J-S20042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TAI THACH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2641 EDA 2016

Appeal from the Judgment of Sentence February 6, 2014

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0004527-2013

BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 15, 2017

Tai Thach appeals, nunc pro tunc, from the judgment of sentence 

imposed on February 6, 2014, in the Court of Common Pleas of Philadelphia 

County, after Thach pled guilty to charges of aggravated assault and 

conspiracy.1 Thach was sentenced to a term of five to ten years’ incarceration. 

In this appeal, Thach claims his guilty plea was unknowing and involuntary in 

that it lacked the mandatory elements for a guilty plea, the Cambodian 

interpreter lacked the ability to translate and he was not informed of the 

possibility he would be deported after he had served his sentence. Counsel 

has filed an Anders2 brief along with a motion to withdraw as counsel. After 

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1 18 Pa.C.S. §§ 2702(a) and 903, respectively.

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1981); 

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
J-S20042-17

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a thorough review of the submissions by the parties, relevant law, and the 

certified record, we affirm and grant counsel’s motion to withdraw.

Initially, we must examine counsel’s motion to withdraw.

Counsel having filed a petition to withdraw, we reiterate that 

“[w]hen presented with an Anders brief, this court may not 

review the merits of the underlying issues without first passing on 

the request to withdraw.” Commonwealth v. Daniels, 999 A.2d 

590, 593 (Pa. Super. 2010), citing Commonwealth v. Goodwin, 

928 A.2d 287, 290 (Pa. Super. 2007) (en banc) (citation omitted).

In order for counsel to withdraw from an appeal pursuant to

Anders, certain requirements must be met, and counsel must:

(1) provide a summary of the procedural history and facts, 

with citations to the record;

(2) refer to anything in the record that counsel believes 

arguably supports the appeal;

(3) set forth counsel's conclusion that the appeal is 

frivolous; and

(4) state counsel's reasons for concluding that the appeal 

is frivolous. Counsel should articulate the relevant facts of

record, controlling case law, and/or statutes on point that 

have led to the conclusion that the appeal is frivolous.

Id., quoting Commonwealth v. Santiago, 602 Pa. 159, 978 

A.2d 349, 361 (2009).

If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition 

to withdraw and remand the case with appropriate 

instructions (e.g., directing counsel either to comply with 

Anders or file an advocate's brief on Appellant's behalf). 

By contrast, if counsel's petition and brief satisfy Anders, 

we will then undertake our own review of the appeal to 

determine if it is wholly frivolous. If the appeal is frivolous, 

we will grant the withdrawal petition and affirm the 

judgment of sentence. However, if there are non-frivolous

issues, we will deny the petition and remand for the filing 

of an advocate's brief.
J-S20042-17

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Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016) 

quoting Commonwealth v. Wrecks, 931 A.2d 717, 720-721 (Pa. 

Super. 2007)(citations omitted).

Commonwealth v. Blauser, 166 A.3d 428, 431 (Pa. Super. 2017).

Counsel has satisfied all of the requirements needed to fulfill his duty. 

Additionally, following remand,3 counsel has certified he presented Thach with 

copies of all relevant material translated by a certified translator into 

Cambodian to ensure Thach understood the proceedings. Thach has not filed 

a response to counsel’s Anders brief.

Because counsel has fulfilled his duty to Thach and Thach has filed no 

reply, we will now examine the substance of the claim to determine if any of 

the issues are not wholly frivolous.

First and foremost, Thach’s claims all address the voluntariness of his 

guilty plea. Thach did not seek to withdraw his plea either prior to or after 

sentencing. Therefore, all issues have been waived by failing to preserve the 

claim below. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal.”) See also 

Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa. Super. 

2017) (In order to preserve an issue related to a guilty plea, an appellant must 

either object at the plea colloquy or file a post-sentence motion seeking to 

withdraw his plea.) Because the claims have not been preserved, we have 

nothing to review, making those claims wholly frivolous.

