Com. v. Kruge, N. ( 2021 )

J-S55040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NICHOLAS T. KRUGE : No. 484 WDA 2020
Appeal from the Order Entered February 27, 2020
In the Court of Common Pleas of Blair County Criminal Division
at No(s): CP-07-CR-0001052-2015
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 19, 2021
The Commonwealth appeals from the order entered in the Blair County
Court of Common Pleas, granting the Post Conviction Relief Act 1 (PCRA)
petition of Nicholas T. Kruge (Appellee). The Commonwealth avers the PCRA
court erred in: (1) finding Appellee’s trial counsel was ineffective for failing to
advise him, during plea negotiations, of Appellee’s exposure to a mandatory
minimum sentence; and (2) granting relief in the form of vacating Appellee’s
conspiracy and robbery convictions.2 We affirm.
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 903, 3701(a)(1)(ii).
J-S55040-20
I. Facts & Procedural History
On March 28, 2015, Appellee entered a convenience store, with his face
covered, pointed a handgun at the cashier, and demanded money. N.T. Trial,
12/7/16, at 24, 26-28. After the cashier gave Appellee money, a customer
entered the store. Id. at 31. Appellee turned around, pointed the gun at her,
and directed her to walk toward him. Id. While Appellee’s attention was
focused on the customer, the cashier called 911. Id. at 34. Appellee asked
the cashier “what the hell [he was] doing,” walked toward the cashier,
“point[ed] the gun again,” and demanded more money. Id. at 35-36. The
cashier was still holding the phone and told Appellee he “was on the phone
with the police.” Id. at 37. Appellee then exited the store and left in a car
with another male.3 Id. at 38-39.
Appellant was charged for the above offenses. In the underlying PCRA
proceedings, both Appellee and the Commonwealth
agree that [during plea negotiations,] the “last best” plea offer
extended . . . prior to trial was 3 to 10 years. Both parties agree
that there was never any discussion until the date of sentencing
that if convicted, [Appellee] was facing a mandatory sentencing
enhancement of 10 years due to a prior crime of violence. This
fact was unknown to the Commonwealth, [Trial Counsel, and
Appellee] until the date of sentencing, when the Commonwealth
filed its Notice of Intent to Seek a Mandatory Sentence.
PCRA Ct. Op., 11/1/19, at 4. Appellant decided to proceed to trial instead.
See id. at 18.
3 The other male, Lance Phillips, was also charged.
-2-
J-S55040-20
On December 8, 2016, following a jury trial, Appellee was found guilty
of one count each of conspiracy to commit robbery, robbery/threatens another
with or intentionally puts him in fear of immediate serious bodily injury, theft
by unlawful taking, and receiving stolen property.4 Appellee was also found
guilty of two counts each of simple assault and terroristic threats.5
On February 23, 2017, the trial court imposed an aggregate sentence of
15 to 30 years’ imprisonment.6 This sentence included a mandatory 10-year
sentencing enhancement, imposed because Appellee had a prior conviction of
a crime of violence. See 42 Pa.C.S. § 9714(a) (any person convicted “of a
crime of violence shall, if at the time of the commission of the current offense
the person had previously been convicted of a crime of violence, be sentenced
to a minimum sentence of at least ten years of total confinement”).7 At trial
4 18 Pa.C.S. §§ 3921(a)(1), 3925.
5 18 Pa.C.S. §§ 2701(a)(3), 2706(a)(1).
6 Specifically, the trial court sentenced Appellee to: (1) concurrent terms of
10 to 20 years’ imprisonment for robbery and conspiracy; (2) two terms of
one to two years’ imprisonment for the two counts of simple assault, to run
consecutively; and (3) two terms of 1.5 to three years’ imprisonment for the
two counts of terroristic threats, likewise to run consecutively. Order,
2/23/17, at 1-5. The sentences for theft by unlawful taking and receiving
stolen property merged with robbery. Id. at 5.
7 Section 9714(a) has been upheld as constitutional against Alleyne v.
United States, 570 U.S. 99 (2013). Commonwealth v. Reid, 117 A.3d
777, 785 (Pa. Super. 2015). See also Commonwealth v. Bragg, 133 A.3d
328, 332-33 (Pa. Super. 2016) (Alleyne “established that ‘[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.’ However, the [United
-3-
J-S55040-20
and sentencing, Appellee was represented by Mark Zearfaus, Esquire (Trial
Counsel).
