Com. v. Patterson, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY PATTERSON :
:
Appellant : No. 971 MDA 2020
Appeal from the PCRA Order Entered June 24, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006550-2018
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 17, 2021
Terry Patterson (“Patterson”) appeals from the Order dismissing his first
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We reverse and remand for further
proceedings.
In its Opinion, the PCRA court detailed the relevant factual history as
follows:
On October 24, 2018, the Lancaster City Bureau of Police Selective
Enforcement Unit conducted a drug detail operation utilizing an
undercover officer and an unwitting informant named Melissa
White [(“Ms. White”)]. The undercover [officer] met Ms. White in
person and, while they were together, Ms. White phoned
[Patterson] to arrange a purchase of $60.00[] worth of crack
cocaine. Ms. White and [Patterson] agreed to effectuate the sale
at 147 South Prince Street, Lancaster, Pennsylvania.
Ms. White and the undercover officer arrived at 147 South
Prince Street at approximately 4:38 in the afternoon. Ms. White
proceeded to enter a [w]hite Chevrolet Tahoe registered in
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Pennsylvania with license plate KRJ[XXXX]. She returned with two
clear plastic bags of crack cocaine, which she gave to the
undercover officer. Other officers participating in the drug detail
stopped the [w]hite Chevrolet and identified [Patterson] as the
driver. A search of [Patterson’s] car yielded approximately 9
grams of crack cocaine and $1[,]460.00 in cash, of which $60.00
could be traced to Ms. White’s earlier purchase. [Patterson] was
subsequently charged with the following crimes: one count of
delivery of crack cocaine; one count of possession with intent to
deliver crack cocaine; one count of criminal conspiracy; and one
count of criminal use of a communication facility.[1] …
PCRA Court Opinion, 9/29/20, at 1-2 (citations to record, footnotes, and some
capitalization omitted; footnote added).
On April 10, 2019, Patterson entered a negotiated guilty plea to all four
charges. The trial court sentenced Patterson, pursuant to the plea agreement,
to concurrent terms of 15 to 36 months in prison for each of the offenses, with
credit for time served. Further, as Patterson was on state parole when he was
charged with the above-mentioned offenses, plea counsel requested that the
parole-violation sentence be imposed concurrently with his sentence in the
instant case; however, plea counsel acknowledged that any such
recommendation would not be binding on the Pennsylvania Board of Probation
and Parole (“the Board”). The Commonwealth did not oppose a concurrent
parole violation sentence, but reiterated that their agreement on the matter
could not bind the Board. Patterson did not file a direct appeal.
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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903(a)(1), 7512(a).
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On May 8, 2019, the Board notified Patterson that he would be
recommitted to serve 18 months of backtime for his parole violation.
Patterson, pro se, filed the instant, timely PCRA Petition on November
20, 2019. Therein, Patterson alleged, inter alia, that his plea counsel was
ineffective. On December 17, 2019, Patterson filed a pro se Motion to Correct
Illegal Aggravated Sentence, attaching thereto a copy of the Board’s decision
regarding his parole violation recommitment. Patterson argued that the
imposition of a consecutive parole-revocation sentence violated his negotiated
plea agreement.
The PCRA court appointed Patterson counsel, who filed an Amended
PCRA Petition on his behalf. On May 18, 2020, the PCRA court issued a
Pa.R.Crim.P. 907 Notice of its intent to dismiss Patterson’s PCRA Petition
without further proceedings. The PCRA court dismissed Patterson’s PCRA
Petition on June 24, 2020.2 Patterson filed a timely Notice of Appeal and a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of
on appeal.
Patterson now raises the following issue for our review:
Did the PCRA court err and abuse its discretion in denying PCRA
relief without a hearing, thereby finding trial counsel effective,
when trial counsel and the Commonwealth negotiated an illegal
condition of the plea agreement[,] which affirmatively misled []
Patterson and induced an unknowing, unintelligent, and
involuntary plea?
____________________________________________
2 The PCRA court filed an Amended Order on June 25, 2020, correcting an
error in the language detailing Patterson’s appeal rights.
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Brief for Appellant at 5.
Patterson claims that the PCRA court erred by denying him a hearing,
because there was a material fact at issue, i.e., whether plea counsel
understood that section 6138(a)(5)(i) of the Parole Act requires state
sentences to be served consecutively to parole backtime. Id. at 13. Patterson
argues that plea counsel was ineffective for negotiating a condition that the
Commonwealth would advise the Board that it does not oppose concurrency
between the instant sentence and the parole revocation sentence. Id. at 15.
Patterson contends that plea counsel affirmatively misled him by advising that
his new state sentence could possibly run concurrent with his parole backtime.
Id. According to Patterson, “it can be presumed that the possibility of
concurrency was the tipping point in [] Patterson’s decision to forego his right
to a trial and plead guilty.” Id. at 16. Patterson asserts that, because he was
never informed that the Board was required to run the sentences
consecutively, his plea was unknowingly, unintelligently, and involuntarily
entered. Id. at 18-20. Patterson therefore requests that this Court vacate
his guilty plea and sentence, and remand the matter for resentencing. Id.
