J-A22027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
: IN THE SUPERIOR COURT OF
COMMONWEALTH OF PENNSYLVANIA,
: PENNSYLVANIA
:
:
Appellee
:
:
v.
:
:
EFRAIN SANTIAGO, JR.,
:
:
Appellant
: No. 2031 MDA 2013
Appeal from the PCRA Order Entered October 14, 2013,
In the Court of Common Pleas of Lebanon County,
Criminal Division, at No. CP-38-CR-0001783-2011.
BEFORE: PANELLA, SHOGAN and FITZGERALD*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 26, 2014
Appellant, Efrain Santiago, Jr., appeals from the October 14, 2013
order entered by the Court of Common Pleas of Lebanon County, denying his
42
Pa.C.S.A. §§ 9541 9546. We affirm.
The PCRA court aptly summarized the factual and procedural history
as follows:
Appellant was criminally charged after members of the Lebanon
County Drug Task Force executed a search warrant at 124 South
4th Street, front, Lebanon, Pennsylvania. Appellant and Carol
Agosto-Diaz resided at the address at the time of the search.
During the search Detective Adam Saul, Detective Ryan Mong,
bag of cocaine approximately 14 ounces and five street delivery
sized bags of cocaine within the master bedroom closet. Officers
__________________
*Former Justice specially assigned to the Superior Court.
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also found many cellular phones, a large amount of US currency,
and numerous sandwich baggies with missing corners. Officers
also searched the vehicle belonging to Ms. Agosto-Diaz and
found a handgun, which Appellant claimed was his. The serial
numbers on the handgun had been obliterated or removed.
Appellant was charged with one (1) count of Violation of the
Controlled Substance, Drug, Device and Cosmetic Act (F), one
(1) count of Person Not to Possess, Use, Manufacture, Control,
Sell, or Transfer Firearms (F2), one Count of Possession of
of Violation of the Controlled Substance, Drug, Device and
Cosmetic Act (M), and five (5) counts of Criminal Conspiracy.
Appellant filed an Omnibus Pre-trial suppression motion which
was scheduled for a hearing on June 13, 2012. Prior to that
hearing, Appellant received an amended plea offer from the
Commonwealth. At the hearing on June 13, 2012, Appellant
withdrew his pretrial motion and entered a guilty plea to all of
the charges. Pursuant to a plea deal, Defendant was sentenced
on August 22, 2012 to a total sentence of five (5) to ten (10)
years, to be served consecutively to the sentence imposed on
action number CP-38-CR-2183-2007. As part of the plea deal,
the Commonwealth also agreed to dismiss charges against Ms.
Agosto-Diaz.
On June 19, 2013, Appellant filed a timely, pro se petition
ineffectiveness, claiming a constitutional violation, an unlawfully
induced guilty plea, subsequently available exculpatory evidence,
and a jurisdictional issue. See 42 Pa.C.S. §§ 9541-9546.
Thereafter, Attorney Erin Zimmerer was appointed to represent
Appellant in this matter. An Amended PCRA petition was filed by
counsel on October 3, 2013, amending his claims for relief to
those under ineffective assistance of counsel. A PCRA hearing
was held on October 14, 2013 and after hearing testimony from
Assistant District Attorney Nichole Eisenhart, Ap
Petition was denied. Appellant now files the instant appeal.
PCRA Court Opinion, 1/13/14, at 3 4 (footnote omitted).
Appellant raises the following issues for review:
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1. Whether Defendant was denied his constitutionally guaranteed
right to effective representation when Plea Counsel unlawfully
induced Defendant to plead guilty by advising him he would get
consecutive sentences if he did not plead guilty and thus
allowing the District Attorney to coerce him?
2. Whether Defendant was denied his constitutionally guaranteed
right to effective representation when Plea Counsel unlawfully
induced Defendant to withdraw his pre-trial motion by
abandoning Defendant by walking out of the room, allowing
Defendant to be intimidated by the District Attorney?
3. Whether Defendant was denied his constitutionally guaranteed
right to effective representation when Plea Counsel failed to
investigate the prosecuting officer in the case against
Defendant?
4. Whether Defendant was denied his constitutionally guaranteed
right to effective representation where Plea Counsel failed to
consult with Defendant regarding an appeal?
