Com. v. McLean, J. ( 2020 )

J. S10037/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1398 MDA 2019
:
JERMAINE JAZZ McLEAN :
Appeal from the PCRA Order Entered August 12, 2019,
in the Court of Common Pleas of Luzerne County
Criminal Division at No. CP-40-CR-0000544-2016
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1399 MDA 2019
:
JERMAINE JAZZ McLEAN :
Appeal from the PCRA Order Entered August 12, 2019,
in the Court of Common Pleas of Luzerne County
Criminal Division at No. CP-40-CR-0001551-2016
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 21, 2020
In these consolidated appeals, the Commonwealth appeals from the
August 12, 2019 order granting appellee, Jermaine Jazz McLean’s petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
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9546. After careful review, we reverse and remand for proceedings consistent
with this memorandum.
The PCRA court summarized the relevant procedural history of this case
as follows:
[A]ppellee was charged with various criminal offenses
in two criminal informations docketed at [CP-40-CR-
0000544-2016 (“No. 544”)] and [CP-40-CR-0001551-
2016 (“No. 1551”)]. In the case docketed at No. 544,
[a]ppellee was charged with possession with intent to
deliver (PWID) . . . , criminal use of a communication
facility . . . , and fleeing and eluding . . . .[1] In the
case docketed at No. 1551, [a]ppellee was charged
with aggravated assault . . . , fleeing or attempting to
elude an officer . . . , recklessly endangering another
person . . . , and other related offenses.[2]
On November 16, 2017, [a]ppellee appeared before
the [trial c]ourt to enter guilty pleas on the
above[-]captioned cases. [] Appellee sought to enter
into a negotiated plea agreement with the
Commonwealth whereby he would plead guilty to
count one on each of the criminal informations . . . .
Following . . . a hearing, and a careful colloquy of
[a]ppellee, [the trial court] accepted his pleas to PWID
and aggravated assault. Thereafter, on January 3,
2018, [a]ppellee appeared before the [trial] court for
sentencing. Relevantly, [a]ppellee’s counsel[,
Janan Tallo, Esq. (hereinafter, “Attorney Tallo”)],
pointed out that the pre-sentence investigation
[(“PSI”)] represented that “credit is an issue” and
specifically that [a]ppellee had “approximately
700 days on the delivery but only 42 days on the
aggravated assault.” [Attorney Tallo] indicated that
had she known that credit for time served had not
1 35 Pa.C.S.A. § 780-113(a)(30), 18 Pa.C.S.A. § 7512(a), and 75 Pa.C.S.A.
§ 3733(a), respectively.
218 Pa.C.S.A. § 2702(a)(3), 75 Pa.C.S.A. § 3733(a), and 18 Pa.C.S.A. § 2705,
respectively.
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been accumulating on the aggravated assault charge
at count one of case No. 1551 that she would have
asked the[trial] court to revoke bail. [Attorney Tallo]
went on to state that she assumed that her client was
incarcerated on a bail amount on both cases when in
fact this was not the case. Appellee was arrested on
case No. 1551 while he was incarcerated on case No.
544. Subsequently, [appellee] was granted bail only
42 days after that arrest.
On No. 544, at count one, PWID, [the trial court]
sentenced [a]ppellee within the standard range to a
period of incarceration of not less than twenty-four
(24) month[s] but no more than sixty (60) months to
run consecutive to any other sentence he was then
currently serving. On case No. 1551, at count one,
aggravated assault[, the trial court] sentenced
[appellee] within the standard range to a period of
incarceration of not less than twenty-four (24) months
but no more than sixty (60) months to run
consecutive. With reservations, [the trial court]
granted [a]ppellee credit for 706 days of time served
to be applied to both cases. Counsel representing the
Commonwealth objected to our granting the time
credit and we invited the parties to file post[-
]sentence motions. On January 12, 2018[,] the
Commonwealth filed a post-sentence motion in
support of the objection to [a]ppellee’s credit. At the
hearing, [Attorney Tallo] again argued that double
credit was at least a possible outcome. At the
conclusion of the hearing, by order dated April 10,
2018, [the trial court] granted the Commonwealth’s
motion and vacated our order granting credit for time
served on case No. 1551.
