Com. v. Swan, S. ( 2019 )

J-S01025-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHELDON D. SWAN :
:
Appellant : No. 1218 MDA 2018
Appeal from the PCRA Order Entered June 25, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005179-2010
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
DISSENTING MEMORANDUM BY PELLEGRINI, J.:
FILED FEBRUARY 08, 2019
I respectfully dissent. I would reverse the order and remand for a new
sentencing hearing because the PCRA court misapprehended the nature of
Swan’s ineffective assistance of counsel claim.
Swan was resentenced as required by Montgomery v. Louisiana, 136
S. Ct. 718 (2016), and accepted the deal of thirty years to life negotiated by
his attorney. Swan filed a PCRA petition and testified that re-sentencing
counsel was ineffective because he failed to advise him that he had the option
to accept the negotiated sentence or to allow the trial court to impose the
sentence in its discretion. The PCRA court implicitly credited Swan’s assertions
that he was unaware of the judge’s discretion to impose a lesser sentence, as
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* Retired Senior Judge assigned to the Superior Court.
J-S01025-19
the court would otherwise have no need to examine the content of the
resentencing hearing.
Both the PCRA court and the majority opine that Swan’s ineffective
assistance of counsel claim was not made out because he was informed that
“he could have possibly faced a greater sentence” than the negotiated
sentence. Majority memorandum at 4 (quoting PCRA court opinion).
I disagree with the majority because it does not address Swan’s reason
for claiming counsel was ineffective. He claims that resentencing counsel
ineffectively failed to inform him that the judge had the discretion to go lower
than the agreed-upon sentence. It is no answer to say that Swan was told
that the judge could go higher if he rejected the agreement.
Not being advised that his sentence could go lower than the negotiated
term constitutes ineffectiveness because the wisdom of accepting the
Commonwealth’s offer as weighed against the countervailing risk—that the
judge would impose a higher sentence—was Swan’s choice to make. See
Jones v. Barnes, 463 U.S. 745, 751 (1983) (“[T]he accused has the ultimate
authority to make certain fundamental decisions regarding the case, as to
whether to plead guilty, waive a jury, testify in his or her own behalf, or take
an appeal[.]”) (citations omitted). Since Swan did not make an informed
J-S01025-19
choice, I would vacate the PCRA court’s order and send the matter back for
resentencing.1
Accordingly, I respectfully dissent.
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1 A plea is validly entered only if the underlying advice to accept the plea is
sound. “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.”
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (citation
and quotation marks omitted). The failure to inform Swan that the judge
could impose a lesser sentence misapprehended the law and was therefore
not competent advice. See Commonwealth v. Hicks, 151 A.3d 216 (Pa.
Super. 2016) (holding that a trial judge has discretion in juvenile resentencing
cases to depart from the applicable minimums relative to offenses committed
on or after June 24, 2012).