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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ACHILLE LEPEDIO WALKER :
:
Appellant : No. 885 MDA 2019
Appeal from the PCRA Order Entered, April 24, 2019,
in the Court of Common Pleas of Berks County,
Criminal Division at No(s): CP-06-CR-0004419-2015.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 22, 2020
Achille Lepedio Walker appeals pro se from the order denying his first
petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42
Pa.C.S.A. §§ 9541-46. Walker argues that plea counsel’s ineffectiveness
caused him to enter an involuntary and unknowing plea. We reverse.
The facts and pertinent procedural history are as follows. On February
13, 2018, Walker entered a negotiated plea agreement to one count of
conspiracy to commit possession with intent to deliver and one count of
criminal use of a communication facility. Under the plea agreement, Walker
agreed to serve an aggregate sentence of 11½ to 23 months of incarceration,
followed by a five-year probationary term. Walker completed a written plea
colloquy, and the trial court conducted a brief oral colloquy before accepting
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* Retired Senior Judge assigned to the Superior Court.
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the plea. The trial court then sentenced Walker in accordance with the plea
agreement. The court credited Walker for 410 days of time served, and
granted the Commonwealth’s motion to withdraw all remaining charges.
Walker did not file an appeal.
On January 3, 2019, Walker filed a timely pro se PCRA petition. In this
petition, Walker asserted that plea counsel erroneously informed him that,
because his previous parole period had expired, he would not face the risk of
back time being imposed if he pled guilty to the new charges. Thereafter,
Walker was arrested for a parole violation and sentenced to serve thirty-six
months of back time. According to Walker, had plea counsel not misinformed
him about his parole status, he would not have entered his guilty plea.
The PCRA court appointed counsel, and, on March 29, 2019, PCRA
counsel filed a “no-merit” letter and petition to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley 550 A.2d 213 (Pa. Super. 1988) (en banc). On April 2, 2019, the
PCRA court granted PCRA counsel’s petition to withdraw and issued
Pa.R.Crim.P. 907 notice of its intention to dismiss Walker’s PCRA petition
without a hearing. Walker filed a response. By order entered April 24, 2019,
the PCRA court denied Walker’s petition. This appeal followed.1 Both Walker
and the PCRA court have complied with Pa.R.A.P. 1925.
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1Although the Commonwealth asserts that Walker’s appeal was untimely, we
note that the time-stamp on the envelope in which he mailed his notice of
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On appeal, Walker essentially argues that the PCRA court erred in
accepting PCRA counsel’s Turner/Finley letter because plea counsel
misinformed him about the consequences of his guilty plea. See Walker’s
Brief at 4.2
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. 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 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)
(citations omitted).
When the PCRA court has dismissed a petitioner’s PCRA
petition without an evidentiary hearing, we review the PCRA
court’s decision for an abuse of discretion. Commonwealth v.
Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
discretion to dismiss a petition without a hearing when the court
is satisfied that there are no genuine issues concerning any
material fact, the defendant is not entitled to post-conviction
collateral relief, and no legitimate purpose would be served by
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appeal from the prison is May 24, 2019. Thus, Walker’s appeal is timely. See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011)
(explaining “[u]nder the prisoner mailbox rule, we deem a pro se document
filed on the date it is placed in the hands of prison authorities for mailing.”)
2Walker also raised an issue regarding the ineffectiveness assistance of PCRA
counsel. Because he inappropriately raises this claim first time on appeal, we
do not consider it. See generally, Pa.R.A.P. 302(a); Commonwealth v.
Henkel, 90 A.3d 16 (Pa. Super. 2014).
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further proceedings. Id. To obtain a 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 material fact which, if
resolved in his favor, would have entitled him to relief, or that the
court otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).
Walker’s claim alleges that plea counsel was ineffective for giving him
incorrect information regarding the consequences of entering his guilty plea.
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish, by a preponderance of the evidence,
that counsel's ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Id. This requires the petitioner to demonstrate that: (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) counsel’s act or omission
prejudiced the petitioner. Id. at 533.