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3 This panel previously remanded this matter with instructions to counsel to 

either certify Thach had been given a certified translation of the Anders brief 

or to provide Thach with a certified translation of the Anders brief.
J-S20042-17

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However, even if the claims had been properly preserved, Thach would 

not be entitled to relief. In this regard, we rely on the trial court’s opinion 

which explains why Thach’s claims are substantively without merit. We 

highlight the facts that Thach responded appropriately to all questioning 

during the guilty plea, a fact that demonstrates the interpreter was competent 

and that Thach understood what was said at the hearing. Additionally, the 

certified record demonstrates that Thach was, in fact, told of the risk of 

deportation. Specifically, there is a notice of that possibility in the written 

guilty plea colloquy that was translated for Thach and signed by him. Further,

at sentencing, Thach asked for consideration of a sentence of less than one 

year, which would make it less likely that he would be deported. Finally, Thach 

does not indicate what element or elements were missing from the colloquy, 

thereby waiving that issue, as well. Nonetheless, the trial court noted that 

reviewed in toto, the oral and written colloquies addressed all of the guilty 

plea requirements. 

In the event of further proceedings, the parties shall attach a copy of 

the trial court opinion, dated December 1, 2016, pages 4-6, which discuss the 

substantive aspects of Thach’s claims.

In light of the foregoing, we affirm the judgment of sentence.

Judgment of sentence affirmed. Application to withdraw as counsel 

granted.

Judge Bowes concurs in the result.

President Judge Emeritus Elliott concurs in the result.
J-S20042-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2017
• On page 3, directly underneath the above quoted language, Defendant signed his 

name. 

• On page 3, it states "I HA VE READ ALL OF THE ABOVE, OR MY LA WYER 

READ IT TO ME. I UNDERSTAND IT. MY ANSWERS ARE TRUE AND 

CORRECT." 

• On page 3, a paragraph entitled, "RISK OF DEPORATION (If an Alien)," and the 

following sentence: "I know that ifl am not a United States Citizen, it is possible 

that I might be deported ifl plead guilty to the crirne(s) charged against me." 

• On page 1, Defendant "can read and write English as interpreted" with the words 

"as interpreted" handwritten on the form by Defendant's attorney. 

Additionally, the written guilty plea form contained the following: 

part of the record. The written guilty plea form contained all six of the areas required by Rule 590. 

Defendant reviewed and. signed a written guilty plea form, which was docketed and made 

1. Defendant Reviewed And Signed A Written Guilty Plea Form 

FACTUAL BACKGROUND 

was not advised as to his potential deportation until after sentencing. 

lacked the ability to translate from English to Cambodian and Vietnamese, and (3) Defendant 

(1) the plea lacked the mandatory elements required by Pa.R.Crim.P. 590, (2) the interpreter 

appeal, Defendant claims that his guilty plea was not knowing, intelligent and voluntary because 

trial court sentenced Defendant to a guideline sentence of five to ten years of incarceration. On 

Defendant Tai Thach pleaded guilty to aggravated assault and criminal conspiracy. The 

DEC O 1 2016 

Criminal Appeals Unit 

First Judicial District of PA 

.1111111111111111111111111 

7871240761 

OPINION 

TAI THACH 

2641 EDA 2016 

CP-51-CR-0004527-2013 

FILED CP-51-CR-0004527-2013 Comm. v. Thach, Tai 

VS. Opinion 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST WDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL 

Circulated 10/13/2017 10:19 AM
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Defendant: Yes. 

The Court: And did you understand the form as it was translated to you? 

Defendant: Yes. 

The Court: Was this form translated orally to you? 

Defendant: Yes. 

The Court: And I have in my hand a written guilty plea form. I see a signature that 

says "Signature of the defendant." Is that your signature? 

Defendant: Yes. 

The Court: Can you understand the Cambodian language? 

Defendant: No. 

The Court: Can you read and write the Cambodian language? 

Defendant: No. 

The Court: Can you read and write the English language? 

Defendant: No formal education. 

The Court: How far did you go in school? 

Defendant: Forty-one. 

Mr. Birley: Thirty-one? 

Defendant: I'm 41. 

The Court: Mr. Thach, how old are you today? 

oral colloquy between the trial court and Defendant included the following exchanges: 

the trial court utilized an official court reporter, Danielle Kao, to interpret for Defendant. The 

ensure that Defendant understood the entire guilty plea hearing. During the guilty plea hearing, 

In addition to the written guilty plea form, the trial court conducted an oral colloquy to 

2. The Trial Court's Colloquy of Defendant During The Guilty Plea Hearing 
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Mr. Birley: You have ten days to petition to His Honor to change his mind about that 

sentence and 3 0 days to appeal based on the facts that we reviewed. If you 

Defendant: I understand. 