The applicable standards of review regarding the denial of a PCRA
petition and ineffectiveness claims are as follows:
Our standard of review of a PCRA court’s [dismissal] of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is free
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of legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
***
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA petition pleads
and proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations
omitted).
Further,
[i]neffective assistance of counsel claims arising from the plea-
bargaining process are eligible for PCRA review. 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 whether counsel’s advice
was within the range of competence demanded of attorneys in
criminal cases.
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations and quotation marks omitted); see also Commonwealth v. Fears,
86 A.3d 795, 807 (Pa. 2014) (stating that “[t]o prove prejudice, [the]
appellant must prove he would not have pled guilty and would have achieved
a better outcome at trial.” (citation and quotation marks omitted));
Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (en
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banc) (stating that “the defendant must show that counsel’s deficient
stewardship resulted in a manifest injustice … by facilitating entry of an
unknowing, involuntary, or unintelligent plea.” (citations omitted)).
Regarding post-sentence withdrawal of a guilty plea, this Court has
stated as follows:
The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements for relief
based on a claim of ineffective assistance of plea counsel, … under
which the defendant must show that counsel’s deficient
stewardship resulted in manifest injustice, for example, by
facilitating entry of an unknowing, involuntary, or unintelligent
plea. This standard is equivalent to the “manifest injustice”
standard applicable to all post-sentence motions to withdraw a
guilty plea.
Kelley, 136 A.3d at 1013 (quoting Morrison, 878 A.3d at 105)).
A valid guilty plea must be knowingly, voluntarily and
intelligently entered. The Pennsylvania Rules of Criminal
Procedure mandate that pleas be taken in open court, and require
the court to conduct an on-the-record colloquy to ascertain
whether a defendant is aware of his rights and the consequences
of his plea. Specifically, the court must affirmatively demonstrate
the defendant understands: (1) the nature of the charges to
which he is pleading guilty; (2) the factual basis for the plea; (3)
his right to trial by jury; (4) the presumption of innocence; (5)
the permissible ranges of sentences and fines possible; and
(6) that the court is not bound by the terms of the agreement
unless the court accepts the agreement. This Court will evaluate
the adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the circumstances
surrounding the entry of that plea.
If no statutory authorization exists for a particular sentence,
that sentence is illegal and subject to correction. An illegal
sentence must be vacated. Section 6138 of the Parole Act
states[,] in pertinent part[, as follows]:
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§ 6138. Violation of terms of parole
***
(5) 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.A. § 6138(a)(5)(i). In other words, where a state
parolee gets a new sentence, he must serve his backtime first
before commencement of the new state sentence. Imposition of
a new state sentence concurrent with a parolee’s backtime on the
original state sentence is an illegal sentence under this statute.
Id. at 1013-14 (some citations omitted; emphasis added).
In support of his position, Patterson cites to Kelley, wherein this Court
vacated a guilty plea entered on the advice of “plea counsel[,] whose
knowledge of the Parole Act was deficient and fell below the range of
competence demanded of attorneys in criminal cases.” Kelley, 136 A.3d at
1014. In Kelley, the defendant committed forgery and related offenses while
he was on state parole. Id. at 1010. The defendant entered a negotiated
guilty plea, in exchange for definite, concurrent sentences and a specific
effective date (i.e., the date of his arrest, and therefore concurrent to any
backtime imposed for the parole violation). Id. at 1011. However, the
defendant later learned that the effective date of his new sentence would be
approximately two years later than the date he had bargained for, and after
he had served the backtime on his parole violation. Id. In the subsequent
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appeal, this Court concluded that the negotiated sentence was illegal, because
it violated section 6138(a)(5)(i) of the Parole Act. Id. at 1014. The Kelley
Court reasoned that because the defendant had never been advised that his
negotiated sentence could not be imposed under the Parole Act, his plea was
not knowingly, voluntarily, and intelligently entered. Id. This Court concluded
that the defendant’s plea counsel rendered ineffective assistance in advising
the defendant “to accept a plea that called for an illegal sentence.” Id.
Here, a handwritten notation in Patterson’s Written Guilty Plea Colloquy
states, “Prosecutor recommend concurence [sic] w/ state PV/Decision is
up to Board” following the question, “Have any promises been made to you to
enter this guilty plea other than the terms of the plea agreement?” Written
Guilty Plea Colloquy, 4/10/19, at 5 (emphasis added). Further, the following
exchange occurred during the guilty plea hearing:
[Plea Counsel]: The one thing I’d want to add, Your Honor, is that
the Commonwealth would agree that his [parole revocation] -- or
he would make a recommendation that the [parole
revocation] hit would be concurrent. We understand that’s
not binding on the Board; however, you know, anything
positioning him -- or that could help him, we would like to have
happen.
