J-A11030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFERY EUGENE ZEIGLER :
:
Appellant : No. 1909 MDA 2017
Appeal from the PCRA Order November 14, 2017
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000772-2015
BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 20, 2018
Appellant Jeffery Eugene Zeigler appeals from the order denying his
petition for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546. Appellant argues that plea counsel’s ineffectiveness caused him
to enter an involuntary and unknowing guilty plea. We affirm.
On September 14, 2015, Appellant entered a negotiated guilty plea to
driving under the influence (DUI) and flight to avoid apprehension,1 and was
sentenced to an agreed-upon aggregate sentence of eighteen to seventy-two
months’ state incarceration. At the time of sentencing, Appellant was on state
parole for an unrelated matter.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(c), and 18 Pa.C.S. § 5126(a), respectively.
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Appellant filed a pro se motion to modify sentence nunc pro tunc on
September 2, 2016. The court issued an order on September 29, 2016,
stating that Appellant’s motion would be treated as a first PCRA petition and
appointing PCRA counsel on Appellant’s behalf. On April 5, 2017, counsel filed
an amended petition alleging, in relevant part,2 that Appellant’s plea was
unlawfully induced. Specifically, Appellant asserted that plea counsel led him
to believe that the sentence in this case would begin to run on September 14,
2015, notwithstanding his outstanding parole violation. Amended PCRA Pet.,
4/5/17, at 10.
The PCRA court conducted an evidentiary hearing on August 7, 2017.
Plea counsel testified that at the time Appellant entered his guilty plea, she
was aware of his status as a state parole violator. N.T. PCRA Hr’g, 8/7/17, at
7. She testified that she knew Appellant was facing some period of
incarceration on his parole violation docket, but did not know if she knew how
much backtime he was facing at the time of the plea. Id. She further testified
that she did not recall specifically having a conversation about whether the
new sentence would run consecutive or concurrent to the parole violation
sentence. Id. She also stated that, “I can’t imagine that I would have told
him that they would run concurrently because that wasn’t an agreement with
the DA’s office. And there is law out there stating that, that is something that
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2Appellant’s amended PCRA petition included a challenge to his DUI conviction
based on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). However,
Appellant did not pursue that issue in the instant appeal.
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can’t happen. But I don’t specifically recall having that conversation with
[Appellant].” Id. Plea counsel also said that although the sentencing sheet
indicated that Appellant’s plea sentence would commence on the date of the
plea hearing, “typically the way things work is that the sentence will
commence [that day] and the [Department of Corrections] will do what they
need to do with calculating the back time for the parole violation.” Id. at 10.
Plea counsel reiterated at the end of her testimony that she did “not recall
leading [Appellant] to believe that his sentences would run concurrent.” Id.
at 12.
Appellant testified that with respect to his conversation with plea
counsel, “to my understanding of the conversation that took place that day,
my time would start that day and it would be running with my parole violation.
That’s why I took the 18-72 months.” Id. at 18. He also stated had he known
that the new sentence would run consecutive to his violation sentence, he
would have proceeded to trial.
On cross-examination, the Commonwealth asked Appellant, “But would
you agree with me that at no point in time during the guilty plea colloquy or
during sentencing were you ever told that, that it would be running
concurrent?“ Id. at 21. Appellant responded, “I was led to believe that. Was
it actually stipulated to in the courtroom that day? I read my court transcripts.
And it doesn’t say in there. I can’t remember exactly what was said that day.
But according to the court transcripts, it wasn’t brought up.” Id.
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At the conclusion of the hearing, the PCRA court directed the parties to
submit briefs. On November 13, 2017, the PCRA court entered an order and
opinion denying Appellant’s petition. See PCRA Ct. Order, 11/13/17.
Appellant filed a timely notice of appeal on December 11, 2017. That same
date, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b) statement
of errors. Appellant timely complied on December 20, 2017.
Appellant raises the following question for our review:
Did the trial court err in denying the Appellant’s Amended Petition
for Post Conviction Relief Pursuant to the Post Conviction Relief
Act by order issued November 13, 2017 where testimony set forth
at the hearing on August 7, 2017 established that the ineffective
assistance of his counsel led the Appellant to erroneously believe
that his sentences associated with a plea deal that were issued on
September 14, 2015 would run concurrently with another prior
sentence and that the Appellant, who has averred his innocence,
would not have pled guilty had he been properly advised by his
counsel on the matter?
Appellant’s Brief at 8.
Appellant argues that the PCRA court should have found that the
Appellant received erroneous information from his counsel prior to his plea.
Appellant’s Brief at 14. He asserts that plea counsel “led [him] to erroneously
believe that his sentences associated with a plea deal that were issued on
September 14, 2015, would run concurrently with another prior sentence” and
that having “averred his innocence, [he] would not have pled guilty had he
been properly advised by his counsel on the matter.” Id. at 12.
He argues that “Appellant testified to this, his counsel could not
remember otherwise, the transcript does not show otherwise, and language
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in the sentencing order . . . supports this claim.” Id. at 15. In support,
Appellant points to the sentencing order, which indicates that Appellant’s
sentence was to commence on that date. Id. Appellant concludes that “[t]he
PCRA’s factual finding was not supported by the record. In the absence of
said finding, the Appellant clearly demonstrated that his plea was unlawfully
induced by the totality of the circumstances surrounding the plea.” Id. at 16.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). Our “scope
of review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the PCRA
court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012)
(citation omitted). “The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court.” Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted). “However, this Court
applies a de novo standard of review to the PCRA court’s legal conclusions.”
Id. (citation omitted).
