Com. v. Duncan, M. ( 2014 )

J-S44026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARIO LOUIS DUNCAN
Appellant No. 38 WDA 2014
Appeal from the PCRA Order December 3, 2013
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000601-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 04, 2014
Mario Louis Duncan appeals from the order of the Court of Common
Pleas of Armstrong County dismissing his petition brought pursuant to the
1
After careful review, we affirm.
The trial court summarized the relevant facts as follows:
[Duncan] was charged by information filed September 21, 2012,
with the following crimes: [a]ggravated [a]ssault . . . [d]elivery
of [c]ontrolled [s]ubstance . . . [p]ossession of [d]rug
[p]araphernalia . . . [t]ampering with or [f]abricating [p]hysical
[e]vidence . . . and [e]scape. [Duncan] entered a plea of guilty
to one count of [a]ggravated [a]ssault on [February 7, 2013].
In exchange for the plea, the Commonwealth agreed to nolle
pros the remaining counts of the information and recommend a
sentence with a minimum of two years and a maximum of four
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1
42 Pa.C.S. §§ 9541-9546.
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then being served by [Duncan] at Armstrong County No. 2008-
0470 . . . .
At sentencing on April 30, 2013, the Commonwealth complied
with the plea agreement and recommended a sentence of two to
sentence. However, after one of the victims, Detective Frank
Pitzer, testified that he would oppose the sentence, [Duncan]
immediately told his counsel that he was innocent of the crimes
charged and wished to withdraw his guilty plea and proceed to
trial. With the consent of the Commonwealth, the [c]ourt
permitted the withdrawal.
Two days later, on May 2, 2013, [Duncan] again entered a plea
of guilty to one count of [a]ggravated [a]ssault. In the plea
agreement, the Commonwealth agreed to nolle pros the
remaining charges and recommend a sentence of 27 to 54
m
sentence. [Duncan] also again completed a guilty plea
questionnaire and testified that he understood its contents.
[Duncan] for the second time was scheduled for sentencing on
May 9, 2013. At the sentencing hearing, the [c]ourt imposed a
sentence of 27-
state sentence at No. 2008-0470, which was the sentence
recommended by the Commonwealth in the plea agreement.
or time served.
[Duncan] later was informed by the Commonwealth Department
of Corrections that, pursuant to the Parole Act of 1941, [Duncan]
could not begin to serve the sentence imposed in this case until
he either finished serving the maximum sentence imposed at No.
2008-0470 or was re-paroled at that number. [Duncan] then
filed a pro se motion for post-conviction collateral relief on July
10, 2013. The [c]ourt appointed counsel and scheduled a
ded
[m]otion for post-conviction collateral relief on September 16,
2013 . . . .
At the hearing on October 24, 2013, [Duncan] testified that
when he agreed to enter a plea of guilty to [a]ggravated
[a]ssault, he was not aware that the concurrent sentence
recommended by the Commonwealth and imposed by the
sentencing court was an impossibility. He further stated that
had his counsel made him aware of the fact that his parole would
be revoked and he would have to either serve the maximum
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sentence at No. 2008-0470 or be re-paroled before the current
sentence would begin to run, he would not have entered the
guilty plea and instead would have attempted to negotiate
something better into the plea agreement.
Trial Court Opinion, 12/3/13, at 1-5.
Duncan filed this
petition, raising two issues for our review:
1. Did the PCRA court make a mistake in law or fact by denying
-conviction relief?
2. Is [Duncan] entitled to a sentence modification based upon
ineffective assistance of counsel?
When reviewing an appeal from the denial of PCRA relief, an appellate
-
Commonwealth v. Riga, 70
A.3d 777, 780 (Pa. 2013).
To be eligible for relief under the PCRA, Duncan must prove by a
assistance of counsel which, in the circumstances of the particular case so
undermined the truth-determining process that no reliable adjudication of
Commonwealth v. Ousley, 21 A.3d
1238, 1244 (Pa
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nt has suffered prejudice as a
Commonwealth v. Prince, 719 A.2d 1086, 1089 (Pa. Super.
1998) (citing Commonwealth v. Griffin, 644 A.2d 1167, 1172 (Pa. 1994)).
consequences of his pl
Commonwealth v. Lippert, 85 A.3d 1095, 1101 (Pa. Super. 2014).
Furthermore,
Allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or
unknowing plea. Where the defendant enters his plea on the
advice of counsel, the voluntariness of the plea depends on
demanded of attorneys in criminal cases.
Thus to establish prejudice, the defendant must show that there
would not have pleaded guilty and would have insisted on going
to trial.
