Com. v. Henriquez-Barclay, E.

J-S25004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ENRIQUE HENRIQUEZ-BARCLAY :

:

Appellant : No. 1935 MDA 2019

Appeal from the PCRA Order Entered December 8, 2017

In the Court of Common Pleas of Luzerne County Criminal Division at

No(s): CP-40-CR-0002750-2015

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

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 16, 2020

Enrique Henriquez-Barclay appeals nunc pro tunc from the order,

entered in the Court of Common Pleas of Luzerne County, denying his petition

for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. For the reasons set forth below, we affirm.

The PCRA court summarized the relevant procedural history as follows:

On October 2, 2015, the Luzerne County District Attorney filed an

information charging [Henriquez-Barclay] with involuntary

deviate sexual intercourse, two counts of indecent assault[,] and

corruption of minors. [Henriquez-Barclay] [entered a hybrid

negotiated] guilty [plea1] on December 4, 2015[,] to involuntary

deviate sexual intercourse. On March 22, 2016, [Henriquez-

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1Henriquez-Barclay’s plea was open with respect to the length of sentence,

and negotiated as to the charges filed against him. See N.T. Guilty Plea

Hearing, 12/4/15, at 2 (“[Commonwealth Attorney:] [] This is a negotiated

guilty plea in which [Henriquez-Barclay] has agreed to plead guilty as follows:

Count one, felony one, involuntary deviate sexual intercourse with a child.

Carries a maximum penalty of [twenty] years. . . . The parties have not

made any agreement as to sentencing. . . .”).

J-S25004-20

Barclay] was sentenced to ten to twenty years[’ imprisonment] in

a state correctional facility. This sentence was within the standard

range of the sentencing guidelines.

[Henriquez-Barclay] filed a post-sentence motion on March 31,

2016[,] which was denied. Although no appeal was filed,

[Henriquez-Barclay] did file a motion for post[-]conviction

collateral relief [pro se on January 3, 2017, wherein he] claimed

counsel’s ineffectiveness due to an alleged misunderstanding with

regard to his potential minimum sentence.

PCRA Court Opinion, 12/8/17, at [1-2]. The court appointed counsel, and, on

December 4, 2017, conducted a hearing on Henriquez-Barclay’s petition.

Subsequently, the PCRA court dismissed the petition, and Henriquez-Barclay

did not appeal.

On June 14, 2019, Henriquez-Barclay filed a second PCRA petition

alleging ineffectiveness of counsel for failing to file a collateral appeal following

the PCRA court’s denial of his first petition. The court then appointed counsel.

On November 12, 2019, the PCRA court conducted a hearing, granted the

petition and reinstated Henriquez-Barclay’s collateral appellate rights.

Henriquez-Barclay then filed a notice of appeal to this Court. The court then

appointed new conflict counsel for purposes of the appeal.

On appeal, Henriquez-Barclay presents the following issue for our

review: “Whether trial counsel was ineffective in causing [Henriquez-Barclay]

to make an involuntary guilty plea.” Appellant’s Brief, at 1. Specifically,

Henriquez-Barclay claims that “trial counsel led [him] to plead guilty without

making [him] aware of the [ten-]year minimum sentence[;] [Henriquez-

Barclay] [] believed that [five] years was the minimum he could receive and[,]

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on that basis, [] pled guilty.” Id. at 6. He further notes that different

attorneys represented him throughout the pre-trial process and that he had

no interpreter during meetings with his attorney. Id. Finally, Henriquez-

Barclay claims that “trial counsel made a guarantee that he would receive a

minimum [five-]year sentence and he pled guilty based on that summation.”

Id. Restated, Henriquez-Barclay claims that his attorney led him to believe

that he would receive, at most, five years as the minimum term of his

sentence.2 As noted above, the court sentenced Henriquez-Barclay to a

minimum of ten years’ incarceration.

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2 “Pennsylvania is an indeterminate sentencing state; indeterminate

sentencing [] is defined as: ‘a system by which[:] (A) the court may impose

a sentence of a range defined by statute; and (B) an administrative agency,

generally, a parole board, or the court, controls release within the statutory

range. . . .’” Commonwealth v. Boyer, 856 A.2d 149, 152-53 (Pa. Super.

2004). “Pennsylvania’s procedure of indeterminate sentencing carries with it

an implicit adoption of the philosophy of individual sentencing.”

Commonwealth v. Martin, 351 A.2d 650, 656 (Pa. 1976).

At the guilty plea hearing, the court informed Henriquez-Barclay that it could

impose up to the statutory maximum sentence. Specifically, the court stated,

“I also want to let you know that I’m not bound by any agreement you might

have with the Commonwealth regarding a sentence in this case. I could

impose the statutory maximum. I’m not saying I will, but I could. Do you

understand that?” N.T. Guilty Plea Hearing, 12/4/15, at 5. Henriquez-Barclay

answered, via the interpreter, in the affirmative. Id. “A person who elects to

plead guilty is bound by the statements he makes in open court while under

oath and he may not later assert grounds for withdrawing the plea which

contradict the statements he made at his plea colloquy.” Commonwealth v.

