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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAPHEAL JAMES THOMPSON
Appellant No. 258 WDA 2016
Appeal from the PCRA Order January 19, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000205-2014
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 13, 2017
Appellant, Rapheal James Thompson, appeals from the order entered
on January 19, 2016, dismissing his first petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. We vacate and
remand for an evidentiary hearing.
The factual background and procedural history of this case are as
follows. On April 29, 2013, Appellant fled on foot upon noticing that police
were surveilling a vehicle he just entered. While fleeing, Appellant discarded
between 50 and 100 stamp bags of heroin. When police caught Appellant,
he resisted arrest.
On January 24, 2014, the Commonwealth charged Appellant via
criminal information with possession with intent to deliver a controlled
* Retired Senior Judge assigned to the Superior Court
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substance,1 possession of a controlled substance,2 evidence tampering,3 and
resisting arrest.4 On May 12, 2014, pursuant to a plea agreement, Appellant
pled guilty to possession with intent to deliver a controlled substance and
resisting arrest. Consistent with the negotiated plea agreement, he was
immediately sentenced to an aggregate term of two to four years’
imprisonment followed by four years’ probation. That sentence was ordered
to run concurrently with backtime that Appellant received for violating his
parole at case number CP-02-CR-0015001-2010. Appellant did not file a
direct appeal.
On April 16, 2015, Appellant filed a pro se PCRA petition. Counsel was
appointed and filed an amended PCRA petition. On November 17, 2015, the
PCRA court issued notice of its intent to dismiss the petition without an
evidentiary hearing. See Pa.R.Crim.P. 907(A). On January 19, 2016, the
PCRA court dismissed the petition. This timely appeal followed.5
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
18 Pa.C.S.A. § 4910(1).
4
18 Pa.C.S.A. § 5104.
5
On March 10, 2016, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(a). On March 23, 2016, Appellant filed his concise
statement. On August 15, 2016, the PCRA court issued its Rule 1925(a)
opinion. Appellant’s lone appellate issue was included in his concise
statement.
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Appellant presents one issue for our review:
Did the [PCRA] court err as a matter of law in refusing to grant
relief on the [a]mended PCRA petition . . . as all record
indicators acknowledge that the sentence on this conviction was
specifically ordered to be served concurrently with [Appellant’s]
2010 sentence, which was a condition of the negotiated plea?
Appellant’s Brief at 9.
“Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. We defer to the PCRA court’s factual
findings and credibility determinations [that are] supported by the record.
In contrast, we review the PCRA court’s legal conclusions de novo.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015) (internal citations
omitted).
In his lone issue, Appellant argues that trial counsel was ineffective.
“[T]he Sixth Amendment to the United States Constitution and Article I,
[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to
effective counsel. This right is violated where counsel’s performance so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Simpson,
112 A.3d 1194, 1197 (Pa. 2015) (internal quotation marks and citation
omitted). “[T]rial counsel is presumed to be effective.” Commonwealth
v. Patterson, 143 A.3d 394, 398 (Pa. Super. 2016) (citation omitted). To
prevail on an ineffective assistance of counsel claim, a “petitioner must plead
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and prove (1) the legal claim underlying the ineffectiveness claim has
arguable merit; (2) counsel's action or inaction lacked any reasonable basis
designed to effectuate petitioner’s interest; and (3) counsel’s action or
inaction resulted in prejudice to petitioner.” Commonwealth v. Mason,
130 A.3d 601, 618 (Pa. 2015) (citation omitted).
Here, Appellant’s claim is that counsel provided ineffective assistance
and unlawfully induced an unknowing guilty plea by failing to accurately
explain certain consequences of Appellant’s sentencing agreement with the
Commonwealth. In the plea context, this Court has explained that:
A criminal defendant has the right to effective counsel during a
plea process as well as during trial. A [petitioner] is permitted to
withdraw his guilty plea under the PCRA if ineffective assistance
of counsel caused the [petitioner] to enter an involuntary plea of
guilty . . . . The voluntariness of the plea depends on whether
counsel’s advice was within the range of competence demanded
of attorneys in criminal cases. . . . [T]o succeed in showing
prejudice, the [petitioner] 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.
Patterson, 143 A.3d at 397-398 (internal quotation marks, paragraph
breaks, and citations omitted).
The outcome of this case is controlled by Commonwealth v. Kelley,
136 A.3d 1007 (Pa. Super. 2016). In Kelley, like in the case at bar, the
Commonwealth and the defendant entered into a plea agreement whereby
the defendant’s term of imprisonment would run concurrently with parole
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backtime in a separate case.6 As this Court noted in Kelley, “where a state
parolee gets a new state sentence, he must serve his backtime first before
commencement of the new state sentence.” Id. at 1013, citing 61 Pa.C.S.A.
§ 6138(a)(5)(i). As in the case at bar, the Department of Corrections in
Kelley refused to run the sentences concurrently because doing so would
violate the statute. Cf. Lawrence v. Pennsylvania Dept. of Corrections,
941 A.2d 70 (Pa. Cmwlth. 2007) (DOC cannot run sentences concurrently
when doing so violates section 6138(a)(5)(i)).
In Kelley, this Court stated:
Nothing in the record indicates counsel advised [petitioner] of
the statutory sequence for serving his old and new sentences.
Moreover, neither the Commonwealth nor the court advised
[petitioner] that his negotiated sentence could not be honored as
stated or imposed. [Petitioner] 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.
Kelley, 136 A.3d at 1014.
Contrary to the Commonwealth’s assertions, the same situation is
present in this case. Although the trial court informed Appellant that he may
receive a separate sentence for violating the terms of his parole, neither
6
The PCRA court states that this was not part of the plea agreement that it
approved. PCRA Court Opinion, 8/15/16, at 4. The certified record,
however, belies that assertion. See Sentencing Order, 5/12/14, at 2
(stating that the term of imprisonment in this case would run concurrently
with the term of imprisonment at CP-02-CR-0015001-2010); cf.
Commonwealth v. Brooker, 103 A.3d 325, 329 n.4 (Pa. Super. 2014)
(citation omitted).
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Appellant’s plea counsel, the trial court, nor the Commonwealth advised
Appellant that he was required to serve his backtime prior to serving his
sentence in this case.
As in Kelley, we conclude that Appellant proved that counsel’s advice
was not within the range of competence demanded of attorneys in criminal
cases because counsel negotiated a plea agreement which included a
sentence that violated the Parole Act. As the PCRA court dismissed the
instant petition without an evidentiary hearing, however, we are unable to
determine whether it is “reasonably probable that, but for counsel’s errors,
[Appellant] would not have pleaded guilty and would have gone to trial.”
Patterson, 143 A.3d at 398 (citation omitted). Accordingly, we vacate the
order dismissing Appellant’s PCRA petition and remand for further
proceedings consistent with this memorandum.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2017
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Com. v. Thompson, R.
Combined Opinion