Com. v. Dates, J. ( 2021 )

J-S28035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAHMAES ZAIRE DATES :
:
Appellant : No. 487 EDA 2021
Appeal from the PCRA Order Entered November 16, 2020
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003581-2018
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: October 13, 2021
Jahmaes Zaire Dates (Dates) appeals from the November 16, 2020
order of the Court of Common Pleas of Northampton County (PCRA court)
dismissing his petition filed pursuant to the Post-Conviction Relief Act (PCRA).1
We affirm.
We glean the following facts from the certified record. On April 29,
2019, Dates pled guilty to one count of persons not to possess a firearm.2 The
Commonwealth withdrew charges of receiving stolen property, carrying a
firearm without a license, public drunkenness, delivery of a controlled
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq.
2 18 Pa.C.S. § 6105(a)(1).
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substance and possession with intent to deliver a controlled substance.3 There
was no agreement as to sentence. The trial court informed Dates that the
maximum term of incarceration was 20 years and the standard range of the
sentencing guidelines based on a prior record score (PRS) of four was 60 to
78 months of incarceration. The trial court told Dates that his sentence would
be served in state prison and then reviewed his written guilty plea colloquy on
the record before accepting the plea. Sentencing was deferred because Dates
sought to cooperate with law enforcement by making controlled drug buys in
exchange for a lesser sentence.
Dates proceeded to sentencing on July 24, 2019. Prior to sentencing,
the director of pretrial services told the trial court that Dates had missed 22
scheduled drug and alcohol tests while awaiting sentencing. He had failed to
respond to numerous attempts to contact him. Dates explained that he could
not afford to take the tests because he was unemployed. Additionally, when
the trial court asked if Dates had provided any of the promised assistance to
law enforcement, the Commonwealth responded that he had provided only
minor assistance and had not completed any successful drug buys. The
Commonwealth nevertheless said that Dates’ failure to cooperate did not
change its position on the plea agreement. The Commonwealth also noted
that while it had previously calculated Dates’ PRS as a four, the probation
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3 18 Pa.C.S. §§ 3925(a), 6106(a)(1), 5505; 35 P.S. § 780-113(a)(30).
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department had calculated it as a three prior to sentencing. As a result, the
standard range of the sentencing guidelines was a minimum of 54 to 72
months’ incarceration.
In his allocution, Dates apologized for his crime and asked for leniency
in sentencing or additional time to attend a funeral and attempt to cooperate
with law enforcement before he was incarcerated. The court rejected the
request because he had failed to comply with pretrial services and had already
been granted additional time to work with law enforcement. Immediately
before the sentence was imposed, plea counsel brought up a boot camp4
sentence:
[Plea counsel]: Judge, just one final question. We did discuss
the idea of a boot camp sentence. I’m not particularly familiar if
that is a sentence you would impose or a sentence that he goes
to state prison originally and then they would evaluate him for
boot camp.
The court: Boot camp is like nine months. There’s no way he’s
getting boot camp.
Notes of Testimony, 7/24/19, at 14. The court then sentenced Dates to 54 to
108 months’ incarceration, explaining that it was imposing a sentence at the
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4 Motivational boot camp is a program within the state prison system “in which
eligible inmates participate for a period of six months in a humane program
... which shall provide for rigorous physical activity, intensive regimentation
and discipline, work on public projects, substance abuse treatment services
licensed by the Department of Health, continuing education, vocational
training, prerelease counseling and community corrections aftercare.” 61
Pa.C.S. § 3903.
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low end of the standard range because of the information he had provided to
law enforcement. Dates did not file a direct appeal.
On May 5, 2020, Dates filed a timely first PCRA petition. The PCRA court
appointed counsel who filed an amended petition. Relevant to this appeal,
Dates claimed that plea counsel was ineffective and induced him to enter an
involuntary and unknowing plea because he told Dates that he would be
eligible for the boot camp program. In fact, the sentencing guidelines for
Dates’ offense rendered him ineligible.
The PCRA court held a hearing on the petition on October 1, 2020, at
which plea counsel and Dates testified. Plea counsel testified that Dates told
him prior to his plea that he wanted to cooperate with law enforcement to
conduct drug buys to reduce his sentence. Plea counsel said that he believed
Dates attempted to conduct one buy but was unsuccessful. When Dates
entered his plea, there was no agreement as to the sentence, but between
the plea and sentencing hearings, he remained free on bail so that he could
cooperate with law enforcement. Plea counsel testified that even though the
guideline sentencing ranges were placed on the record at the plea hearing, he
and Dates understood that he could withdraw his plea and enter a more
favorable one if he cooperated with law enforcement before sentencing.
Plea counsel testified that he discussed the possibility of boot camp with
Dates and the Commonwealth prior to the plea hearing, but that “had never
[] been set in stone” and he was “not a hundred percent sure if [Dates] was
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eligible for boot camp.” Notes of Testimony, PCRA Hearing, 10/1/20, at 6-7.