Appellee filed a direct appeal, but subsequently filed an application to
withdraw the appeal, explaining he wished instead to bring an ineffective
assistance claim against Trial Counsel. Appellee’s Motion to Withdraw Appeal,
10/12/17, at 1, 457 WDA 2017. This Court granted the withdrawal on
November 8, 2017. See Commonwealth v. Kruge, 457 WDA 2017 (order)
(Pa. Super. Nov. 8, 2017).
On December 26, 2017, Appellee filed a first, pro se, timely PCRA
petition alleging, inter alia, ineffective assistance of Trial Counsel for failing to
inform him “about a mandatory minimum sentence should he be convicted at
trial and not take a plea [sic].” Appellee’s Motion for Post Conviction Relief
from Sentence, 12/26/17, at 5. . On January 9, 2018, the PCRA court
appointed current counsel, Paul Puskar, Esquire, to represent Appellee.8
On October 18, 2018, the PCRA court held an evidentiary hearing, at
which Appellee testified. The court summarized Appellee’s claim and
testimony:
[T]he sole issue to be addressed is whether [Trial Counsel]
rendered ineffective assistance of counsel in failing to advise
[Appellee] of the mandatory sentencing enhancement under 42
Pa.C.S.[ ] § 9714(a)(1) during plea negotiations and prior to trial[.
States] Supreme Court has recognized a narrow exception to this rule for
prior convictions.”).
8 Attorney Puskar did not file an amended PCRA petition.
-4-
J-S55040-20
N.T., 10/18/18, at 5.] There are several facts that are not in
dispute. Both the Commonwealth and [Appellee] agree that the
“last best” plea offer extended to [Appellee] prior to trial was 3 to
10 years. Both parties agree that there was never any discussion
until the date of sentencing that if convicted, [Appellee] was facing
a mandatory sentencing enhancement of 10 years due to a prior
crime of violence. This fact was unknown to the Commonwealth,
[Trial Counsel, and Appellee] until the day of sentencing, when
the Commonwealth filed its Notice of Intent to Seek a Mandatory
Sentence.
During his testimony, [Appellee] confirmed that the last plea
offer was 3 to 10 years. [Id. at 6.] He indicated that [Trial
Counsel] never discussed with him the mandatory sentencing
enhancement and that “[t]he first I heard about it was the
morning of sentencing as I was coming upstairs to be sentenced.”
[Id. at 7. Appellee] noted that at the time of sentencing, he
brought it to the court’s attention that he had just learned of the
mandatory sentence and [Trial Counsel] admitted that he was
unaware of the mandatory enhancement until that morning. [Id.
at 8. Appellee] indicated that had he known of the 10-year
mandatory sentencing enhancement, he “absolutely would have
accepted the plea offer” of 3 to 10 years[. Id. at 7-8. T]he
specific relief he is seeking through his PCRA Petition is vacating
his 15 to 30-year sentence and imposition of the 3 to 10-year
sentence. [Id. at 10-11.]
[Appellee] acknowledged that he discussed with [Trial
C]ounsel the different charges he was facing and the possible
sentences for those charges. [Appellee] was originally
represented by Attorney Julia Burke of the Blair County Public
Defender’s Office. . . . The original plea offer of 3½ to 20 years
was offered at a time when [Appellee] had agreed to cooperate
with the Commonwealth and testified for the Commonwealth
during the preliminary hearing of his co-defendant. [Id. at 26-
27.] . . .
PCRA Ct. Op., 11/1/19, at 4-5.
The PCRA court then conducted a second evidentiary hearing, on August
8, 2019, at which Trial Counsel testified:
-5-
J-S55040-20
[Trial counsel] admitted that he never told [Appellee] of the 10-
year mandatory sentencing enhancement, as he was not aware of
same until the day of sentencing, when he received the Notice
from the Commonwealth. [N.T., 8/8/19, at 5. Trial Counsel]
reviewed the sentencing guidelines with [Appellee] prior to trial.
...