5.
Our standard of review of the denial of a PCRA petition is limited to
rted by the record evidence
and are free of legal error. Commonwealth v. Anderson, 995 A.2d 1184,
1189 (Pa. Super. 2010). The findings of the PCRA court are accorded
deference if supported by the record. Id. (citations omitted). Appellant has
the burden of persuading this Court that the PCRA court erred and that he is
entitled to relief. Commonwealth v. Miner, 44 A.3d 684, 688 (Pa. Super.
2012).
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The PCRA provides post-conviction relief for persons serving illegal
sentences or who have been wrongfully convicted of a crime. 42 Pa.C.S.A §
9542. To prevail on a petition for relief under the PCRA, a petitioner must
plead and prove, by a preponderance of the evidence, that his conviction or
sentence resulted from one or more of enumerated circumstances, including
ineffectiveness of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii); Commonwealth
v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).
To allege a cognizable ineffectiveness claim under the PCRA, Appellant
se of conduct was without a reasonable basis designed to
ineffectiveness, i.e., there is a reasonable probability that but for the act or
omission in question the outcome of the proceedings would have been
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)
(quoting Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001)
(citations omitted)).
assistance of counsel because he was coerced into pleading guilty. The right
to effective counsel extends to the plea process.
Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003) (quoting
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)).
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Howe
guilty plea will serve as a basis for relief only if the ineffectiveness caused
Commonwealth v.
Fears, 86 A.3d 795, 806 807 (Pa. 2014) (quoting Commonwealth v.
Allen, 732 A.2d 582, 587 (Pa. 1999)). Where the defendant enters his plea
on the advice of counsel, the voluntariness of the plea depends on whether
Commonwealth v. Wah, 42 A.3d 335, 338 339 (Pa.
Super. 2012) (quoting Allen
law does not require that [the defendant] be pleased with the outcome of his
decision to enter a plea of guilty: All that is required is that [his] decision to
Anderson,
995 A.2d at 1192 (citations, quotation, and quotation marks omitted).
Appellant testified at his PCRA hearing that he encouraged defense
counsel to file a suppression motion challenging the search of his property
and his co-
motion, however, Appellant was informed by the trial court that he would
not be permitted to attack
Adam Saul. N.T. (Guilty Plea), 6/13/12, at 2 3. The court then granted a
recess for Appellant to decide if he wished to continue to litigate his motion.
Appellant alleges that counsel represented that the suppression motion had
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a low likelihood of success and recommended that Appellant accept the
to ten year
sentence. N.T. (PCRA Hearing), 10/14/13, at 5, 12, and 6.
After the recess, defense counsel informed the court that Appellant
was withdrawing his suppression motion and that they were ready to
proceed with the guilty plea colloquy. N.T. (Guilty Plea), 6/13/12, at 5. In
response to questioning by the trial court, Appellant acknowledged that he
committed the crimes charged, understood the terms of the plea agreement
and the questions set forth in the written colloquy, and was satisfied with
Id. at 9 11. Based upon these representations,
the trial court found th
voluntarily and intelligently made, and that [Appellant] had the advice of a
Id. at 11 12. On
August 22, 2012, Appellant was sentenced in accordance with the negotiated
plea.
On appeal, Appellant avers that although he wished to proceed with
his pretrial suppression motion, plea counsel, David Warner, pressured him
into accepting the plea agreement. Appellant claims that Warner informed
him that if he chose to go to trial and was found guilty, the trial court would
likely sentence him to consecutive terms of imprisonment, instead of the
concurrent term sentencing scheme proposed in the plea agreement.
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Appellant testified that he felt coerced to accep
description of the sentencing possibilities. N.T. (PCRA Hearing), 10/14/13,
at 9.
In his PCRA hearing testimony, plea counsel confirmed that he
expressed his doubts about the success of the suppression motion, and
recommended that Appellant accept the plea due to the risk of receiving
consecutive sentences if found guilty at trial. N.T. (PCRA Hearing),
10/14/13, at 20
resolution of his co- ntegral part of the plea
negotiation. Appellant indicated he would take full responsibility for the
crimes if the charges against Carol Agosto-Diaz were dismissed. Id. at 22
23. Appellant admitted that the prosecution complied with this aspect of the
plea agreement. Id. at 12 13. Plea counsel concluded his testimony on this
issue with a statement that Appellant did not indicate either to him or to the
trial court that he felt coerced or pressured into entering the guilty plea. Id.
at 24 25.
