Com. v. Cramer, J. ( 2017 )

J-S96035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN W. CRAMER, JR.
Appellant No. 918 WDA 2016
Appeal from the PCRA Order Dated June 9, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000225-2014
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED MAY 10, 2017
Appellant John W. Cramer, Jr., appeals from the order denying his
second Post Conviction Relief Act (―PCRA‖)1 petition requesting an amended
sentence. We vacate Appellant‘s judgment of sentence in part and remand
for further proceedings.
On October 29, 2014, Appellant, represented by Vincent M. Tiberi,
Esquire, pleaded guilty to three counts of burglary, three counts of theft by
unlawful taking, three counts of criminal trespass, three counts of criminal
mischief, four counts of receiving stolen property, and four counts of theft by
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1
42 Pa.C.S. §§ 9541-9546.
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deception. PCRA Ct. Op., 8/18/16, at 2. 2 At the time of his sentencing,
Appellant was already serving a sentence for a prior conviction docketed at
Fayette County Docket No. CP-26-CR-0000662-2008 (―No. 662‖), and his
new conviction constituted a violation of the terms of his parole from a state
correctional institution under that sentence.
Appellant entered into a plea agreement in the instant case under
which he would plead guilty and would testify against his codefendants in
exchange for a sentence of 4-8 years‘ incarceration in a state correctional
institution. When the trial court announced this sentence on January 9,
2015, the court stated that the 4-8 years‘ incarceration would run
concurrently with the remainder of Appellant‘s sentence at No. 662. See
N.T. Plea, 10/29/14, at 6-8; Sentencing Order, 1/15/15, at 2; see also N.T.
Sentencing Hr‘g, 1/9/15, at 10. Appellant claims that a promise that his new
sentence would run concurrently with his recommitment at No. 662 was part
of the plea bargain and that he would not have entered a guilty plea if he
had not received that promise. See Appellant‘s Br. at 9; N.T., 5/10/16, at 9.
However, Appellant‘s oral and written guilty plea colloquies are both silent
on whether Appellant‘s 4-8 year sentence would run concurrently with any
prior sentences. See Guilty Plea Colloquy, 10/29/14, at Question 8
(unpaginated document); N.T. Plea, 10/29/14, at 2-13.
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2
18 Pa.C.S. §§ 3502(a)(2), 3921(a), 3503(a)(1)(i), 3304(a)(5), 3925(a),
and 3922(a)(1), respectively.
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Because Appellant‘s original minimum sentence on No. 662 was in
excess of two years‘ incarceration, the Board of Probation and Parole
(―Board‖) had exclusive authority to revoke Appellant‘s parole at No. 662
following Appellant‘s parole violation, to recommit him for that violation, and
to extend his maximum sentence as a convicted parole violator. See
Commonwealth, Dep’t of Corr. v. Reese, 774 A.2d 1255, 1259 (Pa.
Super.), appeal denied, 790 A.2d 1016 (Pa. 2001).3 After the trial court
sentenced Appellant in the instant case, the Board determined that, contrary
to what the trial court announced during sentencing, Appellant‘s new
sentence had to be served consecutively to that under No. 662, rather than
concurrently. Therefore, Appellant would have to serve the remainder of the
sentence at No. 662 before beginning to serve the new sentence imposed by
the trial court in this case. See PCRA Ct. Op. at 3. The Board based its
decision on Section 6138 of the Prisons and Parole Code, which, in relevant
part, provides:
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3
Reese explains:
Under Pennsylvania law, the authority to parole convicted
offenders is split between the common pleas courts and the
Pennsylvania Board of Probation and Parole . . . . When an
offender is sentenced to a maximum term of imprisonment of
less than two years, the common pleas court retains authority to
grant and revoke parole; when the maximum term is two years
or more, authority to grant or revoke parole is vested in the
Board.
774 A.2d at 1259 (citations, quotation marks, and brackets omitted).
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If a new sentence is imposed on the parolee, the service of the
balance of the term originally imposed by a Pennsylvania court
shall precede the commencement of the new term imposed in
the following cases:
(i) 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)(i); see Commonwealth v. Kelley, 136 A.3d 1007,
1013–14 (Pa. Super. 2016) (explaining that this provision mandates that
―where a state parolee gets a new state sentence, he must serve his
backtime first before commencement of the new state sentence‖ and that a
concurrent sentence would be illegal under the statute).
On July 23, 2015, Appellant filed his first PCRA petition, pro se.
