J-S41024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAURICE D. HARPER :
:
Appellant : No. 1869 EDA 2017
Appeal from the PCRA Order May 31, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007104-2012
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 28, 2018
Appellant, Maurice D. Harper, appeals from the order entered on May
31, 2017, dismissing his petition for relief filed under the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We vacate and remand.
On July 23, 2015, Appellant pleaded nolo contendere to aggravated
assault, as a felony of the second degree.1 In exchange for the plea, the
Commonwealth agreed to recommend a sentence of two and one-half to five
years in prison, with the sentence to be served “concurrent with existing
sentence,” and with Appellant receiving credit for time served. See
Appellant’s Written Plea Form, 7/23/15, at 1; see also N.T. Plea Hearing,
7/23/15, at 6 and 20.
____________________________________________
1 18 Pa.C.S.A. § 2702(a).
____________________________________
* Former Justice specially assigned to the Superior Court.
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The trial court accepted Appellant’s plea and then sentenced him in
accordance with the Commonwealth’s recommendation. Specifically, the trial
court sentenced him as follows:
I will give you the sentence of [two and one-half] to five
[years] to run concurrent with any sentence you’re currently
serving. You have credit for time served. The court will
recommend release at the minimum provided [Appellant] has
complied with, you know, all the rules of the Department of
Correction[s] in terms of, you know, good behavior while in
prison.
N.T. Plea Hearing, 7/23/15, at 22 (some internal capitalization omitted).
Appellant did not file a direct appeal from his judgment of sentence.
On October 10, 2015, Appellant filed the current, timely PCRA petition.
Within the petition, Appellant claimed that he was entitled to post-conviction
collateral relief because: his trial counsel was ineffective for erroneously
inducing his plea and his “plea of nolo contendere was unlawfully induced
where the circumstances make it likely that the inducement caused
[Appellant] to plea[d] nolo contendere and he is innocent.” Appellant’s Pro
Se PCRA Petition, 10/10/15, at 1 and 11. Specifically, Appellant claimed,
during the plea hearing, his counsel was ineffective and the trial court judge
unlawfully induced his plea when they assured Appellant that “he [has] over
[three] years [of] time served already” on his aggravated assault charge –
and, that if he pleaded nolo contendere to aggravated assault, the three years
of time-served “would place him over his minimum [sentencing term] date.”
Id. at 11. As Appellant claimed, he is innocent of the aggravated assault,
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but pleaded nolo contendere to the charge because of the trial court’s (and
his counsel’s) assurances that his credit for time-served placed him over his
minimum sentencing term. See id. at 2-6 and 11. Appellant claimed that he
did not receive the benefit of his plea bargain and, “[o]n September 1, 2015[,
Appellant] was informed by the Department of Correction[s] that he was not
credited [with the amount of] time served as agreed [upon] by all parties.”
Id. at 11.
Appellant then filed a pro se amended PCRA petition, where he more
clearly explained that he was innocent of the charges against him. See
Appellant’s Pro Se Petition for Jail Credit for Time Served, 11/3/15, at 1. In
particular, Appellant claimed, the complainant in this case actually assaulted
him, and Appellant only “confronted his attacker in self-defense.” See id.
The PCRA court appointed counsel to represent Appellant and counsel
filed an amended petition on Appellant’s behalf. Amended PCRA Petition,
7/7/16, at 1-8. The amended petition again declared that Appellant’s trial
counsel was ineffective for falsely “assur[ing Appellant that] he would get the
time credit in question” and that Appellant was entitled to relief because his
guilty plea was unlawfully induced.2 Id. at 7.
____________________________________________
2 Appellant attached a document to his amended petition titled “Credit Time
Review for State Inmates.” It declares the Director of the Philadelphia County
Prison calculated that Appellant was entitled to approximately 60 days of
credit for time served on his aggravated assault sentence. Credit Time Review
for State Inmates, dated 9/28/15, attached as Exhibit “A” to Appellant’s
Amended PCRA Petition, at 1. Further, as the Commonwealth explains in its
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On March 6, 2017, the PCRA court notified Appellant that it intended to
dismiss his petition in 20 days, without holding a hearing. PCRA Court Notice,
3/6/17, at 1; see also Pa.R.Crim.P. 907(1). The PCRA court finally dismissed
Appellant’s petition on May 31, 2017 and Appellant filed a timely notice of
appeal. PCRA Court Order, 5/31/17, at 1.
Appellant numbers two claims on appeal:
[1.] Whether the [PCRA] court erred in denying Appellant’s
PCRA petition without an evidentiary hearing on the issues
raised in the amended PCRA petition regarding trial counsel’s
ineffectiveness[?]