Mr. Birley: Mr. Thach, the Honorable Judge Anders just sentenced you to 5 to 10 years 

for aggravated assault and conspiracy. Do you understand the sentence? 

· of his appellate rights. 

Finally, after the trial court imposed its sentence, Defendant's attorney advised Defendant 

Id. at 10. 

Defendant: I leave it up to you Your Honor, what you think is right. 

The Court: Mr. Thach, is there anything you want to say prior to me imposing sentence 

today? 

court gave Defendant the opportunity to speak during the sentencing hearing: 

aren't considered, the fact that he will be removed from his children." N.T. 02/06/2014 at 5. The trial 

deportation. So when you consider the guidelines in this case, those kinds of collateral consequences 

trial court that "as Your Honor is aware, any sentence that is over a year is likely to cause my client 

Vakouv, to interpret for Defendant. At the sentencing hearing, Defendant's attorney argued to the 

During the sentencing hearing, the trial court utilized an official court reporter, Leende 

3. The Sentencing Hearing 

N.T. 12/06/2013 at 3-4, 9-10. 

Defendant: Guilty. 

Court crier: Charging you with criminal conspiracy, how do you plead? 

Defendant: Guilty. 

Court crier: Mr. Thach, on this common pleas Docket No. CP-51-CR-0004527-2013, 

charging with aggravated assault, how do you plead? 

Defendant: Yes. 

The Court: Mr. Thach, having heard the Commonwealth's recitation of the facts it 

believes it can prove at trial beyond a reasonable doubt, do you agree with 

that statement of facts? 
-4- 

Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014). 

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. 

standard when evaluating whether a guilty plea is knowing and voluntary: 

589, 591 (Pa. Super. Ct. 2005). The Pennsylvania Supreme Court has explained the following 

the jurisdiction of the court, or the legality of the sentence." Commonwealth v. Stewart, 867 A.2d 

"A plea of guilty forecloses challenges to all matters except the voluntariness of the plea, 

Matters Complained of on Appeal, at ,1. 

Defendant was not advised as to his potential deportation until after sentencing. See Statement of 

the interpreter lacked the ability to translate from English to Cambodian and Vietnamese, and (3) 

voluntary because (1) the plea lacked the mandatory elements required by Pa.R.Crim.P. 590, (2) 

On appeal, Defendant claims that his guilty plea was not knowing, intelligent and 

DISCUSSION 

Id at 12. 

Mr. Birley: And I'll speak with you in a second about that. 

Defendant: Okay. 

Mr. Birley: Right. I'm asking you, if you understand the need to ask for those things. 

Defendant: How can I write? I don't know how to write anything. 

wish to do either of those things, they must be done by in writing by an 

attorney and if you want them done, just tell me within that time period. Do 

you understand that? 

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Additionally, "Pennsylvania Rule of Criminal Procedure 590 requires the court to inquire 

into the following areas during the plea colloquy: (1) the nature of the charges; (2) the factual 

basis of the plea; (3) the right to trial by jury; (4) the presumption of innocence; (5) the 

permissible range of sentences; and ( 6) the judge's authority to depart from any recommended 

sentence." Commonwealth v. Baney, 860 A.2d 127, 131 (Pa. Super. 2004). 

Here, before entering his plea, Defendant reviewed the entire written guilty plea form, 

which contained each of the six areas required by Pa.R.Crim.P. 590. He also signed the plea form 

on the last page in order to indicate that he understood everything in the plea form. During the 

guilty plea hearing, the trial court colloquied Defendant about the contents of the written guilty 

plea form, and he affirmed that he understood each of the areas required by Rule 590. 

Defendant signed the written guilty plea form only after a Cambodian interpreter 

translated the entire form for him. The trial court also conducted the entire guilty plea and 

sentencing hearings with an interpreter. During these hearings, Defendant answered each of the 

trial court's questions without hesitation and in a manner that was responsive to each question. 

Defendant answered "Yes" when asked ifhe understood the Cambodian language. Defendant also 

answered "Yes" when asked if the written guilty plea form was translated orally to him. When 

asked by the trial court if he understood the translation of the form, Defendant again answered 

"Yes." Defendant never paused or requested for anything stated by the translator to be reinterpreted or further translated. Finally, Defendant provided answers that indicated that he fully 

understood each of the questions that were interpreted for him. For example, when his attorney 

advised him of his appellate rights, Defendant interjected, "How can I write? I don't know how to 

write anything." 

