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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
NARMO LOUIS SANCHEZ
Appellant No. 540 MDA 2016
Appeal from the PCRA Order March 3, 2016
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001085-2014, CP-36-CR-0004964-
2012
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED DECEMBER 19, 2016
Narmo Louis Sanchez appeals from the order entered March 3, 2016
dismissing his petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We adopt the following statement of facts from the PCRA court’s
opinion, which in turn is supported by the record. See PCRA Court Opinion
(PCO), 6/6/16, at 1-2. Appellant was the lieutenant of an organization that
imported, trafficked, and distributed large amounts of heroin in Lancaster
City. Following an investigation, Appellant was arrested and charged with a
total of sixteen counts of possession with intent to deliver (PWID) heroin,
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and one count each of criminal conspiracy to commit PWID, and corrupt
organizations.1
On January 13, 2014, at docket number 4964-2012, Appellant pleaded
guilty to one count of PWID. The trial court conducted a guilty plea colloquy
at which Appellant, a native speaker of Spanish, had an official court
interpreter. Sentencing was deferred pending a pre-sentence investigation
report.
On October 8, 2014, at docket number 1085-2014, Appellant pleaded
guilty to one count of PWID, criminal conspiracy to commit PWID, and
corrupt organizations. Again, Appellant was provided with a court
interpreter. The court proceeded immediately to sentencing pursuant to a
negotiated plea agreement. At docket number 1085-2014, Appellant
received an aggregate sentence of four to eight years incarceration,
consecutive to his sentence on the first docket. At docket number 4964-
2012, Appellant was sentenced to one to two years of incarceration. This
amounted to a total aggregate sentence of five to ten years of incarceration.
On July 28, 2015, Appellant pro se filed a petition seeking post-
conviction relief.2 The court appointed counsel, who filed a motion to
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1
35 Pa.C.S. § 780-113(a)(30), 18 Pa.C.S. § 903 and § 911, respectively.
2
Appellant’s PCRA petition and all subsequent filings were prepared with the
assistance of another inmate, who averred that Appellant was functionally
illiterate and unable to communicate in the English language.
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withdraw and accompanying Finley3 letter, averring that Appellant’s issues
were without merit. On November 30, 2015, Appellant pro se filed a motion
to dismiss the Finley letter. On December 9, 2015, the court gave
Appellant notice that his PCRA would be dismissed without a hearing within
twenty days. On December 21, 2015, Appellant pro se filed a motion
seeking extension of time to respond to the notice.4
The court denied both of Appellant’s pro se motions on January 21,
2016 but did not formally dismiss the PCRA petition. During that time,
Appellant attempted to appeal. On March 3, 2016, the PCRA court formally
dismissed Appellant’s PCRA petition and granted counsel’s petition to
withdraw.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a responsive opinion.
On appeal, Appellant raises the following issues, rephrased for clarity:
1. Plea counsel were ineffective for failure to properly translate
the terms of the sentencing agreement into Spanish and that,
consequently, Appellant believed he would receive a sentence of
two to four years’ incarceration, and PCRA counsel was
ineffective for failure to argue plea counsel’s ineffectiveness.
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3
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).
4
During the pendency of Appellant’s PCRA petition, the judge sitting as the
trial, sentencing, and original PCRA court retired. Appellant’s case was
reassigned in December of 2015.
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2. Plea counsel and PCRA counsel were ineffective for failure to
provide Appellant with copies of discovery documents translated
into Spanish.
4. Appellant’s sentence was an illegal mandatory minimum
sentence under Alleyne v. United States, 133 S. Ct. 2151
(2013).
5. The PCRA court erred in granting PCRA counsel’s motion to
withdraw.
Appellant’s Brief at 4-10.5
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
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5
We would note that Appellant’s brief is defective in that it does not include
a statement of jurisdiction, the order from which Appellant seeks to appeal,
a statement of the questions involved, a statement of the case, or a
summary of the argument, in violation of Pa.R.A.P. 2111. See, e.g.,
Commonwealth v. Rivera 685 A.2d 1011, 1013 (Pa. Super. 1996)
(declining to address the merits of Appellant’s appeal where the defects are
substantial and preclude this Court from conducting a meaningful review).
We would note Appellant’s illiteracy and reliance upon jailhouse lawyers to
file his appeal. Further, the argument section does allow this Court to
discern the issues Appellant attempts to raise, despite the brief’s defects.
Appellant also attempted to argue that the evidence was insufficient to
support his convictions. This argument is waived as Appellant pleaded guilty
in both cases, and did not file a direct appeal. See Commonwealth v.
