Com. v. Haynes, R.

J. A26030/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAYMEIR JYALEL HAYNES, : No. 518 MDA 2015
:
Appellant :
Appeal from the Order Entered February 19, 2015,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0004908-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 21, 2015
Raymeir Jyalel Haynes appeals, pro se, from the order filed in the
Court of Common Pleas of Dauphin County which dismissed, without a
hearing, his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
On March 10, 2012, appellant, Vidal Little, and Adrian Collins entered
the EZ Discount Store located at South 17th Street and Market Street in
Harrisburg. The three individuals held two employees of the store at
gunpoint, and demanded cash from the register. The threesome made off
with several hundred dollars. No one was harmed during the course of the
robbery. The entire episode was caught on surveillance tape. Upon
reviewing the tape, the appellant was identified by police officers and
arrested.
* Retired Senior Judge assigned to the Superior Court.
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Appellant was charged with robbery--threat of immediate serious
bodily injury (a first-degree felony), conspiracy to commit robbery, firearms
not to be carried without a license, and possession of a firearm prohibited. 1
On September 10, 2013, appellant entered into a negotiated plea agreement
wherein he agreed to plead guilty in exchange for a sentence of 8 to
16 years of imprisonment, followed by 4 years of probation.2 Following a
guilty plea and sentencing hearing held on September 10, 2013, the trial
court accepted the plea agreement and imposed the above-stated sentence.
Appellant filed post-sentence motions which were denied as untimely. No
direct appeal was taken.
On August 20, 2014, appellant filed a timely pro se PCRA petition. On
September 4, 2014, PCRA counsel was appointed to represent appellant. On
October 21, 2014, counsel filed a Turner/Finley3 “No Merit” letter and a
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c), 6106(a)(1), and 6105(a)(1),
respectively.
2
The record shows that when he entered his guilty plea, appellant faced one
count of murder and conspiracy to commit robbery in an unrelated case
docketed at 2053 C.D. 2012, during which he was charged, along with
co-defendant, Adrian Collins, in connection with the killing of a cab driver.
(Transcript of proceedings guilty plea and sentencing, 9/10/13 at 3-5.)
Appellant’s co-defendant, Collins, had already been convicted of first-degree
murder and sentenced to life imprisonment. The Commonwealth agreed,
“following the testimony presented at the co-defendant’s trial,” that in
exchange for appellant’s negotiated guilty plea in this case, the
Commonwealth would withdraw the murder and conspiracy to commit
robbery charges at No. 2053 C.D. 2012. (Id. at 4.)
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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petition to withdraw. On November 20, 2014, the PCRA court filed its notice
of intent to dismiss within 20 days. On December 11, 2014, appellant filed a
supplemental pro se PCRA petition. On February 19, 2015, the PCRA court
filed an order dismissing the PCRA petition without a hearing and granting
counsel permission to withdraw.
Appellant raises the following issues on appeal:
1. Whether the PCRA court committed error by
dismissing the PCRA petition for lack of merit
and without conducting an evidentiary hearing
on ineffective assistance of counsel claim of
errors where counsel;
(A) Advised appellant to enter the
guilty plea under duress for crimes
he did not commit,
(B) Counsel failed to explain the
elements of the crime, and,
(C) Counsel misadvised appellant
mandatory sentences applied to
each charge if appellant went to
trial?
2. Whether the appellant’s untimely post-
sentence motion filed pro-se should have been
treated as a first PCRA petition requiring a
remand to the PCRA court for appointment of
new counsel and the filing of a[n] amended
PCRA petition?
3. Whether this case should be remanded to the
PCRA court for appointment of new counsel
and an evidentiary hearing?
Appellant’s brief at 4.
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The standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to a determination of whether the PCRA court’s conclusion is
supported by the evidence of record and free of legal error.
Commonwealth v. Boyer, 962 A.2d 1213, 1214 (Pa.Super. 2008).
The PCRA provides relief for petitioners whose convictions resulted
from ineffectiveness of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). In reviewing
a claim of ineffective assistance of counsel, the reviewing court must begin
with the presumption that trial counsel rendered effective assistance.
Commonwealth v. Chimiel, 30 A.3d 1111, 1127 (Pa.Super. 2011). To
obtain relief on an ineffective assistance of counsel claim, the petitioner
must demonstrate the following: (1) that the underlying claim is of arguable
merit; (2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) that, but for the errors and omissions of counsel,
there is a reasonable probability that the outcome of the proceedings would
have been different. Commonwealth v. Pierce, 527 A.2d 973, 975-976
(Pa. 1987); Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.
2010). The failure to satisfy any prong of this test will cause the entire
claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super.
2008).
The right to the constitutionally effective assistance of counsel extends
to counsel’s role in guiding his client with regard to the consequences of
entering into a guilty plea.
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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.
Thus, to establish prejudice, the defendant
must show that there is a reasonable probability
that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to
trial. The reasonable probability test is not a
stringent one; it merely refers to a probability
sufficient to undermine confidence in the outcome.
Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa.Super. 2013)
(citations, quotation marks, and footnote omitted).
In his first issue, appellant argues that trial counsel was ineffective
during the guilty plea stage for misadvising him that mandatory minimum
sentences for offenses committed with firearms, imposed at Section 9712 of
the Sentencing Code, 42 Pa.C.S.A. § 9712, would apply to the robbery and
conspiracy to commit robbery charges if he went to trial.4
At the guilty plea and sentencing hearing, appellant was informed by
the Commonwealth:
[Assistant District Attorney John C. Baer]: One thing
that is not on your colloquy form that I need to
inform you of. We are alleging that those two
crimes, the robbery and conspiracy, were committed
with a firearm.