Between the plea and sentencing hearings, plea counsel spoke to Dates about
cooperating with law enforcement and reminded him that his cooperation was
necessary to get a favorable sentence. Plea counsel testified that the
negotiated plea involved lowering the PRS and withdrawing certain charges in
an effort to put Dates in the best possible position for sentencing, including
the possibility of boot camp.
Plea counsel testified that Dates had said on multiple occasions that he
would cooperate with law enforcement in any way to reduce his sentence.
Dates ultimately did not make any successful drug buys or provide law
enforcement with any useful information. Based on the charges originally filed
and a PRS of four, Dates had been facing a sentence of approximately 111 to
222 months of incarceration at the bottom of the standard range. Dates was
ultimately sentenced to a single count of persons not to possess based on a
PRS of three, despite his lack of cooperation with law enforcement.
Regarding boot camp eligibility, plea counsel testified that at that time,
he had never had a client apply for the boot camp program, but he assumed
that it would be possible if Dates cooperated with law enforcement. He
conceded that he did not know at that time that a standard-range sentence
for Dates’ offense would render him ineligible for boot camp. Plea counsel
further testified that there was never a promise regarding boot camp from the
Commonwealth during the negotiations.
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Dates also testified at the PCRA hearing that he believed that he could
improve his sentence by cooperating with law enforcement between his plea
and sentencing hearings. He first testified that he spoke about boot camp
with plea counsel and was never told that a standard-range sentence would
render him ineligible for boot camp. He also spoke with plea counsel twice
between the plea and sentencing hearings and told him that he wanted a boot
camp sentence. Dates testified that based on his discussions with plea
counsel, he believed he was at least eligible for boot camp. He said that boot
camp eligibility affected his decision to plead guilty.
Dates said that after his sentencing hearing, he requested that plea
counsel file a motion for reconsideration of his sentence, but plea counsel
failed to do so. He again asked about boot camp and plea counsel responded
that he “would work on it.” Id. at 24. He did not hear anything further from
plea counsel despite trying to contact him and having his family reach out on
his behalf.
Dates recalled that at the plea hearing, he was told he was facing a
minimum sentence of 60 months. Contradicting his earlier testimony, he then
said that at the time of the plea hearing, he did not know whether he would
be eligible for boot camp and that plea counsel did not tell him that he was
boot camp eligible. However, he believed that his sentence would be lower
than the 60-month minimum, and that he would be sentenced to boot camp
based on his agreement to cooperate with law enforcement and his
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conversations with plea counsel. He did not believe that the sentencing ranges
placed on the record at his plea hearing would govern his ultimate sentence.
However, on cross-examination, Dates testified that plea counsel
promised him a boot camp sentence but conceded that the district attorney
had never made that promise to him. He said that he cooperated with law
enforcement by making one drug sale and giving information related to
multiple shootings. He believed that his PRS was assessed as a three at
sentencing because it had been incorrectly calculated as a four previously.
Following the reception of the evidence, the PCRA court deferred ruling
on the petition and allowed the parties to submit briefs in support of their
positions. On November 16, 2020, the PCRA court issued an order and
accompanying opinion denying the petition. Dates timely appealed and he
and the PCRA court have complied with Pa. R.A.P. 1925.
Dates raises one issue on appeal: whether the PCRA court erred by
denying relief on his claim that plea counsel was ineffective and unlawfully
induced his guilty plea based on the incorrect advice that he would be eligible
for the state motivational boot camp program.5
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5 “Our standard of review of a trial court order granting or denying relief under
the PCRA calls upon us to determine ‘whether the determination of the PCRA
court is supported by the evidence of record and is free of legal error.’”
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citation
omitted). “This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to the findings of
the PCRA court and the evidence of record[.]” Commonwealth v. Rigg, 84
(Footnote Continued Next Page)
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“[T]o succeed on an ineffectiveness claim, a petitioner must
demonstrate that: the underlying claim is of arguable merit; counsel had no
reasonable basis for the act or omission in question; and he suffered prejudice
as a result[.]” Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015)
(citations omitted). “[F]ailure to prove any of these prongs is sufficient to
warrant dismissal of the claim without discussion of the other two.”
Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citation
omitted). “Under the PCRA, allegations of ineffectiveness in connection with
the entry of a guilty plea would serve as a basis for relief only if the
ineffectiveness caused the petitioner to enter an involuntary or unknowing
plea.” Commonwealth v. Brown, 235 A.3d 387, 391 (Pa. Super. 2020)
(cleaned up; citation omitted).
To determine whether a plea was knowingly, voluntarily and intelligently
entered, the court must inquire into six areas. See Pa.R.Crim.P. 590, cmt
(plea court must question the defendant regarding whether he understands
the nature of the charges, the factual basis for the plea, his right to a jury
trial, the presumption of innocence, the permissible sentencing ranges, and
that the court has the right to reject the agreement). “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
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A.3d 1080, 1084 (Pa. Super. 2014) (citations and internal quotation marks
omitted).
