J-S41035-16
2016 PA Super 140
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLIE PATTERSON,
Appellant No. 773 EDA 2015
Appeal from the PCRA Order February 19, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007382-2011
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JUNE 29, 2016
Appellant Charlie Patterson (“Appellant”) appeals from the order
entered in the Court of Common Pleas of Montgomery County, which
dismissed his first petition brought pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We vacate and remand.
On June 10, 2013, Appellant entered into an open guilty plea to the
charge of possession of a controlled substance (marijuana) with the intent to
deliver.1 During the colloquy, Appellant acknowledged that his lawyer
informed him of the Commonwealth’s intention to seek imposition of a five-
year statutory mandatory minimum sentence2 from which the judge would
have no power to deviate under the law. N.T., 6/10/13, at 5. Plea Counsel
____________________________________________
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S. § 7508(a)(iii).
*Former Justice specially assigned to the Superior Court.
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likewise referred to the applicability of the “mandatory minimum sentence”
throughout the hearing, and the court also informed Appellant that it “would
be constrained on some level, because the Commonwealth is going to file
the mandatory minimum.” N.T. at 13-14.
One week later, on June 17, 2013, the United States Supreme Court
decided Alleyne v. United States, 133 S.Ct. 2151 (2013), in which it held
for the first time that any fact triggering a mandatory minimum sentence
must first be submitted to a jury and proved beyond a reasonable doubt.
Nevertheless, the Commonwealth subsequently filed its “Notice of Intent to
Seek Mandatory Sentence,” referencing the statutory mandatory minimum
sentence of five years’ incarceration and a mandatory minimum fine of
$50,000.
At the sentencing hearing of September 6, 2013, however, the court
acknowledged that the Commonwealth and Appellant had reached a
negotiated agreement for a term of incarceration of four to eight years with
no fine. There is no indication in the transcript that the Alleyne decision
influenced this change in course or that Appellant was aware of the
decision’s implications, and, in fact, statements by the court imply that the
statutory mandatory minimum remained applicable as a matter of course
and would have been implemented as indicated during the guilty plea but for
the “eminently reasonable” decision of the Commonwealth to “waiv[e]” its
right to enforce it. N.T., 9/6/13, at 2, 5. The court accepted the negotiated
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agreement and imposed sentence accordingly. Plea counsel filed neither a
post-sentence motion nor a direct appeal.
On September 15, 2014, Appellant filed a pro se petition for relief
under the PCRA, and the court appointed PCRA counsel. PCRA counsel filed
an amended petition on November 24, 2014 averring that plea counsel’s
ineffective failure to advise Appellant of the Alleyne decision and its
potential impact on his case induced Appellant to plead guilty. Most
pertinent to the present appeal are the following two averments contained in
the amended petition:
9. The petitioner alleges that the law provided to him by
defense counsel and the court prior to his plea on the issue of
mandatory minimums has now been declared unconstitutional.
10. The petitioner likewise alleges that the guarantees of a 5-
10 year sentence and a $50,000 fine induced him to agree to a
sentence of 4-8 years with no fine.
Amended Petition, 11/24/24 at 2-3.
The Commonwealth filed an answer to the amended petition in which it
argued that plea counsel could not have been ineffective as alleged, for
Alleyne was not decided until after Appellant entered his June guilty plea.
It is well-settled, the Commonwealth maintained, that a court may not deem
counsel ineffective for failing to anticipate changes in the law. The PCRA
court agreed, discerning only a challenge to the June guilty plea in counsel’s
amended petition for which the law could provide no relief. See PCRA Court
Order, filed 1/13/15, at p 7, ¶¶ 31 and 32. Accordingly, the court dismissed
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Appellant’s petition without an evidentiary hearing. This timely appeal
followed.
Appellant raises two discrete claims of unlawful inducement of his
guilty plea and negotiated sentence. The first claim contends the threat of
receiving a mandatory minimum scheme at Section 7508(a)(iii), which has
since been held unconstitutional in light of Alleyne, induced him to plead
guilty. The second claim asks for a remand to enable Appellant, through
newly-appointed, present counsel, to address whether plea counsel was
ineffective for failing to either challenge the negotiated sentence or file a
motion to withdraw Appellant’s plea altogether given the ramifications of
Alleyne.
“Our standard in reviewing a PCRA court order is abuse of
discretion. We determine only whether the court's order is
supported by the record and free of legal error.”
Commonwealth v. Battle, 883 A.2d 641, 647 (Pa.Super.
2005). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely
because the record could support a contrary holding.”
Commonwealth v. Hickman, 799 A.2d 136, 140, (Pa.Super.
2002). We will not disturb the PCRA court's findings unless the
record fails to support those findings. Id.
“A criminal defendant has the right to effective counsel
during a plea process as well as during trial.” Id. at 141. “A
defendant is permitted to withdraw his guilty plea under the
PCRA if ineffective assistance of counsel caused the defendant to
enter an involuntary plea of guilty.” Commonwealth v.
Kersteter, 877 A.2d 466, 468 (Pa.Super. 2005).
