Com. v. Daniel, L. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LAMONT DANIEL :
:
Appellant : No. 1636 EDA 2020
Appeal from the PCRA Order Entered August 10, 2020
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0000319-2016
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 21, 2021
Appellant, Lamont Daniel, appeals pro se from the order entered on
August 10, 2020, dismissing his first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9646. We vacate the
order and remand for additional proceedings.
We briefly summarize the facts and procedural history of this case as
follows. “A search of [Appellant’s] apartment by agents of the Pennsylvania
Board of Probation and Parole uncovered one hundred and twenty-nine (129)
bags of heroin in a shoe box in the bedroom of that apartment.” PCRA Court
Opinion, 9/24/2020, at 1-2. Thereafter, on June 16, 2016, a jury found
Appellant guilty of possession with intent to deliver a controlled substance
(heroin), possession of a controlled substance, and possession of drug
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paraphernalia.1 On December 12, 2016, the trial court sentenced Appellant
to seven to 15 years of incarceration. This Court affirmed Appellant’s
judgment of sentence on July 18, 2018. See Commonwealth v. Daniel,
2018 WL 3454078 (Pa. Super. 2018) (unpublished memorandum). On
January 30, 2019, our Supreme Court denied further review. See
Commonwealth v. Daniel, 201 A.3d 157 (Pa. 2019).
Thereafter,
[o]n December 3, 2019, [A]ppellant filed a pro se [PCRA petition]
alleging [that] trial counsel was ineffective because he "failed to
provide a full consultation regarding [Appellant’s] guilty plea
decision." Counsel was appointed to represent [A]ppellant, and on
March 4, 2020, [appointed PCRA] counsel filed a motion to
withdraw as counsel and a [] letter [pursuant to Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988)]. PCRA counsel found
that [A]ppellant's "sole claim of error that trial counsel failed to
adequately consult with him about the advisability of pleading
guilty ... to be legally meritless." On March 10, 2020, [the PCRA
c]ourt issued a notice of [its] intention to dismiss the PCRA
petition [without a hearing] pursuant to Pa.R.Crim.P. 907(1).
[A]ppellant filed a response to [the] notice of intent to dismiss on
April 6, 2020, alleging he did not receive a copy of the Finley
letter. As a result, [the PCRA c]ourt entered an order on May 1,
2020, granting [A]ppellant an additional sixty (60) days to file a
Pa.R.Crim.P. 907(1) response. On June 19, 2020, [A]ppellant filed
a response [] alleging PCRA counsel's Finley letter was issued
without interviewing witnesses who may have supported his PCRA
claims.
* * *
On August 10, 2020, the [PCRA court dismissed A]ppellant's PCRA
petition[.] On August 17, 2020, [the PCRA court issued] an
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1 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32),
respectively.
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amended order [] which granted PCRA counsel's motion to
withdraw.
PCRA Court Opinion, 9/24/2020, at 2-3 (original brackets, footnotes, and
unnecessary capitalization and quotations omitted).
More specifically, and relevant to the current appeal, Appellant asserts
that the Commonwealth, before trial, offered him a guilty plea agreement with
a negotiated minimum sentence of 18 months of imprisonment. Memorandum
of Law in Support of PCRA Petition, 12/3/2019, at 6. Appellant acknowledges
that he met with trial counsel several times prior to trial to discuss the plea
offer and general trial strategy. Id. Appellant posits, however:
Trial began and [trial counsel] outlined the case he planned to
present primarily through [Appellant’s] testimony. The
Commonwealth presented their witnesses and rested at the end
of the first day. At the outset of the second day, [trial counsel]
visited [Appellant] in the holding cell. He said that the
Commonwealth had a tape[-]recorded conversation from the
county jail during which [Appellant] claimed the drugs were his.
[Trial counsel] said that he had not heard the tape but did not
expect it to be very damaging. He told [Appellant] that he planned
to stipulate to the tape being played and that [Appellant] would
testify after the Commonwealth played the tape for the jury.