[2.] Whether the [PCRA] court erred in not granting relief on
the PCRA petition alleging trial counsel was ineffective[?]
Appellant’s Brief at 8 (some internal capitalization omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
____________________________________________
brief, the remainder of Appellant’s time-served was credited towards a
separate sentence for possession with the intent to deliver (“PWID”). As the
Commonwealth explains:
[Appellant] was sentenced for the PWID case about three
months before his plea and sentence in this case. He
received credit for time served on the PWID case reaching
back to December 7, 2012. Because that time was credited
to his PWID sentence, [Appellant] cannot also get credit for
it on his aggravated assault sentence.
Commonwealth’s Brief at 12 n.2.
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resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). The two at issue here are:
(ii) 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.
(iii) 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.
42 Pa.C.S.A. § 9543(a)(2)(ii) and (iii).3
As to Appellant’s ineffective assistance of counsel claim, we note that
counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
____________________________________________
3 Although Appellant pleaded nolo contendere to the aggravated assault
charge, we note “[i]t is well established that a plea of nolo contendere is
treated as a guilty plea in terms of its effect upon a given case.”
Commonwealth v. V.G., 9 A.3d 222, 226 (Pa. Super. 2010); see also
Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super. 2004) (“in terms
of its effect upon a case, a plea of nolo contendere is treated the same as a
guilty plea”).
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Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.
We also note that “[a] criminal defendant has the right to effective
counsel during a plea process as well as during trial.” Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). Yet, where the
ineffectiveness of counsel is claimed in connection with the entry of a plea, a
petitioner may only obtain relief where “counsel’s deficient stewardship
resulted in a manifest injustice, for example, by facilitating [the] entry of an
unknowing, involuntary, or unintelligent plea.” Commonwealth v. Moser,
921 A.2d 526, 530 n.3 (Pa. Super. 2007) (en banc) (internal citations and
quotations omitted). As we have explained:
once a defendant has entered a plea of guilty [or nolo
contendere], it is presumed that he was aware of what he
was doing, and the burden of proving involuntariness is upon
him. Therefore, where the record clearly demonstrates that
a [] plea colloquy was conducted, during which it became
evident that the defendant understood the nature of the
charges against him, the voluntariness of the plea is
established.
Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal
quotations, citations, and corrections omitted), quoting Commonwealth v.
Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994). To prove prejudice, the
“defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty [or nolo contendere] and
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would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985).
As to the entry of a plea, our Supreme Court has held:
In order for a guilty [or nolo contendere] plea to be
constitutionally valid, the [] plea colloquy must affirmatively
show that the defendant understood what the plea connoted
and its consequences. This determination is to be made by
examining the totality of the circumstances surrounding the
entry of the plea. Thus, even though there is an omission or
defect in the [] plea colloquy, a plea of guilty [or nolo
contendere] will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant
had a full understanding of the nature and consequences of
his plea and that he knowingly and voluntarily decided to
enter the plea.
Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014) (internal
quotations and citations omitted).
Finally, a PCRA petitioner is not automatically entitled to an evidentiary
hearing on his petition. A PCRA petition may be dismissed without a hearing
if the PCRA court “is satisfied from [its review of the petition] that there are
no genuine issues concerning any material fact and that the [petitioner] is not
entitled to post-conviction collateral relief, and no purpose would be served
by any further proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA
petition raises material issues of fact, the PCRA court “shall order a hearing.”
Pa.R.Crim.P. 908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision
to dismiss a petition without a hearing, an appellant must show that he raised
a genuine issue of fact which, if resolved in his favor, would have entitled him
to relief, or that the court otherwise abused its discretion in denying a
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hearing.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (internal
quotations and citations omitted).
According to Appellant, he is entitled to relief – or, at least an evidentiary
hearing – on his unlawful inducement and ineffective assistance of counsel
claims. As to the former claim, Appellant contends that his plea was unlawfully
induced by the trial court because the trial court essentially assured Appellant
that, if Appellant pleaded nolo contendere to aggravated assault, Appellant
would receive three years of credit for time-served. Appellant claims that,
since he did not receive the promised credit and since he is innocent of the
aggravated assault, he is entitled to relief under the PCRA. In the same vein,
Appellant contends that his trial counsel was ineffective for advising him to
take the plea when he was not entitled to the promised credit and for also
“assur[ing] him he would get the time credit in question.” See Appellant’s
Amended PCRA Petition, 7/7/16, at 1-7. Appellant writes:
At many instances during the July 23, 2015 [] plea
hearing[, Appellant] was assured that the nolo contendere
plea he was entering [] would entitle him to immediate
release on time served. Both his trial counsel [and the trial
court judge] made [Appellant] believe that he had sufficient
time served and that a recommendation from the [trial] court
to release him at minimum time served (2.5 years) would
allow him to put this whole ordeal behind him immediately.