Appellant alleged:
I was given an illegal sentence because at the time of my
entering into a plea agreement with the District Attorney for the
County of Fayette[,] it was promised as part of my plea bargain
that my new sentence #225 of 2014 would run concurrently with
my previous case of #662 of 2008, which is an illegal sentence
under Pennsylvania law. My attorney did not inform me that I
was entering into a plea bargain that could not be honored by
the Commonwealth of Pennsylvania.
PCRA Pet., 7/23/15, at 4. The petition requested an evidentiary hearing, and
that the Commonwealth produce any and all plea agreements and offers. Id.
at 7. By way of relief, Appellant requested ―Modification of Sentence to
exclude time that the law does not allow to be run concurrently to
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compensate for the time that was promised to me in my plea bargain.‖ Id.
at 6. 4 Appellant‘s first petition also presented a claim questioning the
amount of credit Appellant should have received for the time he spent
incarcerated prior to his new sentencing. Id. at 4.
The PCRA court appointed James A. Natale, Esquire, to represent
Appellant. PCRA Ct. Op. at 2. On October 8, 2015, the Department of
Corrections (―DOC‖) sent Attorney Natale a letter addressing Appellant‘s
credit, and also explaining that —
[A]ny parole violator who receives a new sentence must first
serve the balance of his original term before the commencement
of any new term. Therefore, [Appellant] must first serve the
balance of his backtime owed to the Parole Board and be granted
re-parole before he is eligible to begin serving his Fayette
County sentences.
Letter, 10/8/15. Attorney Natale thereafter filed an Amended PCRA Petition
and raised only the issue of Appellant‘s credit for the amount of time
Appellant served in prison prior to his new sentence date. PCRA Ct. Op. at 2-
3. On November 16, 2015, the PCRA court granted the relief requested in
the amended petition, and gave Appellant additional credit for the time he
spent incarcerated. Id. at 3. Appellant did not appeal this ruling. Id.
A month after his first petition was granted, Appellant filed a second
timely pro se PCRA petition. PCRA Ct. Op. at 3. Appellant‘s second petition
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4
In Appellant‘s case, this would mean a reduction of his minimum sentence
by approximately eighteen months, which is the amount of backtime he was
recommitted by the Board to serve on No. 662. PCRA Ct. Op. at 3.
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again raised the issue of his concurrent sentences. See PCRA Pet.,
12/17/15, at 2 (unpaginated). The PCRA court appointed new counsel,
Dianne H. Zerega, who subsequently filed an amended petition on the issue
and alleged that both trial and prior PCRA counsel were ineffective. PCRA Ct.
Op. at 3.
The PCRA court held a hearing on May 10, 2016, but it was not a
factual hearing. At the beginning of the hearing, the PCRA court stated,
―Miss Zerega, do we need any testimony on this? It seems to the Court like
it‘s a legal issue.‖ N.T. 5/10/16, at 2. The parties then immediately engaged
in an oral argument about whether Appellant‘s claims were cognizable in a
PCRA proceeding or whether they had to be brought as a challenge to the
action by the Board. In connection with that question, the parties stipulated
that everyone knew at the time of the sentencing that Appellant was subject
to parole violation proceedings in No. 662. See id. at 3-4. But all of the
remainder of the hearing consisted of oral argument regarding the propriety
of granting relief under the PCRA. See id. at 5-14.
Appellant was present at the hearing and sometimes addressed the
court, but he was not sworn in as a witness. Early in the hearing, Appellant
engaged in a colloquy with the court to explain the nature of the problem.
The court began the colloquy by stating that it ran Appellant‘s sentence
―concurrently with the case he had the revocation on which was 662 of ‘08,
that‘s in paragraph 8 of the original sentence order, so I already agreed to
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run it concurrent with the case that he got revoked on . . . and then . . . I
gave him credit . . . for time served [that] was off in the original sentence.‖
N.T., 5/10/16, at 5-6. When Appellant reacted by shaking his head, the
court asked why, and the following discussion ensued:
THE DEFENDANT: Because the [Department of Corrections]
stopped my time and they started my old case. They‘re not
running my time right now. I have paperwork to say that.
THE COURT: So they have ignored my order?
THE DEFENDANT: Absolutely.
THE COURT: So then what else could I possibly do other than to
vacate the entire sentence and have you start over? What do
you want me to do here is what I‘m asking?