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of attorneys in criminal cases.” Commonwealth v. Moser, 921 A.2d 526,
531 (Pa. Super. 2007) (internal quotations and citation omitted).
Once a defendant has entered a plea of guilty, it is presumed that
he was aware of what he was doing, and the burden of proving
involuntariness is upon him. Therefore, where the record clearly
demonstrates that a guilty plea colloquy was conducted, during
which it became evident that the defendant understood the nature
of the charges against him, the voluntariness of the plea is
established. A defendant is bound by the statements he makes
during his plea colloquy, and may not assert grounds for
withdrawing the plea that contradicts statements made when he
pled.
Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)
(citations omitted).
Under the terms of the motivational boot camp statute, an inmate is
only eligible for boot camp if, inter alia, he is serving a sentence “the minimum
of which is not more than two years and the maximum of which is five years
or less,” or “the minimum of which is not more than three years where that
inmate is within two years of completing his minimum term.” 61 Pa.C.S.
§ 3903. This Court has previously found that plea counsel was ineffective
when he incorrectly advised his client that he would be eligible for boot camp
following a guilty plea after he served two years of a four-to-eight-year
sentence. Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super.
2002) (“Thus based on an ignorance of relevant sentencing law, counsel’s
advice was legally unsound and devoid of any reasonable basis designed to
effectuate Appellant’s interests.”).
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Moreover, the petitioner in Hickman established that he was prejudiced
by counsel’s advice. To establish prejudice, a petitioner “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.” Id. at 141 (citation omitted). Crucially,
the petitioner and counsel agreed that he would have proceeded to trial but
for the opportunity to participate in boot camp and the PCRA court credited
that testimony. Id. Further, because a guilty verdict at trial would have only
carried the risk of increasing his minimum sentence by one year, it was
probable that the petitioner would have elected to go to trial but for the
opportunity for a boot camp sentence with his plea. Id. at 141-42.
Hickman is distinguishable from the facts herein. There, plea counsel
stated on the record at the sentencing hearing that he believed the petitioner
was eligible for boot camp, and the sentencing order directed that he would
be “deemed boot camp eligible as soon as the State determines he has served
enough time to apply for the boot camp program.” Id. at 139 (citation
omitted). Thus, the record supported the petitioner’s assertions that he had
specifically contemplated boot camp eligibility as a component of his plea.
Here, boot camp eligibility was not discussed at the guilty plea hearing.
Plea counsel testified that while he hoped that cooperation with law
enforcement between the plea and sentencing hearings would result in a
favorable sentence, boot camp was never promised as a condition of the plea.
Plea counsel testified that if Dates cooperated with law enforcement prior to
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the sentencing hearing, he would be permitted to withdraw his plea and enter
a more favorable one. He said that he told Dates multiple times between the
plea and sentencing hearings that if he did not cooperate with law enforcement
counsel, he would be unable to secure a lesser sentence. However, plea
counsel confirmed at the PCRA hearing that at the time of the plea, he was
not aware that the standard-range sentence would render Dates ineligible for
boot camp. The PCRA court credited plea counsel’s testimony. See PCRA
Court Opinion, 11/16/20, at 4-5.
Dates contradicted himself at the PCRA hearing, testifying on different
occasions that he believed he was eligible for boot camp when he entered his
plea and that plea counsel promised him boot camp and that he did not know
whether he was eligible, and plea counsel had not represented that to him at
the time of his plea hearing. Notes of Testimony, 10/1/20, at 22, 26-27.
However, he subjectively believed that he would be eligible for boot camp.
Plea counsel and Dates both testified at the PCRA hearing that they did
not believe the sentencing ranges placed on the record at the time of the plea
would govern the ultimate sentence if Dates delivered on his promise to help
law enforcement. Thus, even though the sentencing ranges placed on the
record at the plea hearing rendered Dates ineligible for boot camp, he did not
believe that the range would apply at his sentencing hearing. Instead, he
intended to secure a more favorable plea through cooperation with law
enforcement but failed to provide that assistance. Because plea counsel did
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not promise Dates a boot camp sentence, and any reduction in his possible
sentence was contingent on his cooperation with law enforcement, we cannot
conclude that plea counsel induced Dates to enter an involuntary and
unknowing plea.
Moreover, our review of the record of the plea hearing and the written
guilty plea colloquy confirms that Dates understood the nature of the charges,
the factual basis for the plea, his right to a jury trial, the presumption of
innocence, the permissible sentencing ranges, and that the trial court could
reject the agreement. See Pa.R.Crim.P. 590, cmt. He further testified that
he had not been promised anything in exchange for his plea. Dates may not
now contradict his statements under oath at the guilty plea hearing in order
to invalidate his plea. McCauley, supra. Accordingly, he has not established
that plea counsel’s ineffectiveness induced him to enter an involuntary and
unknowing plea and the PCRA court did not err in denying relief on this claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/21
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