Defendant was also informed about the risk of deportation. First, Defendant's interpreter 

orally translated the written waiver form, which contained a paragraph on page 3 in bold, capital 

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1 Counsel must inform a noncitizen defendant whether a plea carries a risk of deportation. Padilla v. Kentucky, 130 

S.Ct. 1473, 1486 (2010). When the potential deportation is unclear, counsel need only advise of the risk of 

deportation. Id. When the deportation consequences are clear, counsel has a duty to give accurate advice concerning 

deportation. Id. The Pennsylvania Superior Court has held that Padilla requires that counsel must inform the client 

that a plea makes them deportable, not that deportation is a certainty. Commonwealth v. Escobar, 70 A.3d 838, 841 

(Pa. Super. Ct. 2013) (defendant adequately informed of potential for deportation by defendant's execution ofa 

written guilty plea form indicating that he understood the risk of deportation and by statements by counsel regarding 

the possibility of deportation). 

NDERS, JUDGE 

Dated: December 1, 2016 

BY THE COURT: 

Based on the foregoing, the judgment of sentence should be affirmed. 

CONCLUSION 

Defendant and to interpret during the guilty plea and sentencing hearings. 

and ( 4) the use of an official court interpreter to translate the written guilty plea form for 

the guilty plea hearing, (3) Defendant's statements during the guilty plea and sentencing hearings, 

based upon (1) the written guilty plea form, (2) the trial court's oral colloquy of Defendant during 

Thus, Defendant knowingly, intelligently and voluntarily pleaded guilty to the charges 

Ct. 2013).1 

that he faced a risk of deportation. See Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. 

Defendant was adequately informed - before he pleaded guilty and also after he was sentenced - 

removal from the country if he received a sentence in excess of one year of incarceration. Thus, 

trial court should consider the collateral consequences that Defendant faced in that he risked 

charged against me." Second, during the sentencing hearing, Defendant's attorney argued that the 

not a United States Citizen, it is possible that I might be deported ifl plead guilty to the crime(s) 

letters that said, "RISK OF DEPORTATION," and the following sentence: "I know that if I am 
R\ay . D ri o, Esquire 

Law Clerk to on. Daniel J. Anders 

r , 

I 

I 

_.. 

CJC Mailbox 

Hugh J. Bums, Jr., Esquire 

Philadelphia District Attorney's Office 

3 S. Penn Square 

Philadelphia, PA 19107 

Regular Mail 

Stephen O'Hanlon, Esquire 

2 Penn Center 

1500 JFK Blvd., Ste. 1850 

Philadelphia, PA 19102 

DATED: 

Type of Service: 

Appellee: 

Type of Service: 

Attorney for Appellant: 

I hereby certify that I am this day caused to be served the foregoing Order upon this person(s): 

PROOF OF SERVICE 

Comm. v. Tai Thach 

CP-51-CR-0004527-2013 

2641 EDA 2016 

. . 

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.. . ....... 

Deputy Prothonotary' . 

SUPERIOR COUllT OPPA 

PER CURIAM 

The application to reinstate appeal is GRANTED. This Court's 

November 2, 2016 dismissal Order is VACATED, and the above-captioned 

appeal is REINSTATED. 

The Brief for Appellant is due by December 29, 2016. Failure to file a 

brief by this date will result in re-dismissal of the appeal, without warning. 

Appellant's request for copies of the trial court dockets is GRANTED. 

The Philadelphia County Court of Common Pleas is directed to provide 

Appellant with a copy of the relevant dockets. Appellant's request for 

transcripts is DENIED, without prejudice for Appellant to file proper requests 

with the Philadelphia County Court of Common Pleas. 

II II II I II II I II II /Ill /I I/I 

7871219841 ORDER 

CP-5J-CR-0604861-2001 Co 

Appellant Superior Court~~d:~ Thorpe, Jertion 

JERLION THORPE 

v. 

COMMONWEALTH OF PENNSYLVANIA No. 1938 EDA 2016 

IN THE SUPERIOR COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

Filed 11/29/2016 

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