Both [Appellant] and [trial counsel] heard the tape for the first
time when the Commonwealth played it [at trial].
Id. Appellant also acknowledges that the decision to plead guilty was
ultimately his to make and that he opted for trial. Id. at 10. Citing the
American Bar Association’s standards for criminal justice, however, Appellant
claims that trial counsel failed to fully consult with him:
In this case, [trial counsel] specifically advised [Appellant] that
the tape[-]recorded prison phone call was not a big deal and would
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not impact their defense. He failed to properly explain that what
[Appellant] was saying on that tape cut directly against his trial
testimony and would certainly undermine his credibility in the
eyes of the jury. It was because [Appellant] believed [trial]
counsel's legal assessment of the tape as weak evidence that
[Appellant] could not properly weigh the risk of a trial against the
offer of [a sentence of] 18 to 36 months [of imprisonment] that
was on the table. Due to the fact that [trial counsel’s] consultation
with his client failed to include listening to the tape together and
discussing the implications of what was on it and how that tape
could be used to undercut [Appellant’s] proposed testimony, the
advice [trial counsel] provided about the low risk of losing
[Appellant] faced at trial should be deemed objectively
unreasonable.
Id. at 11-12.2
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2 Here, as will be discussed at length, Appellant’s claim turns on whether trial
counsel knew about the prison recording, and that the Commonwealth
planned on introducing it at trial, prior to the plea negotiations. We note that
Appellant was arrested on November 20, 2015. See N.T., 6/15/2016, at 67,
103, and 121. The prison conversation at issue occurred two days later, on
November 22, 2015. See N.T., 6/16/2016, at 60. There is no evidence of
record specifying when the Commonwealth exchanged discovery or turned
over the prison recording to trial counsel. Likewise, there is no record
evidence that trial counsel learned about the prison recording from another
source. Trial began on June 15, 2016. Prior to jury selection, the
Commonwealth set forth the plea agreement on the record. See N.T.,
6/15/2016, at 5-6. The trial court conducted a plea colloquy and, thereafter,
Appellant rejected the offer. Id. at 6-7. The case proceeded to jury selection
and the jury trial immediately commenced. Appellant claims that it was not
until after the first day of trial, and before the second day started, that he
learned from trial counsel that the Commonwealth intended to use the prison
recording at trial. He asserts that trial counsel had a duty to fully consult with
him regarding the effect of the prison recording before he could enter an
informed plea. We note, however, that Appellant also suggests that trial
counsel was unaware of the content of the prison recording or that the
Commonwealth intended to use the prison recording until the second day of
trial. If trial counsel was not aware of the prison recording during the plea
negotiations, he could hardly be considered ineffective for failing to consult
about it. If, however, trial counsel possessed the prison recording or knew of
the conversation (and the possibility it was recorded) and nevertheless failed
(Footnote Continued Next Page)
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In his no-merit letter to the court, PCRA counsel opined:
[Appellant’s] sole claim of error is that [t]rial [c]ounsel failed to
adequately consult with him about the advisability of pleading
guilty. This claim is legally meritless. Essentially, [Appellant]
alleges that, had [t]rial [c]ounsel adequately consulted with him,
he would have pleaded guilty instead of exercising his right to a
jury trial. In support of this assertion, [Appellant] has proffered
the testimony of Wendy Chelder[, a trial witness] who, if called to
testify [on PCRA review], would testify that: (1) she spoke to
[t]rial [c]ounsel prior to the trial commencing; (2) [t]rial [c]ounsel
advised her that [Appellant’s] trial was "winnable" because there
were inconsistencies in the witness's stories; (3) she relayed this
information to [Appellant] during an audio-recorded prison visit;
and (4) she regularly spoke to [Appellant] about the case during
audio-recorded prison visits. Further, [Appellant] alleges that
[t]rial [c]ounsel never advised him that his conversations during
non-attorney prison visits were recorded, or that these recorded
conversations could be used against him at trial.