PCRA Ct. Op., 11/1/19, at 6.
On November 1, 2019, the PCRA court entered an opinion and order
granting Appellee’s petition. The court extensively considered Lafler v.
Cooper, 566 U.S. 156 (2012), and Commonwealth v. Steckley, 128 A.3d
826 (Pa. Super. 2015) (both cases discussed infra), and concluded Trial
Counsel “rendered ineffective assistance of counsel in failing to specifically
advise [Appellee] of the 10-year mandatory sentencing enhancement.” PCRA
Ct. Op., 11/1/19, at 9-16, 25-26. The court thus granted Appellee’s PCRA
petition and directed a resentencing hearing to be scheduled. The court
specified its “intention [was] to impose a 3 to 10 year sentence upon
[Appellee], consistent with his last plea offer.” Order, 11/1/19.
The Commonwealth filed a motion for reconsideration, arguing the PCRA
court erred in finding Trial Counsel was ineffective. The court granted the
petition and heard oral argument on February 20, 2020. On February 27th,
the court reinstated its decision to grant Appellee’s PCRA petition, and
furthermore vacated his robbery and conspiracy convictions. The court
reasoned that so long as Appellee’s robbery and conspiracy convictions stood,
the court was bound to impose the Section 9714(a) mandatory 10-year
-6-
J-S55040-20
sentence, and thus was proscribed from imposing the intended, lesser
sentence of 3 to 10-years. PCRA Ct. Supp. Op. & Order, 2/27/20, at 4.
On March 26, 2020, the Commonwealth filed this timely appeal, and
complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal.
The Commonwealth presents the following issues for our review:
1. Did the Court err[ ] in finding [Appellee’s Trial] Counsel
ineffective for not advising his client of the mandatories where
[Appellee] was advised of his sentencing exposure and stated on
record that he believed he would receive a more significant
sentence then imposed by the Court?
2. Did the Court lack jurisdiction in vacating the jury verdicts
of guilty for Robbery and Conspiracy Robbery?
Commonwealth’s Brief at 4.
II. Ineffective Assistance of Counsel
In its first issue, the Commonwealth contends the PCRA court erred in
finding Trial Counsel rendered ineffective assistance for not advising Appellee
of the Section 9714(a) mandatory sentence. The Commonwealth maintains
Trial Counsel advised Appellee “of his sentencing exposure and stated on the
record that [Trial Counsel] believed [Appellee] would receive a more
significant sentence [than] imposed by the” trial court. Commonwealth’s Brief
at 9. The Commonwealth also cites Appellee’s testimony, at trial, that “he
knew from speaking with his attorney(s) that he would receive even a greater
-7-
J-S55040-20
sentence than that which he received if he lost at trial.”9 Id., citing N.T. Trial,
12/8/16, at 38. The Commonwealth also maintains that the evidence of
record supports a finding that Appellee “is not credible and certainly that the
evidence contradicts [his] assertion that he would have taken the plea if he
knew about the mandatories.” Commonwealth’s Brief at 11.
We note the relevant standard of review:
This Court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record. We review
the PCRA court’s conclusions of law to determine whether they are
free from error. Our scope of review is limited to “the findings of
the PCRA court and the evidence on the record of the PCRA court’s
hearing, viewed in the light most favorable to the prevailing
party.”
Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (citations omitted).
“Great deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the certified
record.” Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super.2011).
This Court has stated:
[I]n order to obtain relief based on [an ineffective
assistance of counsel] claim, a petitioner must establish:
(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s actions or failure
to act; and (3) petitioner suffered prejudice as a result of
counsel’s error such that there is a reasonable probability
that the result of the proceeding would have been
different absent such error.
9 At trial, on direct examination, Appellee was asked why, at co-conspirator
Lance Phillip’s preliminary hearing, Appellee testified he participated in the
robbery. N.T., 12/8/16, at 38. Appellee responded in part, “They just wanted
it to be me so bad that I knew listen [sic], if I go to trial and lose they kept
telling me twenty years, thirty years, forty years.” Id.-8-
J-S55040-20
Trial counsel is presumed to be effective, and a PCRA
petitioner bears the burden of pleading and proving each of the
three factors by a preponderance of the evidence.