THE DEFENDANT: All I‘m asking for is the time. . . . I‘m asking
that to get the benefit of my plea bargain to where my total
sentence equals four to eight years before I‘m eligible for parole,
I‘m asking for that 18 months to be removed from my sentence
because they refused to go with your order.
Id. at 6. Later, Appellant explained, ―I just want the chance to be paroled at
the four years that I accepted the plea bargain at because if the concurrency
wouldn‘t have been offered, I would not have taken that plea bargain
because I knew that I had almost two years, or a little more than two years
left before I could switch over to my new number.‖ Id. at 9.
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The rest of the hearing was comprised of oral argument among
counsel about case law,5 at the end of which the court announced that it was
―going to review the cases‖ and would ―take this under advisement.‖ N.T.,
5/10/16 at 14. On June 9, 2016, the court entered an order denying
Appellant‘s petition.
In a Rule 1925(a) opinion, the PCRA court held that Appellant‘s
petition was not cognizable under the PCRA because Appellant‘s issue was
more aptly categorized as a challenge to the sentence imposed on Appellant
by the Board for violation of his parole at No. 662, and it therefore should be
raised either as (1) a challenge to the computation of time by the Board and
the Department of Corrections (―DOC‖), or (2) a challenge to the DOC‘s
failure to follow the language of the trial court‘s sentencing order when
punishing Appellant‘s parole violation. See PCRA Ct. Op. at 5-7 (citing
Commonwealth v. Perry, 563 A.2d 511 (Pa. Super. 1989), and
Commonwealth v. Heredia, 97 A.3d 392 (Pa. Super.), appeal denied,
104 A.3d 524 (Pa. 2014)).
In the alternative, the PCRA court held that Appellant could not prevail
on a claim that his plea was not voluntarily and intelligently entered because
the plea colloquy shows that ―Appellant understood the terms of his plea
agreement‖ and Appellant was informed that pleading guilty would cause
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5
At one point, Appellant asked to speak further, but the court responded,
―No.‖ N.T., 5/10/16, at 13.
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him to be sentenced for violating his parole. PCRA Ct. Op. at 8. The PCRA
court stated that Appellant‘s claim that his guilty plea was unlawfully induced
did not warrant relief because ―Appellant was not seeking to withdraw his
plea but was seeking a more favorable sentence.‖ Id.
Finally, the PCRA court held that Appellant could not prevail by
challenging his trial counsel‘s effectiveness because Appellant wasn‘t
asserting his innocence. PCRA Ct. Op. at 9-10 (relying on Commonwealth
v. Moore, 653 A.2d 24, 25-26 (Pa. Super. 1995)). The court added that
Appellant ―did not provide any testimony or other evidence of his plea
counsel‘s ineffectiveness.‖ Id. at 11. The PCRA court stated that because
Appellant‘s claim that his trial counsel was ineffective lacked merit, his claim
that his PCRA counsel was ineffective lacked merit as well. Id. (citing
Commonwealth v. Tedford, 960 A.2d 1, 47 (Pa. 2008)).
Appellant timely appealed and presents the following four questions for
our review:
1. Was the Appellant‘s plea involuntary and unlawfully induced
when he was given a plea bargain that would not be enforced as
it was to run concurrent with a violation sentence[?]
2. Was counsel ineffective when trial counsel failed to inform the
[Appellant] that his plea would not be enforced?
3. Was PCRA counsel ineffective when he failed to raise the issue
that [Appellant‘s] plea was unlawfully induced and involuntary as
it would not be enforced?
4. Did the court err when it failed to enforce the plea bargain
that was offered by the Commonwealth?
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Appellant‘s Br. at 4.
Our standard of review on the denial of a PCRA petition is as follows:
On appeal from the denial of PCRA relief, our standard and scope
of review [are] limited to determining whether the PCRA court‘s
findings are supported by the record and without legal error. A
second or subsequent request for relief under the PCRA will not
be entertained unless the petitioner presents a strong prima
facie showing that a miscarriage of justice may have occurred.
Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa. 2008) (citations
omitted).