The PCRA
allegation that he was unlawfully induced into his decision to withdraw his
pretrial motion and accept the plea. Specifically, the PCRA court observed:
We find that Appellant was not unlawfully induced into
withdrawing his pretrial motions or pleading guilty. Appellant
indicated the drugs and weapon were his and he was able to get
the charges against Ms. Agosto-Diaz dropped. He was informed
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by another Jurist of this Court that he would not be able to
present evidence of wrong-doings by Det. Saul. He was offered a
plea agreement that was essentially the mandatory minimum on
one of his ten charges. With this information available, Attorney
Warner was rational in advising Appellant that accepting the plea
was his best option. There is nothing in the record that supports
Appellant's allegation he was unlawfully induced into his
decision.
PCRA Court Opinion, 1/13/14, at 9.
has failed to demonstrate that legal error occurred. A review of the guilty
plea colloquy reveals no evidence of pressure or coercion indicating that the
plea was either involuntarily or unknowingly entered. Additionally, Appellant
responded affirmatively that he understood the terms of the plea and the
written colloquy and stated that he was satisfied with plea counsel's
representation. N.T. (Guilty Plea), 6/13/12 at 9 11. Appellant is bound by
these statements and cannot obtain relief on grounds that contradict these
prior assertions. Commonwealth v. Barndt, 74 A.3d 185, 201 (Pa. Super.
2013).
Secondly, the PCRA court correctly concluded that Appellant failed to
prove that counsel lacked a reasonable basis for his actions. Under the
terms of the plea agreement, Appellant was offered the mandatory minimum
sentence on one of the ten charges and secured the dismissal of the charges
against Ms. Agosto-
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Appellant accept the plea was within the range of competence expected.
he abandoned Appellant during the plea negotiations, allowing an assistant
district attorney to intimidate him into withdrawing his suppression motion
and accepting the plea. At the PCRA hearing, Appellant testified that after
he and counsel discussed whether to proceed with the suppression motion,
counsel went to the back of the court room and sat with Ryan Mong, one of
the detectives involved in the case. Appellant claims that he was then
approached by Assistant District Attorney Nichole Eisenhart who discussed
the case with him without his attorney present. N.T. (PCRA Hearing),
10/14/13, at 7. Appellant asserted that Eisenhart informed him that if he
continued to litigate the suppression motion, the plea agreement would be
Id. at 8. Appellant explained that he decided to plead
guilty based upon this uncounseled conversation with the prosecution. Id.
In his testimony, plea counsel admitted that he did not have a direct
recollection of all of his activity during court on June 13, 2013, but stated
that it was not his practice to allow his clients to speak with the prosecution
out of his presence and that he did not recall doing so on that day. N.T.
(PCRA Hearing), 10/14/13, at 21, 28. Counsel, however, did remember a
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joint discussion with Appellant, Eisenhart, and Detective Mong at one point
during the plea discussions. Id. at 22.
Nichole Eisenhart also testified at the PCRA hearing. She denied
speaking with Appellant about the plea without the presence of his attorney
tion
that included Appellant, Detective Mong, and plea counsel. N.T. (PCRA
Hearing), 10/14/13, at 33 34.
The PCRA court discussed the abandonment issue in tandem with
PCRA court d
attorney engaged in an uncounseled negotiation with him to be credible.
PCRA Court Opinion, 1/13/14/, at 8.
Credibility determinations by post-conviction courts are afforded great
deference. Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014)
discretion on the part of the PCRA court in making its credibility
Commonwealth v.
Medina, 92 A.3d 1210, 1219 (Pa. Super. 2014).
findings. Plea counsel did not recall leaving Appellant alone and testified
generally that he would not permit the prosecution to engage in
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conversation with his client outside of his presence. The assistant district
attorney definitively recalled that she did not speak to Appellant alone. The
discussion, and its credibility findings will stand. Thus, Appellant has not
proven ineffectiveness concerning his abandonment claim.
