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2024 PA Super 186
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARLOS ORTIZ-PAGAN :
:
Appellant : No. 1245 MDA 2023
Appeal from the PCRA Order Entered August 25, 2023
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000911-2020
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.
OPINION BY LAZARUS, P.J.: FILED: AUGUST 20, 2024
Carlos Ortiz-Pagan appeals from the order, entered in the Court of
Common Pleas of Dauphin County, dismissing, following a hearing, his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A §§ 9541-
9546. After careful review, we affirm the order of the PCRA court.
On October 12, 2021, Ortiz-Pagan entered a negotiated guilty plea to
two counts of involuntary deviate sexual intercourse with a child,1 and one
count each of aggravated indecent assault of a child,2 unlawful contact with a
minor,3 incest of minor—complainant under thirteen years,4 indecent assault—
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1 18 Pa.C.S.A. § 3123(b).
2 Id. at § 3125(b).
3 Id. at § 6318(a)(1).
4 Id. at § 4302(b)(1).
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person less than thirteen years of age,5 and corruption of minors.6 As part of
the negotiated plea, the Commonwealth withdrew Count 1, rape of a child.7
See N.T. Guilty Plea Hearing, 10/12/21, at 2.
On January 12, 2022, the trial court sentenced Ortiz-Pagan to 7 to 14
years’ incarceration, followed by 6 years’ probation, and ordered him to pay
associated costs and fines, in accordance with the plea agreement. See
Sentencing Order, 1/18/22. Following a hearing on August 1, 2022, the court
found that Ortiz-Pagan was a sexually violent predator (SVP). See N.T. SVP
Hearing, 8/1/22, at 18.
On August 15, 2022, Ortiz-Pagan filed a notice of appeal. On September
26, 2022, Ortiz-Pagan discontinued his appeal. See Notice of Discontinuance,
9/26/22.
On October 3, 2022, Ortiz-Pagan filed a pro se PCRA petition.8 On
October 18, 2022, the PCRA court appointed counsel, Elizabeth Close, Esquire,
____________________________________________
5 Id. at § 3126(a)(7).
6 Id. at § 6301(a)(1)(ii).
7 Id. at § 3121(c).
8 Ortiz-Pagan’s PCRA petition was timely filed within one year of the date on
which his judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b)(1)
(requiring PCRA petition to be filed within one year of date of petitioner’s
judgment of sentence becomes final). Ortiz-Pagan was sentenced on January
12, 2022, and received his SVP designation on August 1, 2022, at which time
judgment was entered. See N.T. Guilty Plea/Sentencing, 1/12/22, at 17;
Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa. Super. 2016)
(“[W]here a defendant pleads guilty and waives a pre-sentence SVP
(Footnote Continued Next Page)
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who withdrew from her representation on December 14, 2022. The court then
appointed Brandy Hoke, Esquire, who filed an amended PCRA petition on
February 9, 2023. The Commonwealth filed a response on February 28, 2023.
On March 22, 2023, Attorney Hoke moved for a hearing on Defendant’s Motion
for New Counsel, which the court granted. The court permitted Attorney Hoke
to withdraw as counsel and, on April 13, 2023, appointed Christopher Wilson,
Esquire, as Ortiz-Pagan’s PCRA counsel. On June 4, 2023, Attorney Wilson
filed a Second Amended PCRA Petition/Motion to Withdraw Guilty Plea and
Request for Evidentiary Hearing.
In his PCRA petition, Ortiz-Pagan argued that he received ineffective
assistance of counsel because he did not receive necessary Spanish interpreter
assistance for his guilty plea colloquy and at his sentencing hearing. In his
petition, Ortiz-Pagan further requested to withdraw his guilty plea. The court
held an evidentiary hearing on the issues raised in Ortiz-Pagan’s amended
PCRA petition on August 21, 2023. On August 25, 2023, the court dismissed
Ortiz-Pagan’s petition.
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determination, the judgment of sentence is not final until that determination
is rendered.”). Ortiz-Pagan filed his direct appeal on August 15, 2022, which
he later withdrew on September 26, 2022, at which point his judgment
became final for purposes of the PCRA. See 42 Pa.C.S.A. § 9545(b)(3)
(judgment of sentence final at the conclusion of direct review); see also
Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)
(judgment of sentence is final for PCRA purposes on date defendant voluntarily
discontinues direct appeal). Ortiz-Pagan’s instant PCRA petition was filed on
October 2, 2022, well within the one-year deadline.