PCRA court opinion, 10/31/19 at 1-2 (citations and extraneous capitalization
omitted).
Appellee did not file a direct appeal. On October 25, 2018, appellee filed
a timely pro se PCRA petition at No. 544. Thereafter, on November 9, 2018,
appellee filed a timely pro se PCRA petition at No. 1551. On June 11, 2019,
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the PCRA court appointed Jeffrey Yelen, Esq. (“PCRA counsel”), to represent
appellee. On July 9, 2019, PCRA counsel filed a supplemental PCRA petition
on appellee’s behalf, wherein he argued that appellee was entitled to withdraw
his guilty plea because “[Attorney Tallo] was ineffective in that [appellee]
plead guilty based on [her] representations that his approximately 2[-]year
time[-]served credit would be applied to sentences on both sets of
charges.” (See “Supplement to PCRA Petition,” 7/9/19 at ¶ 3 (emphasis
added).) The PCRA court held a hearing on this matter on August 8, 2019,
during which both appellee and Attorney Tallo testified at length. Following
the hearing, the PCRA court entered an order granting appellee’s PCRA petition
and vacating his guilty plea. In reaching this conclusion, the PCRA court
reasoned as follows:
The issue is when [appellee] entered his guilty plea
based upon advice provided by [Attorney Tallo], was
it knowingly and voluntarily entered? And I think from
the evidence and testimony before me, [appellee] has
testified that he would not have entered his guilty plea
had he not been under the belief or assumption, if you
will, that he was going to receive all of the credit for
the time he had been incarcerated as to both cases
and both docket numbers, which is, in my view, not
the law and something he’s not legally entitled to.
But he felt he was and I believe [Attorney] Tallo,
[appellee’s] prior counsel, herself testified that she
thought [appellee] would get credit for both cases and
was not surprised that when [appellee] entered his
plea, he thought the same.
So the Court would find that it appears that the guilty
plea that [appellee] entered on or about
November 16, 2017 was based at least, in part, upon
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some ineffective assistance of counsel in explaining
what would occur and his reliance upon that led to him
entering a guilty plea that was not knowingly and
voluntarily entered.
Notes of testimony, 8/8/19 at 30-31.
On August 22, 2019, the Commonwealth filed two separate, timely
notices of appeal for each docket number, in compliance with
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and its progeny. On
August 27, 2019, the PCRA court granted PCRA counsel permission to
withdraw and appointed appellee’s instant counsel, Matthew P. Kelly, Esq., to
represent him on appeal. Pursuant to the PCRA court’s directive, the
Commonwealth filed a timely concise statement of errors complained of on
appeal, in accordance with Pa.R.A.P. 1925(b), on September 16, 2019. The
PCRA court filed its Rule 1925(a) opinion on October 31, 2019.
The Commonwealth raises the following issue for our review:
Whether the [PCRA] court erred when it granted
[appellee] PCRA relief by finding that [appellee] relied
on a promise by [Attorney Tallo] that he would receive
credit for all time spent in custody?
Commonwealth’s brief at 4.
“When reviewing an order granting PCRA relief, we must determine
whether the decision of the PCRA court is supported by the evidence of record
and is free of legal error. Moreover, we will not disturb the findings of the
PCRA court unless those findings have no support in the certified record.”
Commonwealth v. Rivera, 154 A.3d 370, 377 (Pa.Super. 2017) (citation
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and internal quotation marks omitted), appeal denied, 169 A.3d 1072 (Pa.
2017).
Here, the Commonwealth contends that there is no merit to appellee’s
claim that Attorney Tallo’s advice to him that he was entitled to double credit
for time-served induced him to enter an unknowing and involuntary guilty
plea. (Commonwealth’s brief at 10.) The Commonwealth avers that “[t]he
record does not support a finding that Attorney Tallo gave incorrect or
erroneous advice” nor “improperly promise[d] that [appellee] would get
double credit.” (Id. at 10, 12.) We agree.
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. Commonwealth v.
Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017). “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. Barndt, 74 A.3d 185,
192 (Pa.Super. 2013) (citations omitted).
