The Pennsylvania Superior Court has just decided the case of Commonwealth v. Diaz. The Court found that it is always ineffective assistance of counsel where a defense attorney fails to object to the court proceeding to trial without an interpreter for a defendant who does not speak English. The Court reversed the decision of the trial court, which had denied the defendant’s Post-Conviction Relief Act Petition, and awarded the defendant a new trial.
In Diaz, Bucks County prosecutors charged the defendant with Rape of a Child, Rape of a Person Less Than 13 Years of Age, Statutory Sexual Assault, Corruption of Minors, Endangering the Welfare of a Child, and Criminal Conspiracy. Prosecutors alleged that the defendant molested his step-daughter for four years. Prosecutors further alleged that the girl’s mother knew of the molestation and cooperated with it.
The defendant retained two private attorneys, and the representation lasted for approximately eight months. During that period, the attorneys appear to have done nothing. One of them met with the defendant for less than an hour, and the other attorney never met with him at all. The defense attorneys apparently assumed that the other attorney was working on the case and handling the trial preparation, but in fact, no one was working on it.
On the day of trial, the attorney who had never met with the defendant finally met with him fifteen minutes before the trial court called the case. That attorney was surprised to realize that his client did not really speak or understand English. The attorney informed the Court that he would need an interpreter, but there was no interpreter available that day. This was likely because the attorneys had not notified the court in advance that an interpreter would be needed. The attorney, likely not wanting to show how unprepared he was, then told the judge that the defendant would only need the interpreter for when he actually testified and that they could start the trial without the interpreter. The trial judge initially said that the court would only proceed through jury selection without the interpreter, but ultimately, the court began receiving testimony that day.
The defendant received the services of an interpreter for the rest of the trial. The jury ultimately convicted him of all charges. When the defendant returned to court for sentencing and a hearing on whether he should be designated a Sexually Violent Predator, the trial court noted that the defendant had an interpreter present because he did not understand the proceedings well enough to participate in them without an interpreter. He received a sentence of 20-40 years in state prison.
The defendant appealed to the Superior Court on the grounds that he had not received the interpreter on the first day of the trial. The Superior Court denied the appeal. It found that because the attorney failed to object to proceeding to trial without an interpreter, the defendant had waived the claim and could not raise it on appeal.
Post-Conviction Relief Act Petition
The defendant next filed a Post-Conviciton Relief Act Petition (“PCRA”). In the PCRA Petition, the defendant raised a number of claims relating to ineffective assistance of counsel. In addition to other errors, the defendant alleged that he received the ineffective assistance of counsel in that his attorneys failed to object when the court began the trial without an interpreter present. The PCRA court conducted an evidentiary hearing and ultimately agreed with the defendant. It reversed his conviction and awarded him a new trial. The Commonwealth appealed.
Appealing the Denial of a PCRA Petition
On appeal, the Superior Court affirmed the PCRA’s court decision awarding the defendant a new trial. There was some dispute as to exactly how much English the defendant could understand, but the Superior Court ultimately found that there was enough evidence on the record for the PCRA court to properly find that the defendant could not speak sufficient English to proceed to trial without an interpreter. Further, the Court noted that it must apply a very deferential standard of review to the appeal of a PCRA. The Court recognized that it may not make its own findings of fact Instead, the Superior Court must defer to the trial court’s findings unless the trial court abused its discretion by making findings with no support in the evidentiary record.
In general, a PCRA Petitioner must show three things in order to win a new trial or sentencing: 1) counsel was ineffective, 2) there was no reasonably strategic basis for counsel’s decision, and 3) the petitioner suffered prejudice as a result of counsel’s ineffective representation. Prejudice is often difficult to show. The defendant must be able to show that had he received effective representation, the outcome may have been different. Thus, even in many cases where a petitioner can show that the attorney did something horribly ineffective, the trial courts and appellate courts will not award a new trial because the courts will find that the defendant would have been convicted anyway.
Presumed Prejudice in PCRA Litigation
There are a handful of situations in which the error is so fundamental that prejudice is presumed and a petitioner does not have to show that the outcome would have been different. In these cases, the petitioner must show only that the attorney was ineffective and that there was no reasonable, strategic basis for the decision or omission. This makes the burden of winning a new trial or sentencing much easier to meet. This is because there are some “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a parituclar case is unjustified.”
For example, prejudice is presumed when there is an actual or constructive denial of counsel, the state interferes with counsel’s assistance, or counsel had an actual conflict of interest. In addition, prejudice is presumed where trial counsel’s ineffectiveness causes a defendant to be physically absent from his own trial without cause or consent. In Commonwealth v. Tolbert, the Superior Court reversed a conviction where trial counsel admittedly and erroneously told the defendant he did not have to be present for a court date and the court then proceeded through jury selection without the defendant.
The Superior Court relied heavily on the Tolbert case in finding that a defendant who cannot understand the proceedings due a language barrier is essentially not present at his own or her own trial. The defendant’s ability to use an interpreter encompasses numerous fundamental rights. The Court noted that the failure to understand the proceedings may deny him his right to confront witnesses, his right to consult with his attorney, or his right to really be present at his own trial. Accordingly, because the defendant could not understand the first day of proceedings, the defendant was essentially not present for his trial. Therefore, prejudice could be presumed from the defense attorney’s failure to object. The Superior Court reversed the conviction and awarded the defendant a new trial.
This may seem like the obvious answer – that a defendant has the right to an interpreter and to understand what is happening in court, but the impact of awarding a new trial in a case like this is significant. These types of sexual assault trials are lengthy, expensive, and very emotionally difficult for everyone involved. The complainant and other witnesses must testify again, the defendant must face trial and sentencing again, and the odds of winning for the prosecution likely go down as time goes by, memories fade, and witnesses become unavailable. Therefore, the appellate courts will often do anything they can to affirm convictions in these cases. This particular case was decided by a three-judge panel of the Superior Court. Although two judges voted in favor of the defendant receiving a new trial, one of the judges wrote a 46-page dissent arguing that the defendant should have to show actual prejudice under these circumstances. Fortunately, the majority judges were not convinced by the dissent. It is now clear that a court may not proceed to trial without providing a non-English speaking defendant with an interpreter.
Facing Criminal Charges or Appealing a Conviction? Our Philadelphia Criminal Defense Lawyers Can Help.
If you are facing criminal charges, are under investigation, or are considering an appeal of a criminal conviction, we can help. Our Philadelphia criminal defense lawyers have successfully represented clients in PCRA Petitions and direct appeals to the Superior Court. We offer a free, 15-minute criminal defense strategy session to anyone who is considering appealing a wrongful conviction or filing a Post-Conviction Relief Act Petition. Call 267-225-2545 to speak with one of our award-winning defense attorneys today.