….
[Assistant District Attorney]: Judge, I told [plea counsel], I don’t
oppose the Board doing that. If the Board wishes to do
that, I don’t have any authority, obviously, to bind the Board
other than the time credit sentences marked on the part of the
plea agreement.
The Court: Nor do I have that authority.
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N.T., 4/10/19, at 11-12 (emphasis added).
In its Opinion, the PCRA court concluded that plea counsel’s conduct was
not affirmatively misleading, stating as follows:
Instantly, [Patterson] correctly identifies that Pennsylvania
law requires a paroled defendant who commits a new crime to
serve all time remaining on his paroled charges consecutive to
serving a sentence imposed on a new crime. The plea record
simply lacks support, however, for the assertion that counsel
affirmatively misled [Patterson] about applicable sentencing law.
Plea counsel neither assured [Patterson] that he would be eligible
to have his parole violation “hit” run concurrent to his new
sentence, nor advised [Patterson] that he, the Commonwealth, or
th[e trial c]ourt had any power to bind the [] Board to such a
recommendation. Plea counsel established a clear record of his
knowledge that any recommendation about concurrency was “not
binding on the [B]oard.”
[Patterson’s] written plea confirms that counsel neither
assured nor advised him otherwise. [Patterson] acknowledged, in
writing, that all decisions about concurrent or consecutive
sentencing decisions are “up to the [B]oard,” and that he
understood his instant charges could be consecutive to the parole
violation sentence.
Plea counsel’s mere recommendation of concurrency,
confirmed on the record to be entirely outside the power of all
parties involved in the proceedings, does not rise to the level of
“affirmatively misleading.” …
PCRA Court Opinion, 9/29/20, at 8-9 (footnotes and citation to record omitted;
emphasis added).
Though concurrency was a “recommendation” rather than a firmly-
negotiated part of Patterson’s sentence, our review of the record reveals that
Patterson believed that the Board had discretion to run the instant sentence
concurrent with the backtime for his parole violation. Indeed, the Assistant
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District Attorney’s statements during the guilty plea hearing suggested that
the Board has such discretionary authority. See N.T., 4/10/19, at 12 (wherein
the Assistant District Attorney indicated that he would not oppose the new
sentence being run concurrent with the backtime, and stated, “[i]f the Board
wishes to do that….”). However, the Board has no discretion to run a new
sentence concurrent with backtime, pursuant to section 6138(a)(5)(i) of the
Parole Act. See 61 Pa.C.S.A. § 6138(a)(5)(i); see also Kelley, 136 A.3d at
1014. The record reflects that plea counsel, as well as the Assistant District
Attorney and the trial court, contributed to Patterson’s false belief that there
was a possibility that his new sentence could run concurrent with the
backtime. See Kelley, 136 A.3d at 1014 (stating that “neither the
Commonwealth nor the court advised [a]ppellant that his negotiated sentence
[for backtime concurrency,] could not be honored as stated or imposed.”).
Thus, we conclude that, under the totality of the circumstances, Patterson did
not enter a knowing, voluntary, and intelligent plea. See id. at 1013. Because
the sentencing recommendation Patterson believed he had bargained for was
illegal, he entered his plea “on the advice of plea counsel whose knowledge of
the Parole Act was deficient and fell below the range of competence demanded
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of attorneys in criminal cases.” Id.3
Based upon the foregoing, we reverse the PCRA court’s Order dismissing
Patterson’s PCRA Petition, vacate the judgment of sentence, and remand to
the PCRA court for further proceedings consistent with this memorandum.
Order reversed. Judgment of sentence vacated. Cased remanded for
further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2021
____________________________________________
3 We are additionally cognizant of, and agree with, the reasoning set forth in
this Court’s recent unpublished Memorandum in Commonwealth v.
Robinson, 241 A.3d 481 (Pa. Super. 2020) (unpublished memorandum). In
Robinson, a panel of this Court reversed an Order denying PCRA relief, and
concluded that that “plea counsel was ineffective for advising [the defendant]
to bargain for and accept a plea deal that called for a recommendation of the
imposition of an illegal sentence[,]” where the defendant’s negotiated guilty
plea included a recommendation to the Board that the defendant’s sentence
run concurrent with his parole backtime; the written plea colloquy indicated
that the Commonwealth would not oppose concurrency; and the PCRA court’s
opinion indicated that the Board had discretion to run the sentences
concurrently. See id. (unpublished memorandum at 9-11). Specifically, this
Court concluded that the defendant’s plea was not knowingly, voluntarily, and
intelligently entered, because all parties contributed to the defendant’s false
assumption that his new sentence and backtime could run concurrently, and
therefore, he was “neither fully aware of the ‘permissible ranges of sentences,’
see Pa.R.Crim.P. 590 cmt., nor of the ‘consequences his plea connoted.’”
Robinson, 241 A.3d 481 (unpublished memorandum at 9-11).
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