Rounsely, 717 A.2d 537, 538 (Pa. Super. 1998); see also Pa.R.Crim.P.
606-607. Appellant’s argument on appeal, that plea counsel was ineffective
for failure to file a direct appeal on his behalf, is waived for failure to include
it in his PCRA petition or Pa.R.A.P. 1925(b) statement. See
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any issues
not raised in a [Rule] 1925(b) statement will be deemed waived.”); see also
Pa.R.A.P. 1925(b)(4)(vii); see also Pa.R.A.P. 302(a) (“Issues not raised in
the lower courts are waived and cannot be raised for the first time on
appeal.”); see also 42 Pa.C.S. § 9543(a)(3).
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1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
In this case, the PCRA court dismissed Appellant’s petition without a
hearing. See PCRA Court Order, 12/9/15 (citing in support Pa.R.Crim.P.
907). There is no absolute right to an evidentiary hearing. See
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On
appeal, we examine the issues raised in light of the record “to determine
whether the PCRA court erred in concluding that there were no genuine
issues of material fact and denying relief without an evidentiary hearing.”
Springer, 961 A.2d at 1264.
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) that counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “A petitioner establishes prejudice when he demonstrates that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A claim
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will be denied if the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
In his first issue, Appellant claims that plea counsel 6 were ineffective
for their failure to properly translate the terms of the sentencing agreement
into Spanish. Appellant argues that due to his failure to understand the
sentencing agreement, he assumed he would receive a sentence of only two
to four years’ incarceration. As a result, his plea was unknowing and
involuntary. Appellant’s Brief at 4-10.
We review allegations of counsel’s ineffectiveness in connection with a
guilty plea as follows:
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 counsel under
which the defendant must show that counsel’s deficient
stewardship resulted in a manifest injustice, for example, by
facilitating entry of an unknowing, involuntary, or unintelligent
plea. See, e.g., [Commonwealth v.] Allen, 558 Pa. [135,]
144, 732 A.2d [582,] 587 [(1999)]).” 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.”…
The standard is equivalent to the ‘manifest injustice’ standard
applicable to all post-sentence motions to withdraw a guilty plea.
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6
At his guilty plea, Appellant was represented by two attorneys, one
appointed for each docket number.
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Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (some
citations omitted; brackets in original). In the instant case, Appellant’s claim
is of no arguable merit.
Appellant was provided with an official Spanish-language interpreter
throughout the proceedings, spanning two hearings’ worth of extensive
colloquies. See N. T., 1/13/14 at 2-5; N. T., 10/8/14, at 9-10. The court
took precautions during these colloquies to ensure Appellant’s plea was
knowing and voluntary. See N. T., 1/13/14, at 3-5; N. T., 10/8/14, at 9-12.
Additionally, the court noted that counsel had utilized the court interpreter
while reviewing the written colloquy form and the terms of the plea
agreement, and that Appellant had reviewed the global plea offer with
counsel and the assistance of an interpreter and family member. N. T.,
1/13/14 at 5; N. T., 10/8/14 at 10. Thus, Appellant’s argument is not
supported by the record.
Similarly, Appellant’s claim that counsel were ineffective for failure to
provide him with copies of discovery documents translated into Spanish is
not supported by the record and is meritless. The record reflects that
counsel met with Appellant and discussed his case with the assistance of an
interpreter. See N. T., 1/13/14 at 5; N. T., 10/8/14 at 9-10. Consequently,
counsel did not provide ineffective assistance during the preparatory phase
of Appellant’s case.
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In his third issue, Appellant claims that his sentence was an illegal
mandatory minimum sentence under Alleyne. Alleyne held that any fact
increasing the penalty for a crime is an “element” that must be submitted to
the jury and proven beyond a reasonable doubt. See Alleyne, 133 S. Ct. at
2155. However, Appellant’s reliance on Alleyne is misplaced. Appellant did
not receive a mandatory minimum sentence. Consequently, his sentence
was not illegal under Alleyne.
Finally, Appellant’s claim that the PCRA court erred in granting PCRA
counsel’s motion to withdraw is without merit. A petitioner must request
leave to amend his petition in his Rule 907 response to raise new
ineffectiveness claims; where a petitioner does not seek leave to amend, the
court is under no obligation to address his new issues. Commonwealth v.
Rigg, 84 A.2d 1080, 1084-85 (Pa. Super. 2014). As Appellant did not seek
leave to amend his petition, and we have previously determined that
Appellant’s issues were meritless, the court did not err in denying Appellant’s
pro se motion to dismiss counsel’s Finley letter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
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