We apply a three-pronged test for determining whether counsel was
ineffective, derived from the test articulated by the Supreme Court of the
United States in Strickland v. Washington, 466 U.S. 668, 687 (1984), and
as applied in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
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The Pierce test requires a PCRA petitioner to prove:
(1) the underlying legal claim was of arguable merit;
(2) counsel had no reasonable strategic basis for his
action or inaction; and (3) the petitioner was
prejudiced—that is, but for counsel’s deficient
stewardship, there is a reasonable likelihood the
outcome of the proceedings would have been
different.
Id., citing Pierce, 527 A.2d at 975.
Instantly, appellee testified at the August 8, 2019 hearing that, prior to
pleading guilty, he discussed the time-credit issue with his then-counsel,
Attorney Tallo, multiple times, and that it was his understanding “that the time
credit would be applied to both of the cases.” (Notes of testimony, 8/8/19 at
7-8.) Appellee further testified that he would not have pled guilty at No. 1551
and No. 544 had he known that credit would only be applied to one case. (Id.
at 9.)
Upon review, we find that there is no arguable merit to appellee’s claim
that he was induced to enter an unknowing and involuntary guilty plea
because of Attorney Tallo’s improper advice to him that he could receive
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“double credit” for time-served on both cases.3 The record reflects that
Attorney Tallo never explicitly promised appellee that he would receive double
credit for cases No. 1551 and No. 544. Rather, Attorney Tallo testified that
although she was under the assumption that appellee was entitled to credit
for time-served on both cases and advised appellee she would request credit
for both, time-credit was ultimately at the discretion of the sentencing judge
based upon the sentence imposed:
[Appellee] and I had always spoken about credit for
time served, that he, yes, is entitled to credit for time
served. Working under that assumption, he’s not
completely mistaken when he says he thought he was
going to get credit for both [cases] because I thought
he was going to get credit for both also. So we did
have those discussions that he’s entitled for any credit
that he’s entitled to.
Now that becomes tricky. There was no agreement
as to the sentence, so it was always up to [the
sentencing judge] as to how to set the sentence. If
he were to run them concurrently, I would make the
3We note that 42 Pa.C.S.A. § 9760(4) makes clear that the granting of “double
credit” for time-served is prohibited. Section 9760(4) provides as follows:
[i]f the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act
or acts that occurred prior to his arrest, credit against
the maximum term and any minimum term of any
sentence resulting from such prosecution shall be
given for all time spent in custody under the former
charge that has not been credited against another
sentence.
Id.; see also Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa.Super.
2014) (stating, “a defendant is not entitled to receive credit against more than
one sentence for the same time served.” (citations, internal quotation marks,
and brackets omitted)).
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pitch for double credit on both. If he ran them
consecutively, though, we lose that ability because
you can’t give double credit on consecutive sentences.
Id. at 17.
Attorney Tallo further reiterated that she did not promise appellee
anything more than the time credit that he was legally entitled to, stating as
follows:
I would never have said, I promise you’re going to get
double credit on both. I would have told him he’s
entitled to credit for time served, that we would ask
the Judge for the credit for both cases because we
believe he was in on both, but there was no guarantee
the Judge would run both sentences concurrently.
Id. at 18-19.
Moreover, the record further reflects that appellee testified during his
guilty plea colloquy that no promises were made to him to induce his plea.
(See notes of testimony, 11/16/17 at 7.) When confronted with this
testimony during the PCRA hearing, appellee acknowledged that he never
mentioned Attorney Tallo’s alleged promise of “double credit” during the
colloquy. (See notes of testimony, 8/8/19 at 14-15.) Appellee is bound by
the statements he made during his guilty plea colloquy. See Commonwealth
v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007) (stating, “[a] person who
elects to plead guilty is bound by the statements he makes in open court while
under oath and he may not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.” (citation omitted)),
appeal denied, 940 A.2d 365 (Pa. 2007).
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Based on the foregoing, we find that the PCRA court erred in concluding
Attorney Tallo’s advice to appellee induced him to enter an unknowing and
involuntary guilty plea. Accordingly, we reverse the PCRA court’s August 8,
2019 order and remand for proceedings consistent with this memorandum.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/21/2020
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