J-S38021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE LUIS PERALTA,
Appellant No. 2971 EDA 2016
Appeal from the PCRA Order September 6, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007919-2011
BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 25, 2017
Appellant, Jose Luis Peralta, appeals from the order denying his first
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. In addition, counsel for Appellant has filed an
application to withdraw and a no-merit letter pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). Because we find that counsel has not
fully and accurately complied with the requirements of Turner/Finley, we
deny appellate counsel’s request to withdraw at this time.
The trial court summarized the procedural history of this case as
follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On September 4, 2011, [Appellant] was charged with
attempted rape of a child; attempted involuntary deviate sexual
intercourse with a child; attempted aggravated indecent assault
of a child; indecent assault - forcible compulsion; burglary,
criminal trespass, indecent assault, false imprisonment, unlawful
restraint, simple assault, possession of a controlled substance,
possession of drug paraphernalia, harassment, and criminal
mischief. On December 5, 2011, a preliminary hearing was held.
All charges were held for court.
On March 21, 2012, [Appellant] filed a petition for writ of
habeas corpus challenging the sufficiency of the evidence
presented at the preliminary hearing. On April 2, 2012, the [trial
court] granted [Appellant’s] habeas corpus petition as to the
charges of attempted rape of a child; attempted involuntary
deviate sexual intercourse with a child; attempted aggravated
assault of a child; and indecent assault - forcible compulsion.
On April 15, 2012, [Appellant] entered a guilty plea to the
remaining charges. On April 25, 2012, [Appellant] filed a motion
to withdraw his guilty plea. On July 31, 2012, the [trial court]
granted that motion.
On November 9, 2012, [Appellant] waived his right to a
trial by jury and a [nonjury] trial was held[.] [Appellant] was
found guilty of all remaining charges.
Trial Court Opinion, 10/3/13, at 5-6 (footnotes omitted).
On December 18, 2012, the trial court sentenced Appellant to serve an
aggregate term of incarceration of seventeen and one-half to forty years, to
be followed by two years of probation. Appellant filed timely post-sentence
motions. The trial court held an evidentiary hearing on February 22, 2013.
On May 23, 2013, the trial court vacated the sentence it had imposed for
indecent assault, thus reducing Appellant’s aggregate sentence to a term of
incarceration of fifteen to thirty years, to be followed by two years of
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probation. That same date, the trial court denied Appellant’s remaining
post-sentence motions.
This Court affirmed Appellant’s judgment of sentence on direct appeal.
Commonwealth v. Peralta, 102 A.3d 532, 1846 EDA 2013 (Pa. Super.
filed April 15, 2014) (unpublished memorandum). Subsequently, Appellant
filed a petition for reargument/reconsideration with this Court, which was
denied by an order dated June 18, 2014. The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal on November 25, 2014.
Commonwealth v. Peralta, 104 A.3d 3, 496 MAL 2014 (Pa. 2014)
On August 14, 2015, Appellant filed, pro se, the instant PCRA petition.
The PCRA court appointed counsel to represent Appellant on September 29,
2015. On December 30, 2015, appointed counsel filed an amended PCRA
petition. On February 23, 2016, the Commonwealth filed an answer to
Appellant’s amended PCRA petition. The PCRA court issued notice of its
intent to dismiss pursuant to Pa.R.Crim.P. 907 on June 30, 2016. On July
19, 2016, appointed counsel filed a reply to the PCRA court’s notice of intent
to dismiss. The PCRA court denied Appellant’s PCRA petition on September
6, 2016. This timely appeal followed.
Appellant’s counsel filed with the PCRA court a statement pursuant to
Pa.R.A.P. 1925(c)(4), indicating his intent to seek permission to withdraw
and noting that there were no meritorious issues supporting the appeal. The
PCRA court did not draft a Pa.R.A.P. 1925(a) opinion but rather, authored a
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letter explaining that in light of PCRA counsel’s statement pursuant to
Pa.R.A.P. 1925(c)(4), it was directing that the record be forwarded to this
Court for review.
On March 10, 2017, PCRA counsel filed with this Court an application
to withdraw and a Turner/Finley letter. Prior to addressing the merits of
Appellant’s claims on appeal, we must determine whether counsel has
fulfilled the procedural requirements for withdrawing his representation.
Commonwealth v. Daniels, 947 A.2d 795, 797 (Pa. Super. 2008). This
Court has listed the following conditions to be met by counsel in seeking to
withdraw in a collateral appeal:
Counsel petitioning to withdraw from PCRA representation
must proceed ... under Turner, supra and Finley, supra and
... must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
***
[W]here counsel submits a petition and no-merit letter that
... satisfy the technical demands of Turner/Finley, the court-
trial court or this Court-must then conduct its own review of the
merits of the case. If the court agrees with counsel that the
claims are without merit, the court will permit counsel to
withdraw and deny relief.
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Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted) (brackets in original).
In the application filed with this Court, counsel explained that he had
been appointed to represent Appellant at the PCRA proceedings, he reviewed
the case, evaluated the issues, conducted an independent review of the
record, and concluded there were no issues of merit. Counsel also listed the
issue relevant to this appeal in his no-merit letter and explained why the
appeal is without merit. In addition, counsel appended to the application to
withdraw a copy of the letter sent to Appellant, which advised Appellant that
he could represent himself or that he could retain private counsel.
