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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID ROGER PROBST
Appellant No. 657 MDA 2015
Appeal from the PCRA Order of April 10, 2015
In the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0001472-2009
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 09, 2015
David Probst appeals the April 10, 2015 order that dismissed his
petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-46, without an evidentiary hearing. We reverse the order, and we
remand for an evidentiary hearing.
The PCRA court summarized the history of this case as follows:
On June 3, 2010, a jury found [Probst] guilty of aggravated
indecent assault of a child, indecent assault of a child less than
13 years of age, and corruption of a minor. “At sentencing the
trial court determined that [Probst] had a prior predicate offense
and sentenced him, in accordance with 42 Pa.C.S.A. § 9718.2, to
a mandatory term of 25 to 50 years’ incarceration on . . .
aggravated indecent assault. The trial court imposed an
identical concurrent sentence at . . . indecent assault and a
consecutive term of five years’ probation at . . . corruption of
minors.” [Commonwealth v. Probst, 682 MDA 2011, slip op.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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at 5. Probst filed a post-sentence motion. The trial court held a
hearing on the motion on January 14, 2011. The motion was
denied on March 21, 2011.] On April 19, 2011, [Probst] filed a
Notice of Appeal. On January 16, 2013, the Superior Court
affirmed the judgment of sentence. [Probst] did not file a
petition for allowance of appeal with the Pennsylvania Supreme
Court.
[On January 16, 2014, Probst filed a PCRA petition.] On April
22, 2014, PCRA counsel filed an Amended [PCRA] Petition. . . .
In a letter dated May 6, 2014, [Probst] requested new PCRA
Counsel. On May 14, 2014, PCRA Counsel filed a motion on
behalf of [Probst]. In the motion, PCRA Counsel requested that
the [PCRA court] permit him to withdraw as counsel and appoint
new counsel. On July 18, 2014, PCRA Counsel was granted
leave to withdraw as counsel and current counsel was appointed.
On July 23, 2014, the [PCRA court] ordered current PCRA
Counsel to file an amended petition or a Turner/Finley[1] letter
by October 2, 2014. Current PCRA Counsel did not file an
amended petition or Turner/Finley letter. On January 5, 2015,
the [PCRA court] held a conference during which current PCRA
Counsel raised the arguments that are in the original PCRA
Counsel’s amended petition.
Original PCRA Counsel made two arguments in his Amended
PCRA Petition. First, he argued that trial counsel was ineffective
because he failed to advise [Probst] of the potential application
of the 25 year mandatory minimum sentence in 42 Pa.C.S.A.
§ 9718.2(a)(1) before [Probst] rejected a plea offer of a
minimum of five years incarceration. Second, he argued that
trial counsel was ineffective because he failed to object to the
competency of the child witness, who was nine years old at the
time of the offense and ten years old at the time of the trial. . . .
During the January 9, 2015 conference, the attorney for the
Commonwealth argued that PCRA Counsel’s first issue was
previously litigated.
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1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(outlining the procedure for appointed PCRA counsel to withdraw from
representation when a PCRA appeal is frivolous).
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Trial Court Opinion and Order (“T.C.O.”), 3/17/2015, at 1-2 (footnotes
omitted).
On March 17, 2015, the PCRA court issued an opinion and an order in
which it provided notice pursuant to Pa.R.Crim.P. 907 of its intention to
dismiss Probst’s PCRA petition without a hearing. On March 30, 2015,
Probst prematurely filed a notice of appeal of the March 17 opinion and
order, which he later withdrew on April 2, 2015. On April 10, 2015, the
PCRA court filed its order dismissing the petition. On April 14, 2015, Probst
filed a notice of appeal. On April 16, 2015, the PCRA court ordered Probst to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Probst timely complied. On June 8, 2015, the PCRA
court filed a statement pursuant to Pa.R.A.P. 1925(a) in which it adopted its
March 17, 2015 opinion and order.
Probst raises one issue on appeal:
Whether a failure of trial counsel to advise a client with no legal
knowledge as to the sentencing ramifications of foregoing a plea
or choosing to accept an offer is ineffective assistance of
counsel?
Probst’s Brief at 6.