We begin by addressing the trial court‘s conclusion that Appellant‘s
claim is precluded by Heredia and Perry. In those cases, the petitioners
claimed that the DOC did not honor the credit awarded by the trial court‘s
sentencing order, or otherwise misconstrued the sentence applied by the
trial court, when calculating the time during which they were to be
incarcerated. We held that because the petitioners were not challenging the
propriety of their convictions or the sentences imposed by the trial courts,
their claims were not cognizable under the PCRA. See Heredia, 97 A.3d at
395; Perry, 563 A.2d at 512-13. 6 The instant scenario stands in stark
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6
In Perry, this Court held:
If the alleged error is thought to be the result of an erroneous
computation of sentence by the Bureau of Corrections, then the
appropriate vehicle for redress would be an original action in the
Commonwealth Court challenging the Bureau‘s computation. If,
on the other hand, the alleged error is thought to be attributable
to ambiguity in the srevietence imposed by the trial court, then a
(Footnote Continued Next Page)
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contrast to Heredia and Perry: rather than challenging any action taken by
the Board or the DOC in implementing his sentence, Appellant challenges the
assistance of his plea counsel relating to his plea bargain, and the propriety
of the sentence subsequently imposed by the trial court. Heredia and Perry
are therefore inapplicable. Moreover, claims related to the plea-bargaining
process properly fall within the PCRA. See Commonwealth v. Lynch, 820
A.2d 728, 731-32 (Pa. Super.), appeal denied, 835 A.2d 709 (Pa. 2003).7
Appellant‘s first two questions assert ineffectiveness of his trial
counsel. Before we assess the merits of Appellant‘s claim that his trial
counsel provided ineffective assistance, we must determine whether that
issue has been waived by Appellant‘s failure to raise it in his first PCRA
petition. See 42 Pa.C.S. § 9544(b) (―an issue is waived if the petitioner
could have raised it but failed to do so . . . in a prior state postconviction
proceeding‖). Appellant, in his third question presented, poses a layered
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(Footnote Continued)
writ of habeas corpus ad subjiciendum lies to the trial court for
clarification and/or correction of the sentence imposed.
563 A.2d at 512–13 (citations omitted).
7
Appellant first frames his issue as an involuntary and unlawfully induced
guilty plea, and secondly as ineffective assistance of his trial counsel in
relation to his plea bargain. Appellant‘s Br. at 6-12. Claims related to the
plea bargaining process where there is no assertion of innocence properly
fall under the PCRA‘s ineffectiveness subsection, rather than the subsection
relating to guilty pleas. Lynch, 820 A.2d at 731-32. Appellant‘s first claim,
therefore, dovetails with his second, and poses an issue which is cognizable
under the ineffectiveness section of the PCRA. See id.
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ineffectiveness claim, asserting that his PCRA counsel was ineffective for
waiving the claim of trial counsel‘s ineffectiveness by failing to raise that
issue in Appellant‘s first PCRA petition. See Appellant‘s Br. at 13-15; see
generally Commonwealth v. McGill, 832 A.2d 1014, 1021-23 (Pa. 2003)
(explaining that in a layered ineffectiveness claim, present counsel must
raise whether intermediate counsel were ineffective for failing to raise, and
thereby waiving, an underlying claim of ineffectiveness). Appellant states
that —
[Prior] PCRA [c]ounsel was aware that . . . Appellant was
arguing that he would never have entered into a plea agreement
that would result in him receiving the additional eighteen months
incarceration because this case would not be run concurrent with
his prior case as agreed. [Prior] PCRA counsel was aware that his
plea would not be enforceable under the law as no sentence can
be run concurrent with a sentence that results from a violation of
the terms in another case.
. . . [Prior] PCRA [c]ounsel was clearly ineffective when he failed
to raise the issue of the unenforceable plea in the amended
PCRA that he filed. Counsel could have no reasonable basis for
failing to inform his client that he would serve significantly more
time than he had bargained for in his plea agreement. The
Appellant was prejudiced by his counsel‘s actions and he
received more time than he bargained for in the case. Prejudice
resulted from his entering into a guilty plea, thus convicting
himself of a criminal offense, without understanding the
significance and the full consequences of his action.
Counsel had no reasonable basis to fail to proceed with the
Appellant‘s claim that his plea would not be enforced as
presented. No decision can be considered reasonable where it is
based on a misunderstanding of the law governing the
proceeding. No strategic goal was furthered by counsel‘s failure
to proceed with the argument that his plea was involuntary and
unlawfully induced when the Appellant was offered a plea
bargain that was an unenforceable bargain.