Steckley, 128 A.3d at 831 (citations omitted).
[A] post-conviction petitioner seeking relief on the basis that
ineffective assistance of counsel caused him or her to reject a
guilty plea must demonstrate the following circumstance:
[B]ut for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have
been presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would
not have withdrawn it in light of intervening
circumstances), that the court would have accepted its
terms, and that the conviction or sentence, or both,
under the offer’s terms would have been less severe than
under the judgment and sentence that in fact were
imposed.
Id. at 832, quoting Lafler, 566 U.S. at 164.
The PCRA court and both parties extensively discuss Steckley. See
PCRA Ct. Supp. Op. & Order, 2/27/20, at 7; PCRA Ct. Op., 11/1/19, at 12-15;
Commonwealth’s Brief at 9-11, 15-17, 26; Appellee’s Brief at 7-8. In that
case, defense counsel did not inform the defendant, Steckley — during plea
negotiations for a lesser sentence — that the Commonwealth could seek a 25-
year mandatory minimum sentence.10 Steckley, 128 A.3d at 830. Steckley
was found guilty by a jury of child pornography and received a sentence of 25
to 50 years’ imprisonment. Id. at 829. Steckley subsequently filed a PCRA
10 The mandatory sentence arose under 42 Pa.C.S. § 9718.2 for repeat sexual
offenders. Steckley, 128 A.3d at 829.
-9-
J-S55040-20
petition, alleging counsel was ineffective for “failing to inform him of the
potential that the Commonwealth would seek imposition of a [25] year
mandatory minimum sentence.” Id. at 830. The PCRA court agreed, finding
it was “reasonably probable that Steckley would have accepted the plea offer”
and furthermore, “Steckley demonstrated a reasonable probability that, had
he accepted the Commonwealth’s plea offer, the court would have imposed a
sentence less severe than the one he received following trial.” Id. at 834-35.
This Court found Steckley satisfied all of the prongs of the Lafler test:
Steckley was not required to prove that trial counsel’s deficient
conduct caused a worse result for him. A “reasonable probability”
is sufficient. See Lafler, [566 U.S. at 164.] In granting Steckley
post-conviction relief, the PCRA court found reasonably probable
Steckley’s contention that he would have accepted the
Commonwealth’s plea offer without either the Commonwealth
withdrawing it or the trial court rejecting it. Because the certified
record supports those findings, we may not disturb them on
appeal.
Steckley, 128 A.3d at 836.
In the instant case, after a thorough review of the record, the parties’
briefs, the applicable law, and the well-reasoned analysis of the Honorable
Timothy M. Sullivan, we conclude the Commonwealth’s first issue merits no
relief. The court found some of Appellee’s PCRA hearing testimony not
credible — specifically, Appellee’s denial that Trial Counsel had reviewed the
sentencing guidelines with him, and Appellee’s testimony that it was not his
decision to go to trial. PCRA Ct. Op., 11/1/19, at 17-18. Nevertheless, the
court found, as stated above, that “it is clear [Appellee] was never specifically
- 10 -
J-S55040-20
advised of the 10 year mandatory sentencing enhancement due to a prior
crime of violence.” PCRA Ct. Op., 11/1/19, at 9. The court further found,
pursuant to Lafler and Steckley: (1) Appellee established “that but for the
ineffective advice of [Trial C]ounsel, there is a reasonable probability that he
would have accepted the plea;” (2) the trial court would have accepted the
terms of the plea agreement and sentenced Appellee accordingly; and (3)
“there can be no dispute that the plea offer’s terms of 3 to 10 years is much
less severe than the 15 to 30 year sentence that was, in fact, imposed.” Id.
at 24-25. The court thus concluded Appellee established Trial Counsel’s
ineffective assistance where:
[Appellee’s] underlying claim has arguable merit[. T]here was no
reasonable basis for [T]rial [C]ounsel not to inform [Apellee] of
the mandatory sentencing enhancement if convicted[. Appellee]
has suffered prejudice as a result of counsel’s error such that there
is a reasonable probability that the result of the proceeding would
have been different absence such error.
Id. at 26.
