Commonwealth v. Molina

COMMONWEALTH OF PENNSYLVANIA, Appellee v. ANGEL ULICES MOLINA, Appellant

J. S17002/15

No. 1849 WDA 2013

SUPERIOR COURT OF PENNSYLVANIA

APRIL 28, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence February 12, 2008

In the Court of Common Pleas of Allegheny County

Criminal Division No(s).: CP-02-CR-0005565-2006

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,^* JJ.

MEMORANDUM BY FITZGERALD, J.:

Appellant, Angel Ulices Molina, appeals nunc pro tunc from the judgment of sentence entered in the Allegheny County Court of Common Pleas after he pleaded guilty to murder of the third degree and endangering the welfare of a child.¹ Appellant claims he is entitled to a post-sentence withdrawal of his guilty plea and the aggregate sentence of twenty to forty years' imprisonment was manifestly excessive.² We affirm.

The trial court has summarized the factual and procedural background of this appeal.

On or about October 15th, 2007, [Appellant] pled guilty to 3rd degree Homicide and Endangering [ ] the Welfare of a Child for the death of his 21-month old son.³ The child was found dead on April 1st, 2006 from blunt force trauma to his abdomen. An autopsy also revealed fractures to the child's ribs as well as blunt force trauma to the child's face. After the autopsy, [Appellant] was taken to the homicide division, waived his Miranda⁴ Rights and admitted to having struck the child five days before the infant's death.⁵

The Allegheny County Medical Examiner determined that the force of the blow inflicted on the child caused his intestines to strike the back of his spinal column, which lacerated his organs and caused internal bleeding.

The child's mother, a co-defendant, charged with Endangering the Welfare of a Child, knew [Appellant] had struck his child. . . . [T]he child's mother [gave statements] that the child made a bowel movement on [Appellant]'s couch. This incident enraged [Appellant], who struck the child repeatedly. The child could not eat because of the injuries inflicted upon him by [Appellant. Appellant] had, at one point prior to the child's death, attempted to funnel V8 juice down into the child's stomach. The child subsequently vomited. After one or two failed attempts to get the child to eat, the child died on April 1st, 2006. The medical examiner also determined that the child could have been saved by prompt medical care.

[Appellant], an illegal immigrant whose native tongue is Spanish, had an interpreter with him at the time of his plea hearing. He swore under oath that he understood English, and that he was able to rely on the court interpreter for anything he did not understand. Throughout the proceedings, [Appellant] addressed the court in very functional English. He verified that the summary given by the District Attorney was correct, that he used to drink, and that the child's mother did not actually see him hit his child. [Appellant's plea counsel] stated that she felt confident in [Appellant]'s ability to fill out his colloquy forms, to understand the terms of his guilty plea, and that he had answered the questions on his colloquy form truthfully.

On February 12, 2008, [Appellant] was sentenced to 20-40 years in prison for 3rd Degree Homicide and [no further penalty for] Endangerment in the Welfare of a child. On February 19th, post-sentencing motions were filed, seeking a modification of the sentence [and withdrawal of the plea]. A clerical error that listed the sentence as 10-20 years was corrected[, and the post-sentence motions were denied]. No appeal was taken challenging the sentence, and [Appellant, on July 11, 2008,] then petitioned for relief under the Post Conviction Relief Act [(PCRA) , 42 Pa.C.S. §§ 9541-9546]. The Court appointed Matthew Debbis, Esquire, as counsel for [Appellant]. After reviewing all the records, appointed counsel filed a timely Turner/Finley⁶ no merit letter, and withdrew from representing Mr. Molina. The trial court reviewed the Turner/Finley Motion and brief and Court records then denied the PCRA Motion.

[Appellant] appealed the denial for relief at No. 1645 WDA 2011, and the Superior Court vacated the trial court order and remanded for an evidentiary hearing to determine whether [Appellant] asked trial counsel to file a direct appeal.

The trial court appointed Scott Coffey, Esquire, to represent [Appellant] in the PCRA evidentiary hearing scheduled for 10/23/13. On that day, [plea] counsel conceded she did not file the direct appeal, and the court reinstated [Appellant]'s direct appeal rights, nunc pro tunc.

Trial Ct. Op., 11/20/14, at 2-4 (record citations and footnotes omitted). Appellant filed a timely notice of appeal and complied with the trial court's order to submit a Pa.R.A.P. 1925(b) statement. The trial court filed a responsive opinion.

