J-S58040-15
2016 PA Super 64
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON ROBERT KELLEY
Appellant No. 1245 MDA 2014
Appeal from the PCRA Order July 9, 2014
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000644-2013
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
OPINION BY GANTMAN, P.J.: FILED MARCH 15, 2016
Appellant, Jason Robert Kelley, appeals from the order entered in the
Adams County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A.
§§ 9541-9546. We reverse and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
The certified record reveals that Appellant gave his son, who was under the
age of eighteen, counterfeit currency to purchase ride tickets at a high
school carnival and receive genuine currency as change. Carnival workers
caught Appellant passing the counterfeit $20 bills, which all had the same
serial number. When handled, the carnival workers could tell the bills were
counterfeit. The carnival workers identified Appellant as the person with the
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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juvenile who was passing the fake $20 bills. When the police attempted to
speak with Appellant, he waved them off and fled. The police chased
Appellant across several streets which had high speed traffic. Appellant
jumped a fence, and the police eventually caught him in a yard. Along the
route of Appellant’s flight, the police recovered $300.00 of additional
counterfeit bills with the same serial number and denomination as well as a
hat and sweatshirt. A total of $140.00 worth of fake $20 bills with the same
serial number had been passed at the carnival. When Appellant was
apprehended, he resisted arrest in a manner that created a substantial risk
of bodily injury to the police who had to use and required significant force to
overcome the resistance. (See N.T. Plea/Sentencing Hearing, 9/23/13, at
4-5.) The June 12, 2013 incident occurred while Appellant was on state
parole from a state sentence.
On June 12, 2013, [he] was arrested and charged with (1)
forgery;¹ (2) flight to avoid apprehension;² (3) corruption
of minors;³ and (4) resisting arrest or other law
enforcement.⁴ On September 23, 2013, [Appellant] pled
guilty by agreement to forgery, corruption of minors, and
resisting arrest or other law enforcement. Pursuant to the
terms of the plea agreement, [Appellant] received a
sentence of 21 to 60 months imprisonment on the forgery
and corruption of minors charges and 12 to 24 months on
the count of resisting arrest. All sentences were to run
concurrently to one another. As agreed, this [c]ourt
designated the effective date of the sentence as June 12,
2013.
¹ 18 Pa.C.S. § 4101(a)(3).
² 18 Pa.C.S. § 5126(a).
³ 18 Pa.C.S. § 6301(a)(1)(i).
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⁴ 18 Pa.C.S. § 5104.
[Appellant] did not file post-sentence motions and did not
file a direct appeal. On February 12, 2014, [Appellant]
filed a pro se Motion for Post-Conviction Collateral Relief.
A pre-hearing conference was held on [Appellant’s] motion
on March 24, 2014. On April 2, 2014, [Appellant] filed an
Amended PCRA Petition through his attorney. The
Amended PCRA Petition raises the following issues: (1)
ineffective 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; (2) a plea of
guilty unlawfully induced where the circumstances make it
likely that the inducement caused the petitioner to plead
guilty and the petitioner is innocent; (3) a violation of the
provisions of the constitution, law or treaties of the United
States which would require the granting of federal habeas
corpus relief to a state prisoner. A PCRA hearing was held
before this [c]ourt on June 16, 2014).
(PCRA Court Opinion, dated July 9, 2014 at 1-2) (internal footnote 5
omitted). Appellant’s amended petition and argument, at the hearing,
included solid specifics to support his allegations of illegal sentence and plea
counsel’s ineffectiveness for negotiating the sentence imposed. The court
denied relief on July 9, 2014. Appellant timely filed a notice of appeal on
July 24, 2014. On July 28, 2014, the court ordered Appellant to file a
concise statement of errors complained of on appeal, and Appellant timely
complied on August 5, 2014.
Appellant raises these issue on appeal:
DID THE PCRA COURT ERR[] IN DENYING [APPELLANT’S]
PCRA CLAIM THAT HE DID NOT RECEIVE THE BENEFIT OF
HIS BARGAIN, WHEN BOTH THE DISTRICT ATTORNEY AND
[APPELLANT’S] PLEA COUNSEL WERE AWARE OF THE
PAROLE SENTENCE, AND AGREED TO A CONCURRENT
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SENTENCE IN EXCHANGE FOR [APPELLANT’S] GUILTY
PLEA?
DID THE PCRA COURT ERR[] IN DETERMINING THAT
[APPELLANT’S] ATTORNEY WAS NOT INEFFECTIVE WHEN,
PLEA COUNSEL ADVISED [APPELLANT] THAT HE WOULD
BE ABLE TO SERVE A CONCURRENT SENTENCE IN
EXCHANGE FOR HIS GUILTY PLEA?