Id. at 1100.
Here, Dunca
assurances that he would be allowed to serve his 2012 sentence
concurrently with his 2008 sentence. During the plea hearing, the
prosecution stated:
There is [a plea agreement] your Honor. And that plea
guilty to count number one, aggravated assault, felony of the
on a prior record score of a repeat felon, your Honor, the district
attorney will withdraw the remaining citations, nolle pros the
remaining charges, and recommend at the time of sentencing
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incarceration of 27 months to 54 months to be served in a state
correctional institute. The sentence to be served concurrent
with the sentence he is presently serving.
N.T. Guilty Plea, 5/2/13, at 14 (emphasis added).
concurrent
5/9/13, at 11 (emphasis added). Clearly, Duncan entered his plea with the
belief that he would serve his sentences concurrently. Moreover, at the
PCRA hearing Duncan testified that trial counsel, Debra L. Yost, Esquire
to four running
concurrent
plea agreement. N.T. PCRA Hearing, 10/24/13, at 10 (emphasis added).
We must first determine whether Attorney Yost misled Duncan about
the consequences of his plea. This Court examined this question in
Commonwealth v. Barndt, 74 A.3d 185 (Pa. Super. 2013). The deciding
factor in that case, like this one, was the distinction between the failure to
mention a collateral consequence of a guilty plea to a defendant and
misleading a defendant about the collateral consequences of a guilty plea.
eleven months of backtime he had already served on parole. Upon losing
forty-one months of backtime, Barndt filed a PCRA petition, which the court
denied. On appeal, this Court held:
collateral consequence of a guilty plea does not constitute
ineffectiveness of counsel, it is equally clea
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assistance is constitutionally ineffective when counsel
misapprehends the consequences of a given plea and misleads
his client according about those consequences, without regard to
Barndt, supra at 196.
This Court also addressed the difference between misleading a client
and omitting information in Lippert, supra
nolo contendere
told him that he would avoid sex offender registration]. On December 20,
2011, Pennsylvania enacted SORNA which characterized his crime as a tier
Id. at 1001. This Court held that while
SORNA was not yet in effect, but already in place, counsel should have
known of its consequences and his incorrect assessment was grounds for a
claim of ineffective assistance of counsel.
The facts of Lippert bear a close resemblance to the facts in the
matter before us. Like the attorney in Lippert, Attorney Yost should have
been aware of the possible consequences of the Parole Act of 1941 on
to his plea bargain was an impossibility.2
ineffectiveness has arguable merit. Lippert, supra.
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2
Section 6138(a)(5) of the Prisons and Parole Code provides in relevant
part:
If a new sentence is imposed on the parolee, the service of the
balance of the term originally imposed by a Pennsylvania court
(Footnote Continued Next Page)
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Next, we must determine whether any reasonable basis existed for
sentencing law, her advice was unsound and devoid of any reasonable basis
Barndt, supra at 199.
Finally, we must decide whether Duncan has pleaded and proved that
prejudice may be established by demonstrating a reasonable probability that
appellant would have opted to go to trial rather than plead guilty had he
Id. at 199-200. Here, Duncan testified
that he would not have accepted the plea agreement had he known the
sentences could not be served concurrently. N.T. PCRA Hearing, 10/24/13,
at 15. Rather, he would have renegotiated his plea. Id. Duncan never
stated that he would have proceeded to trial had he known that his
sentences could not be served concurrently.3 Nor did Duncan request to
_______________________
(Footnote Continued)
shall precede the commencement of the new term imposed in
the following cases:
If a person is paroled from a state correctional institution
and the new sentence imposed on the person is to be
served in the state correctional institution.
61 Pa.C.S. § 6138(a)(5).
3
To assume otherwise, as the Dissent suggests, would ask this Court to put
within the province of this Court to divine what an appellant or an appellee
might have said or done under hypothetical circumstances. Accordingly, the
prejudice standard proposed by the Dissent is not appropriate here.
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withdraw his guilty plea on appeal.4 Because Duncan avers that he would
have renegotiated his plea bargain as opposed to withdrawing his guilty plea
and going to trial, he fails to establish prejudice and we are constrained to
affirm the order of the PCRA court.
Order affirmed
BENDER, P.J.E., files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2014
____________________________________________
4
In Barndt, supra, Commonwealth v. Hickman, 799 A.2d 136 (Pa.
Super. 2002), and Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super.
2006), defendants who were misled about the collateral consequences of
their guilty pleas also requested to withdraw their guilty pleas.
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