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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALEX MARTINEZ :
:
Appellant : No. 375 EDA 2018
Appeal from the PCRA Order January 3, 2018
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0002999-2014
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 24, 2018
Alex Martinez appeals from the order of the Court of Common Pleas of
Bucks County, entered January 3, 2018, that denied his first petition filed
under the Post Conviction Relief Act (“PCRA”).1 In this timely appeal, Martinez
raises two claims regarding his alleged inability to effectively communicate
with his lawyer due to a lack of a certified translator. We affirm.
On September 10, 2014, Martinez pleaded nolo contendere to one count
of criminal attempt to commit murder of the first degree, four counts of
aggravated assault, one count of possession of instruments of crime (“PIC”),
two counts of recklessly endangering another person, two counts of simple
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Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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assault, and one count of disorderly conduct.2 During the plea hearing,
Martinez was represented by a public defender and communicated with the
trial court through a certified Spanish interpreter, who was sworn prior to the
proceeding. N.T., 9/10/2014, at 2-3, 14. Martinez was also sworn and
confirmed that he was able to communicate effectively through the
interpreter. During his plea colloquy, Martinez agreed that the Commonwealth
would be able to present sufficient evidence to prove the charges against him
beyond a reasonable doubt. Martinez also affirmed that he understood that a
nolo contendere plea is still a conviction, the crimes to which he was pleading,
the maximum penalties that could be imposed, and his post-sentence rights.
Id. at 14-15. He answered affirmatively when asked if he was entering his
plea knowingly, voluntarily, intelligently, and of his own free will. Id. After
the Commonwealth gave a summary of the facts, id. at 16-19, trial counsel
asked Martinez if he had heard the facts as stated by the Commonwealth and
if he agreed that the facts were sufficient to prove the charges beyond a
reasonable doubt, and Martinez replied affirmatively to both questions. Id. at
19-20. When asked if he had any questions about those facts, Martinez
responded negatively and again confirmed that he understood that he was
entering a plea of “no contest.” Id. at 19. Sentencing was delayed in order
to obtain an evaluation of Martinez’s immigration status. Id. at 24.
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2 18 Pa.C.S. §§ 901(a), 2702(a), 907(a), 2705, 2701(a)(1), and 5503(a)(1),
respectively.
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At his sentencing hearing on November 6, 2014, Martinez again
communicated with the trial court through a certified interpreter, who was
sworn prior to the proceeding. N.T., 11/6/2014, at 2. Under oath, Martinez
stated that he could communicate with the interpreter and could understand
what the interpreter said to him. Id. at 3. Martinez was sentenced to six to
twelve years of confinement for criminal attempt to commit murder followed
by four to ten years of confinement for one count of aggravated assault, for
an aggregate sentence of confinement of ten to twenty-two years; Martinez
was also sentenced to a consecutive period of probation for five years for PIC.
He received no further penalty on the remaining counts. The trial court also
ordered restitution.
On November 14, 2014, Martinez’s counsel filed a motion for
reconsideration of sentence. On December 17, 2014, Martinez sent a pro se
handwritten letter in English addressed to the trial court requesting
reconsideration of his sentence (“Letter 12/17/2014”).
On December 22, 2014, the trial court held a hearing on the
reconsideration motion, during which a sworn interpreter was present for
Martinez. N.T., 12/22/2014, at 2. The trial court vacated the order of
restitution but did not otherwise change Martinez’s sentence. Id. at 4, 7.
On December 23, 2014, Martinez sent a pro se handwritten letter in
English to the Bucks County Clerk of Courts, requesting documents from the
record (“Letter 12/23/2014”). In a pro se, handwritten, undated letter,
received by the Clerk of Courts on January 20, 2015, Martinez wrote in English
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that he had lost his counsel’s information and asked if the Clerk could send
him his counsel’s address (“Letter 1/20/2015”). In a pro se, handwritten,
undated letter, received by the Clerk of Courts on July 31, 2015, Martinez
wrote in English to the Clerk, asking about deductions for his court fees and
fines (“Letter 7/31/2015”).
On November 12, 2015, Martinez timely filed, pro se, his first PCRA
petition, written in English. The PCRA court appointed counsel and granted
permission to file two amended petitions. See PCRA Court Opinion,
3/12/2018, at 2.