This issue is meritless. […T]he decision to reject a plea offer and
to proceed to trial is a decision solely for a criminal defendant to
make. See [Commonwealth v. Johnson, 179 A.2d 1153, 1160
(Pa. Super. 2018)]. [Appellant] was not prejudiced by his decision
because his choice did not so undermine the truth-determining
process that no reliable adjudication of guilt or innocence took
place. Rather, [Appellant] got the benefit of a full and unfettered
truth determining process. The only prejudice [Appellant] can
claim here is that he received a longer sentence by going to trial
rather than admitting his guilt, and that prejudice is not cognizable
under the [PCRA.3]
____________________________________________
to consult with Appellant about its impact upon the advisability of accepting
the plea agreement, Appellant may have a colorable claim. Because Appellant
has raised issues of material fact, we believe, for the reasons that follow, an
evidentiary hearing is warranted.
3 As will be discussed, to show prejudice under the PCRA, a petitioner must
prove there is a reasonable probability that the outcome of the proceedings
would have been different but for trial counsel's ineffectiveness. Here,
Appellant claims he was prejudiced, and his plea decision would have been
(Footnote Continued Next Page)
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No-Merit Letter, 3/4/2020, at 4-5 (citation, quotations, and original brackets
omitted).
In its Rule 907 notice of intent to dismiss the PCRA petition, the PCRA
court stated:
the entire plea offer was put on the record before the [trial c]ourt
prior to the selection of the jury, which involved a cap on the
minimum sentence of eighteen (18) months. [Appellant] was
specifically queried by the [trial c]ourt regarding [trial] counsel's
review of the plea with [Appellant] and his decision to reject it:
THE COURT: Okay. You've reviewed that agreement with
[Appellant?]
[COUNSEL:] I have, Your Honor.
THE COURT: Okay. And your client has rejected it?
[APPELLANT]: Yes.
THE COURT: Okay. And [the agreement as set forth by the
Commonwealth] was, that was explained to you by [trial
counsel]?
[APPELLANT]. Yes.
THE COURT: Just so that we understand each other, if you're
convicted of the most serious offense, there's no guarantee
that you're going to get a minimum of 18 months. You could
— not likely — but you could get 15 to 30 years in jail, and
there's no requirement that [the trial court] comply with the
[sentencing] guidelines. [The trial court must] consider the
guidelines, but [is] not bound by the guidelines.
So in this particular case, you're on state parole when this
occurred. That would be a — for a drug offense — which
would be a reason in and of itself to deviate from the
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different, if there had been proper legal consultation prior to Appellant
rejecting the plea agreement and proceeding to trial. Under prevailing law,
discussed at length below, this is the proper focus for exploring whether trial
counsel was ineffective.
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guidelines. Just so that you understand that there's no
guarantee if you're convicted of this you're going to get 18
months or even 24 months or even 30 months so we
understand each other.
[APPELLANT]: Yes.
THE COURT: Okay. Then you understand the risks that
you're taking and that's your decision to make. It's your life,
so you have to make decisions.
[N.T., 6/15/2016, at] 6-7.
Notice of Intent to Dismiss, 3/10/2020, at 1 n.5.
The PCRA court further determined that Appellant, by his own
admission, met with trial counsel multiple times to discuss the plea deal prior
to trial and, therefore:
The only conclusion that can be reached following a review of the
record is that [trial] counsel fulfilled his duty of providing
[Appellant] with a full consultation regarding his case before the
petitioner decided on his own to reject the plea offer and proceed
to trial. As PCRA counsel adeptly notes[], the decision to enter a
guilty plea is one of the fundamental decisions that must be
decided by the criminal defendant himself. See Jones v. Barnes,
463 U.S. 745, 751 (1983). "The accused has the ultimate
authority to make certain fundamental decisions regarding the
case, as to whether to plead guilty, waive a jury, testify in his or
her own behalf, or take an appeal." [Johnson, 179 A.2d [at]
1160]. Although [trial] counsel might have suggested that a
certain course of action be taken, the final decision rested with
[Appellant]. For that reason, his claim must fail.