As Appellee prevailed in the underlying PCRA proceedings, we review
the evidence on the record and the court’s findings in the light most favorable
to him. See Sam, 952 A.2d at 573. While the Commonwealth emphasizes
Appellee was advised of potential maximum sentences that exceeded 10 years
anyway, we conclude the PCRA court’s findings of fact — after weighing the
witnesses’ credibility — are supported by the record, and the conclusions of
law are free from error. See id. We thus decline to disturb the court’s finding
as to Trial Counsel’s ineffectiveness.
- 11 -
J-S55040-20
III. Vacating Robbery & Conspiracy Convictions
The Commonwealth’s second issue on appeal, articulated in both its
statement of questions involved and in the relevant heading in the argument
section of its brief, is: “Did the [PCRA] Court lack jurisdiction in vacating the
jury verdicts of guilty for Robbery and Conspiracy Robbery?” Commonwealth’s
Brief at 4, 28. The Commonwealth’s entire supporting discussion is one
paragraph:
Upon further review, the case law does provide jurisdiction
for the Trial Court to vacate convictions as one of the remedies for
PCRA cases. The Commonwealth relies on its first issue as
to there being no ineffectiveness of counsel or in the
alternative the Trial Court committing error in its remedy in this
case based on the totality of the evidence.
Id. at 28 (emphasis added).
While the Commonwealth’s supposed challenge, and immediate
concession, to the PCRA court’s jurisdiction may be inartful, we note that in
its first issue, the Commonwealth also challenged the PCRA court’s decision to
vacate the robbery and conspiracy convictions. The Commonwealth claimed:
(1) the PCRA court’s vacating Appellee’s robbery and conspiracy convictions
“does not fit the remedy scheme set forth in Lafler;” (2) “Vacating these
charges takes away the most significant counts of violent crimes [Appellee]
committed against the victims;” and (3) “Ordering the original plea offer be
reinstated as an alternative is also inappropriate as this is a direct windfall to”
Appellee. Commonwealth’s Brief at 24. We remind the Commonwealth the
argument section of a brief shall present “such discussion and citation of
- 12 -
J-S55040-20
authorities as are deemed pertinent” for each issue. See Pa.R.A.P. 2119(a).
Nevertheless, because we may discern the Commonwealth’s arguments, we
decline to find waiver. See Commonwealth v. Stradley, 50 A.3d 769, 771
n.2 (Pa. Super. 2012) (“While we could find Appellant’s issues waived [for the
failure to include a separate recitation of his issues, in violation of Pa.R.A.P.
2116,] we will overlook the defect because Appellant has raised the questions
involved in the argument section of his brief, and this omission does not
impede our ability to address the merits of those issues.”).
After finding Appellee is entitled to relief on his ineffectiveness claim,
the PCRA court reviewed the possible remedies, against the framework set
forth by the United States Supreme Court in Lafler:
Sixth Amendment remedies should be “tailored to the injury
suffered from the constitutional violation and should not
unnecessarily infringe on competing interests.” Thus, a remedy
must “neutralize the taint” of a constitutional violation, while at
the same time not grant a windfall to the defendant or
needlessly squander the considerable resources the State
properly invested in the criminal prosecution[.]
See Lafler, 566 U.S. at 170 (emphasis added); PCRA Ct. Supp. Op. & Order,
2/27/20, at 3.
The PCRA court first considered the option of affirming all the convictions
and simply resentencing Appellee “without application of the 10 year
sentencing enhancement” required by Section 9714(a). PCRA Ct. Supp. Op.
& Order, 2/27/20, at 3. The court, however, properly observed this sentencing
enhancement was mandatory, and thus, so long as the convictions stood, the
- 13 -
J-S55040-20
court could not “ignore” it. Id. at 4. See 42 Pa.C.S. § 9714(a) (any person
convicted of a second “crime of violence” shall be sentenced to a minimum
sentence of ten years’ confinement), (e) (there shall be no authority to impose
any lesser sentence than provided for in subsection (a)).
Next, the PCRA court found “the reversal of [Appellee’s] conviction[s]
is not the appropriate remedy,” where “providing [him] a new trial would give
him an opportunity to obtain . . . an acquittal on the more serious offenses, a
remedy that would be disproportionate so far as [Appellee] has not pleaded
nor proved any irregularity [in] the jury’s verdict of guilty.” PCRA Ct. Supp.
