J-S44026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARIO LOUIS DUNCAN,
Appellant No. 38 WDA 2014
Appeal from the PCRA Order Entered December 3, 2013
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000601-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
DISSENTING MEMORANDUM BY BENDER, P.J.E.:FILED SEPTEMBER 04, 2014
conclusion that Duncan failed to satisfy the prejudice prong of the
ineffectiveness test. For the reasons set forth herein, I would reach the
oppo
petition.
stated that he would have proceeded to trial had he known that his
Majority Decision at 7. The
prejudice standard employed by the Majority was first set forth in Hill v.
Lockhart, 106 S.Ct. 366 (1985), where the Supreme Court of the United
States held that in the guilty plea context,
uirement [of the ineffectiveness
performance affected the outcome of the plea process. In other
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defendant must show that there is a reasonable probability that,
would have insisted on going to trial.
Id. at 370.
application of the prejudice standard set forth in Hill. In the more recent
case of Missouri v. Frye, 132 S.Ct. 1399 (2012), the Supreme Court
clarified its holding in Hill, stating:
In cases where a defendant complains that ineffective assistance
led him to accept a plea offer as opposed to proceeding to trial,
Hill was correctly decided
and applies in the context in which it arose. Hill does not,
however, provide the sole means for demonstrating
prejudice arising from the deficient performance of
counsel during plea negotiations. Unlike the defendant in
Hill, Frye argues that with effective assistance he would have
accepted an earlier plea offer (limiting his sentence to one year
in prison) as opposed to entering an open plea (exposing him to
In a case,
such as this, where a defendant pleads guilty to less
favorable terms and claims that ineffective assistance of
counsel caused him to miss out on a more favorable
earlier plea offer,
U.S., at 694, 104 S.Ct. 2052, requires looking not at
whether the defendant would have proceeded to trial
absent ineffective assistance but whether he would have
accepted the offer to plead pursuant to the terms earlier
proposed.
Id. at 1409-1410 (emphasis added).
Here, Duncan does not argue that A
compelled him to accept the plea offer rather than proceeding to trial;
instead, he maintains that Attorney Yost ineffectively negotiated a plea deal
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involving a legally impossible sentence. See
a plea that was legal and
-
determining process that no reliable adjudication of guilt or innocence could
would apply prejudice standard of proving that the outcome of the
proceeding would have been different, not the standard announced in Hill
and applied by the Majority.
Moreover, under the Frye standard, I would conclude that Duncan
proved the prejudice prong of the ineffectiveness test. At the PCRA hearing,
Duncan unequivocally and repeatedly stated that he would have rejected
the instant plea had he known that concurrent sentences were impossible.
See N.T. PCRA Hearing, 10/24/13, at 11, 15. He testified that he would
incarceration. Id. at 11. Considering that the Commonwealth agreed to
concurrent sentences in the instant plea deal, there is a reasonable
probability that the Commonwealth would have agreed to a lesser term of
incarceration had it been aware that concurrent sentences were legally
impossible. Therefore, had Attorney Yost not acted ineffectively in the
negotiation process, Appellant likely would have received a plea deal
involving a lesser term of incarceration. In other words, the outcome of the
proceeding would have been different. Accordingly, Duncan proved he was
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-technical
conclusion that Duncan failed to meet the prejudice standard enunciated in
Hill, i.e., that he would not have pled guilty and would have insisted on
have entered into that plea agreement if you would have known that you
could not have your time run concurrent with the old sentence and the new
sentenc
Id.
instant plea had he known about the impossibility of concurrent sentences.
Id.
rejected the instant plea offer, I believe it is reasonable to conclude that had
pon
going to trial. Thus, I would conclude that Duncan satisfied his burden of
proving prejudice even under standard.1
petition.
1
impossible under the Prisons and Parole Code, 61 Pa.C.S. § 6138(a)(5).
See Commonwealth v. Berry
sentence is illegal where a statute bars the court from imposing that
4
Com. v. Duncan, M.
Combined Opinion