As the record shows, he relied on these promises, to his
detriment, and subsequently entered into an unlawful plea.
...
Appellant continually asserted his innocence to both his trial
counsel and the [trial] court. However, due to the inducing
acts and coercive nature of both forces upon [Appellant], he
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was unlawfully induced to plead guilty to a charge based upon
facts to which he did not consent.
Appellant’s Brief at 11 and 15-16 (some internal capitalization omitted).
We conclude that the PCRA court erred when it dismissed Appellant’s
PCRA petition without holding an evidentiary hearing because Appellant raised
a genuine issue of material fact that “the ineffective assistance of counsel
caused [Appellant] to enter an involuntary or unknowing plea” and that his
plea was “unlawfully induced where the circumstances make it likely that the
inducement caused [Appellant] to plead [nolo contendere] and [Appellant] is
innocent.” 42 Pa.C.S.A. § 9543(a)(2)(ii) and (iii).
On July 23, 2015, Appellant appeared before the trial court and the trial
court explained to Appellant the Commonwealth’s plea offer. The notes of
testimony reflect the following (with special emphasis placed on the trial
court’s seeming assurances to Appellant that, if he pleaded nolo contendere
to aggravated assault, he would receive years of credit on that sentence for
time already served):
[Trial Court]: So I said[, Commonwealth,] sweeten the deal,
do something. Like, let’s get rid of this. Right? Let’s try to
negotiate. What’s your last final best offer? And [the
Commonwealth] will withdraw prosecution on [a separately-
filed robbery charge] if you take a deal on the [aggravated]
assault. It’s currently an F-1.
[Commonwealth]: Yes.
...
[Trial Court]: Take that off the table. Lower it to a felony of
the second degree where it’s not a strike and it’s not gonna
impact your future in terms of, you know, being a third strike
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if you get arrested again. That wouldn’t be the case. I’m
just saying. It would be a felony of the second degree. They
would offer you two and a half to five. You could plead no
contest and it would be concurrent with your current
situation.
[Appellant]: And it’s just, and the robbery charge is gone[?]
[Trial Court]: Gone, never to come back.
[Appellant]: All right. I agree.
[Trial Court]: All right. Go over the paperwork with your
lawyer.
[Appellant]: All right.
[Trial Court]: And ask whatever questions you need to.
[Appellant]: What’s the catch to it, though?
[Trial Court]: It sounds a little too good to be true, right?
[Appellant]: Yeah. It’s always a catch.
[Trial Court]: You know what? . . . [T]hey don’t want to take
a chance at getting flat-out not guilty. They’re willing to
tweak it and bring it down. So I don’t know that there’s a
catch. You know, it’s two and a half to five. There’s no
probation, right?
[Commonwealth]: Right.
[Trial Court]: Just flat two and a half to five running
concurrent with your current sentence. What’s your
other sentence?
[Appellant]: Two to five.
[Trial Court]: Two to five. So, okay. So you may not get
out right away but you might. You might have to do
another six months to get to two and a half.
[Appellant]: Question.
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[Trial Court]: You’ll get credit. But you may have credit
from prior to that other one, so.
[Appellant]: You looked at the circumstances of the
charges?
[Trial Court]: Yeah. Look, at the end of the day –
[Appellant]: I just want you to know the circumstances of it.
...
[Appellant]: Is there a catch?
[Commonwealth]: I mean, as far as F-2 aggravated assault,
it’s two and a half to five.
[Appellant]: Could this just be with time served so it won’t
interfere with?
[Trial Court]: The problem is if you do it that way it gets too
convoluted and you can’t do time served to five years
because they don’t know what your minimum is then.
[Appellant]: Yeah, see.
[Trial Court]: So that’s why I’m gonna make it
concurrent, though. Do you know what I’m saying?
Like, that’s why I’m saying concurrent, credit for time
served. And that's why, [Appellant], -- listen to me -- when
that public defender raised your bail he did you a favor,
because if he didn't raise your bail you wouldn't get
any time credit and you would be doing two and a half
to five starting today if you had made bail on that case.
Do you understand what I'm saying? But because they
raised your bail, they sort of took care of you because
now you've got two and a half years in probably. How
long have you been in?
[Appellant]: Almost three, over three years.