In a pro se letter written in English and dated December 16, 2015,
Martinez requested an updated copy of the docket (“Letter 12/16/2015”). On
April 18, 2016, and May 6, 2016, Martinez sent pro se letters in English to his
PCRA counsel (“Letter 4/18/2016” and “Letter 5/6/2016,” respectively).
The PCRA evidentiary hearing was originally scheduled for June 22,
2016, but the PCRA court granted a continuance due to the absence of a
certified interpreter for Martinez. Bucks Cty. Crim. Ct. Sheet, 6/22/2016.
On September 15, 2016, and January 25, 2017, Martinez sent additional
pro se letters in English to the Clerk of Courts (“Letter 9/15/2016” and “Letter
1/25/2017,” respectively). On February 23, 2017, Martinez sent a pro se
letter in English to the PCRA court (“Letter 2/23/2017”).3
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3 Letter 12/17/2014, Letter 12/23/2014, Letter 1/20/2015, Letter 7/31/2015,
Letter 12/16/2015, Letter 4/18/2016, Letter 5/6/2016, Letter 9/15/2016,
Letter 1/25/2017, and Letter 2/23/2017 are part of the certified record.
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At the PCRA evidentiary hearing on November 30, 2017, a certified
interpreter was provided to Martinez and sworn at the beginning of the
proceeding. N.T., 11/30/2017, at 2. Trial counsel testified that three of the
meetings he had with Martinez were conducted through a certified interpreter.
Id. at 14. According to trial counsel, when a certified interpreter was not
available, another inmate translated their conversation; the same inmate
served as interpreter throughout their meetings. Id. at 8, 13, 26. Trial
counsel testified that he informed Martinez that there was no attorney-client
privilege when another inmate served as interpreter. Id. at 10. Trial counsel
also stated the he had no difficulty communicating with Martinez. Id. at 26.
Martinez testified that he thought that trial counsel had an interpreter with
him “once or twice” during their private meetings but admitted that he
“[did]n’t remember well.” Id. at 49. At the conclusion of the hearing, the
PCRA court allowed the parties to file memoranda of law. Id. at 81-82.4 On
January 3, 2018, the court denied PCRA relief. This appeal followed.5
Martinez raises the following issues on appeal:
I. Did the [PCRA c]ourt err in denying [Martinez]’s [Second]
Amended PCRA Petition, following a hearing and legal
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4 “The Memorandum of Law on behalf of [Martinez] focused solely on [his]
lack of a certified interpreter at all meetings between [Martinez] and trial
counsel.” PCRA Court Opinion, 3/12/2018, at 2.
5 On February 9, 2018, the PCRA court ordered Martinez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within twenty-one days, and Martinez complied on February 23, 2018. On
March 12, 2018, the PCRA court filed an opinion pursuant to Pa.R.A.P.
1925(a).
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memoranda, on the subject of whether [Martinez]’s guilty plea in
this matter was knowing and voluntary, when trial counsel failed
to obtain the services of a certified Spanish/English interpreter to
translate between trial counsel and [Martinez] during meetings in
advance of the trial date and eventual guilty plea; counsel instead
utilizing other inmates to translate between himself and
[Martinez]?
II. Did the [PCRA c]ourt err in failing to recognize that trial
counsel’s failure to adequately communicate with [Martinez] in
advance of the guilty plea constituted ineffective assistance of
counsel?
Martinez’s Brief at 6.
Martinez contends that his trial counsel was ineffective, because counsel
did not always use a certified interpreter when communicating with Martinez
outside the courtroom. Martinez’s Brief at 14-21. He argues that the PCRA
court should have found that his plea was not knowing and voluntary, because
trial counsel had “failed to obtain the services of a certified Spanish/English
interpreter to translate between trial counsel and [Martinez] during meetings
in advance of the trial date and eventual [nolo contendere] plea.” Id. at 14.
He alleges that he was prejudiced, because he “did not understand the
potential defense or what the Commonwealth would have to prove or what
the nature of the charges against him were.” Id. at 21.
In reviewing an appeal from the denial of PCRA relief, “this Court is
limited to ascertaining whether the evidence supports the determination of
the PCRA court and whether the ruling is free of legal error.” Commonwealth
v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).