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Appellant‘s Br. at 14-15. 8 We therefore assess Appellant‘s claim that his
trial counsel was ineffective within the context of Appellant‘s claim that his
first PCRA counsel was also ineffective for failing to raise in Appellant‘s first
PCRA petition, and thereby waiving, the claim of trial counsel‘s
ineffectiveness.9
As with any layered ineffectiveness claim, we first assess the merits of
the underlying claim regarding trial counsel‘s ineffectiveness. McGill, 832
A.2d at 1022. To prevail on a claim of ineffectiveness, a petitioner must
plead and prove by a preponderance of the evidence:
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8
We note that an appellant must allege that prior PCRA counsel was
ineffective under all the three prongs of the ineffectiveness test; boilerplate
assertions of prior PCRA counsel‘s ineffectiveness will not suffice. See
Commonwealth v. Bond, 819 A.2d 33, 40 (Pa. 2002). However, where the
Commonwealth has not argued that this claim is waived as underdeveloped,
we examine ―the merits of those issues of ineffectiveness that are properly
framed to determine whether there is any arguable merit to the claims of
trial counsel ineffectiveness.‖ See Commonwealth v. Ligons, 971 A.2d
1125, 1139 (Pa. 2009) (quotation marks and citation omitted). Instantly, the
Commonwealth does not argue that this issue has been waived, see
Commonwealth‘s Brief at 3-4 (arguing only that Appellant‘s prior PCRA
counsel was not ineffective because Appellant‘s trial counsel was not
ineffective), and we find that Appellant has preserved his claim and
presented sufficient argument for review. Ligons, 971 A.2d at 1139.
9
Appellant‘s first PCRA petition was granted. Appellant‘s second PCRA
petition, which was filed after Appellant was no longer represented by his
first PCRA counsel, therefore presented Appellant‘s first colorable
opportunity to raise the ineffectiveness of his first PCRA counsel. See
Commonwealth v. Walker, 36 A.3d 1, 6 (Pa. 2011) (―Regarding waiver, at
the time of appellant‘s trial, direct appeal, and PCRA proceedings, he was
required to raise claims based on . . . counsel‘s performance at the first
opportunity after he had new counsel‖).
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(1) that the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and,
(3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings
would have been different.
Kelley, 136 A.3d at 1012. 10 ―The law presumes counsel has rendered
effective assistance,‖ and ―[t]he failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail.‖ Id.
When challenging counsel‘s assistance in the context of a guilty plea,
―the defendant must show that counsel‘s deficient stewardship resulted in a
manifest injustice, for example, by facilitating entry of an unknowing,
involuntary, or unintelligent plea.‖ Kelley, 136 A.3d at 1013. For a guilty
plea to be valid, a defendant must be informed that his sentences could be
imposed consecutively. Commonwealth v. Allen, 732 A.2d 582, 588 (Pa.
1999). And, although a defendant need not be apprised of the possibility of
revocation of his parole in order to enter a knowing and voluntary guilty
plea, erroneous advice on how the law will affect parole and the duration of
a defendant‘s true minimum sentence can affect the validity of a guilty plea.
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10
Despite the references in Section 9543(a)(2)(ii) to ―the truth-determining
process‖ and ―a reliable adjudication of guilt or innocence,‖ our Supreme
Court has instructed that the standard and scope for ineffectiveness review
under the PCRA is no higher than it is on direct appeal. Commonwealth ex
rel. Dadario v. Goldberg, 773 A.2d 126, 129-30 (Pa. 2001); see also
Commonwealth v. Haun, 32 A.3d 697, 705 (Pa. 2011) (a PCRA claim
under the ineffectiveness subsection does not require an assertion of
innocence). To the extent that the PCRA court relied on a contrary and
outdated understanding of the law, it erred.
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See, e.g., Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super.
2002) (defendant received ineffective assistance when he pleaded guilty on
counsel‘s erroneous advice that he would be eligible for boot camp and early
parole, when the length of his sentence precluded his participation in boot
camp).
―To succeed in showing prejudice, the defendant must show that it is
reasonably probable that, but for counsel‘s errors, he would not have
pleaded guilty and would have gone to trial. The ‗reasonable probability‘ test
is not a stringent one.‖ Hickman, 799 A.2d at 141. A court must examine
the totality of the circumstances to determine the extent of a defendant‘s
knowledge during a guilty plea. Commonwealth v. Morrison, 878 A.2d
102, 108 (Pa. Super.) (en banc), appeal denied, 887 A.2d 1241 (Pa.
2005). ―Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving otherwise.‖
Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015) (citation
omitted).
