Com. v. Price, R.

J-S18019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD A. PRICE :
:
Appellant : No. 495 EDA 2022
Appeal from the PCRA Order Entered February 3, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008805-2018
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JUNE 30, 2023
Appellant, Richard A. Price, appeals from the February 3, 2022 Order
dismissing his first Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46, as meritless. Appellant claims that his plea
counsel provided ineffective assistance and, as a result, Appellant entered his
guilty plea involuntarily and unknowingly. After careful review, we reverse and
remand for further proceedings.
The relevant facts and procedural history are as follows. On December
4, 2018, the Commonwealth filed a Criminal Complaint against Appellant
charging him with 17 counts related to his sexual assault of a minor. Due to
several factors, including delays in processing DNA evidence and the victim’s
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* Former Justice specially assigned to the Superior Court.
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failure to appear in court, there were numerous continuances granted for the
trial. Once the DNA evidence was processed, there was insufficient data to
determine if DNA material found in the victim’s underwear originated from
Appellant, but he was not excluded as a contributor.
On October 21, 2019, Appellant entered a guilty plea to one count of
Indecent Assault of a Person Less than 16 Years Old and one count of Unlawful
Contact with a Minor1 in exchange for which the Commonwealth nolle prossed
the other charges. On the same day, the trial court sentenced Appellant to an
aggregate term of 11½ to 23 months of imprisonment, followed by 3 years of
probation. Appellant was immediately paroled, having already served 11½
months. Appellant did not file a post-sentence motion or an appeal from his
Judgment of Sentence.
On March 5, 2020, the Commonwealth arrested Appellant for a
probation violation. On March 13, 2020, the court (“VOP court”) held a hearing
after which it found that Appellant had violated the term of his probation
requiring that he attend drug treatment. The VOP court imposed a sentence
of 11½ to 23 months of imprisonment, followed by 5 years of probation.
On June 23, 2020, Appellant timely filed the instant PCRA petition pro
se, claiming that his guilty plea was unlawfully induced because he was not
informed of DNA evidence results that may have exonerated him. Petition,
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1 18 Pa.C.S. §§ 3126(a)(8), 6318(a)(1), respectively.
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6/23/20, at 2-3. The PCRA court appointed counsel who filed an Amended
PCRA Petition developing Appellant’s argument that plea counsel had provided
ineffective assistance that caused Appellant to enter an involuntary and
unknowing plea. Amended Petition, 4/6/21, at 6. In particular, Appellant
asserted that plea counsel failed to disclose the results of the DNA analysis
and erroneously advised Appellant to opt for the plea and resulting immediate
release rather than risk facing a “hanging judge.” Id. at 10.
On November 1, 2021, the PCRA court provided notice of its intent to
dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.2 Appellant did
not respond. On January 12, 2022, the PCRA court dismissed Appellant’s
petition without a hearing.
This appeal followed. Both Appellant and the PCRA court have complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Whether the [PCRA] court erred in not granting relief on the PCRA
petition alleging counsel was ineffective[?]
2. Whether [t]rial [c]ounsel’s assistance was ineffective for causing the
Appellant to enter an involuntary or unknowing plea[?]
Appellant’s Br. at 7.
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2 The lower court opined that the PCRA Petition was untimely filed before
addressing the merits of the claims raised. See Notice of Intent to Dismiss
pursuant to Pa.R.Crim.P. 907, 1/12/2020, at 2. Our review indicates, however,
that Appellant’s PCRA petition was timely filed on June 23, 2020, within one
year of the date the judgment became final. 42 Pa.C.S. § 9545(b)(1).
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We review a PCRA court’s decision to deny a request for an evidentiary
hearing for an abuse of discretion. Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015). Where a PCRA Petition raises “material disputes regarding the
reasonableness of counsel’s actions, a hearing is required.” Commonwealth
v. Reid, 99 A.3d 470, 501 n.26 (Pa. 2014); see also Pa.R.Crim.P. 908(A)(2)
(requiring a PCRA hearing “when the petition for post-conviction relief . . .
raises material issues of fact”). Additionally, our Supreme Court has expressed
a preference for an evidentiary hearing on counsel’s action or inaction where
a petitioner has raised “a colorable claim” of ineffectiveness. Commonwealth
v. Cousar, 154 A.3d 287, 299 (Pa. 2017).
To succeed on a claim of ineffective assistance of counsel, Appellant
must demonstrate that (1) the underlying claim is of arguable merit; (2)
counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness
of counsel caused the appellant prejudice. Commonwealth v. Wah, 42 A.3d
335, 338 (Pa. Super. 2012). “[A]llegations 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.” Id. (citation omitted). “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.” Id. (citation omitted).
Appellant argues that plea counsel was ineffective because plea counsel
failed to disclose DNA reports which could have exonerated Appellant.
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Appellant’s Br. at 13. Appellant claims that “had he been aware of the [DNA]
reports, he never would have pled guilty.” Id. at 14. Additionally, Appellant
asserts that plea counsel urged Appellant to take the plea so that Appellant
could be immediately released, rather than face a “hanging judge,” further jail
time, and additional continuances of the trial. Id. at 13-14.
The PCRA court reasoned that Appellant’s ineffective assistance of
counsel claim lacked merit because Appellant “stated at his guilty plea that he
was very satisfied with his counsel” and indicated no deficiencies in either his
written guilty plea colloquy or the oral colloquy. PCRA Ct. Op., 8/4/22, at 5-
6. Further, the court reiterated that in exchange for Appellant’s guilty plea,
the Commonwealth nolle prossed all remaining charges and Appellant was
immediately paroled, indicating that plea counsel’s advice had a reasonable
basis. Id. at 6. The PCRA court concluded that Appellant had not shown that
“counsel’s advice was unreasonable or that he entered the plea unknowingly.”
Id.
After reviewing the record and case law, we conclude that Appellant
presents a colorable claim of ineffectiveness and a material dispute regarding
plea counsel’s actions. While it may be true that the actions of plea counsel
resulted in immediate release from custody, Appellant indicates that he only
opted for immediate release due to the uncertainty caused by the multiple
continuances granted due to victim’s failure to appear in court and the delays
in DNA processing. Id. at 13. Appellant “had been in jail for eleven months[,]
. . . was sick due to his diabetes,” and took the plea on the advice of plea
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counsel to avoid further continuances. Id. Additionally, Appellant claims that
while trial counsel informed Appellant that DNA reports were not available at
the time of the guilty plea, the reports had in fact been completed months
earlier. Id. at 14.
Under these circumstances, the certified record and Appellant’s petition
indicate an outstanding question of fact as to when Appellant and plea counsel
learned of the DNA evidence and whether ineffective assistance of counsel
prejudiced Appellant. To resolve these questions, the PCRA court must make
a credibility determination weighing the evidence set forth in Appellant’s
petition and related testimony, as well as plea counsel’s recollection of events.
Since neither this Court nor the PCRA court could resolve these factual
questions based on the information in the certified record alone, a hearing is
necessary. We, therefore, reverse the PCRA court’s order dismissing
Appellant’s claim of ineffective assistance of plea counsel, and remand to the
PCRA court to hold an evidentiary hearing.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2023
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