Our standard of review in the PCRA context is well-settled: “[A]n
appellate court reviews the PCRA court’s findings of fact to determine if they
are supported by the record, and reviews its conclusions of law to determine
whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d
294, 311 (Pa. 2014) (citing Commonwealth v. Colavita, 993 A.2d 874,
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887 (Pa. 2010)). We apply a de novo standard of review with regard to the
PCRA court’s legal conclusions. Commonwealth v. Rios, 920 A.2d 790,
810 (Pa. 2007).
Probst raises a claim of ineffective assistance of counsel (“IAC”). Our
standard of review in this context is well-defined:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel’s performance was deficient and that such
deficiency prejudiced him.” Colavita, 993 A.2d at 886 (citing
Strickland v. Washington, 466 U.S. 668, 690 (1984)). In
Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See Commonwealth v.
Pierce, 527 A.2d 973, 975-77 (Pa. 1987). Thus, to prove
counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any
of these prongs, his claim fails.” Commonwealth v. Simpson,
66 A.3d 253, 260 (Pa. 2013).
Spotz, 84 A.3d at 311 (internal citations modified). We need not analyze
“the elements of an ineffectiveness claim in any particular order of priority;
instead, if a claim fails under any necessary element of the [Pierce] test,
the court may proceed to that element first.” Commonwealth v. Lambert,
797 A.2d 232, 243 n.9 (Pa. 2001).
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Probst argues that his trial counsel was ineffective for failing to inform
him of the applicable mandatory minimum that would result if he were found
guilty at trial. Probst contends that trial counsel advised him not to take the
Commonwealth’s five-year offer because he was facing only a five-year
maximum sentence. Probst maintains that, because he was unaware of the
mandatory sentence, he could not make an intelligent, knowing, and
voluntary decision about the Commonwealth’s plea offer. Probst argues that
his trial counsel could have no strategic reason to withhold that information.
Finally, Probst contends that he was prejudiced by trial counsel’s actions
because he is serving a twenty-five-year sentence instead of a five-year
sentence. Probst’s Brief at 7-9.
The Commonwealth has not filed a brief, but the trial court stated that
the Commonwealth represented that this issue has been litigated previously.
T.C.O. at 2. The PCRA court also asserted that Probst failed to demonstrate
arguable merit based upon this Court’s decision on direct appeal that there
was no error in failing to provide Probst with pre-trial notice of the
mandatory sentence. Id. at 3-4.
First, an IAC claim is distinct from the underlying issue on direct
appeal. See Commonwealth v. Collins, 888 A.2d 564, 571 (Pa. 2005)
(“[T]he underlying claim of error is different from the collateral claim of
ineffectiveness . . . while the underlying claim of trial court error is relevant
to assessing a claim of ineffectiveness, it is only relevant to the extent that it
impacts assessment under the three prong ineffectiveness test.”). Also, on
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his direct appeal, Probst challenged the lack of notice that the
Commonwealth intended to pursue a mandatory sentence. See Statement
of Matters Complained of on Appeal, 4/27/2012. That is distinct from the
IAC claim that Probst sets forth here. It has not been litigated previously.
Similarly, on direct appeal, the panel dealt with the statutorily required
notice, not counsel’s failure to inform Probst. We stated that “a failure to
provide [Probst] with a pretrial notice of the applicability of section 9718.2
[did not preclude] the trial court from imposing the mandatory sentence.”
Probst, 682 MDA 2011 at 18. We held that “the purpose [of pretrial notice]
is to protect a defendant from waiving rights in ignorance of his exposure to
a potential 25-year mandatory minimum sentence. . . . [Probst] in this
case did not waive his rights. Rather he asserted all his rights in proceeding
to a jury trial.” Id. at 19-20. We did not conclude that this particular issue
lacked arguable merit; the prior panel focused upon the statutory pretrial
notice and not trial counsel’s advice regarding entering a plea.
We now turn to Probst’s IAC claim. In Lafler v. Cooper, 132 S.Ct.
1376 (2012), the United States Supreme Court affirmed that the right to
effective assistance of counsel extends to the plea-bargaining process,
including when a defendant rejects a plea based upon counsel’s advice and
proceeds to trial. Id. at 1383-84. In that case, the parties conceded that
the defendant’s counsel was deficient in his performance and the Supreme
Court focused upon the prejudice prong of the Strickland test. Id. at 1384.
The Court held that, to demonstrate prejudice, the defendant must
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demonstrate that “but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been presented to the
court . . . , that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s terms would have been
less severe than under the judgment and sentence that in fact were
imposed.” Id. at 1385.