Appellant presents two questions in this appeal, which we have reordered as follows:

[ ] DID THE TRIAL COURT ERR IN DENYING APPELLANT'S REQUEST TO WITHDRAW HIS GUILTY PLEA SINCE APPELLANT IS INNOCENT OF THE INSTANT CRIMES, AND THE PLEA WAS INVOLUNTARY SINCE (A) APPELLANT, WHO[SE] FIRST LANGUAGE IS SPANISH, WAS NOT ADVISED OF THE ELEMENTS OF THE CRIME, MURDER 3, TO WHICH HE WAS PLEADING AND APPELLANT WAS NOT ADVISED OF AND DID NOT UNDERSTAND THE CONCEPT OF "MALICE", AN ESSENTIAL ELEMENT OF MURDER 3, AND, (B) THE TRIAL COURT DID NOT ADVISE APPELLANT THAT HE COULD BE DEPORTED BACK TO MEXICO FOR PLEADING TO THESE CRIMES?

[ ] DID THE TRIAL COURT ERR IN DENYING APPELLANT'S POST SENTENCING MOTIONS SINCE HIS 20-40 YEAR SENTENCE OF IMPRISONMENT FOR MURDER 3 WAS MANIFESTLY EXCESSIVE IN LIGHT OF HIS GUILTY PLEA RATHER THAN PROCEEDING TO TRIAL, AND HIS ACCEPTANCE OF RESPONSIBILITY AND EXPRESSION OF REMORSE FOR HIS CRIME?

Appellant's Brief at 3.

Appellant first contends the trial court erred in denying his post-sentence request to withdraw his guilty plea. Id. at 20-22. He asserts actual innocence to murder of the third degree and claims his plea was unknowing because the trial court failed to provide a Spanish-speaking interpreter. Appellant also claims the plea colloquy was inadequate because it failed to apprise him of the elements of that crime, in particular, malice. Lastly, Appellant asserts the plea colloquy was defective because he was not informed of the possibility of deportation. No relief is due.

"When considering the propriety of a trial court's denial of a motion to withdraw a guilty plea, we are bound by the determination of that court unless we find that it committed an abuse of discretion." Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa. Super. 1990) (citation omitted).

Post-sentence motions for withdrawal are subject to higher scrutiny [than presentence motions] since courts strive to discourage entry of guilty pleas as sentence-testing devices. A defendant must demonstrate that manifest injustice would result if the court were to deny his post-sentence motion to withdraw a guilty plea. Manifest injustice may be established if the plea was not tendered knowingly, intelligently, and voluntarily. In determining whether a plea is valid, the court must examine the totality of circumstances surrounding the plea. A deficient plea does not per se establish prejudice on the order of manifest injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (citations and punctuation omitted). "[W]here the totality of the circumstances establishes that a defendant was aware of the nature of the charges, the plea court's failure to delineate the elements of the crimes atthe oral colloquy, standing alone, will not invalidate an otherwise knowing and voluntary guilty plea." Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (en banc) (citing, inter alia, Commonwealth v. Martinez, 453 A.2d 940, 942-44 (Pa. 1982)).

A defendant wishing to challenge the voluntariness of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either measure results in waiver. Historically, Pennsylvania courts adhere to this waiver principle because it is for the court which accepted the plea to consider and correct, in the first instance, any error which may have been committed.

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (some citations and punctuation omitted), appeal denied, 87 A.3d 319 (Pa. 2014).

As to Appellant's assertion that his plea was unknowing because of possible language barriers, our review reveals the following. Appellant confirmed he was able to read, write, and understand the English language in his written plea colloquy. Written Guilty Plea Explanation of Def.'s Rights, 10/15/07, ¶ 4 ("written colloquy"). During the oral colloquy by the trial court, the presiding judge twice noted that a Spanish interpreter was available and advised Appellant to "[t]ell us to stop" if he did not understand anything. N.T., 10/15/07, at 2. The court asked Appellant if he understood English, and Appellant responded, "Yes." Id. Appellant did not stop the proceedings based on a language barrier. The transcript also indicates the court used the interpreter only when it clarified Appellant's history of mentalhealth treatment and whether that history affected his ability to enter the underlying plea. Id. at 22-23.

Appellant was also able to respond to the Commonwealth's lengthy recitation of the factual basis of the plea. Id. at 8-17. He admitted striking the child, but asserted his girlfriend did not see him commit such acts. Id. at 15, 17. We further note the trial court discussed with plea counsel whether Appellant was able to understand the written colloquy. Id. at 6. Plea counsel averred she sat with Appellant while completing the written colloquy and observed he had some difficulty understanding certain words, such as "threat." Id. She stated, however, that she was "confident to a certain extent" that he understood the contents of the...