Com. v. Torres, J.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2023
• Docket: 685 EDA 2021
• Status: Unpublished

Opinion

J-S43025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUAN TORRES : : Appellant : No. 685 EDA 2021

Appeal from the Order Entered March 10, 2021, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0006471-2013, CP-51-CR-0006624-2013, CP-51-CR-0008305-2013.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUAN TORRES : : Appellant : No. 686 EDA 2021

Appeal from the Order Entered March 10, 2021, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0006471-2013, CP-51-CR-0006624-2013, CP-51-CR-0008305-2013.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUAN TORRES : : Appellant : No. 688 EDA 2021 J-S43025-22

Appeal from the Order Entered March 10, 2021, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0006471-2013, CP-51-CR-0006624-2013, CP-51-CR-0008305-2013.

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 22, 2023

Juan Torres appeals from the order denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-

46. We affirm.

The pertinent facts and procedural history are as follows: Between

October 2012 and April 2013, Torres committed three unrelated crimes

charged at three different dockets. At No. 685 EDA 2021, Torres sexually

assaulted his niece (“sexual assault case”), at No. 686 EDA 2021, he shot at

a police officer (“attempted murder case”), and at No. 688 EDA 2021, he

robbed a distant relative (“robbery case”). A different attorney represented

Torres at each docket.1

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1Prior counsel filed three notices of appeal in which he listed all three docket numbers and stated on each that the appeal was from the judgment of sentence imposed on August 29, 2016. On May 13, 2021, in each appeal, this Court issued a rule to show cause why the appeal should not be dismissed as untimely. On May 17, 2021, current counsel filed an “Amended and Corrected Notice of Appeal” at each docket number, which listed only one trial court docket number and stated the appeal is from the PCRA order entered on March 10, 2021. While current counsel first did not seek permission to amend, we use his identification of the docket number for each appeal and we have (Footnote Continued Next Page)

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On May 24, 2016, in the robbery case, Torres entered a plea of nolo

contendere to both possession of instruments of crime (“PIC”) and robbery.

At that time, the trial court sentenced Torres on the PIC conviction to three

years of probation. Pursuant to plea counsel’s request, the trial court deferred

sentencing on the robbery conviction to a later date.

On June 9, 2016, Torres entered pleas at the two remaining dockets. In

the sexual assault case, Torres entered a plea of nolo contendere to unlawful

contact with a minor, corrupting the morals of a minor, indecent assault,

terroristic threats, and intimidation of a witness. That day, the trial court

sentenced Torres on the corrupting the morals of minor conviction to five years

of probation and deferred sentencing on the remaining convictions to a later

date.

In the attempted murder case, Torres entered a guilty plea to attempted

murder, assault of a law enforcement officer, three firearm violations, and

possession of instruments of crime. That day, the trial court sentenced Torres

on one of the firearm violations to three years of probation and deferred

sentencing on the remaining convictions to a later date.

corrected the caption to reflect the correct order being appealed. We further note that prior counsel’s listing of all three dockets on each notice of appeal does not require quashal. See generally, Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc).

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On August 29, 2016, the trial court sentenced Torres for his remaining

convictions at all three dockets. In sum, the trial court sentenced Torres to

an aggregate term of 20 to 40 years of imprisonment, and a consecutive

probationary term. Torres did not file an appeal at any docket.

On August 3, 3017, Torres filed a timely PCRA petition pro se. The PCRA

court appointed counsel, and PCRA counsel filed an amended petition on

January 31, 2018. In the amended petition, Torres first sought reinstatement

of his post-sentence and appellate rights nunc pro tunc on the grounds that

Torres requested an appeal at each docket, but each attorney failed to file the

requested appeal. As to his robbery case, Torres further claimed that plea

counsel’s ineffectiveness caused him to enter an involuntary plea. The PCRA

court held evidentiary hearings regarding Torres appeal request at which

Torres and each attorney presented conflicting evidence. On January 30,

2020, the PCRA court held another evidentiary hearing to address the

additional claim raised in his robbery case. The court took the matter under

advisement.

Thereafter, the PCRA court issued several continuances while waiting for

the transcription of testimony. On January 15, 2021, the PCRA court held a

hearing and ultimately issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Torres’ PCRA petition as meritless. On February 26, 2021, Torres filed a pro

se response. By order entered March 10, 2021, the PCRA court dismissed

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Torres’ amended petition. This appeal followed. Both Torres and the PCRA

court have complied with Pa.R.A.P. 1925.

Torres raises the following three issues on appeal, which we have

reordered as follows:

Did the PCRA Court err and/or abuse its discretion when it denied [Torres’ amended petition] under the PCRA seeking leave to file a direct appeal nunc pro tunc where plea counsel failed to file an appeal?