Pollard, 832 A.2d 517, 523 (Pa. Super. 2003). Here, Henriquez-Barclay’s

statements at his guilty plea hearing supersede any allegedly contradictory

statements made by his attorney at the pre-trial meetings.

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Our standard of review for the denial of a PCRA petition is well-settled:

We review an order granting or denying a petition for collateral

relief to determine whether the PCRA court’s decision is supported

by the evidence of record and free of legal error. We will not

disturb the findings of the PCRA court unless there is no support

for those findings in the record.

In reviewing ineffective assistance of counsel claims, we presume

counsel is effective. To overcome this presumption, a PCRA

petitioner must show the underlying claim has arguable merit,

counsel’s actions lacked any reasonable basis, and counsel’s

actions prejudiced the petitioner. Prejudice means that, absent

counsel’s conduct, there is a reasonable probability the outcome

of the proceedings would have been different. A claim will be

denied if the petitioner fails to meet any one of these prongs.

A criminal defendant’s right to effective counsel extends to the

plea process, as well as during trial. Under the PCRA, allegations

of ineffectiveness in connection with the entry of a guilty plea will

serve as a basis for relief only if the ineffectiveness caused the

petitioner to enter an involuntary or unknowing plea. Where the

defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice

was within the range of competence demanded of attorneys in

criminal cases.

To establish prejudice, the defendant must show that there is a

reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial. This

is not a stringent requirement. The reasonable probability test

refers to a probability sufficient to undermine confidence in the

outcome.

Commonwealth v. Brown, 3490 EDA 2018 (Pa. Super. filed July 14, 2020)

(quoting Commonwealth v. Velazquez, 216 A.3d 1146, 1149-50 (Pa.

Super. 2019) (internal citations, quotation marks, and brackets omitted).

Henriquez-Barclay cites to our Supreme Court’s decision in

Commonwealth v. Persinger, 615 A.2d 1305 (Pa. 1992), and our decision

in Commonwealth v. McCall, 406 A.2d 1077 (Pa. Super. 1979), to support

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his claim that he is entitled to withdraw his plea and proceed to trial.

Henriquez-Barclay argues that “if a defendant justifiably relied upon counsel’s

advice that his maximum sentence would be less than he actually received,

he may be allowed to withdraw his plea,” and that “this scenario is present

here[.]” Appellant’s Brief, at 6-7. We disagree with Henriquez-Barclay that

this scenario is present here.

In Persinger, our Supreme Court held that counsel was ineffective for

failing to file a motion to withdraw the defendant’s guilty plea where the

defendant’s plea colloquy was deficient. In that case, the Court noted that

the defendant was entitled to know the maximum possible sentence he faced.

See id., supra at 1309. Because the defendant was not informed that the

consequences of his plea included the possibility of consecutive sentences,3

the Court found that the defendant’s plea colloquy was deficient. Id.

In McCall, this Court remanded for an evidentiary hearing where the

defendant’s PCRA petition alleged that his trial counsel promised a sentence

of two-and-a-half-to-five years rather than the three–to-ten year sentence he

actually received. We instructed that, on remand, if the defendant proved

counsel’s alleged promise to be true, his guilty plea would not have been

entered intelligently; thus, withdrawal of his guilty plea would be permitted.

See id., supra at 1078-79.

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3 Consecutive sentences, by their nature, extend a defendant’s maximum

sentence.

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After our review of the record, the parties’ briefs, and the applicable

caselaw, we disagree with Henriquez-Barclay that he is entitled to withdraw

his guilty plea. Neither Persinger nor McCall is applicable to the instant

matter. Persinger is inapposite because Henriquez-Barclay was fully aware

that the maximum sentence he could receive was twenty years.4 We find

McCall equally inapplicable to Henriquez-Barclay’s case. In McCall, we

remanded for an evidentiary hearing because the PCRA court denied the

appellant’s petition without ever conducting a hearing. McCall, supra at

1078. Here, Henriquez-Barclay was granted a hearing and has already

presented this argument to the PCRA court. When given the chance to prove

that trial counsel promised him a different sentence at the PCRA hearing,

Henriquez-Barclay testified as follows:

Q. And could you please briefly tell [the] judge [] why it is that

you believe that you were only looking at a minimum of [five]

years rather than [ten] years minimum?

A. At the time when this happened I was housed at the county

prison. My attorney came to see me. I met her at the interview

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4 We note that, at the plea hearing, Henriquez-Barclay agreed that he

understood the terms of his plea agreement, as they were read into the record

by the Commonwealth attorney. See N.T. Guilty Plea Hearing, 12/4/15, at 2-

3. The terms to which Henriquez-Barclay agreed specifically included that the

maximum sentence he could receive was twenty years. Id. at 2. Additionally,

as noted in footnote 2 above, the court informed Henriquez-Barclay that it

could sentence him to the statutory maximum. Id. at 5. Moreover, the

written plea agreement, which Henriquez-Barclay signed, states “Twenty (20)

YRS.” under the heading “Max. Time[.]” Guilty Plea Agreement, 12/4/15, at

2.