Op. & Order, 2/27/20, at 6-7 (emphasis added).
The court then considered the discussion in Lafler, that “if a mandatory
sentence confines a judge’s sentencing discretion after trial, a resentencing
based on the conviction at trial may not suffice. In these circumstances, the
proper exercise of discretion to remedy the constitutional injury may be to
require the prosecution to reoffer the plea proposal.” See Lafler, 566
U.S. at 171 (emphasis added); PCRA Ct. Supp. Op. & Order, 2/27/20, at 4.
The PCRA court further considered Steckley, in which, as stated above,
the PCRA court in that case found meritorious Steckley’s claim of ineffective
assistance of counsel. See Steckley, 128 A.3d at 834-35. The Steckley
PCRA court then granted relief in the form of vacating Steckley’s convictions
“and relisting his cases for trial.” Id. at 830. The Commonwealth appealed
to this Court, which affirmed the finding of ineffective assistance of counsel
- 14 -
J-S55040-20
but, pursuant to Lafler, determined the PCRA court erred in awarding
Steckley a new trial:
[T]he prejudice Steckley suffered — a sentence substantially
longer than the one offered under the imprudently rejected plea
offer — might remain after one retrial or even after ten retrials.
. . . On the other hand, a new trial gives Steckley another
opportunity to obtain an acquittal, a remedy that would be
disproportionate insofar as Steckley has neither pleaded nor
proved any irregularity in the jury’s guilty verdict.
The PCRA court’s remedy [also] risks “grant[ing Steckley] a
windfall.”
Steckley, 128 A.3d at 837. This Court thus held:
Because the court’s sentencing discretion is confined by a
mandatory minimum sentence, the only logical remedy to
neutralize Steckley’s constitutional injury is “to require the
prosecution to reoffer the plea proposal.” Accordingly, we reverse
the PCRA court’s order to the extent that it awarded Steckley a
new trial, and we remand this case to the PCRA court with
instructions to resentence Steckley according to the plea bargain
that he previously rejected due to his attorney’s deficient
performance.
Id. at 837-38.
Here, the PCRA court applied the disposition of Steckley squarely to the
facts before it. The court vacated Appellee’s robbery and conspiracy
convictions, a remedy it found would “address[ ] the deprivation of
[Appellee’s] Sixth Amendment rights.” PCRA Ct. Supp. Op., 2/27/20, at 7.
However, the court did not disturb Appellee’s remaining convictions —two
counts each of simple assault and terroristic threats, and one count each of
theft by unlawful taking and receiving stolen property — as “[t]here are no
constitutional concerns relative to [those] jury verdicts” or to counsel’s
- 15 -
J-S55040-20
explanation of their potential sentences. Id. at 8. Although the PCRA court
vacated the two convictions, it further explained: “We will schedule the matter
for a further sentencing hearing. . . . We believe that this remedy represents
a balancing of the Commonwealth’s interest in maintaining the integrity of the
jury verdict with [Appellee’s] interests based upon the injury he suffered as a
result of the constitutional violation.” Id. at 7-8.
After careful review of Lafler, Steckley, and the PCRA court’s thorough
discussion, we affirm the decision to vacate the two convictions (robbery and
conspiracy) affected by Trial Counsel’s ineffectiveness. We emphasize — as
did the PCRA court — that affirming the convictions and simply resentencing
Appellee to a shorter term is not permissible under Section 9714(a).
Furthermore, the PCRA court is not reversing the two convictions, nor
vacating them for a new trial, as such a remedy may ultimately create a
windfall to Appellee. Instead, as the court reasoned, the vacating is necessary
to reach the ultimate relief intended: resentencing. We thus affirm the court’s
order to schedule a resentencing hearing, so that it may impose a new
sentence of three to 10 years’ imprisonment, in accordance with “the plea
bargain that [Appellee] previously rejected due to his attorney’s deficient
performance.” See Steckley, 128 A.3d at 838.
- 16 -
J-S55040-20
IV. Conclusion
For the foregoing reasons, we affirm the order of the PCRA court
granting Appellee’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2021
- 17 -