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Ortiz-Pagan filed a timely notice of appeal on September 5, 2023. Ortiz-
Pagan and the PCRA court have complied with Pa.R.A.P. 1925.
On appeal, Ortiz-Pagan raises the following issues for our review:
1. Whether the PCRA [c]ourt erred in failing to find plea counsel[,
Joseph Hartye, Esquire,] prejudicially ineffective by failing to
review the case in Spanish before the plea, in failing to provide
a guilty plea colloquy which stated the offenses and the grading
of the offenses, and by failing to detail the consequences of
[the Sex Offender Registration and Notification Act (SORNA),
42 Pa.C.S.A. § 9799.10, et seq.] or potential SVP
determinations in Spanish before the plea.
2. Whether the PCRA [c]ourt erred in failing to find that []
sentencing counsel[, Jessica Bush, Esquire,] was prejudicially
ineffective by failing to provide a Spanish language interpreter
during [Ortiz-Pagan’s] sentencing when Ortiz-Pagan did not
waive his right to have an interpreter present under 204 Pa.
Code[] § 221.105.
3. Whether the PCRA [c]ourt erred when it denied [Ortiz-Pagan’s]
request to withdraw his guilty plea.
4. Whether the PCRA [c]ourt erred to the extent it relied upon
foundationally unsupported lay opinions from plea and
sentencing counsel regarding [Ortiz-Pagan’s ability] to
understand English when it was also uncontested that [Ortiz-Pagan] only arrived from Puerto Rico when he was 14-15, had
only one year of education in the United States[, and] was
enrolled in an English as a Second Language ([]ESL[])
program, when it denied [Ortiz-Pagan’s] request to withdraw
his guilty plea.
Appellant’s Brief, at 3.
Our standard of review of an order dismissing a PCRA petition is limited
to “the PCRA court’s findings to see if they are supported by the record and
free from legal error.” Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa.
2005). We are limited to the PCRA court’s findings, and the evidence adduced
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at the hearing, viewed in a light most favorable to the prevailing party at the
PCRA level. See Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012).
The PCRA court’s witness credibility findings are binding on this Court, so long
as the record supports those findings. See Commonwealth v. Johnson,
966 A.2d 523, 539 (Pa. 2009). A PCRA court’s legal conclusions, however,
are reviewed de novo. See Commonwealth v. Chmiel,
30 A.3d 1111, 1127
(Pa. 2011).
In his first two issues raised on appeal, Ortiz-Pagan argues that the
PCRA court erred by not finding prior counsel ineffective. First, Ortiz-Pagan
argues plea counsel was ineffective for failing to review the case with him in
Spanish before he entered his plea, failing to provide a guilty plea colloquy
that was sufficiently detailed, and failing to outline the consequences of sex
offender registration before the plea proceeding. Second, Ortiz-Pagan argues
sentencing counsel was ineffective for not obtaining a Spanish interpreter at
the sentencing hearing when Ortiz-Pagan did not waive his right to an
interpreter under 204 Pa. Code § 221.105. In connection with these claims,
Ortiz-Pagan argues that he was entitled to an interpreter because Spanish is
his first language, he has limited English proficiency, he received minimal
formal English education since moving to the United States as a teenager, and
because plea counsel, Attorney Hartye, obtained an interpreter for the plea
hearing. We review these claims together and conclude Ortiz-Pagan is not
entitled to relief.
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Counsel is presumed effective, and the appellant bears the burden of
proving otherwise. See Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.
Super. 2010). To overcome this presumption, the appellant must
demonstrate that: “(1) the underlying claim is of arguable merit; (2) []
counsel had no reasonable strategic basis for his or her action or inaction; and
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.”
Commonwealth v. Turetsky,
925 A.2d 876, 880 (Pa. Super. 2007)
(citations omitted); see also Strickland v. Washington,
466 U.S. 668, 687
(1984) (establishing test for claim of ineffective assistance of counsel). As to
the second prong, we will conclude “that counsel’s chosen strategy lacked a
reasonable basis only if [the a]ppellant proves that ‘an alternative not chosen
offered a potential for success substantially greater than the course actually
pursued.’” Commonwealth v. Spotz,
18 A.3d 244, 260 (Pa. 2011) (quoting
Commonwealth v. Williams,
899 A.2d 1060, 1064 (Pa. 2006)). Further, if
a claim fails under any part of the ineffectiveness test, we may proceed
directly to the unsatisfied element and dismiss the claim on that basis alone.