Our courts have previously addressed plea bargains based on
erroneous promises regarding the outcome of a parole revocation and
misapprehension of the Board‘s authority to make recommitment run
consecutively to a new sentence. For example, in Commonwealth v.
Zuber, 353 A.2d 441 (Pa. 1976), a defendant entered into a guilty plea
based upon a promise by the Commonwealth to recommend that the
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sentence run concurrently with that imposed for revocation of parole. 353
A.2d at 442-43.11 The Supreme Court concluded that ―said promise by the
Commonwealth was a false and empty one since the law is quite clear that a
parole violator convicted and sentenced to prison for another offense must
serve his or her back time and the new sentence in consecutive order.‖ Id.
at 443 (applying the since-repealed predecessor to 61 Pa.C.S. §
6138(a)(5)(i), which contained the same operative language as the present
statute). Because it was based on a faulty promise, the defendant‘s plea was
not knowingly and voluntarily entered. Id. at 444-45. The Court remanded
the case and instructed the sentencing court to impose a sentence that
would equate to the length of the sentence that the defendant had
contemplated when accepting the terms of the plea bargain prior to pleading
guilty. Id. at 446.12
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11
The defendant in Zuber brought his challenge under the Post Conviction
Hearing Act, the predecessor of the PCRA. Zuber, 353 A.2d at 443 n.1. The
Court did not examine the effectiveness of plea counsel, see id. at 446 n.9,
but rather the validity of the guilty plea.
12
As evidenced by Zuber, while the test for ineffectiveness relating to a
guilty plea requires a reasonable probability that the defendant would not
have pleaded guilty if it were not for counsel‘s errors, the remedy in such a
situation is not necessarily revocation of the plea, but an amendment to the
defendant‘s sentence. Zuber, 353 A.2d at 446; see also Commonwealth
v. Alvarado, 276 A.2d 526, 530 (Pa. 1971) (remanding for resentencing
rather than withdrawal of an unknowing and involuntary plea resulting from
a plea bargain); Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa.
Super.) (stating that petitioner would be due benefit of plea bargain),
appeal denied, 9 A.3d 626 (Pa. 2010); Commonwealth v. Parsons, 969
(Footnote Continued Next Page)
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Similarly, in Commonwealth v. Barndt, 74 A.3d 185 (Pa. Super.
2013), the defendant pleaded guilty while he was on parole for another
sentence. The defendant alleged and proved to the PCRA court that his
decision to plead guilty was based in large part on a promise from his
counsel that the Board would not recommit him to serve the entire thirty
months he had spent on the street prior to his re-arrest. 74 A.3d at 198-
200. Again, pursuant to 61 Pa.C.S. § 6138, the Board had authority over the
defendant‘s recommitment, and counsel‘s advice regarding the length of
time the defendant would spend incarcerated was inaccurate. Id. at 199.
Although the defendant was advised during his guilty plea that the Board
had discretion to recommit him, that information did not cure his reliance on
his counsel‘s erroneous advice. Id. at 199-200. We held that ―counsel‘s
assistance is constitutionally ineffective when counsel misapprehends the
consequences of a given plea and misleads his client accordingly about those
consequences.‖ Id. at 196.13
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(Footnote Continued)
A.2d 1259, 1272 (Pa. Super.) (en banc) (―Accordingly, we vacate the
judgment of sentence and remand for imposition of the sentence contained
in the parties' plea bargain‖), appeal denied, 982 A.2d 1228 (Pa. 2009).
Therefore, to the extent that the instant PCRA court did not provide relief
because ―Appellant was not seeking to withdraw his plea but was seeking a
more favorable sentence,‖ PCRA Ct. Op. at 8, the PCRA court erred.
13
The defendant in Barndt was permitted to withdraw his guilty plea, as he
had declined the proposed sentence modification that was offered by the
trial court. Barndt, 74 A.3d at 190, 200.
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Most recently, in Commonwealth v. Kelley, the defendant, who all
parties knew was on state parole, entered into a negotiated guilty plea for a
term of state incarceration to commence at the date of his arrest. Kelley,
136 A.3d at 1011. However, because the defendant was thereafter
recommitted for violating his parole on his old sentence, the commencement
date of his new sentence was effectively pushed forward by approximately
two years. Id. (citing 61 Pa.C.S. § 6138(a)(5)(i)). Upon PCRA review, we
held that the defendant‘s trial counsel was ineffective for providing
erroneous advice regarding the legality and enforceability of the sentence
imposed by the sentencing court, and that the defendant‘s guilty plea was
not knowing, voluntary, and intelligent. Id. at 1014. We therefore reversed
the order denying PCRA relief and vacated the judgment of sentence. Id.