Counsel is presumed to have been effective. To overcome this
presumption, a PCRA petitioner must plead and prove that: (1)
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the underlying legal claim is of arguable merit; (2) counsel’s action
or inaction lacked any objectively reasonable basis designed to
effectuate his client’s interest; and (3) prejudice, to the effect that
there was a reasonable probability of a different outcome if not
for counsel’s error.
Id. (citation and internal quotation marks omitted). “A failure to satisfy any
of the three prongs of [this] test requires rejection of a claim of ineffective
assistance of trial counsel[.]” Commonwealth v. Chmiel, 30 A.3d 1111,
1128 (Pa. 2011). The right to effective assistance of counsel extends to the
plea process. Commonwealth v. Wah, 42 A.3d 335, 338-339 (Pa. Super.
2012); see also Commonwealth v. Allen, 833 A.2d 800, 801-802 (Pa.
Super. 2003) (right to effective counsel applicable to nolo contendere pleas).
The PCRA court concluded that Martinez had failed to establish “that he
was prejudiced by the lack of a certified interpreter at all meetings” between
himself and trial counsel. PCRA Court Opinion, 3/12/2018, at 7. As the PCRA
court noted, id., a certified interpreter was present for some of the meetings
between Martinez and trial counsel and another inmate served as interpreter
for the remaining meetings. N.T., 11/30/2017, at 8, 13-14, 26, 49. More
importantly, a certified interpreter translated for Martinez at his plea hearing,
his sentencing hearing, and his reconsideration hearing. N.T., 9/10/2014, at
2-3; N.T., 11/6/2014, at 2-3; N.T., 12/22/2014, at 2.
We agree with the PCRA court that Martinez has failed to demonstrate
how the outcome would have been different if an interpreter were present
throughout all of his meetings with trial counsel and, accordingly, has failed
to establish the requisite element of prejudice. See Andrews, 158 A.3d at
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1263. In addition to the reasons discussed by the PCRA court, we observe
that the record is replete with examples of Martinez’s use and comprehension
of the English language. His initial pro se PCRA petition and all of his
numerous correspondence with the trial court, the Clerk of Courts, PCRA
counsel, and the PCRA court were in English. See Letter 12/17/2014; Letter
12/23/2014; Letter 1/20/2015; Letter 7/31/2015; PCRA Pet., 11/12/2015;
Letter 12/16/2015; Letter 4/18/2016; Letter 5/6/2016; Letter 9/15/2016;
Letter 1/25/2017; Letter 2/23/2017. There is no indication any of these
documents, some of which were handwritten, were composed with the
assistance of an interpreter.
Furthermore,
The longstanding rule of Pennsylvania law is that a defendant may
not challenge his guilty plea by asserting that he lied while under
oath, even if he avers that counsel induced the lies.
A person who elects to plead guilty is bound by the
statements he makes in open court while under oath and
may not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(emphasis added) (citation omitted); see Commonwealth v. Hart, 174 A.3d
660, 664, 668 (Pa. Super. 2017) (applying Yeomans to request to withdraw
plea of nolo contendere). Here, Martinez stated under oath at both his plea
and sentencing hearings that he understood and could communicate with the
certified interpreter. N.T., 9/10/2014, at 3; N.T., 11/6/2014, at 3. Through
that interpreter, Martinez stated that he understood the crimes charged, the
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effects of entering a plea, the maximum penalties, his post-sentence rights,
the Commonwealth’s summary of the facts, and that he was entering a plea
of “no contest.” N.T., 9/10/2014, at 14-15, 19. He also agreed that the facts
presented by the Commonwealth were sufficient to prove the charges beyond
a reasonable doubt and that he was entering the plea knowingly, voluntarily,
intelligently, and of his own free will. Id. at 14-15, 19-20. Martinez is bound
by these statements and cannot now assert that he did not understand the
charges against him, the Commonwealth’s proof, or the nature of his plea.
See Martinez’s Brief at 21; Yeomans, 24 A.3d at 1047. Consequently,
Martinez’s argument that he suffered prejudice is not supported by the record.
By failing to satisfy one prong of the ineffective assistance of counsel
test – i.e., prejudice, Martinez’s entire ineffectiveness claim fails. See
Chmiel, 30 A.3d at 1128. Accordingly, we affirm the order denying PCRA
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/18
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