See Commonwealth v. Lesko,
15 A.3d 345, 374 (Pa. 2011) (citing
Strickland, supra); see also Commonwealth v. Albrecht,
720 A.2d 693,
701 (Pa. 1998).
Here, the PCRA court found that Ortiz-Pagan did not require an
interpreter during any point in the proceedings. See PCRA Court Opinion,
12/7/23, at 5. The court credited the testimony of Attorneys Hartye and Bush.
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See id. at 7-11. Specifically, the court found that, beginning with his first
meeting with Attorney Hartye and extending through the various hearings,
Ortiz-Pagan did not indicate that he needed an interpreter or that he had
limited English proficiency. See id. at 6; see also N.T. PCRA Hearing,
8/21/23, at 50-51. Attorney Hartye testified that “there was no indication
that [Ortiz-Pagan] ever misunderstood anything that was going on,” and that
he secured an interpreter for the guilty plea hearing “just in case.” N.T. PCRA
Hearing, 8/21/23, at 14, 20. Attorney Bush testified to similar effect,
explaining that there was “nothing in the file to indicate [Ortiz-Pagan] needed
an interpreter.” Id. at 26. Attorney Bush further testified that, in her
conversations with Ortiz-Pagan, it appeared Ortiz-Pagan understood what she
said and provided meaningful responses. See id. at 33.
The PCRA court found Ortiz-Pagan not credible as a witness. See PCRA
Court Opinion, 12/7/23, at 15-16. The court found significant “the fact that
[Ortiz-Pagan] spoke with an interviewer for the completion of a pre-sentence
investigation without an interpreter, and stated in English that he did not wish
to speak with her, wanted a bench trial, and wanted to withdraw his guilty
plea.” Id. at 16 (citing N.T. PCRA Hearing, 8/21/23, at 44). During his
testimony at the PCRA hearing, Ortiz-Pagan claimed that the interviewer had
trouble understanding him, but the court indicated that, “[the interviewer] did
not note that.” N.T. PCRA Hearing, 8/21/23, at 45. The PCRA court also found
that Ortiz-Pagan’s conduct at the PCRA hearing and sentencing hearing
demonstrated his English comprehension, as Ortiz-Pagan responded
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meaningfully to the court’s inquiries and instructions without first receiving a
translation. See id.; see also N.T. Guilty Plea/Sentencing, 1/12/22, at 5.
Our review reveals Attorney Hartye testified that he discussed the
maximum range of sentences and fines with Ortiz-Pagan, and Ortiz-Pagan
“understood everything,” though the written guilty plea colloquy did not
specifically outline all the applicable maximum punishments. See N.T. PCRA
Hearing, 8/21/23, at 17. Additionally, at the guilty plea hearing, Ortiz-Pagan
stated he understood the terms of the negotiated plea outlined by the
Commonwealth’s attorney. See N.T. Guilty Plea, 10/12/21, at 3-4; see also
Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999) (“A
defendant is bound by the statements he makes during his plea colloquy[]
and may not assert grounds for withdrawing the plea that contradict
statements made when he pled.”). Similarly, Attorney Bush testified that she
reviewed the difference between lifetime and SVP registration with Ortiz-
Pagan, and that, based on Ortiz-Pagan’s demeanor and responses, it appeared
Ortiz-Pagan understood her explanation. See N.T. PCRA Hearing, 8/21/23, at
31-33. Further, at the sentencing hearing, Ortiz-Pagan demonstrated he
understood the proceedings by responding to questions appropriately in time
and with substance—all without the use of an interpreter. In one instance,
Ortiz-Pagan responded in English to the court’s inquiry regarding the color of
his clothes. See N.T. Guilty Plea/Sentencing, 1/12/22, at 5. In another, Ortiz-
Pagan responded to the court’s direction to step down from the witness stand
before the court finished speaking and before a translation was provided. See
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N.T. PCRA Hearing, 8/21/23, at 45. Upon hearing this instruction, the record
further reflects that Ortiz-Pagan “started nodding his head in understanding
when his attorney approached, before the translation was rendered.” Id.
