J-A28040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE BARRIOS-LEON

Appellant No. 816 EDA 2014

Appeal from the Order February 4, 2014

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0000249-2013

BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 11, 2014

Jose Barrios-Leon has filed a direct appeal from an order denying his 

post-sentence motion to withdraw his guilty plea for simple assault and 

indirect criminal contempt. We dismiss this appeal without prejudice to 

Barrios-Leon’s right to raise claims of ineffective assistance of counsel in a 

petition under the Post Conviction Relief Act (“PCRA”)1. 

On June 26, 2013, Barrios-Leon entered into a negotiated guilty plea 

to one count of simple assault2, and he pled guilty to indirect criminal 

contempt3stemming from his violation of a Protection From Abuse order. He 

admitted that he slapped his wife across the face multiple times and then 

____________________________________________

1 42 Pa.C.S. § 9541 et seq.

2 18 Pa.C.S. § 2701.

3 42 Pa.C.S. § 4136.
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dragged her down the street by her hair and clothing. N.T. 6/26/13, p. 3. 

The court sentenced him to 3-6 months’ imprisonment followed by two years 

of probation. 

Barrios-Leon is not a United States citizen and is an illegal alien. 

During his guilty plea hearing, his attorney informed the court that she had 

discussed possible immigration consequences of Barrios-Leon’s guilty plea 

with him and advised him that he was subject to deportation. N.T., 

6/26/13, p. 4. 

Ten days after his guilty plea, through new counsel, Barrios-Leon filed 

a post-sentence motion to withdraw his guilty plea, claiming that his 

attorney provided ineffective assistance under Padilla v. Kentucky, 559 

U.S. 356 (2010), by failing to adequately investigate or communicate the 

immigration consequences of his guilty plea. Barrios-Leon also contended 

that prior counsel provided ineffective assistance by failing to investigate the 

charges against him. Had possible defenses been investigated, Barrios-Leon 

asserted, he might have been acquitted of all charges. 

At the conclusion of an evidentiary hearing on February 4, 2014, the 

court denied Barrios-Leon’s motion to withdraw his guilty plea. On March 6, 

2014, Barrios-Leon filed a timely notice of appeal. Both Barrios-Leon and 

the court complied with Pa.R.A.P. 1925.

Barrios-Leon’s first argument on appeal is that the court erroneously 

denied his motion to withdraw his guilty plea, because defense counsel failed 

to provide adequate advice as to the immigration consequences of pleading 
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guilty. In so many words, Barrios-Leon contends that the court should have 

permitted withdrawal of his guilty plea because his attorney provided 

ineffective assistance under Padilla. 

Barrios-Leon cannot raise this claim on direct appeal. Generally, the 

defendant must wait until the PCRA stage before raising claims of ineffective 

assistance. Commonwealth v. Grant, 813 A.2d 726 (Pa.2002). Two 

exceptions exist to this rule:

First, we appreciate that there may be extraordinary 

circumstances where a discrete claim (or claims) of 

trial counsel ineffectiveness is apparent from the 

record and meritorious to the extent that immediate 

consideration best serves the interests of justice; 

and we hold that trial courts retain their discretion to 

entertain such claims.

Second, with respect to other cases and claims,... 

where the defendant seeks to litigate multiple or 

prolix claims of counsel ineffectiveness, including 

non-record-based claims, on post-verdict motions 

and direct appeal, we repose discretion in the trial 

courts to entertain such claims, but only if (1) there 

is good cause shown,1and (2) the unitary review so 

indulged is preceded by the defendant's knowing and 

express waiver of his entitlement to seek PCRA 

review from his conviction and sentence, including 

an express recognition that the waiver subjects 

further collateral review to the time and serial 

petition restrictions of the PCRA.2In other words, we 

adopt a paradigm whereby unitary review may be 

available in such cases only to the extent that it 

advances (and exhausts) PCRA review in time; unlike 

the so-called Bomar exception, unitary review would 

not be made available as an accelerated, extra round 

of collateral attack as of right. This exception follows 

from the suggestions of prior Court majorities 

respecting review of prolix claims, if accompanied by 

a waiver of PCRA review. See Commonwealth v. 
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Wright [599 Pa. 270], 961 A.2d 119, 148 n. 22 

(Pa.2008); Commonwealth v. Liston [602 Pa. 

10], 977 A.2d 1089, 1095–1101 (Pa.2009) (Castille, 

C.J., concurring, joined by Saylor and Eakin, JJ.).

1

[I]n short sentence cases the trial court's 

assessment of good cause should pay particular 

attention to the length of the sentence imposed and 

the effect of the length of the sentence will have on 

the defendant's realistic prospect to be able to avail 

himself of collateral review under the PCRA.

2 Unitary review describes the defendant's ability to 

pursue both preserved direct review claims and 

collateral claims of trial counsel ineffectiveness on 

post-sentence motions and direct appeal, and could 

aptly describe both exceptions we recognize today. 

However, for purposes of [Holmes], we intend the 

term only to describe the second exception, i.e., that 

hybrid review which would encompass full-blown 

litigation of collateral claims (including non-recordbased claims).

Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa.2013). 

Neither of the Holmes exceptions applies in this case. The court held 

an evidentiary hearing on Barrios-Leon’s claim of ineffectiveness without first 

considering whether either exception applied. The court did not address 

whether extraordinary circumstances warranted immediate review of the 

ineffectiveness issue in the interests of justice. Nor did the court address 

whether good cause existed to review all direct appeal and ineffectiveness 

issues at the same time and then obtain Barrios-Leon’s express waiver of his 

right to seek PCRA relief after his conviction and sentence. 
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Therefore, the trial court should have refrained from addressing the 

claim of ineffective assistance included within Barrios-Leon’s post-sentence 

motion to withdraw his guilty plea. We dismiss Barrios-Leon’s claim of 

ineffective assistance without prejudice to his right to raise this claim in a 

PCRA petition. Commonwealth v. Burno, 94 A.3d 956, 970-71 (Pa.2014) 

(dismissal of defendant's ineffective assistance claims without prejudice to 

defendant's ability to raise claims in postconviction proceedings was 

appropriate remedy for trial court's error in addressing ineffectiveness claims 

raised in post-verdict motion, where trial court failed to determine whether 

good cause existed to litigate the two claims on post-verdict motion and 

failed to require defendant to waive postconviction review of claims litigated 

on post-verdict motion).

Barrios-Leon’s second argument on appeal is that the trial court denied

him due process during the hearing on his motion to withdraw his guilty plea 

by (1) refusing to continue the hearing to procure witnesses who failed to 

honor their subpoenas to attend the hearing; (2) setting time limits on direct 

and cross examination; and (3) demanding that counsel “wrap...up” their 

questioning. Barrios-Leon contends that these acts prevented him from 

developing claims of ineffective assistance of counsel for failing to 

investigate issues that might have proved his innocence. 

Since this argument is integrally related to a claim of ineffective 

assistance, it belongs in a PCRA petition instead of in a direct appeal. It 
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does not fit within either of the narrow exceptions under which the appellant 

may present ineffective assistance claims on direct appeal. Holmes, supra. 

Therefore, we dismiss this argument without prejudice to Barrios-Leon’s 

right to raise it in a PCRA petition.

Appeal dismissed without prejudice to appellant’s right to raise claims 

in PCRA petition. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/11/2014