Given the foregoing precedents, the claim pleaded by Appellant has
arguable merit. Appellant‘s new sentence could not run concurrently to his
old sentence, see 61 Pa.C.S. § 6138(a)(5)(i), and Appellant has alleged that
his trial counsel provided erroneous advice on this point when he pleaded
guilty. This inaccurate advice regarding the actual length of incarceration
time he was facing would have rendered Appellant‘s guilty plea invalid. See
Zuber, 353 A.2d at 445; Kelley, 136 A.3d at 1014.
As to the second requirement for proof of ineffectiveness of counsel,
there is scarce room for a finding that Appellant‘s trial counsel had a
reasonable basis for providing erroneous advice that induced Appellant‘s
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unlawful guilty plea. See Barndt, 74 A.3d at 199 n.16 (even absent trial
counsel‘s testimony or admission, precedent establishes that no conceivable
reasonable basis exists for providing erroneous advice to induce an unlawful
guilty plea); see also Commonwealth v. Hanible, 30 A.3d 426, 442 (Pa.
2011) (―As to the reasonable basis prong, . . . in the most clear-cut cases
. . . the reasons for counsel‘s conduct are apparent from the record‖), cert.
denied, 133 S. Ct. 835 (2013).
We also conclude that Appellant has pleaded the third requirement,
prejudice. He contends that he would not have entered a guilty plea if he
had not been promised that his sentence would run concurrently with his
recommitment on No. 662. See Appellant‘s Br. at 9; N.T., 5/10/16, at 9;
Barndt, 74 A.3d at 199-200.
For similar reasons, Appellant‘s allegations that his first PCRA counsel
was ineffective establish a viable claim. As we have just recognized, the
underlying claim that trial counsel was ineffective has arguable merit.
McGill, 832 A.2d at 1022. And Appellant‘s first PCRA counsel, who was
aware of Appellant‘s claim, could have had no reasonable basis for failing to
pursue relief. Barndt, 74 A.3d at 199 n.16. Because Appellant‘s first PCRA
counsel did not present the claim during his first PCRA hearing, Appellant is
set to spend an additional eighteen months incarcerated — a clear example
of prejudice. PCRA Ct. Op. at 3.
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But although Appellant pleaded valid claims, he failed to prove them.
Because the PCRA hearing was comprised solely of oral argument and not
presentation of evidence, Appellant did not produce evidence to substantiate
his claims. Our case law is well-settled that Appellant must prove an
ineffectiveness-of-counsel claim, including that there was a reasonable
probability that he would not have entered a guilty plea but for counsel‘s
inaccurate advice in connection with the plea. Hickman, 799 A.2d at 142.
While Appellant was present at the PCRA hearing and stated on the record
that that he would not have pleaded guilty if he had not been offered a
concurrent sentence, 14 Appellant was not under oath when he made that
statement. There was no testimony by Appellant‘s plea counsel regarding
the discussions he had with Appellant during the plea-bargain process; and
there was no testimony by the Commonwealth‘s attorney regarding his
office‘s recollection of the offer it had made to Appellant. The factual
underpinnings of Appellant‘s claim therefore remain unproven.
The trial court made two references to this lack of proof in its Rule
1925(a) opinion. First, the court noted that ―there does not appear to be
anything in the record to suggest Appellant was promised his sentence in
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14
Appellant asserted, ―if the concurrency wouldn‘t have been offered, I
would not have taken that plea bargain because I knew that I had almost
two years, or a little more than two years left [on 662] before I could [start
serving my new sentence].‖ N.T., 5/10/16, at 9.
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this matter would run concurrent to his sentence at 662 of 2008.‖ PCRA Ct.
Op. at 9 n.4.15 Second, the court said that, ―[a]t the time of the evidentiary
hearing, Appellant did not provide any testimony or other evidence of his
plea counsel's ineffectiveness.‖ PCRA Ct. Op. at 11. However, the PCRA court
did not deny Appellant‘s petition based on a failure of factual proof, and it
made no findings on the factual issues in the case. Instead, the court based
its decision on its erroneous legal conclusion that Appellant‘s claim was not
eligible for relief under the PCRA. See id. at 4-11. At no time during the
hearing below did the PCRA court give any indication that it did not accept
the factual bases for Appellant‘s claim. And the Commonwealth, for its part,
filed no response to Appellant‘s amended PCRA petition, made no argument
against the factual allegations at the hearing, and still does not, on appeal,
dispute Appellant‘s factual assertions. See Commonwealth‘s Br. at 3-4.