[Trial Court]: There you go. Now you got credit for all
that time, whereas if he didn't raise your bail you would not
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be getting credit and this wouldn't be a conversation we'd be
having. Now it's like it's over. It's literally going to be
over. I don't know. It's an F-2. It's, you know, not that
serious.
[Appellant]: I just want to go home. I want to get this
behind me. I just want to go home as long as there's
no catches.
[Trial Court]: I don't see a catch. The only catch I could
think of is somehow it has some effect on your parole
date.
N.T. Plea Hearing, 7/23/15, at 5-11 (emphasis added).
A fair reading of the above reveals that the trial court judge told
Appellant that she “looked at the circumstances of the charges” and assured
Appellant that he was entitled to approximately three years of credit for time
served on any aggravated assault sentence. The judge then told Appellant
that, since the plea deal called for a two and one-half to five-year term on the
aggravated assault charge (with a recommendation that Appellant only serve
the minimum term), the three years of credit for time-served meant that, if
Appellant agreed to the deal, Appellant’s aggravated assault term of
imprisonment was “over. It's literally going to be over.” Id. Appellant claims
that he entered his plea based upon the trial court’s false assurances regarding
the credit for time served.
Given the trial court’s language during the plea hearing, Appellant’s
claim raises a genuine issue of material fact as to whether Appellant
“understood what the plea connoted and its consequences” because, it
appears, the trial court falsely assured Appellant that, if he agreed to the deal,
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he would be entitled to three years of credit for time served on the sentence.
See Eichinger, 108 A.3d at 832 (internal quotations and citations omitted).
Further, since Appellant also claims that he is innocent of the aggravated
assault, Appellant has raised a genuine issue of material fact as to whether
his plea was “unlawfully induced where the circumstances make it likely that
the inducement caused [Appellant] to plead [nolo contendere] and [Appellant]
is innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii). The PCRA court thus erred when
it dismissed this claim without holding an evidentiary hearing.
In like fashion, we conclude that the PCRA court erred when it dismissed
Appellant’s ineffective assistance of counsel claim without holding an
evidentiary hearing. To be sure, Appellant’s counsel was present during the
entire plea hearing and counsel presumably heard the trial court inform
Appellant that he was entitled to years of credit for time served on the ensuing
sentence. See N.T. Plea Hearing, 7/23/15, at 1-24. Yet, counsel failed to
correct the trial court; further, counsel failed to explain to Appellant that the
trial court does not calculate credit for time served and that the trial court
thus could not guarantee Appellant’s time-served would be credited towards
his aggravated assault sentence. In addition, since Appellant contends that
his counsel also “assured him he would get the time credit in question,” there
is a genuine issue of material fact as to whether Appellant’s ineffective
assistance claim has arguable merit. Appellant’s Amended PCRA Petition,
7/7/16, at 7. Since Appellant also claims that counsel had no reasonable basis
for his faulty advice and that “but for counsel's errors, [Appellant] would not
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have pleaded guilty and would have insisted on going to trial,” Appellant has
pleaded a valid ineffective assistance of counsel claim. Id.; see also
Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)
(internal quotations and citations omitted); see also Appellant’s Pro Se PCRA
Petition, 10/10/15, at 2 (Appellant declares: “[Appellant] was [given]
ineffective assistance of counsel when he was denied his right . . . to be
confronted with the witness against him”). The PCRA court erred when it
dismissed this claim without holding an evidentiary hearing.4
Order vacated. Case remanded. Jurisdiction relinquished.
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4 The Commonwealth argues that the PCRA court properly dismissed
Appellant’s petition because:
[Appellant] affirmed in both his written plea colloquy and his
statements on the record during the plea colloquy that the
only promises made with respect to the plea were for a
sentence of [two and one-half] to five years’ incarceration to
run concurrent with any other sentence, with credit for time
served, and that all other charges would be dropped. The
[trial] court sentenced him in accordance with the terms of
the plea agreement. [Appellant] got exactly the benefit of
the bargain he entered.
Commonwealth’s Brief at 7.
We disagree with the Commonwealth. At the very least, Appellant’s petition
raises a genuine issue of material fact as to whether the trial court assured
Appellant of the amount of credit he was going to receive for time served on
his aggravated assault sentence. Further, since Appellant has claimed that
his trial counsel was present during the plea hearing and not only failed to
correct the trial court, but also “assured [Appellant that] he would get the
time credit in question,” Appellant is entitled to an evidentiary hearing on both
his ineffective assistance and unlawful inducement claims. See Appellant’s
Amended PCRA Petition, 7/7/16, at 7.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/18
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Com. v. Harper, M.
Combined Opinion