Id.Ultimately, in its Rule 1925(a) opinion, the PCRA court concluded:
Here, [trial] counsel consulted with his client repeatedly, including
reviewing the terms of the proposed plea agreement. The terms
of the proposed plea were memorialized on the record during the
first day of the trial. [A]ppellant, on the record, rejected the
proposed plea. He had no questions, requested no further
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consultation with counsel, and acknowledged that he understood
the potential sentence he faced if he was found guilty.
PCRA Court Opinion, 9/24/2020, at 4-5 (record citations omitted). Citing
cases from this Court, wherein we examined PCRA claims of ineffective
assistance of counsel regarding sentences imposed following guilty pleas, the
PCRA court opined Appellant did not receive misinformation in this case. Id.
at 5-6, citing Commonwealth v. Brown, 2020 WL 3968093 (Pa. Super.
2020)(counsel's advice was not within the range of competence demanded of
attorneys in criminal cases where the decision to plead guilty was based on a
guideline miscalculation.); Commonwealth v. Rathfon, 899 A.2d 365 (Pa.
Super. 2006) (counsel did not provide effective assistance during plea process
by misrepresenting or misapprehending that sentence would be served in a
county facility.); Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super.
2002)(counsel's incorrect advice that defendant would be eligible for boot
camp constituted ineffective assistance of counsel.).
Moreover, the PCRA court noted:
[A]ppellant, who is a sophisticated repeat offender, is using the
PCRA as a trial testing device. He always requested a jury trial,
and openly rejected the plea offer. However, in light of his
conviction and sentence, he is attempting to turn the clock back
to a pretrial stage of the proceedings to contend that he did not
have the opportunity for "full consultation" with counsel. If
successful, every appellant who turned down a plea bargain and
was convicted at trial would be entitled to the benefit of the
original plea agreement.
Id. at 6. As such, the PCRA court determined that an evidentiary hearing
was not warranted. Id. at 7. (“[A]ppellant adamantly requested a jury trial.
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His disappointment with the outcome does not give him the right to a redo,
nor does it mean that trial counsel was ineffective.”). Moreover, the PCRA
court determined that because trial counsel was not ineffective and Appellant’s
claim lacked merit, PCRA counsel, likewise, did not render ineffective
assistance of counsel and was properly permitted to withdraw. Id. This
timely appeal resulted.4
On appeal pro se, Appellant presents the following issues for our review:
I. Did the PCRA court err in dismissing without a hearing
[Appellant’s] claim that trial counsel failed to provide a full
consultation regarding Petitioner's decision to plead guilty where
the advice counsel offered was unreasonable because it was
legally deficient?
II. Did PCRA [c]ounsel [] provide ineffective assistance by failing to
do any investigation into the matter before issuing a no[-]merit
letter and requesting to withdraw?
Appellant’s Pro Se Brief, at 6.
On appeal, Appellant claims that the PCRA court erroneously focused on
the plea colloquy conducted before trial when it decided that trial counsel fully
consulted with him. Id. at 16-17. He claims that the colloquy wherein the
trial court inquired as to whether Appellant understood the terms of the plea
agreement “is irrelevant,” because Appellant “has not challenged the colloquy,
nor has he claimed that the colloquy itself was flawed in any way.” Id. at 16.