However, counsel’s letter to Appellant contains the following poorly
crafted language concerning Appellant’s rights in lieu of representation:
You have the right and [sic] to and can represent yourself
now or retain new counsel now. Should the Superior Court
agree with my position, my appearance on your behalf
will be withdrawn and you may then proceed, if you wish,
either pro se or through privately retained counsel. You
have no right to new Court appointed, free counsel. Even
though you may and can immediately retain new counsel, if you
wish, or immediately commence representing yourself, not
waiting for the Superior Court to decide whether I should be
allowed to withdraw my appearance, you can also do that when
and if the Superior Court grants my motion to withdraw as
counsel.
Application to Withdraw as Counsel, 3/10/17, Exhibit B (emphasis added).
The above-cited language includes contradictory and confusing
language pertaining to when Appellant may invoke his right to proceed pro
se or through privately retained counsel. Specifically, the highlighted
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sentence improperly conveys the conclusion that Appellant cannot proceed
pro se or by privately retained counsel unless, or until, this Court rules on
counsel’s request to withdraw. Such information is incorrect.
As we clarified in Commonwealth v. Muzzy, 141 A.3d 509 (Pa.
Super. 2015):
[I]n an appeal from the denial of a PCRA petition, if counsel files
a petition to withdraw as appellate counsel in this Court, the
letter to the client, inter alia, shall inform the PCRA petitioner
that upon the filing of counsel’s petition to withdraw, the
petitioner-appellant has the immediate right to proceed in the
appeal pro se or through privately-retained counsel.
Id. at 512 (emphasis in original).
Here, as we concluded in Muzzy, “[c]ounsel’s letter to Appellant
renders [his] attempt to withdraw as counsel defective under relevant case
law prescribing the proper procedure for withdrawal in a collateral appeal.”
Id. Accordingly, we conclude that counsel’s petition to withdraw is deficient,
and deny it at this juncture.
In addition, we note that in a letter accompanying his application to
withdraw, PCRA counsel stated the following:
Due to [Appellant’s] inability to understand English, I have
arranged to have everything (except this Court’s April 14, 2015
opinion) I am filing translated into Spanish by the Spanish
interpreter for the Bucks County Court of Common Pleas. I do
not expect that to [be] available for four weeks or so, but when
it is[,] I will file it along with a translator’s certification.
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Letter, 3/10/17, at 1.1
The statute governing the use of interpreters in judicial matters
provides, in relevant part, as follows:
(a) Appointment of certified interpreter.-- Upon request or
sua sponte, if the presiding judicial officer determines that a
principal party in interest or witness has a limited ability to
speak or understand English, then a certified interpreter shall be
appointed, unless the certified interpreter is unavailable as
provided in subsection (b)[, relating to appointment of otherwise
qualified interpreter].
42 Pa.C.S. § 4412(a) (emphasis added). Thus, “[a]s a general rule, the
determination of whether an interpreter is warranted in a particular case is
within the sound discretion of the trial court.” Commonwealth v.
____________________________________________
1
We note that PCRA counsel has filed with this Court the Spanish
translations of the English documents he previously filed with this Court. In
addition to those documents, counsel included a signed and sealed
certification of accuracy from the certified translator which states the
following:
Re: Translation of documents related to [Appellant]
I, Mariana Stolee, hereby attest that I am a translator certified
by the American Translators Association for English-Spanish, and
a PA certified English-Spanish court interpreter; that I have
translated the “body only”, as requested, of the following
documents: Letter to [Superior Court Deputy Prothonotary]
dated March 10, 2017, Application of Appellant’s Counsel for
Leave to Withdraw his Appearance Due to Lack of Meritorious
Issues, letter to [Superior Court Deputy Prothonotary] dated
January 12, 2017, and letter to [Appellant] dated March 11,
2017; and that to the best of my knowledge, ability, and belief
these translations are a true, accurate, and complete translation
of the original English documents.
Certification of Accuracy, 4/5/17, at 1.
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Rashawn Tahi Knox, 142 A.3d 863, 868 (Pa. Super. 2016) (quoting In re
Garcia, 984 A.2d 506, 511 (Pa. Super. 2009)).
While our review of the certified record reflects that interpreters were
present at each hearing held in this matter, we observe that the record lacks
a specific order or determination from the trial court directing that a certified
interpreter be appointed. However, we note that at Appellant’s guilty plea
hearing held on April 16, 2012, the trial court made the following inquiry,
which reflects its understanding of the necessity of an interpreter for
Appellant:
Other than [Appellant], does everybody read, write and
understand the English language?
N.T., 4/16/12, at 3. Consequently, we are constrained to conclude that a
certified interpreter is necessary at all levels in this case. Therefore, we
direct that any documents sent to Appellant be properly translated for
Appellant and that applicable certification documentation shall be filed with
the appropriate court.
In summary, counsel is hereby instructed to refile his “no-merit” letter
under Turner/Finley. His letter to Appellant shall provide, inter alia,
accurate notice of Appellant’s immediate right to proceed pro se or with
private counsel. Muzzy, 141 A.3d at 512. Moreover, any documents sent
by counsel to Appellant must be translated and proper documentation must
be filed with the appropriate court. Mindful of the need for proper
translation of documents, counsel’s revised petition to withdraw and
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certification of translation shall be filed within forty-five days of the date of
this decision. Appellant shall have thirty days from receipt of the revised
petition to file either a pro se brief or a brief by newly retained private
counsel, if he so chooses. The Commonwealth will then have thirty days in
which to file a responsive brief.
Petition to withdraw as counsel denied. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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