Because the PCRA court’s credibility findings are supported by the
record, see Johnson, supra, we conclude that Attorneys Hartye and Bush
had reasonable grounds for not securing an interpreter for Ortiz-Pagan at
various stages of the case. See
Spotz, supra; see also
Rivera, supra.
Accordingly, Attorneys Hartye and Bush cannot be deemed ineffective. See
Rivera, supra.
We similarly find no error in the PCRA court’s conclusion that section
221.105 does not apply. Section 221.105 governs how a defendant of limited
English proficiency may waive his or her right to have an interpreter present.
See 204 Pa. Code § 221.105. Section 221.102 of the same chapter defines a
person of limited English proficiency as “a principal party in interest or a
witness who speaks exclusively or primarily a language other than English and
is unable to sufficiently speak and understand English so as to fully
participate and be understood in a judicial proceeding.”
Id. at § 102(n)
(emphasis added).
Here, Ortiz-Pagan cannot prove that section 221.105 applies to him. As
noted above, the credited testimony of Attorneys Hartye and Bush establish
Ortiz-Pagan did not require an interpreter to sufficiently understand the
proceedings. We, therefore, agree with the PCRA court that section 221.105
does not apply to Ortiz-Pagan; as such, this claim lacks merit. See Rivera,
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supra; see also Lesko, supra. Based upon the foregoing, we find the PCRA
court’s conclusions on Ortiz-Pagan’s first two issues are supported by the
record and we discern no error of law. See
Duffey, supra.
Next, Ortiz-Pagan argues that the PCRA court erred when it denied his
motion to withdraw his guilty plea because he expressed interest in
withdrawing his plea before sentencing and because he was not provided an
interpreter at sentencing. See Appellant’s Brief, at 24.
To be eligible for PCRA relief, a PCRA petitioner must show that the
claims of error have not been previously litigated or waived. See 42 Pa.C.S.A.
§ 9543(a)(3); see also Commonwealth v. Blakeney, 108 A.3d 739, 749
(Pa. 2014). “An issue has been waived ‘if the petitioner could have raised it
but failed to do so before trial, at trial, on appeal[,] or in a prior state post[-
]conviction proceeding.’” Blakeney,
108 A.3d at 749 (quoting 42 Pa.C.S.A.
§ 9544(b)).
It is well-settled that a defendant who wishes to withdraw his or her
guilty plea following the imposition of a sentence must do so within 10 days
of sentencing. See Commonwealth v. Moore, 307 A.3d 95, 99 (Pa. Super.
2023) (citing Pa.R.Crim.P. 720(A)(1)); see also Commonwealth v. Lincoln,
72 A.3d 606, 609-10 (Pa. Super. 2013) (“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.”). Failure to do so results in waiver of any involuntariness claim.
See
Moore, supra; see also
Lincoln, supra.
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Here, Ortiz-Pagan failed to file any motion or raise his desire to withdraw
his plea before the trial court prior to, or within 10 days of, his sentencing.
Indeed, Ortiz-Pagan did not object to the entry of his guilty plea during the
guilty plea colloquy and confirmed his understanding of his plea during his
guilty plea hearing. See N.T. Guilty Plea, 10/12/21, at 3-4. Ortiz-Pagan
previously, before sentencing, expressed a desire to withdraw his guilty plea
by raising his concern with counsel; however, when the sentencing court
inquired about this desire, Attorney Bush clarified that Ortiz-Pagan was not
making such a request. See N.T. Guilty Plea/Sentencing, 1/12/22, at 3. In
her credited testimony, Attorney Bush testified that on the day of the
sentencing hearing, Ortiz-Pagan was sure he wanted to move forward with his
plea. See N.T. PCRA Hearing, 8/21/23, at 29-30 (Attorney Bush explaining
that Ortiz-Pagan’s initial desire to withdraw his guilty plea was
“gamesmanship”). Moreover, Ortiz-Pagan was present at the sentencing
hearing, and he did not correct Attorney Bush when she stated that Ortiz-
Pagan did not want to withdraw his guilty plea. See N.T. PCRA Hearing,
8/21/23, at 50-51.