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4 Appellant filed a pro se notice of appeal on September 3, 2020. Appellant
complied timely with the PCRA court’s order directing him to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On September 24, 2020, the PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
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Instead, Appellant alleges that, after plea negotiations and trial began, trial
counsel notified Appellant that the Commonwealth intended to use recorded
prison conversations to rebut Appellant’s proffered defense. Id. at 12-13. As
such, Appellant contends:
[trial counsel] offered specific advice that sabotaged his ability to
make a sensible decision. When [trial counsel] told both
[Appellant] and [Appellant’s] significant other, Wendy Chelder,
that the tape-recorded prison phone call was not a big deal and
would not impact the defense he was wrong. When [trial counsel]
opted not to inform his client that the things [Appellant] was
saying on the tape would cut against his trial testimony he was
wrong. When he told [Appellant] that the tape would not
undermine his credibility [trial counsel] was negligent because he
made this assertion without ever having listened to it. [Trial
counsel’s] judgment of the evidence against [Appellant] was a
thumb on the scale of his client's decision-making. Because [trial
counsel] issued a definitive professional opinion that the tape was
feeble evidence that would not stop the defense from securing a
not guilty verdict, [Appellant] could not accurately weigh the risk
of a trial against the offer of 18 to 36 months that was on the
table. A proper consultation with competent counsel would have
included at least three steps []: (1) listening to the tape together;
(2) discussing how the statements on the tape would square with
[Appellant’s] proposed trial testimony; and (3) coming to a
consensus about whether or not the risk of a trial outweighed []
accepting the plea deal. None of these three occurred.
Id. at 17-18. Because Appellant claims that he raised an issue of material
fact, he argues he is entitled to an evidentiary hearing and urges this Court to
remand the matter to the PCRA court. Id. at 18-19.
Our Supreme Court previously determined:
Under [the] standard of review for an appeal from the denial of
PCRA relief, [an appellate court] must determine whether the
ruling of the PCRA court is supported by the record and is free of
legal error. Commonwealth v. Washington, 927 A.2d 586, 593
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(PA. 2007). The PCRA court's credibility determinations are
binding on [an appellate court] when they are supported by the
record. Commonwealth v. Johnson, 966 A.2d 523, 532, 539
(Pa. 2009). However, [an appellate court] applies a de novo
standard of review to the PCRA court's legal conclusions.
Commonwealth v. Rios, 920 A.2d 790, 810 (Pa. 2007).
To be eligible for PCRA relief, a petitioner must plead and prove
by a preponderance of the evidence that his or her conviction or
sentence resulted from one or more of the circumstances
enumerated in 42 Pa.C.S.A. § 9543(a)(2). These circumstances
include a violation of the Pennsylvania or United States
Constitution and ineffective assistance of counsel which “so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.A. § 9543(a)(2)(i), (ii).
* * *
[…T]he PCRA court has the discretion to dismiss a petition without
a hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings.” [See, i.e.,
Pa.R.C.P. 907]. “To obtain reversal of a PCRA court's decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Commonwealth v.
D'Amato, 856 A.2d 806, 820 (Pa. 2004).
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, 527 A.2d 973, 975–976 (Pa.
1987): (1) the underlying legal claim has arguable merit; (2)
counsel had no reasonable basis for his or her action or inaction;
and (3) the petitioner suffered prejudice because of counsel's
ineffectiveness. Commonwealth v. Dennis, 950 A.2d 945, 954
(Pa. 2008). With regard to the second, reasonable basis prong,
“[an appellate court should] not question whether there were
other more logical courses of action which counsel could have
pursued; rather, [] must examine whether counsel's decisions had
any reasonable basis.” Washington, supra at 594. [An
appellate court may] conclude that counsel's chosen strategy
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lacked a reasonable basis only if Appellant proves that “an
alternative not chosen offered a potential for success substantially
greater than the course actually pursued.” Commonwealth v.
Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation omitted). To
establish the third, prejudice prong, the petitioner must show that
there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel's
ineffectiveness. Dennis, supra at 954. [Our Supreme Court has]
stress[ed] that boilerplate allegations and bald assertions of no
reasonable basis and/or ensuing prejudice cannot satisfy a
petitioner's burden to prove that counsel was ineffective.
Commonwealth v. Paddy, 15 A.3d 431, 441–443 (Pa. 2011) (original
brackets omitted).
