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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSE M. OQUENDO, JR., :
:
Appellant : No. 1468 MDA 2013
Appeal from the PCRA Order entered on July 10, 2013
in the Court of Common Pleas of Luzerne County,
Criminal Division, No. CP-40-0003290-2011
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 28, 2014
Petition for relief pursuant to the Post See
42 Pa.C.S.A. §§ 9541-9546. We affirm.
On February 1, 2012, Oquendo pled guilty to aggravated assault by
vehicle while driving under the influence, driving under the influence
highest rate of alcohol, second offense, driving with a suspended license and
simple assault.1 The trial court sentenced Oquendo to 24 to 48 months in
prison.
The PCRA court set forth the subsequent procedural history of the case
as follows:
At the time of his sentencing[, Oquendo] was incarcerated
at S.C.I. Dallas as a result of his being recommitted on
1
75 Pa.C.S.A. §§ 3735.1, 3802(c) and 1543; 18 Pa.C.S.A. § 2701(a)(1).
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September 29, 2011[,] for a parole violation arising out of the
same charges for which he was sentenced by [the trial] court.
The sentences imposed by [the trial] court were each at the
lowest end of the standard range[,] and were to run
concurrent[ly] to each other and concurren[ly] from May 2,
2012, to the back time [Oquendo] was serving as a result of his
parole violation.
The Department of Corrections determined that, pursuant
to the Parole Act, 61 Pa.C.S.A. [§ 61382], the sentence imposed
by [the trial] court could not run concurrent[ly] to the sentence
[Oquendo] was serving as a result of his parole violation, but
must be run consecutive[ly] to that sentence.
PCRA Court Opinion, 7/10/13, at 3-4 (footnote added).
2
Section 6138 of the Parole Act states, in relevant part, as follows:
§ 6138. Violations of terms of parole
(a) Convicted violators.
***
(5) If a new sentence is imposed on the parolee, the service of
the balance of the term originally imposed by a Pennsylvania
court shall precede the commencement of the new term imposed
in the following cases:
(i) If a person is paroled from a State correctional
institution and the new sentence imposed on the
person is to be served in the State correctional
institution.
61 Pa.C.S.A. § 6138(a)(5)(i); see also Commonwealth v. Dorian, 468
A.2d 1091, 1092 (Pa. 1983
violator convicted and sentenced to prison for another offense must serve
Commonwealth v. Zuber, 535 A.2d 441, 443 (Pa. 1976)).
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Thereafter, on May 2, 2012, the trial court imposed the 24 to 48
month prison sentence consecutively to the sentence Oquendo was serving
as a result of his parole violation. Oquendo did not file a direct appeal. On
March 14, 2013, Oquendo filed a PCRA Petition. The PCRA court appointed
Oquendo counsel. After a hearing, the PCRA court denied the Petition.
Oquendo filed a timely Notice of Appeal.
[PCRA] court erred in denying [his] claim of ineffective assistance of counsel,
specifically that plea counsel failed to properly advise [him] that the [trial
c]ourt could not order that [the new] sentence be served concurrently with
We review an order [denying] a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
ruling if it is supported by evidence of record and is free of legal
error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
to enter an involuntary and unknowing guilty plea because he was not
advised that his sentence could not be served concurrently to his parole
violation sentence. Brief for Appellant at 9. Oquendo argues that because
he was under the mistaken impression that his new sentence and his parole
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violation sentence could run concurrently to each other, he should now be
allowed to withdraw his plea. Id. at 10.
To succeed on an ineffectiveness claim, Oquendo must demonstrate by
a preponderance of the evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but
that the outcome of the proceedings would have been different.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). 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). Counsel is
presumed to be effective and the burden is on the appellant to prove
otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).
A criminal defendant has the right to effective counsel
during a plea process as well as during trial. The law does not
require that appellant be pleased with the outcome of his
decision to enter a plea of guilty. Instead, the defendant must
injustice, for example, by facilitating entry of an unknowing,
involuntary, or unintelligent plea. The voluntariness of the plea
depends on whether co
competence demanded of attorneys in criminal cases.
Therefore, allegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief only if the
ineffectiveness caused appellant to enter an involuntary or
unknowing plea.
Our law is clear that, to be valid, a guilty plea must be
knowingly, voluntarily and intelligently entered. There is no
absolute right to withdraw a guilty plea, and the decision as to
whether to allow a defendant to do so is a matter within the
sound discretion of the trial court. To withdraw a plea after
sentencing, a defendant must make a showing of prejudice
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manifest injustice when it was entered into involuntarily,
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)
(citations, brackets, and quotation marks omitted).
In order to ensure a voluntary, knowing, and intelligent plea, trial
courts are required to ask the following questions in the plea colloquy:
1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she has the right
to a trial by jury?
4) Does the defendant understand that he or she is presumed
innocent until found guilty?
5) Is the defendant aware of the permissible ranges of
sentences and/or fines for the offenses charged?
6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge
accepts such agreement?
Id.; see also
affirmatively demonstrate that the defendant understood what the plea
Commonwealth v. Lewis, 708 A.2d 497,
determining whether a guilty plea was entered
Commonwealth v. Flanagan, 854
A.2d 489, 513 (Pa. 2004) (citation and internal quotation marks omitted).
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aware of what he was doing, and the burden of proving involuntariness is
Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super.
1999) (citation and internal brackets omitted).
Based upon our review of the totality of the circumstances, we
and voluntarily entered the guilty plea. At the plea colloquy, Oquendo
stated that he understood the English language, and that he was not under
the influence of alcohol or drugs. N.T., 2/1/12, at 3. Oquendo affirmed that
he understood all of the charges against him, and that he was admitting to
the facts that led to those charges. Id. Oquendo also stated that by
pleading guilty, he understood that he was foregoing certain rights,
including, inter alia, the presumption of innocence and the right to a jury
trial. Id. at 4. Further, the sentencing ranges available for each charge at
the plea proceedings were specified to Oquendo. Id. at 2-3. Moreover, the
entry of the guilty plea. Id. at 3.
Based upon the foregoing, we conclude that counsel did not cause
Oquendo to involuntarily tender his guilty plea by failing to inform him that
his new sentence must run consecutively to his parole violation sentence.
Indeed, Oquendo accepted the factual basis of the charges and admitted
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that he committed the crimes in question. Moreover, as the parties did not
agree to a sentencing recommendation, Oquendo cannot establish that his
guilty plea was predicated on an understanding that his sentences would run
concurrently rather than consecutively. See Commonwealth v.
Velasquez
allegations that counsel induced a guilty plea by promising a lighter sentence
were not sufficient to prove ineffectiveness of counsel, where those claims
were not supported by the record); see also Commonwealth v. Brown,
ineffectiveness claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
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