DID THE PCRA COURT ERR[] IN DETERMINING THAT THE
UNDERLYING SENTENCE OF SEPTEMBER 23, [2013], WAS
NOT AN ILLEGAL SENTENCE?
(Appellant’s Brief at 4).
In his issues combined Appellant argues he entered a negotiated guilty
plea in exchange for a sentence of 21 to 60 months of state incarceration,
with an effective date of June 12, 2013, the date he was arrested. The
Court accepted his plea and imposed the negotiated sentence with the June
12, 2013 effective date. Appellant claims all parties and the court knew
that, at the time of his offense, plea and sentencing, he was on state parole.
Appellant also avers the agreement was clear as to the effective date of the
new sentence. Appellant states he did not file any motion to withdraw his
plea or a direct appeal, because the court imposed the sentence as
expected; and he was in total agreement with it. While incarcerated
Appellant subsequently learned that the effective date of his new sentence
was not June 12, 2013, but April 28, 2015. When he was informed of the
discrepancy, he filed a petition to enforce the plea bargain, claiming the
sentence was not implemented as agreed. Appellant asked for the benefit of
his bargain, i.e., specific performance. Appellant insists the court would not
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allow argument on his benefit-of-the-bargain claim. Appellant submits his
plea counsel was ineffective for negotiating a plea bargain that could not be
enforced, given 61 Pa.C.S.A. § 6138(a)(5)(i), which provides: “If a new
sentence is imposed on the parolee, the service of the balance of the term
originally imposed by a Pennsylvania court shall precede the commencement
of the new term imposed in the following cases: (i) If a person is paroled
from a State correctional institution and the new sentence imposed on the
person is to be served in the State correctional institution.” Appellant
complains he was enticed to enter a guilty plea based on the promise of a
sentence that, while imposed, was illegal per statute and incapable of
implementation. Counsel had no rational basis for failing to object to the
sentence or negotiating a plea bargain that could not be implemented.
Appellant reasons counsel’s error was prejudicial as it led to a plea that was
fundamentally unknowing, involuntary, and unintelligent and actually added
two years’ time to his sentence. Appellant contends the sentence he
received per the plea bargain was actually illegal as the court had no
jurisdiction to impose it. Appellant concludes he is entitled to some relief.1
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1
To the extent the Commonwealth argues, or the court suggests, Appellant
waived his claims, we reject those contentions. The terms of the plea
agreement/sentence were negotiated, but if the negotiated sentence
allegedly cannot be implemented because it is illegal, the issue is properly
before us. From the character of his legal filings subsequent to the
plea/sentencing, Appellant would have made another plea decision in light of
the information he was denied at the time of his plea and sentencing.
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We agree.
“In reviewing the propriety of the PCRA court’s denial of a petition for
relief, we are limited to determining whether the record supports the court’s
findings, and whether the order is otherwise free of legal error.”
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001). “This
Court grants great deference to the findings of the PCRA court if the record
contains any support for those findings.” Id. We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). “An evaluation of
counsel’s performance is highly deferential, and the reasonableness of
counsel’s decisions cannot be based upon the distorting effects of hindsight.”
Commonwealth v. Saranchak, 581 Pa. 490, 510-11, 866 A.2d 292, 304
(2005). When asserting a claim of ineffective assistance of counsel,
Appellant is required to make the following showing: (1) that the underlying
claim is of arguable merit; (2) counsel had no reasonable strategic basis for
his action or inaction; and, (3) 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. Kimball, 555 Pa. 299, 724 A.2d
326 (1999). The failure to satisfy any prong of the test for ineffectiveness
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will cause the claim to fail. Gonzalez, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective. If we determine that there
was no reasonable basis for counsel’s chosen course then
the accused must demonstrate that counsel’s
ineffectiveness worked to his prejudice.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Ineffective assistance of counsel claims arising from the plea-
bargaining process are eligible for PCRA review. Commonwealth ex rel.
Dadario v. Goldberg, 65 Pa. 280, 773 A.2d 126 (2001) (holding all
constitutionally recognized claims of ineffective assistance are cognizable
under PCRA). “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.” Commonwealth
v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)). “Where the defendant
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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.” Moser, supra.
The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements
for relief based on a claim of ineffective assistance of plea
counsel, …under which the defendant must show that
counsel’s deficient stewardship resulted in a manifest
injustice, for example, by facilitating entry of an
unknowing, involuntary, or unintelligent plea. This
standard is equivalent to the “manifest injustice” standard
applicable to all post-sentence motions to withdraw a
guilty plea.
Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa.Super. 2005) (en
banc), appeal denied, 585 Pa. 688, 887 A.2d 1241 (2005) (internal citations
omitted).
A valid guilty plea must be knowingly, voluntarily and intelligently
entered. Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 2003).
The Pennsylvania Rules of Criminal Procedure mandate that pleas be taken
in open court, and require the court to conduct an on-the-record colloquy to
ascertain whether a defendant is aware of his rights and the consequences
of his plea. Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002)
(citing Pa.R.Crim.P. 590). Specifically, the court must affirmatively
demonstrate the defendant understands: (1) the nature of the charges to
which he is pleading guilty; (2) the factual basis for the plea; (3) his right to
trial by jury; (4) the presumption of innocence; (5) the permissible ranges of
sentences and fines possible; and (6) that the court is not bound by the
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terms of the agreement unless the court accepts the agreement.
Commonwealth v. G. Watson, 835 A.2d 786 (Pa.Super. 2003). This
Court will evaluate the adequacy of the plea colloquy and the voluntariness
of the resulting plea by examining the totality of the circumstances
surrounding the entry of that plea. Commonwealth v. Muhammad, 794
A.2d 378, 383-84 (Pa.Super. 2002).
“If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence must be
vacated.” Commonwealth v. I. Watson, 945 A.2d 174, 178-79 (Pa.Super.
2008) (quoting Commonwealth v. Leverette, 911 A.2d 998, 1001-02
(Pa.Super. 2006)). Section 6138 of the Parole Act states in pertinent part:
§ 6138. Violation of terms of parole
* * *
(5) If a new sentence is imposed on the parolee, the
service of the balance of the term originally imposed by a
Pennsylvania court shall precede the commencement of
the new term imposed in the following cases:
(i) If a person is paroled from a State correctional
institution and the new sentence imposed on the person
is to be served in the State correctional institution.
61 Pa.C.S.A. § 6138(a)(5)(i). In other words, where a state parolee gets a
new state sentence, he must serve his backtime first before commencement
of the new state sentence. Id. Imposition of a new state sentence
concurrent with parolee’s backtime on the original state sentence is an illegal
sentence under this statute. Lawrence v. Pennsylvania Dept. of
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Corrections, 941 A.2d 70 (Pa.Cmwlth. 2007) (holding state parolee could
not serve his new state sentence before he satisfied his original state
sentence; imposition of new sentence essentially concurrent with backtime
service violates Parole Act and is illegal). Mandamus is unavailable to
compel performance of an illegal sentencing order. Id.
Instantly, Appellant entered into an agreement with the
Commonwealth to plead guilty in exchange for a definite sentence with a
specific start date. At the time of the plea bargain, the state had already
decided to recommit Appellant to serve the backtime he owed on his original
state parole sentence. Nevertheless, counsel negotiated the plea bargain on
Appellant’s behalf with an effective start date of June 12, 2013, the date he
was arrested for his new offenses. Nothing in the record indicates counsel
advised Appellant of the statutory sequence for serving his old and new
sentences. Moreover, neither the Commonwealth nor the court advised
Appellant that his negotiated sentence could not be honored as stated or
imposed. Appellant entered his plea on the advice of plea counsel whose
knowledge of the Parole Act was deficient and fell below the range of
competence demanded of attorneys in criminal cases. See Moser, supra.
Therefore, we are compelled to conclude that Appellant’s decision to plead
guilty was not knowing, voluntary and intelligent. See id.; Pollard, supra.
The sentence imposed was illegal because it violated the Parole Act. See 61
Pa.C.S.A. § 6138(a)(5)(i); Lawrence, supra. Thus, plea counsel was
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ineffective for advising Appellant to accept a plea bargain that called for an
illegal sentence. See, e.g., Commonwealth v. Barndt, 74 A.3d 185
(Pa.Super. 2013) (holding allegation of inaccurate information
communicated to defendant, regarding state backtime to be served as result
of new guilty plea, met all three prongs of test for ineffective assistance of
counsel). Here, Appellant received no information regarding the statutory
sequence for serving his old and new state sentences. Likewise, the PCRA
court erred in failing to comprehend the nature of Appellant’s illegal
sentence and grant him some opportunity for relief; however, specific
performance is unavailable. See Lawrence, supra. See also I. Watson,
supra. Accordingly, we reverse the order denying PCRA relief, vacate the
judgment of sentence because it was illegal as imposed, and remand for
further proceedings.
Order reversed; case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2016
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