In order to obtain relief on an ineffectiveness claim, a petitioner must
establish:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
petitioner suffered prejudice as a result of counsel’s error such
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that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Trial counsel is presumed to be effective, and [the defendant]
bears the burden of pleading and proving each of the three factors
by a preponderance of the evidence.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations
omitted). “A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead, if a claim fails
under any necessary element of the ineffectiveness test, the court may
proceed to that element first.” Commonwealth v. Tharp, 101 A.3d 736,
747 (Pa. 2014) (citations omitted).
In Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999), the
Pennsylvania Supreme Court stated:
Allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the ineffectiveness
caused appellant to enter an involuntary or unknowing plea. In
determining whether a guilty plea was entered knowingly and
intelligently, a reviewing court must review all of the
circumstances surrounding the entry of that plea.
Id. (footnote and citations omitted); accord Commonwealth v. Robinson,
___ A.3d ___, ___, 2018 WL 2041425, at *6 (Pa. Super. 2018) (en banc).
“Thus, to establish prejudice, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Barndt, 74 A.3d at
192 (citation and internal quotation marks omitted). Counsel’s failure to
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inform a defendant about the possibility of parole revocation in an unrelated
case does not, without more, invalidate the plea. Id. at 195. Conversely,
[a]s clear as our case law is that counsel’s omission to mention a
collateral consequence of a guilty plea does not constitute
ineffectiveness of counsel, it is equally clear that counsel’s
assistance is constitutionally ineffective when counsel
misapprehends the consequences of a given plea and misleads his
client accordingly about those consequences, without regard to
whether the consequences in question are “direct” or “collateral.”
***
In short, when it comes to collateral consequences of a guilty plea,
counsel’s sins of omission must be treated differently than his sins
of commission.
Id. at 196 (footnote and citation omitted), 201. Thus, to establish
ineffectiveness, Appellant must plead and prove that counsel affirmatively
misled him with respect to the parole consequences of his guilty plea. 3 See
id.
Here, in concluding that Appellant’s claim was meritless, the PCRA court
explained:
Although [plea counsel] recalled that [Appellant] was incarcerated
for a parole revocation unrelated to the above-captioned dockets,
she testified, “I can’t imagine that I told him it would run
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3 By way of background, we note that the Parole Board was statutorily required
to run Appellant’s parole revocation sentence consecutively to his sentence on
the new charges. See 61 Pa.C.S. § 6138; see also Walker v. Pa. Bd. of
Prob. & Parole, 729 A.2d 634, 638 (Pa. Cmwlth. 1999) (recognizing “the
[Parole] Board may not impose a parole violation sentence to run concurrently
with a new sentence for an offense committed while on parole[]” (citation
omitted)). Thus, under these particular facts, Appellant’s new sentence could
not commence until his parole revocation sentence was completed.
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concurrently”[] and that she did not recall leading [Appellant] to
believe that his new sentence would start running on September
14, 2015, rather than upon the conclusion of his parole revocation
sentence in 2017. “In short when it comes to collateral
consequences of a guilty plea, counsel’s sins of omission must be
treated differently than [her] sins of commission.” Furthermore,
[Appellant] himself did not recall any such discussion prior to
entering a plea, and neither the transcripts from the sentencing
hearing nor the written plea colloquy indicate that the sentences
would run concurrently.
***
Based on the evidence presented, it is clear to the [c]ourt that
[Appellant’s] argument lacks merit as [plea] counsel did not
affirmatively provide [Appellant] erroneous advice about the
length or manner of service of the sentences. As such, Appellant
could not have relied upon advice that was never provided in the
first place.
Failure to advise a defendant of the consequences of a guilty plea
may indeed be cognizable under the ineffective assistance of
counsel provisions of the PCRA, under certain circumstances. In
the instant case, the fact that [Appellant]’s sentences at the
above-captioned dockets would run consecutively, instead of
concurrently, to the unrelated parole revocation term, is a
collateral consequence, and thus does not undermine the validity
of his guilty plea. Since collateral consequences, as opposed to
direct consequences, are irrelevant to determining whether a
guilty plea was entered voluntarily and knowingly, [plea] counsel
was under no obligation to advise [Appellant] that his sentences
for the above-captioned cases would run consecutively to his
parole revocation on an unrelated docket. Because the [c]ourt
finds that [Appellant]’s issue lacks merit, and with due regard to
the [c]ourt’s finding that [plea counsel] was a more credible
witness than [Appellant],[4] the [c]ourt need not address the
remaining prongs of the ineffectiveness of counsel analysis.
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4 At the PCRA hearing, the Commonwealth offered evidence that Appellant
had multiple crimen falsi convictions spanning from 1999 to 2013. The PCRA
court indicated that “in consideration of this fact . . . the [c]ourt finds [plea
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Id. at 8-11 (citations omitted).
In light of the PCRA court’s findings of fact and credibility
determinations, which are supported by the record, we are bound to conclude
that plea counsel did not affirmatively mislead Appellant with respect to the
consequences of his parole revocation.5 See Spotz, 18 A.3d at 259; See
Barndt, 74 A.3d at 196. Accordingly, because counsel’s omission in this
context cannot form the basis of an ineffectiveness claim, we agree with the
PCRA court that Appellant’s claim lacks arguable merit and does not warrant
relief. See Barndt, 74 A.3d at 192.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/20/2018
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counsel]’s testimony to be credible and deserving of more weight than
[Appellant]’s. PCRA Ct. Op., 11/13/17, at 7.
5 We also note that during the oral guilty plea colloquy, Appellant indicated
that no promises outside of the sentence in the negotiated plea agreement in
the current case were made to him with respect to his plea. See N.T., Guilty
Plea Hr’g, 9/14/15, at 4, 6. Moreover, on the written guilty plea colloquy form,
Appellant acknowledged that no promises were made to persuade him to plead
guilty. See Written Colloquy Form, 4/14/15, at 5.
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Com. v. Zeigler, J.
Combined Opinion