The third issue is whether plea counsel was ineffective for failing to
investigate the prosecuting officer who procured the search warrant in
Appell
Adam Saul would have revealed that the officer had been relieved of his
duties because of sexual misconduct with a confidential informant in another
matter. Appellant argued that this information could have been utilized to
Appellant at the beginning of his pretrial hearing. The trial court informed
Appellant that because the officer would be testifying as to facts, and not as
an expert witness, Appellant could not challenge his credibility by reference
to his character. N.T. (Guilty Plea), 6/13/12, at 2 3. Appellant indicated
Id. at 5.
The PCRA court concluded that counsel was not ineffective for failing to
investigate Detective Saul, offering the following rationale:
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In reviewing the record, we find that Appellant accepted the plea
deal after being informed, in detail, by the Honorable Samuel A.
Kline, a fellow jurist of this Court, that Det. Saul was not going
to be called as an expert witness and would be, at best, a fact
witness in the case. (N.T. 6/13/12 at 2-5). Former Det. Saul was
the affiant in this matter and Appellant had expressed concerns
about his credibility. Judge Kline thoroughly explained to
Appellant that former Det. Saul would not be an expert witness
in the case and information regarding any misconduct by Det.
Saul in a different case would not be admissible. Therefore, trial
counsel will not be deemed ineffective for failing to pursue this
meritless issue.
PCRA Court Opinion, 1/13/14, at 9 10 (footnote omitted).
We perceive no error
credibility based upon his behavior in another case. Accordingly, the PCRA
ffective for failing to
pursue this line of questioning is well-supported, and we will not disturb the
consult with him regarding filing an appeal. Counsel is deemed per se
ineffective if he fails to file a direct appeal requested by a defendant.
Commonwealth v. Markowitz, 32 A.3d 706, 715 (Pa. Super. 2011). In
as to the advantages and disadvantages of an appeal where there is reason
Commonwealth v. Bath,
907 A.2d 619, 623 (Pa. Super. 2006) (citations omitted). This
ion to believe
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either (1) that a rational defendant would want to appeal (for example,
because there are non-frivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he was
Commonwealth v. Touw, 781 A.2d 1250, 1254
(Pa. Super. 2001) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 480
(2000)). An appellant may establish a duty to consult by identifying issues
Bath,
907 A.2d at 623 (citations omitted).
At the PCRA hearing, Appellant testified that, approximately four days
after his sentencing proceeding, he sent defense counsel a letter via in-
house mail from the Lebanon County Correctional Facility, requesting that
counsel file an appeal. He could not produce a copy of the letter at the
because when I got packed up they packed me up so fast that they were
rushing me to pack up. Some of my belongings are in my cell and are being
questioned what he wanted his counsel to appeal, Appellant responded
succinctly Id. at 10.
Defense counsel testified he never received a letter from Appellant
requesting that he file an appeal, but he had received previous letters that
Appellant sent from prison. N.T. (PCRA Hearing), 10/14/13, at 29. The only
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post-sentencing conversation he recalled was in reference to Ap
concern that some of his personal property be returned. Id. He also
represented that if Appellant had requested an appeal he would have
complied even though he did not believe that there were any viable
appellate issues. Id. at 26.
The PCRA court determined that Appellant did not support his
allegation that counsel was ineffective for failing to consult with him
regarding an appeal. The court found that Appellant could not substantiate
his claim that a letter was sent, and without proof that he requested an
appeal, counsel could not be deemed ineffective for failing to do so. PCRA
Court Opinion, 1/13/14/, at 10. The court, therefore, denied Appellant
relief.
ruling is supported by the
record evidence and is free of legal error.
unsubstantiated assertion, there is no evidence that he sent a letter
requesting that counsel file an appeal on his behalf. Furthermore, Appellant
has not argued or presented evidence establishing that a duty to consult
arose under the circumstances of this case. Appellant has neither identified
a non frivolous basis for an appeal, claiming only that he wanted to appeal
the sentence, nor demonstrated that he informed defense counsel that he
was interested in appealing. Touw, 781 A.2d at 1254. Additionally, counsel
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testified that, in his assessment, there were no meritorious grounds for
appeal.
For these reasons, we conclude that Appellant has failed to show
entitlement to post-conviction relief based upon ineffectiveness of counsel.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
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