the country if he received a sentence in excess of one year of incarceration. Thus,

Defendant was adequately informed - before he pleaded guilty and also after he was sentenced -

that he faced a risk of deportation. See Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super.

Ct. 2013).1

Thus, Defendant knowingly, intelligently and voluntarily pleaded guilty to the charges

based upon (1) the written guilty plea form, (2) the trial court's oral colloquy of Defendant during

the guilty plea hearing, (3) Defendant's statements during the guilty plea and sentencing hearings,

and (4) the use of an official court interpreter to translate the written guilty plea form for

Defendant and to interpret during the guilty plea and sentencing hearings.

CONCLUSION

Based on the foregoing, the judgment of sentence should be affirmed.

BY THE COURT:

NDERS, JUDGE Dated: December 1, 2016

1 Counsel must inform a noncitizen defendant whether a plea carries a risk of deportation. Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010). When the potential deportation is unclear, counsel need only advise of the risk of deportation. Id. When the deportation consequences are clear, counsel has a duty to give accurate advice concerning deportation. Id. The Pennsylvania Superior Court has held that Padilla requires that counsel must inform the client that a plea makes them deportable, not that deportation is a certainty. Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. Ct. 2013) (defendant adequately informed of potential for deportation by defendant's execution ofa written guilty plea form indicating that he understood the risk of deportation and by statements by counsel regarding the possibility of deportation). -6- """··-·· -~;; ;·-·"'"~---···---·-· ·----··-·"------·· · •. ·. ---···.. -· -· · .. --· . -· - . - -··· . -· . : . -· .. ·--·--·-----"···. -········---------·- -· . "'y° ··---." .. -··-· .. ,.._ :. ·-·-·-·' ·- _ ..• -:- •• ·-'·-··-. ·-···<-·> ·. ·, '• _:" __: ; ·, ·.. ,. ·_ ·. · · ·-·-- • ~· .•:_ · <.·.: ..,. ·..-::.:.-.,, :-•...,. ·,:.: '""' · .

. . Comm. v. Tai Thach CP-51-CR-0004527-2013 2641 EDA 2016

PROOF OF SERVICE

I hereby certify that I am this day caused to be served the foregoing Order upon this person(s):

Attorney for Appellant: Stephen O'Hanlon, Esquire 2 Penn Center 1500 JFK Blvd., Ste. 1850 Philadelphia, PA 19102

Type of Service: Regular Mail

Appellee: Hugh J. Bums, Jr., Esquire Philadelphia District Attorney's Office 3 S. Penn Square Philadelphia, PA 19107

Type of Service: CJC Mailbox

_..

r , I DATED: I R\ay . D ri o, Esquire Law Clerk to on. Daniel J. Anders ----~---· . - ·, _.- - ·;~,· ·~ :·-~--~~~· _. .· ;_. __ .. __ ., . · .. ·,.·· •.· · . - .. --~: .._.· :.·-:---------·· . ~.-----·-- ·!··--··"' · •...•......... ,-·-·· .. _:::zr:-·- .-·~· J~~---~··.·-··:·· ·.•,.: __,,, - -s-.·.".·· •• :·:: ••• ~.--.:·.-.- .•.. ·.·~-:-·· -·.,,· .. .---.·-,-; __. .. --··-

Filed 11/29/2016

IN THE SUPERIOR COURT OF PENNSYLVANIA EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA No. 1938 EDA 2016

v.

JERLION THORPE CP-5J-CR-0604861-2001Co Appellant SuperiorCourt~~d:~Thorpe, Jertion

ORDER IIII IIIII IIIII II /Ill /I I/I 7871219841

The application to reinstate appeal is GRANTED. This Court's

November 2, 2016 dismissal Order is VACATED, and the above-captioned

appeal is REINSTATED.

The Brief for Appellant is due by December 29, 2016. Failure to file a

brief by this date will result in re-dismissal of the appeal, without warning.

Appellant's request for copies of the trial court dockets is GRANTED.

The Philadelphia County Court of Common Pleas is directed to provide

Appellant with a copy of the relevant dockets. Appellant's request for

transcripts is DENIED, without prejudice for Appellant to file proper requests

with the Philadelphia County Court of Common Pleas.

PER CURIAM

.. .

Deputy Prothonotary' ....... . SUPERIOR COUllT OPPA