Probst asserts that his claim has arguable merit because Prosbt
demonstrated his willingness to take a plea when he initially accepted the
Commonwealth’s two-year offer, trial counsel averred to the trial court that
he had not considered the twenty-five-year mandatory, and that Probst was
deprived of the ability to make a knowing, voluntary, and intelligent decision
to pursue a plea or go to trial without this information. Probst’s Brief at 8.
Additionally, we can conceive of no reasonable basis for trial counsel not to
inform Probst of an applicable twenty-five-year mandatory minimum.
However, pursuant to Lafler, the prejudice prong hinges upon
whether the Commonwealth had offered a plea for a five-year sentence as
Probst alleges, or whether the only offered plea was the two-year sentence
that the Commonwealth rescinded, as the Commonwealth asserted at the
post-sentence motion hearing. If the Commonwealth did not offer a five-
year plea, then there would be no offer for counsel to present to Probst and
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to be accepted by the court.2 Unfortunately, this factual issue cannot be
resolved at this time because the PCRA court did not hold an evidentiary
hearing.
Dismissal pursuant to Rule 907 is authorized:
[i]f the judge is satisfied from this review [of the petition,
answer, and the record] that there are no genuine issues
concerning any material fact and that the defendant is not
entitled to post-conviction collateral relief, and no purpose would
be served by any further proceedings, the judge shall give notice
to the parties of the intention to dismiss the petition and shall
state in the notice the reasons for the dismissal.
Pa.R.Crim.P. 907(1). “A reviewing court on appeal must examine each of
the issues raised in the PCRA petition in light of the record in order to
determine whether the PCRA court erred in concluding that there were no
genuine issues of material fact and denying relief without an evidentiary
hearing.” Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.
2001).
Here, the parties have maintained different stories about the pleas
offered. The issue first arose at sentencing when Probst made an argument
about the notice required pursuant to section 9718.2. Probst’s counsel
averred that Probst was before the court to accept the two-year deal, but
that the Commonwealth withdrew that offer, and that the Commonwealth
____________________________________________
2
We cite Lafler’s discussion of proving prejudice in this type of
situation. However, we do not intend to foreclose any other avenue by
which Probst may prove prejudice.
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then wanted Probst to serve five years and a plea to that effect was offered.
Notes of Testimony (“N.T.”), 11/12/2010, at 48-49. The Commonwealth
contended that the two-year plea was pulled because the District Attorney
realized that the twenty-five year mandatory was applicable. Id. at 48.
At the hearing on the post-sentence motion,3 the parties again argued
about the purported five-year plea deal. Probst’s attorney asserted that the
two-year plea deal was pulled because the Commonwealth wanted Probst to
serve a five-year mandatory sentence for felony aggravated indecent
assault. N.T., 1/14/2011, at 22. The Commonwealth again averred that the
plea was pulled because of the applicable twenty-five-year mandatory,
although the assistant district attorney admitted that she was making an
assumption based upon notes written by someone else in her office. Id. at
9-10. The Commonwealth asserted that a five-year plea was never offered.
Id. at 10. However, Probst’s counsel stated, “what they were offering at
that time, was a five-year plea.” Id. at 37. The only relevant testimony
from that hearing was Probst’s statement that, had he known about the
possible twenty-five-year sentence, he would have pled guilty to lesser
sentence. Id. at 32, 34-35. The trial court admitted there was a factual
issue regarding whether a five-year plea was ever offered:
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3
At both sentencing and the post-sentence motion hearing, the
argument was focused upon whether notice was given as required pursuant
to section 9718.2.
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And I guess that’s where your factual recollection differs from
the DA’s position. Your factual recollection is that they said no
to the two, but they would have taken a plea to the five-year
mandatory, where their position is they said no to the two
because they were seeking a 25-year mandatory.
Id. at 38-39.
Neither Probst’s trial counsel nor anyone from the district attorney’s
office was under oath or gave testimony at either of these hearings. There
was no record evidence upon which the PCRA court could make a credibility
determination or a factual finding regarding whether a second plea offer was
made. With this material factual issue unresolved, an evidentiary hearing
was necessary before Probst’s PCRA petition could be resolved.
Based upon the foregoing, we reverse the April 10, 2015 order and
remand for an evidentiary hearing on Probst’ PCRA petition, at which the
involved parties should testify as to the relevant events.
Order reversed. Remanded for evidentiary hearing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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