Commonwealth v. Delgado

1

COMMONWEALTH OF PENNSYLVANIA v. CYNTHIA ANN DELGADO Appellant

No. 2485 EDA 2022

No. J-S07023-23

Superior Court of Pennsylvania

March 30, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered August 22, 2022, in the Court of Common Pleas of Monroe County, Criminal Division at No(s) CP-45-CR-0002381-2018.

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.

MEMORANDUM

KUNSELMAN, J.

Cynthia Ann Delgado appeals from the order denying her petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A §§ 9541-9546, as well as an earlier order granting arguably insufficient funds for a forensic psychiatrist. We affirm the orders and vacate Delgado's judgment of sentence at Counts 5, 7, 9, and 11.

In 2018, Delgado and Confesol Paduani arranged online to take a 15-year-old boy from Pennsylvania to South Carolina. They drove him there and attempted to engage in sexual activity. Police arrested Delgado and Paduani in South Carolina. Pennsylvania State Police charged Delgado with thirteen offenses, including kidnapping, attempt to commit statutory sexual assault, and five separate counts of criminal conspiracy.

The case proceeded to a trial, where Delgado and Paduani were tried together. The jury convicted Delgado of all thirteen offenses.^[1] On June 19, 2020, the court sentenced Delgado to an aggregate term of 7 to 14 years of imprisonment. Notably, the court imposed sentences for all five counts of criminal conspiracy, ordering each of these five sentences to run concurrently to the sentences for the corresponding underlying offenses. Delgado did not pursue a direct appeal.

On July 20, 2020, Delgado filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an amended PCRA petition on December 2, 2020.

Delgado frames her issues as follows:

A. Were Delgado's serious mental health issues ignored by her trial counsel and not recognized by the court?

B. Was there an unwarranted multiplication of a single actual conspiracy into five separate ones to Delgado's prejudice?

Delgado's Brief at 4. The Commonwealth did not file a brief in this appeal.

In her first issue, Delgado argues that her trial counsel was ineffective per se for two reasons. First, trial counsel did not obtain qualified mental health professionals despite knowing that Delgado had mental health issues. Second, trial counsel did not ask the trial court to hold any proceedings outside the presence of her co-defendant Paduani. Delgado further challenges the PCRA court's order granting $1,500 for a forensic psychiatrist, when both of the doctors consulted required a minimum of $5,000.

Appellate review of a PCRA court order "is limited to determining whether the order is supported by the evidence of record and free of legal error." Commonwealth v. Taylor, 283 A.3d 178, 184 (Pa. 2022) (citing Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014)).

Ordinarily, a PCRA petitioner must show ineffective assistance of counsel through a three-part test derived from Strickland v. Washington, 466 U.S. 668 (1984). To overcome the presumption that counsel is effective, the petitioner must prove "(1) that the underlying claim has arguable merit; (2) that no reasonable basis existed for counsel's actions or failure to act; and (3) that the petitioner suffered prejudice as a result of counsel's error. Commonwealth v. Drummond, 285 A.3d 625, 634 (Pa. 2022) (citing Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012).

However, a petitioner may eschew this test by proving that counsel was ineffective per se. "[I]n certain limited circumstances, including the actual or constructive denial of counsel, prejudice may be so plain that the cost of litigating the issue of prejudice is unjustified, and a finding of ineffective assistance of counsel per se is warranted." Commonwealth v. Rosado, 150 A.3d 425, 429 (Pa. 2016) (citing, inter alia, United States v. Cronic, 466 U.S. 648, 658-59 (1984)). Examples of when prejudice can be presumed include "(1) the actual or constructive denial of counsel at a critical stage of trial; (2) when counsel fails entirely to provide 'meaningful adversarial testing' of the prosecution's case; and (3) circumstances wherein no lawyer, regardless of general competency, could have provided effective assistance of counsel." Commonwealth v. Diaz, 226 A.3d 995, 1008 (citing Cronic, 466 U.S. at 659).

Here, Delgado's first allegation of ineffectiveness per se stems from trial counsel's failure to obtain and consult with mental health professionals. She cites, among other cases, Rompilla v. Beard, 545 U.S. 374 (2005). Rompilla involved the failure to seek certain mitigation evidence ahead of a capital sentencing. Notably, the Court in Rompilla applied the Strickland standard, including an analysis of whether the petitioner had proven prejudice. Id. at 390-93. We conclude with respect to Delgado's first allegation that, like in Rompilla, she would be required to prove that trial counsel's failure prejudiced her. Because Delgado instead argues that counsel was ineffective per se, this claim fails; the PCRA court properly denied relief on this basis.^[2]

Delgado's second allegation of ineffectiveness per se fares no better. She asserts that because Paduani was influencing her, trial counsel should have asked that trial be severed, or that certain proceedings be held separately from Paduani. However, she has not shown that this rises to the level of denial of counsel, the failure to test the Commonwealth's case, or a circumstance where no lawyer could have provided effective assistance. Diaz, supra. Furthermore, we agree with the PCRA court that the co-defendants' defenses were not so antagonistic as to require severance, so Delgado has not shown arguable merit to this claim. Because Delgado has not shown merit or prejudice for this claim of ineffective assistance of counsel, the PCRA court properly denied relief on this basis.

In her...