We conduct our review of such a claim in accordance
with the three-pronged ineffectiveness test under
section 9543(a)(2)(ii) of the PCRA. See
[Commonwealth v.] Lynch[, 820 A.2d 728, 732
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(Pa.Super. 2003)]. “The voluntariness of the plea
depends on whether counsel's advice was within the
range of competence demanded of attorneys in
criminal cases.” Id. at 733 (quoting
Commonwealth v. Hickman, 2002 PA Super 152,
799 A.2d 136, 141 (Pa.Super. 2002)).
In order for Appellant to prevail on a claim of
ineffective assistance of counsel, he must show, by a
preponderance of the evidence, 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. Commonwealth
v. Kimball, 555 Pa. 299, 724 A.2d 326, 333
(Pa.1999). Appellant must demonstrate: (1) the
underlying claim is of arguable merit; (2) that
counsel had no reasonable strategic basis for his or
her 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. Id. The petitioner bears
the burden of proving all three prongs of the test.
Commonwealth v. Meadows, 567 Pa. 344, 787
A.2d 312, 319–20 (2001).
Commonwealth v. Johnson, 868 A.2d 1278, 1281
(Pa.Super. 2005).
Kersteter, 877 A.2d at 469–69[sic]. Moreover, trial counsel is
presumed to be effective. Commonwealth v. Carter, 540 Pa.
135, 656 A.2d 463, 465 (1995).
Commonwealth v. Rathfon, 899 A.2d 365, 368–69 (Pa.Super. 2006).
Additionally,
With regard to prejudice, in Hickman, we noted that “[t]o
succeed in showing prejudice, the defendant must show that it is
reasonably probable that, but for counsel's errors, he would not
have pleaded guilty and would have gone to trial. The
‘reasonable probability’ test is not a stringent one.” Hickman,
799 A.2d at 141 (citations omitted; emphasis added). The Court
in Hickman derived this standard from Nix v. Whiteside, 475
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U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), which
held that “[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Id. at 369–70.
Appellant first asks us to invalidate his June guilty plea because it was
the product of undue pressure from a mandatory minimum statutory scheme
subsequently declared unconstitutional. In order to prevail on this
underlying claim as presented, Appellant must establish that plea counsel
provided ineffective assistance of counsel in advising him to plead guilty at
the June guilty plea hearing. In the strictest sense, the PCRA court correctly
observed that it could not deem counsel ineffective for failing to anticipate
the United States Supreme Court’s subsequent decision in Alleyne. See
Commonwealth v. Bennett, 57 A.3d 1185, 1201 (Pa. 2012) (recognizing
“counsel will not be faulted for failing to predict a change in the law.”).
However, Appellant’s argument goes beyond this discrete claim, and
his two issues coalesce, as did the averments in his amended PCRA
complaint, to advance the more nuanced position that counsel’s failure to
advise him of Alleyne during the September sentencing negotiations
affected his decision not only to accept the Commonwealth’s offer of
sentence but also, by implication, to proceed with his guilty plea.
Specifically, by way of its ninth and tenth paragraphs, reproduced supra,
counsel’s amended complaint alleging ineffective inducement incorporated
both the pre-Alleyne June guilty plea itself and the post-Alleyne negotiated
agreement to a four to eight year sentence with no fine, which the
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sentencing court accepted. Therefore, we reject the position taken by the
PCRA court and Commonwealth that Appellant directed his amended
complaint exclusively to plea counsel’s representation at his June guilty plea.
In his amended petition, Appellant, through counsel, averred that plea
counsel’s failure to advise him properly of Alleyne’s applicability to his case
caused him to agree to a sentence of four to eight years as part of his guilty
plea without understanding his sentencing options. The clear implication of
this assertion is that Appellant would not have accepted the
Commonwealth’s offer of sentence had he known he would not be subject to
a mandatory five year sentence given the constitutional infirmities of
mandatory sentencing statutes such as Section 7508(a)(iii). Moreover, it is
not unreasonable to infer from the assertion in paragraph 10, especially
when read in context of the broader petition assailing his guilty plea, that
Appellant would also have withdrawn his plea at that time.
It remains for the PCRA court, however, to conduct an evidentiary
hearing to determine whether counsel did, in fact, fail to advise Appellant
about Alleyne’s applicability to his case. The record of the sentencing
hearing, which contains multiple references to the favorability of the
negotiated sentence over the mandatory minimum sentence that could
otherwise apply, supports Appellant’s position sufficiently to warrant
remand, where he may present evidence that he agreed to the negotiated
sentence only under the undue influence of an unconstitutional mandatory
minimum sentencing scheme. Proof of such prejudice stemming from
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counsel’s failure to advise him properly of the law would entitle Appellant to
a new sentencing hearing. An additional showing that Appellant would have
withdrawn his guilty plea altogether had counsel properly advised him of
Alleyne and the effect it could have on his sentencing would entitle him to
withdraw his guilty plea. See Commonwealth v. Melendez-Negron, 123
A.3d 13, 15-20 (Pa.Super. 2014) (affirming order vacating sentence in light
of Alleyne, but also vacating guilty plea and remanding for further
proceedings where unconstitutional mandatory minimum statute influenced
a plea and negotiated sentence).
Order vacated. Case remanded for further proceedings consistent with
this decision. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2016
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