4
We have rearranged the order of appellant’s issues for ease of disposition.
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When you do that, that carries a mandatory
60-month or 5-year sentence. So you have
exposure to, at Counts 1 and 2, a 5-year mandatory
sentence. Do you understand that?
DEFENDANT: (No verbal response)
[Assistant District Attorney John C. Baer]: You have
to say yes or no.
DEFENDANT: Yes.
[Assistant District Attorney John C. Baer]:
Obviously, under the terms of the plea agreement
you are not going to get those one on top of the
other, but you understand that you are exposed to
that mandatory?
DEFENDANT: Okay.
Transcript, 9/10/13 at 8.
Appellant contends that his trial counsel should have informed him
that mandatory minimum sentence enhancements were unconstitutional
under Alleyne v. United States, 133 S.Ct. 2151 (2013) (facts that increase
mandatory minimum sentences must be submitted to the jury and must be
found beyond a reasonable doubt). He claims he was led to believe that he
could face mandatory minimum sentences of 5 years each on the robbery
and conspiracy to commit robbery charges if he went to trial and was
convicted. He argues that there is a reasonable probability that he would
not have agreed to an 8-year minimum sentence if he was not facing a
10-year mandatory minimum sentence and would have opted to go to trial
had his counsel provided sound advice.
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The Commonwealth contends that trial counsel was not ineffective
because this court did not hold that mandatory sentencing imposed under
Section 9712 of the Sentencing Code was unconstitutional until October 3,
2014, in Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014),
and appellant’s guilty plea was on September 10, 2013.
Recently, in Commonwealth v. Melendez-Negron, 2015 WL
5657130 (Pa.Super. September 25, 2015), this court rejected an identical
argument raised by the Commonwealth. There, Jose Melendez-Negron was
arrested and charged with, inter alia, possession with intent to deliver
(“PWID”). At the time of his arrest, he was in possession of a firearm. The
Commonwealth gave notice of its intention to invoke the mandatory
minimum sentence provision at Section 9712. On November 15, 2013,
Melendez-Negron entered a negotiated plea to PWID and the other charges.
He was sentenced to 5 to 10 years of incarceration. Melendez-Negron did
not file a direct appeal. He filed a PCRA petition and alleged that counsel
was ineffective for allowing Melendez-Negron to plead guilty and agree to a
sentence based on the mandatory minimum sentencing enhancement. The
PCRA court agreed and vacated his sentence and ordered that he be
resentenced. The Commonwealth appealed. The Commonwealth argued,
among other things, that no Pennsylvania appellate court had addressed the
constitutionality of Section 9712 at the time, and therefore, counsel “cannot
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be deemed ineffective for failing to predict the changes or developments in
the law.” Id. at *2. This court disagreed and held:
Upon the issuance of the Alleyne decision in June
2013, Counsel was on notice that the
constitutionality of such sentencing enhancement
was in question. There can be no reasonable basis
for Counsel’s failure to recognize this and to advise
Melendez-Negron to reject a plea agreement that
incorporated a sentence based upon § 9712 a.1.
This is so especially in light of the fact that
application of § 9712 a.1 resulted in a sentence that
was more than double the aggravated range
sentence Melendez-Negron would have faced. In a
situation such as this, where the United States
Supreme Court has spoken, counsel need not wait
for a pronouncement from a Pennsylvania appellate
court. By raising such a claim or at least questioning
the constitutionality of § 9712 a.1 during plea
negotiations, Counsel would not be predicting
changes in the law, as the Commonwealth contends,
but rather conscientiously advancing an argument
based upon the logical extension of Alleyne to
protect his client’s interests.
Id.
Here, appellant’s guilty plea was on September 10, 2013, which was
several months after Alleyne was decided on June 17, 2013. Trial counsel
was on notice that the constitutionality of such sentencing enhancement was
in question. Counsel was, therefore, obligated to inform appellant that he
would not face two automatic 5-year minimum sentences on the robbery
and conspiracy charges if he went to trial and was convicted. There was no
reasonable basis for counsel’s failure to recognize this and advise appellant
that the Commonwealth would have to prove to a jury beyond a reasonable
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doubt that appellant was, in fact, in possession of a firearm during the
commission of the robbery. Because guilty plea negotiations were tainted by
misinformation about sentences, appellant should be permitted to withdraw
his guilty plea.5
Order reversed. Appellant’s guilty plea is vacated. The matter is
remanded for further proceedings. Jurisdiction is relinquished.6
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2015
5
However, we wish to note that when a defendant withdraws or successfully
challenges his plea, the bargain is abrogated and the defendant must be
prepared to accept all of the consequences which the plea originally sought
to avoid. Commonwealth v. Ward, 425 A.2d 401, 406 (Pa. 1981),
cert. denied, 451 U.S. 974 (1981) (reinstatement of the original charge of
first-degree murder after defendant’s successful revocation of his plea
agreement did not violate defendant’s due process rights where there was
no showing of prosecutorial vindictiveness). Here, appellant faced extremely
serious murder and conspiracy to commit robbery charges that were
withdrawn by the Commonwealth in exchange for his guilty plea in the case
sub judice.
6
Because of our disposition of the first issue, we need not address
appellant’s remaining issues.
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