Did the PCRA Court err and/or abuse its discretion when it denied [Torres’ amended petition] under the PCRA seeking relief where [his] counsel was ineffective for failing to file a motion to withdraw his guilty plea which was not knowing, intelligent, and voluntary?

Did the PCRA Court err and/or abuse its discretion when it denied [Torres’ amended petition] under the PCRA seeking relief where [his] plea was the result of ineffectiveness of plea counsel?

Torres’ Brief at 4.

This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and 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. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).

Torres’ issues assert the ineffectiveness of plea counsel. To obtain relief

under the PCRA premised on a claim that counsel was ineffective, a petitioner

must establish by a preponderance of the evidence that counsel’s

ineffectiveness so undermined the truth determining process that no reliable

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adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) the petitioner was prejudiced by counsel's act or

omission. Id. at 533. A finding of "prejudice" requires the petitioner to show

"that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different." Id. A failure

to satisfy any prong of the test for ineffectiveness will require rejection of the

claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

In his first two issues, Torres asserts that each plea counsel was

ineffective for failing to file a post-sentence motion to withdraw his plea and

a direct appeal even though he asked counsel to do so. As this Court has

recently summarized:

Our Supreme Court has held that where “there is an unjustified failure to file a requested appeal, the conduct of counsel falls beneath the range of competence demanded of attorneys in criminal cases” and denies the accused the assistance of counsel that is guaranteed by the Sixth Amendment and Article I, Section 9 of the Pennsylvania Constitution. Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 572 (Pa. 1999). Such an oversight constitutes prejudice and per se ineffectiveness under the PCRA. Id. However, “[b]efore a court will find ineffectiveness of trial counsel for failing to file a direct appeal, [the petitioner] must prove that he requested an

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appeal and that counsel disregarded this request.” Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001)(emphasis added).

Commonwealth v. Mojica, 242 A.3d 949, 955 (Pa. Super. 2020).

Here, the PCRA court found no merit to either claim based upon the

testimony presented at the first two evidentiary hearings. As to Torres’ first

issue, the court explained:

[Torres] alleged he mailed three letters to each of his attorneys within days after sentencing, requesting they file a direct appeal. However, testimony from counsel revealed that none of them received any such letter. Further, [plea counsel in the attempted murder case] was able to provide two other letters he received from [Torres] within the same month the letter in question was allegedly sent. Neither of these letters referenced the existence of the letter in question, nor was there any indication in those letters that [Torres] desired counsel to file an appeal. Additionally, [Torres] was unable to provide any postage or copies of the alleged letters sent to counsel. The only evidence [Torres] was able to present of these letters even existing were carbon copies.

This court credited statements from [all three counsel] that [Torres] never requested a direct appeal with them and that, given their experience in the field, if [Torres] had done so, they would have filed an appeal on his behalf. This court therefore concluded, based on the testimony of counsel and [Torres’] inability to prove that any letters requesting an appeal were ever sent, that [Torres] failed to prove that he ever requested his counsel file a direct appeal. As [Torres] cannot satisfy his burden of proving that any of his counsel were ineffective, no relief is due on this claim.

PCRA Court Opinion, 3/9/22, at 10-11 (excess capitalization omitted).

As to Torres’ second issue, the PCRA court similarly explained:

[Torres] next claims that all of his counsel were ineffective for failing to file a motion to withdraw his guilty and nolo contendere pleas. [Torres] maintains he requested this of his

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attorneys in the same letters that he allegedly sent requesting that they also file direct appeals. [Torres] is unable to prove that any letters requesting counsel to file a motion to withdraw his pleas were ever mailed to any of his counsel. [All three attorneys] testified under oath that they never received such a letter from [Torres]. This court, therefore, properly concluded that [Torres’] counsel were never informed of [Torres’] apparent intention to withdraw all his pleas. Counsel cannot be deemed ineffective for failing to take actions in which they were never informed. Because [Torres] cannot satisfy his burden of proving that any of his counsel were ineffective, no relief is due on [Torres’] second claim.

PCRA Court Opinion, 3/9/22, at 11 (excess capitalization omitted).

Our review of the record and PCRA hearing transcripts support the

court’s conclusions. As a matter of credibility, the PCRA court believed each

plea counsel’s version of the contested facts. We cannot disturb this

determination. See Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa.

Super. 1999) (explaining that when a PCRA court’s determination of credibility

is supported by the record, it cannot be disturbed on appeal).

In arguing to the contrary, Torres relies on the purported letter he

allegedly sent to each plea counsel and explains why he could not provide any

other evidence of mailing. See Appellant’s Brief at 24. Once again, the PCRA

court credited the testimony of counsel over the testimony and other

allegations made by Appellant at the hearings. We must defer to this

determination. See Commonwealth v Todd, 820 A.2d, 707 712 (Pa. Super.

2003) (explaining that Superior Court “must defer to the credibility

determinations made by the [PCRA] court that observed a witness’s demeanor

first hand”).