Since Ortiz-Pagan did not object to his guilty plea during the colloquy
and did not file a motion to withdraw his guilty plea within ten days of
sentencing, any challenge to his guilty plea was waived. See Moore, supra;Lincoln, supra. Consequently, Ortiz-Pagan is not entitled to relief on this
issue under the PCRA. See
Blakeney, supra; see also 42 Pa.C.S.A. §
9543(a)(3).
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Fourth, and finally, Ortiz-Pagan argues that the PCRA court erred by
relying on non-expert opinions to establish his ability to understand English
because it was uncontested that an interpreter assisted him during his guilty
plea, Ortiz-Pagan moved to the United States when he was in high school, and
he only received one year of formal education in the United States. See
Appellant’s Brief, at 27.
In Pennsylvania, the determination of a defendant’s English proficiency,
and, therefore, the need for an interpreter, generally lies within the trial
court’s discretion. See Commonwealth v. Wallace, 641 A.2d 321, 324 (Pa.
Super. 1994). The trial court must consider all relevant factors in making its
determination, such as the complexity of the issues and the defendant’s
language skills. See Commonwealth v. Pana,
364 A.2d 895, 898 (Pa.
1976). “If it becomes apparent that an interpreter is necessary during the
trial, the trial court should, on its own motion or on motion of a party, make
an interpreter available.”
Id.
On appeal, Ortiz-Pagan claims that under our Supreme Court’s decision
in Commonwealth v. Diaz, 226 A.3d 995 (Pa. 2020), the court was required
to appoint an interpreter for his sentencing, regardless of Ortiz-Pagan’s ability
to speak some English. See Appellant’s Brief, at 28. Ortiz-Pagan is not
entitled to any relief.
In Diaz, the Pennsylvania Supreme Court considered whether counsel
was ineffective for not obtaining a Spanish-language interpreter for the
defendant on the first day of the defendant’s criminal trial. See Diaz, 226
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A.3d at 996-97. The Supreme Court ultimately affirmed the PCRA court’s
grant of post-conviction relief after determining that the lack of an interpreter
on the first day of trial interfered with the defendant’s ability to communicate
with counsel and understand the proceedings. Id. The PCRA court in Diaz
made 33 findings of fact related to the defendant’s English proficiency,
findings that considered both lay and expert opinions. Id. at 1001, 1007.
Those findings established that the defendant would have had “significant
difficulty” communicating with counsel without an interpreter present on the
first day of trial. Id. at 1001. The Supreme Court concluded that “[t]he PCRA
court made its factual findings and credibility determinations, and as the
record supports them, they are binding upon [the appellate courts] on
appeal.” Id. at 1007.
Here, the PCRA court rejected Ortiz-Pagan’s reliance on Diaz by
concluding that, “[a]lthough the PCRA court in Diaz considered the testimony
of lay and expert witnesses, the Supreme Court did not address any
requirement of expert opinion or its weight vis[-à-]vis lay opinion.” PCRA
Court Opinion, 12/7/23, at 18. The PCRA court concluded that “[a]mple
evidence existed, without the need for expert testimony, upon which [the
PCRA court] could properly find that [Ortiz-Pagan] understood English.” Id.
at 15. The PCRA court was similarly unpersuaded by the presence of an
interpreter at the guilty plea hearing, finding “credible Attorney Hartye’s
testimony that his suggestion to [Ortiz-Pagan to] use [] a Spanish interpreter
at the [g]uilty [p]lea [h]earing was not born[] out of need,” but rather an
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“abundance of caution.” Id. at 8, 11 (citing N.T. PCRA Hearing, 8/21/23, at
19-20).
We agree with the PCRA court’s analysis of Diaz and emphasize the
Diaz court did not implement an additional requirement of expert testimony
to establish English proficiency. As we have already concluded, the record
here reflects that Ortiz-Pagan did not require an interpreter at any point during
the proceedings to effectively communicate with counsel. Indeed, the record
supports the finding that Ortiz-Pagan understood the proceedings based on
statements he made under oath, the timing and substance of his responses,
the interview he completed pre-sentencing conducted entirely in English, and
the credited testimony of Attorneys Hartye and Bush. Based on these
interactions, it was apparent that Ortiz-Pagan never required an interpreter
during the proceedings, nor did he request one. See Pana, supra. Thus, we
discern no error in the PCRA court’s decision to rely on lay opinions to
determine Ortiz-Pagan’s comprehension of the English language. See
Duffey, supra.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 8/20/2024
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