Moreover, this Court determined:
A PCRA petitioner is not automatically entitled to an evidentiary
hearing. We review the PCRA court's decision dismissing a
petition without a hearing for an abuse of discretion. The right
to an evidentiary hearing on a post-conviction petition is not
absolute. It is within the PCRA court's discretion to decline to hold
a hearing if the petitioner's claim is patently frivolous and has no
support either in the record or other evidence.
It is the responsibility of the reviewing court on appeal to examine
each issue raised in the PCRA petition in light of the record
certified before it in order to determine if the PCRA court erred in
its determination that there were no genuine issues of material
fact in controversy and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Williams, 244 A.3d 1281, 1287 (Pa. Super. 2021)
(internal citations and original brackets omitted).
The failure to properly explain the advantages and disadvantages of
accepting or rejecting a plea offer may be ineffective assistance of counsel.
See Commonwealth v. Boyd, 688 A.2d 1172, 1175 (Pa. 1997), overruled
on other grounds, Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d
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126 (Pa. 2001). “Defendants have a Sixth Amendment right to counsel, a
right that extends to the plea-bargaining process.” Lafler v. Cooper, 566
U.S. 156, 162 (2012) (citation omitted). “During plea negotiations defendants
are entitled to the effective assistance of competent counsel.” Id. (citation
and quotation omitted). Challenges to guilty pleas based on ineffective
assistance of counsel require a defendant to show that counsel's
representation fell below an objective standard of reasonableness. Id. at 163(citations omitted).
This Court stated:
An attorney undoubtedly has a duty to consult with the client
regarding important decisions, including questions of overarching
defense strategy. That obligation, however, does not require
counsel to obtain the defendant's consent to every tactical
decision. But certain decisions regarding the exercise or waiver
of basic trial rights are of such moment that they cannot be made
for the defendant by a surrogate. [The United States Supreme
Court has] affirmed [that a defendant] has the ultimate authority
to determine whether to plead guilty, waive a jury, testify in his
or her own behalf, or take an appeal. Concerning those decisions,
an attorney must both consult with the defendant and obtain
consent to the recommended course of action.
Commonwealth v. Brown, 18 A.3d 1147, 1158 (Pa. Super. 2011), citing
Florida v. Nixon, 543 U.S. 175, 187 (2004) (internal citations and quotations
omitted).
“Defense counsel has a duty to communicate to his [or her] client, not
only the terms of a plea bargain offer, but also the relative merits of the offer
compared to the defendant's chances at trial.” Commonwealth v.
Copeland, 554 A.2d 54, 60 (Pa. Super. 1988), citing Commonwealth v.
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Napper, 385 A.2d 521 (Pa. Super. 1978). Citing American Bar Association
standards, our Court determined, “the lawyer should advise the accused with
complete candor concerning all aspects of the case, including his [or her]
candid estimate of the probable outcome” and should not “intentionally []
understate or overstate the risks, hazards or prospects of the case to exert
undue influence on the accused's decision as to his [or her] plea.” Id. (citation
omitted). The Copeland Court ultimately explained:
The decision whether to plead guilty or contest a criminal charge
is probably the most important single decision in any criminal
case. This decision must finally be left to the client's wishes;
counsel cannot plead a man [or woman] guilty, or not guilty,
against his [or her] will. But counsel may and must give the client
the benefit of [] professional advice on this crucial decision, and
often [counsel] can protect the client adequately only by using a
considerable amount of persuasion to convince the client that one
course or the other is in the client's best interest. Such persuasion
is most often needed to convince the client to plead guilty in a
case where a not guilty plea would be totally destructive.
Id. (citation omitted).
