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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOE SAM VAZQUEZ
Appellant No. 1272 MDA 2014
Appeal from the PCRA Order July 9, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004041-2010
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 06, 2015
Joe Sam Vazquez appeals from an order dismissing his petition for
relief under the Post Conviction Relief Act (“PCRA”) without a hearing. He
argues, inter alia, that his attorney coerced him into agreeing to a
negotiated plea of 8-20 years’ imprisonment. We affirm.
On May 30, 2010, Vazquez had a physical confrontation with Pedro
Rivera-Rosario in which Rivera-Rosario prevailed. N.T., 9/7/12, pp. 18-20
(guilty plea hearing). As Rivera-Rosario walked away, Vazquez shot him
three times with a .22 caliber handgun. Id. Vazquez also shot Daria Rivera,
Rivera-Rosario’s sister, once with the same handgun. Id.
A series of attorneys represented Vazquez following his arrest,
resulting in a two-year delay between his arrest and his guilty plea. Finally,
on September 7, 2012, Vazquez entered a negotiated plea agreement in
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which he pled guilty to attempted murder,1 aggravated assault,2 and
firearms not to be carried without a license 3 in return for an aggregate
sentence of 8-20 years’ imprisonment. Vazquez filed a timely post-sentence
motion requesting inclusion in the RRRI program. On December 3, 2012,
the court denied Vazquez’s motion.
At an unspecified point during December 2012, Vazquez mailed a pro
se motion for reconsideration to the court alleging that guilty plea counsel
(1) failed to request a presentence investigation, which Vazquez claims
would have demonstrated his good citizenship; (2) failed to present
character witnesses at sentencing; and (3) denied Vazquez his right of
allocution at sentencing by telling him not to say anything to the judge,
because he is “grumpy”, “doesn’t want to hear anything”, and “lives in the
city and doesn’t like people that own guns.” Vazquez did not file a direct
appeal.
On July 15, 2013, Vazquez filed a timely pro se PCRA petition alleging
that guilty plea counsel ignored his requests to file for reconsideration of
sentence, thus preventing Vazquez from “challeng[ing] the discretionary
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1
18 Pa.C.S. § 901(a).
2
18 Pa.C.S. § 2702(a)(1).
3
18 Pa.C.S. § 6106(a)(1).
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aspects of his sentence.” The court appointed PCRA counsel to represent
Vazquez.
On December 6, 2013, PCRA counsel submitted a “no-merit” letter to
the court pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988). PCRA
counsel reasoned that Vazquez could not mount a legitimate challenge to the
discretionary aspects of his sentence, because it was the product of a
negotiated guilty plea. PCRA counsel also rejected Vazquez’s claim that
guilty plea counsel failed to request reconsideration of Vazquez’s sentence,
noting that guilty plea counsel filed a post-sentence motion to admit
Vazquez into the RRRI program. PCRA counsel added that Vazquez entered
into a valid negotiated guilty plea, because his guilty plea was supported by
a full written colloquy form and extensive oral colloquy in court. Finally,
PCRA counsel advised that he could find no meritorious issues despite a
conscientious review of the record.
PCRA counsel sent the no-merit letter to Vazquez and informed him he
had the right to provide any information or argument he deemed relevant to
the court within twenty days. Vazquez submitted responses to the no-merit
letter on December 27, 2013 and March 14, 2014 arguing that guilty plea
counsel failed to highlight threats made by the victim, the fact that the
victim was the aggressor, and Vazquez’s claim of self-defense. On April 7,
2014, counsel submitted a supplemental no-merit letter in which he wrote
that the trial court explicitly advised Vazquez at sentencing that he was
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giving up his self-defense claims at sentencing in return for receiving a
negotiated sentence of 8-20 years’ imprisonment. Thus, PCRA counsel
concluded, Vazquez voluntarily gave up his right to pursue claims of self-
defense. PCRA counsel mailed a copy of his supplemental no-merit letter to
Vazquez.
On May 1, 2014, the court issued a detailed notice of intent to dismiss
Vazquez’s PCRA petition without a hearing under Pa.R.Crim.P. 907 (“notice
of intent”). On May 22, 2014, Vazquez filed a response to the notice of
intent. In an opinion and order dated July 9, 2014 (“order of dismissal”),
the court dismissed Vazquez’s petition without a hearing and granted PCRA
counsel leave to withdraw. On July 30, 2014, Vazquez filed a timely appeal.
On August 18, 2014, without ordering Vazquez to file a Pa.R.A.P. 1925(b)
statement, the court filed a Pa.R.A.P. 1925(a) opinion incorporating by
reference its notice of intent and its order of dismissal.
Because Appellant alleged PCRA counsel ineffectiveness in his
response to the PCRA court’s notice of intent, we will review the PCRA
court’s determination that counsel complied with Turner/Finley and review
whether the PCRA court properly granted counsel’s request to withdraw.
See Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super.2012) (reviewing
PCRA Court’s grant of withdrawal and Turner/Finley analysis where
appellant challenged it in opposition to notice of intent to dismiss).
Turner/Finley provides a mechanism for post-conviction counsel to
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withdraw. Rykard, 55 A.3d at 1184. Competent PCRA counsel must
conduct an independent review of the record before a PCRA or appellate
court can authorize counsel’s withdrawal. Id. This independent review
requires counsel to file a ‘no-merit’ letter detailing
the nature and extent of his review[,] [listing] each
issue the petitioner wishes to have examined, [and]
explaining why those issues are meritless. The PCRA
court, or an appellate court if the no-merit letter is
filed before it, then must conduct its own
independent evaluation of the record and agree with
counsel that the petition is without merit.
Id. Here, PCRA counsel’s first no-merit letter provided a cogent response to
the issue raised in Vazquez’s PCRA petition, reasoning that Vazquez waived
any challenge to the “discretionary aspects of his sentence” by entering into
a valid negotiated plea. PCRA counsel observed that the plea was valid
because Vazquez signed a guilty plea colloquy form and underwent an
extensive oral colloquy during which he testified that he understood all
components of the agreement and apologized to the court for his criminal
conduct. PCRA counsel’s supplemental no-merit letter cogently responded to
Vazquez’s additional communications to the court, reasoning that the trial
court advised Vazquez at sentencing that he was giving up his self-defense
claims at sentencing in return for receiving a negotiated sentence. The
PCRA court’s notice of intent demonstrates that it carefully reviewed all
documents submitted by Vazquez and PCRA counsel and found that
Vazquez’s petition was devoid of merit. Therefore, we conclude that counsel
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complied with Turner/Finley, and that the PCRA court properly granted
PCRA counsel leave to withdraw.
Vazquez’s disjointed pro se brief boils down to the claims that he acted
in self-defense, and that his attorneys “collectively” forced him to plead
guilty to a higher sentence than originally promised.4 We agree with the
PCRA court that these arguments lack arguable merit.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa.1997)).
“A plea of guilty constitutes a waiver of all nonjurisdictional defects
and defenses. When a defendant pleads guilty, he waives the right to
challenge anything but the legality of his sentence and the validity of his
plea.” Commonwealth v. Jones, 929 A.2d 205, 212 (Pa.2007) (quoting
Commonwealth v. Montgomery, 401 A.2d 318, 319 (Pa.1979)). Further,
“[a]llegations 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 an involuntary or unknowing plea.” Commonwealth v.
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4
Vazquez waived all other claims previously raised in the lower court due to
his failure to argue them in his appellate brief. Lackner v. Glosser, 892
A.2d 21, 29–30 (Pa.Super.2006) (“arguments which are not appropriately
developed are waived”).
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Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (quoting Commonwealth v.
Allen, 557 Pa. 135, 732 A.2d 582 (Pa.1999)).
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) that the underlying claim has merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) but for
the errors or omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.” Ousley, 21 A.3d at
1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279
(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove
any one of the three [ineffectiveness] prongs results in the failure of
petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).
The record demonstrates that Vazquez signed a guilty plea agreement
agreeing to a sentence of 8-20 years’ imprisonment and waiving all rights
that he would have enjoyed had he gone to trial. Moreover, the court
conducted an extensive colloquy in which it recited each right that Vazquez
was giving up. Vazquez knowingly, intelligently and voluntarily answered
that he understood these rights and agreed to waive them. In particular,
the court asked: “When you plead guilty, you admit you committed these
offenses, you give up the right to present any defense to these charges,
such as self-defense or anything else, and I can find you guilty based on
your admission of guilt in open court without hearing testimony under oath
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from witnesses. Do you understand that?” N.T., 9/7/12, p. 14 (emphasis
added). Vazquez answered: “Yes, your Honor.” Id. Vazquez admitted that
the decision to plead guilty was his, and that nobody forced, threatened or
pressured him to plead guilty. Id. at 15. Vazquez further stated that he
was satisfied with the work that guilty plea counsel did on his behalf and had
no complaints about what he did or did not do. Id. at 16-17. After the
Commonwealth recited the facts underlying the charges, the court asked:
“Mr. Vazquez, are those the offenses described by the Assistant District
Attorney to which you’re pleading guilty?” Id. at 20. Vazquez answered:
“Yes, your Honor.” Id. Vazquez then stated: “I just want to say sorry to
the victims and sorry to the Commonwealth.” Id. The court thereupon
accepted the plea agreement. Id.
The record belies Vazquez’s present claims that his attorneys
collectively forced him to plead guilty and that he acted in self-defense. He
admitted on the record that he was guilty of all offenses, and he expressly
waived the right to argue self-defense as part of his guilty plea. Jones, 929
A.2d at 212. He also admitted that he voluntarily entered his guilty plea,
and that nobody forced him to plead guilty. Thus, the PCRA court correctly
determined that Vazquez’s PCRA petition lacked merit and properly
dismissed his petition without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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