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In addition, we reject Torres claim that he was wrongly advised of his

post-sentence rights because he was not told that he could file an appeal pro

se. Torres’ Brief at 24. We first note that this claim is waived because it is

being raised for the first time on appeal. See generally, Pa.R.A.P. 302(a).

Moreover, at the evidentiary hearings, Torres attempted to prove he acted in

accordance with contacting each attorney, rather than claim he was never told

he could appeal pro se. Thus, Torres’ first two issues fail.

In his third issue, Torres claims that plea counsel’s ineffective assistance

in the robbery case forced him to enter a guilty plea. Regarding claims of

ineffectiveness in relation to the entry of plea, we note:

Ineffective assistance of counsel claims arising from the plea bargaining-process are eligible for PCRA review. Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter into an involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.

The standard for post-sentence withdrawal of guilty pleas dovetails with the arguable merit/prejudice requirements for relief based on a claim of ineffective assistance of plea counsel, . . . under which the defendant must show that counsel’s deficient stewardship resulted in a manifest injustice, for example, by facilitating the entry of an unknowing, involuntary, or unintelligent plea. This standard is equivalent to the “manifest injustice” standard applicable to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations omitted).

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Moreover, “[o]ur law presumes that a defendant who enters a guilty

plea was aware of what he was doing,” and “[h]e bears the burden of proving

otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.

2003) (citations omitted).

The longstanding rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. A person who elects to plead guilty is bound by the statements he makes in open court while under oath and may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy.

Id. On appeal, this Court evaluates the adequacy of the plea colloquy and

the voluntariness of the resulting plea by looking at the totality of the

circumstances. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.

Super. 2011).

Here, the PCRA court found no merit to Torres’ claim. The court first

explained how this claim of ineffectiveness affected all of the pleas he entered:

[Torres’] final claim is two-fold: he alleges that [in the robbery case plea counsel] failed to discuss any possible trial strategy with him and thereby coerced him into entering a plea. Entering a plea in this case effectively poisoned the [sexual assault case and the attempted murder case], leaving him with no other option then to enter pleas to those as well. [Torres] contends, for these reasons, he entered all his pleas unknowingly, unintelligently and involuntarily.

PCRA Court Opinion, 3/9/22, at 12. The court then summarized Torres’ plea

proceeding as follows:

At the very beginning of [Torres’] plea proceeding in [the robbery case, plea counsel] immediately informed this court that [Torres] felt he was being forced to enter a plea. This court

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appreciated [Torres’] concerns and informed him that this court was prepared to move forward with trial, indicating that a panel of jurors was ready for selection downstairs. [Torres] then advised this court that he didn’t “have a problem with this offer here,” but that his concern was with how [plea counsel] was handling the case. [Torres] asserted that she was “not really going to fight for me.” This court responded by first giving credence to counsel’s experience and advising [Torres] multiple times of his right to make a choice in whether to plead or move forward with trial, stating: “[T]hat’s your right. I never force anybody to take any non-trial disposition in my courtroom.”

This court further explained what a nolo contendere plea was, and what it meant for [Torres] were he to move forward with that option. This court discussed what was being done by his counsel to minimize his maximum exposure in all three of his cases were he to be convicted at trial. Only after receiving confirmation from [Torres] that he understood everything did this court move forward with the plea proceeding. At that proceeding, this court reviewed a written plea colloquy signed by [Torres]. This court then performed an oral colloquy with [Torres] wherein he affirmed he was pleading at his own free will. Both colloquies clearly established the voluntariness of Torres’ plea.

PCRA Court Opinion, 3/9/22, at 14 (excess capitalization omitted).

Finally, based upon above, the PCRA court rejected Torres’ contention

that his nolo contendere plea was involuntary, unintelligently, and

unknowingly entered. The PCRA court further found that Torres’ claim his plea

in the robbery case left him no choice but to enter pleas on his remaining to

claims lack merit:

[Torres’] argument that his first nolo contendere plea infected the remaining nolo contendere and guilty pleas in [the sexual assault case and the attempted murder case] is also without merit. During the consolidated plea proceeding for the latter two cases, [Torres] did not indicate that he had any issue with either of his attorneys[.] In fact, [Torres] conceded he was satisfied with their representation. [Torres] also signed written

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plea colloquies and this court subsequently conducted oral colloquies with [Torres] for both cases.

Id. at 15.

Our review of the certified record, including the plea hearings in all three

of Torres’ cases, supports the PCRA court’s conclusion. As noted above, Torres

is bound by the statements he made with regard to each plea, Pollard, supra,

and his attempt to contradict them on appeal fails.

In sum, given the PCRA court’s credibility determinations, as well as the

statements made by Torres when entering his pleas, the PCRA court correctly

determined that Torres’ ineffectiveness claims lacked merit. We therefore

affirm the order denying Torres post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2023

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