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room. And I was surprised it wasn’t the same female attorney

that had been handling my case prior to this. But this time there

was another female attorney and she said I will represent you

from now on. And she indicated that she had reviewed my case,

she had looked at everything in my file, and she came to the

conclusion that I would be looking at a minimum of five years. I

understood it was a minimum because of the actions I had taken.

I could not imagine that she was talking about a maximum, I

understood it was a minimum. And it was very difficult to

understand all of this because at the time there was no interpreter

that was present at this interview.[5] And that’s pretty much what

I understood at that point.

N.T. PCRA Hearing, 12/4/17, at 3-4. Henriquez-Barclay did not elaborate on

this claim when given the chance:

Q. Did you have any meetings with your attorney [] after your

plea and [before] the sentencing?

A. To be honest with you, I really couldn’t pinpoint exactly when

it was that I met up with my attorney Nicole Thompson [Lermitte,

Esq.]. I don’t recall if it was before or after. I really do not

remember.

Q. Is there anything else you would like the court to know about

your PCRA that you think is important?

A. Not really. Not something that legally will help me in any

matter, no.

Id. at 4.

Here, we find that the PCRA court did not err in declining to grant relief.

Under the ineffective assistance of counsel test, as set forth above, Henriquez-

Barclay has failed to adequately prove prejudice. See Brown, supra.

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5 We note that Henriquez-Barclay had an interpreter present for both his guilty

plea hearing and sentencing hearing. Moreover, at the sentencing hearing,

Henriquez-Barclay, at one point, addressed the court without the aid of the

interpreter for an extended exchange. See N.T. Sentencing Hearing, 3/22/16,

at 6-8.

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Specifically, Henriquez-Barclay has failed to show that there is a reasonable

probability that he would not have pled guilty in the absence of his attorney’s

alleged inducement to do so. Id. We note that Henriquez-Barclay clearly

benefitted from entering his guilty plea because the Commonwealth withdrew

several other charges that were originally filed against him. Additionally,

throughout the PCRA proceedings, Henriquez-Barclay never claimed that he

did not commit the crime underlying his conviction. Cf. McCall, supra at

1078 (appellant maintained innocence throughout PCRA proceedings and

claimed he was induced to “enter a guilty plea on pragmatic grounds rather

than on grounds of innocence or guilt”).

Regarding the validity of a guilty plea, it is well-established that it must

be voluntary, knowing, and intelligent. Commonwealth v. Hart, 174 A.3d

660, 667 (Pa. Super. 2017). In Hart, we explained these requirements

further:

To ensure these requirements are met, Rule 590 of the

Pennsylvania Rules of Criminal Procedure requires that a trial

court conduct a separate inquiry of the defendant before accepting

a guilty plea. It first requires that a guilty plea be offered in open

court. The rule then provides a procedure to determine whether

the plea is voluntarily, knowingly, and intelligently entered. As

the Comment to Rule 590 provides, at a minimum, the trial court

should ask questions to elicit the following information:

(1) Does the defendant understand the nature of the

charges to which he or she is pleading guilty or nolo

contendere?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the

right to trial by jury?

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(4) Does the defendant understand that he or she is

presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range

or sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by

the terms of any plea agreement tendered unless the judge

accepts such agreement?

Pa.R.Crim.P. 590, Comment []. In [Commonwealth v.]

Yeomans, [24 A.3d 1044 (Pa. Super. 2011),] this Court

explained:

In order for a guilty plea to be constitutionally valid, the

guilty plea colloquy must affirmatively show that the

defendant understood what the plea connoted and its

consequences. This determination is to be made by

examining the totality of the circumstances surrounding the

entry of the plea. Thus, even though there is an omission

or defect in the guilty plea colloquy, a plea of guilty will not

be deemed invalid if the circumstances surrounding the

entry of the plea disclose that the defendant had a full

understanding of the nature and consequences of his plea

and that he knowingly and voluntarily decided to enter the

plea.

[Id.] at 1047 [] (citing Commonwealth v. Fluharty, [] 632 A.2d

312, 314-15 (Pa. Super. 1993)).

Hart, supra at 667-68 (emphasis added and in original; footnote omitted).

Here, upon review of Henriquez-Barclay’s guilty plea transcript, we find

that the trial court conducted the appropriate inquiry pursuant to Rule 590

and its comment by asking all six of the enumerated questions.6 See N.T.

Guilty Plea Hearing, 12/4/15, at 3-6; Pa.R.Crim.P. 590. Under the totality of

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6 The court inquired as to question 1, see N.T. Guilty Plea Hearing, 12/4/15,

at 3; question 2, id. at 6; question 3, id. at 4-5; question 4, which the court

clarified at Henriquez-Barclay’s request, id. at 4; question 5, id. at 5; and

question 6, id.

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the circumstances, Henriquez-Barclay understood what his plea connoted and

what consequences could result. See Hart, supra. Our review of the record

reveals that Henriquez-Barclay’s guilty plea was entered voluntarily,

knowingly, and intelligently. Id. Therefore, the PCRA court did not err in

declining to grant relief. See Brown, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/16/2020

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