Our review of the record convinces us that there was no proof of
Appellant‘s claims because the court and the parties all tacitly agreed that
the first priority in the case was to resolve the legal issues presented by
Appellant‘s petition, making any factual presentation to support that position
secondary. Thus, the court began the hearing by stating its view that what
was before the court was ―a legal issue.‖ N.T., 5/10/16 at 2. And the court
ended the hearing by stating that it would take the case under advisement
____________________________________________
15
As noted, Appellant did make an unsworn statement to that effect when
responding to the court during the hearing. N.T., 5/10/16, at 9.
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to review the case law. Id. at 14. When the court ultimately denied the
petition, it did so as a matter of law, so that there was no need to hold any
further hearing to take evidence about the facts. Because we have now
determined that the court‘s legal holdings were incorrect, it is appropriate to
remand this case to the trial court to take that evidence and to make
whatever factual determinations are appropriate on Appellant‘s claims.
A PCRA court must take evidence to resolve factual disputes. See
Pa.R.Crim.P. 908(A)(2) (―Except as provided in Rule 907, the judge shall
order a hearing . . . when the petition for post-conviction relief or the
Commonwealth's answer, if any, raises material issues of fact‖);
Pa.R.Crim.P. 907(1) (A PCRA judge should hold a hearing where there are
genuine issues concerning material fact). It must then make findings that
are supported by the facts of record. Hawkins, 953 A.2d at 1251. A remand
is appropriate to enable the PCRA court to complete this task. See, e.g.,
Commonwealth v. Montalvo, 114 A.3d 401, 411 (Pa. 2015) (remanding
because the opinion of the PCRA court contained ―no findings of fact, no
determinations of credibility, and no legal conclusions regarding Appellant‘s
PCRA claims; in short, . . . no basis upon which to conduct meaningful
appellate review‖)16; Commonwealth v. Beasley, 967 A.2d 376, 391 (Pa.
____________________________________________
16
In Montalvo, the Supreme Court stated:
(Footnote Continued Next Page)
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2009) (remanding for the PCRA court to resolve ―areas of material, factual
controversy and material credibility disputes‖); Commonwealth v.
Peoples, 961 A.2d 109 (Pa. 2008) (per curiam) (remanding for a PCRA
hearing regarding trial counsel‘s ineffectiveness, where no hearing was held
and the Commonwealth disputed material facts); Commonwealth v.
Williams, 732 A.2d 1167, 1180-81 (Pa. 1999) (remanding for a PCRA
hearing to assess the credibility of a trial witness who wished to recant
testimony). Because the PCRA court misapprehended the law and failed to
receive evidence and make factual findings, we remand for the PCRA court
to resolve all factual issues presented by Appellant‘s petition. For this
purpose, the PCRA court may hold additional hearings and admit evidence.
Regardless of the outcome of the proceedings below, the portion of
Appellant‘s current sentence that states that it shall run concurrently with
_______________________
(Footnote Continued)
[I]n order to enable appellate review, PCRA courts are required
to provide a legally robust discussion, complete with clear
findings of fact where required. Where a PCRA court fails to
support its holding with sufficient explanations of the facts and
law, or fails to provide an adequate opinion addressing all of the
claims raised in a PCRA petition, including factual and credibility
disputes, a remand is appropriate. In addition, such a remand
may necessitate further proceedings below.
114 A.3d at 410 (quotation marks and citations omitted).
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the sentence on No. 662 is illegal, and we vacate that portion of the
sentence. See 42 Pa.C.S. § 706.17
Order vacated. Judgment of sentence vacated in part. Case remanded
with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2017
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17
Appellant‘s fourth issue is that the trial court erred by failing to enforce his
plea bargain. Appellant‘s Brief at 16. Appellant makes no argument as to
how his issue, framed in this manner, is cognizable for relief under the
PCRA. His claim is therefore waived. See 42 Pa.C.S. § 9543 (listing which
types of claims are eligible for PCRA relief); Commonwealth v. Perez, 93
A.3d 829, 841 (Pa.) (appellate claims lacking developed argument or legal
citation are deemed waived), cert. denied, 135 S. Ct. 480 (2014).
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