Here, the PCRA court’s decision rested almost exclusively on the plea
colloquy conducted prior to trial and its repeated explanation that the choice
to plead guilty rested exclusively with Appellant. The PCRA court determined
that the terms of the proposed plea agreement, relative to the sentences
Appellant faced, were explained to, and rejected by, Appellant prior to trial
and without the need for further consultation. This may be true; however,
the PCRA court did not address Appellant’s central allegation that trial counsel
failed to confer with him about the relative advantages and disadvantages of
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accepting the Commonwealth’s plea offer given the recorded prison
conversation between Appellant and his significant other. Thus, whether and
when trial counsel learned of the conversation and recording, and whether
counsel discussed the matter with Appellant before rejection of the plea
agreement, raise issues of material fact.
Appellant was arrested on November 20, 2015. The prison
conversation at issue occurred two days later, on November 22, 2015. The
matter went to trial in June 2016. Upon review of the certified record, there
were no formal, docketed requests for discovery, and we cannot discern when
the Commonwealth disclosed the prison conversation to trial counsel, or
whether counsel learned of the conversation through other sources.
Furthermore, while Appellant confirmed that he understood the terms of the
plea agreement during the colloquy prior to trial, trial counsel had a duty to
consult with Appellant regarding the evidence the Commonwealth intended to
present at trial, the defense strategy to be employed on Appellant’s behalf,
and the relative merits of the plea offer compared to Appellant’s chances at
trial. Here, the trial court’s plea colloquy prior to trial did not include these
inquiries. Moreover, Appellant contends that trial counsel did not consult with
Appellant about the effect of the prison conversation/recording on his defense
and his overall chances at trial. Without input from trial counsel, these
assertions raise material issues of fact which, if resolved in Appellant’s favor,
may entitle him to relief. Moreover, trial counsel was required to give
Appellant a candid estimate of the probable outcome of trial and not
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intentionally understate the risks, hazards, or prospects of the case.
Appellant’s assertion that trial counsel minimized the risk the prison recording
had on his defense also created a material issue of fact. An evidentiary
hearing is necessary to examine trial counsel’s knowledge and what was
conveyed to Appellant regarding the significance of the recorded prison
conversation and its effect on Appellant’s anticipated trial strategy.
Based upon our review of the certified record and applicable law as set
forth above, we conclude that Appellant’s PCRA claims created genuine issues
of material fact. This case turns on what defense counsel conveyed to
Appellant at the time Appellant rejected the plea offer and whether counsel,
at that time, was aware of the recorded jail conversation. As such, the PCRA
court erred by denying relief without conducting an evidentiary hearing. While
we agree that the decision to plead guilty was ultimately left to Appellant, the
decision could only be made after a full consultation with trial counsel. On
the record before us, we cannot discern whether that occurred. As such, we
remand for an evidentiary hearing.
Finally, in his second issue presented on appeal, Appellant contends that
PCRA counsel was ineffective for failing to investigate his claims. Based upon
our resolution of Appellant’s first issue, we agree. Our Supreme Court has
held:
While a PCRA petitioner does not have a Sixth Amendment right
to assistance of counsel during collateral review, this
Commonwealth, by way of procedural rule, provides for the
appointment of counsel during a prisoner's first petition for
post[-]conviction relief. Pa.R.Crim.P. 904; Pennsylvania v.
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Finley, 481 U.S. 551, 555 (1987); Commonwealth v. Kenney,
732 A.2d 1161, 1165 (Pa. 1999). Pursuant to our procedural
rules, not only does a PCRA petitioner have the “right” to counsel,
but also he or she has the “right” to effective assistance of
counsel. Commonwealth v. Albrecht, 720 A.2d [693,] 699–
700 [(Pa. 1998)]. The guidance and representation of an attorney
during collateral review “should assure that meritorious legal
issues are recognized and addressed, and that meritless claims
are foregone.” Commonwealth v. Albert, 561 A.2d 736, 738–
739 (Pa. Super. 1989).
Commonwealth v. Haag, 809 A.2d 271, 282–283 (Pa. 2002). Upon
remand, we direct the PCRA court to appoint new PCRA counsel to represent
Appellant.
Order vacated. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2021
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