With regard to claims of ineffectiveness in relation to the entry of plea,
we further note:
Ineffective assistance of counsel claims arising from the plea
bargaining-process are eligible for PCRA review. 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 into an involuntary or
unknowing plea. Where the defendant enters his plea on
the advice of counsel, the voluntariness of the plea depends
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on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.
The standard for post-sentence withdraw 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 the 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. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations omitted).
In support of his ineffective assistance claim, Walker argues that prior
to the entry of his guilty plea “he specifically asked [plea] counsel whether he
would face parole consequences as a convicted parole violator. Counsel
affirmatively informed [Walker] he would not, as the time remaining on the
original sentence had expired.” Walker’s Brief at 6. As noted above, Walker
was later arrested for a parole violation and sentenced to thirty-six months of
back time. Id. at 9. According to Walker, he would not have entered his
guilty plea if he had known it would trigger a parole violation.
Walker bases his claim of error on this Court’s decision in
Commonwealth v. Barndt, 74 A.3d 185 (Pa. Super. 2013). In that case,
Barndt, following his arrest, was subject to a possible revocation of his nearly
thirty months of “street time” spent on parole in a separate case. According
to Barndt, his plea counsel told him that the Pennsylvania Board of Probation
and Parole (“the parole board”) would revoke only eleven months. This was
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patently incorrect, because, following his sentencing on the new charges, the
parole board revoked all thirty months of Barndt’s street time. The PCRA court
dismissed Barndt’s PCRA petition seeking relief.
On appeal, we held that counsel was ineffective for misinforming Barndt
that he would lose only eleven months of street time, and counsel’s action of
affirmatively misleading Barndt caused him to enter an unknowing guilty plea.
In reaching this conclusion, we first noted that, under Pennsylvania precedent,
“counsel’s failure to advise his client regarding the collateral consequence of
parole revocation in an unrelated matter would not, without more, constitute
a basis for allowing the defendant to withdraw his guilty plea.” Barndt, 74
A.3d at 196 (citation and emphasis omitted). However, we noted a distinction
in the claim raised by Barndt in his appeal:
[Barndt’s] ineffectiveness claim in this matter is not
couched in terms of counsel’s omission. Rather, [Barndt]
argues that plea counsel affirmatively misled [him] to
believe that he would receive a parole setback of no more
than eleven months. As clear as our case law is that
counsel’s omission to mention a collateral consequence of a
guilty plea does not constitute ineffective assistance of
counsel, it is equally that counsel’s assistance is
constitutionally ineffective when counsel misapprehends the
consequences of a given plea and misleads his client
accordingly about the consequences, without regard to
whether the consequences in question are “direct” or
“collateral.”
Id. (footnote omitted).
This Court in Barndt then discussed several cases wherein plea counsel
gave incorrect advice and concluded:
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In light of this case law, we find that [Barndt] has
pleaded and proved that his challenge to plea counsel’s
ineffectiveness has arguable merit. As set forth above, we
repeatedly have held that erroneous legal advice by counsel
regarding the consequences of a plea, whether the
consequence is classified as collateral or direct, may
constitute a basis for PCRA relief. [Barndt] alleges that he
was given such advice.
***
[O]ur holding hinges upon the precept that the direct
versus collateral consequence distinction does not alleviate
counsel’s obligation to render only accurate advice to his
client about whatever collateral consequences of a guilty
plea he chooses to address. 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.
Barndt, 74 A.3d at 198, 201 (emphasis in the original). We then reviewed
the testimony from the evidentiary hearing and determined that Barndt had
establish that plea counsel had no reasonable basis for providing the
misinformation, and that counsel’s advice prejudiced him. We therefore
reversed the order denying post-conviction relief, and we remanded the case
to permit Barndt to withdraw his guilty plea.3
Here, like Barndt, Walker has pled and proven that his challenge to plea
counsel’s ineffectiveness has arguable merit. Our review of the record reveals
that, although there was no mention of possible parole consequences at
Walker’s oral plea colloquy, in his written colloquy Walker averred that he was
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3In his dissent, Judge Colville noted that plea counsel did not testify at the
evidentiary hearing, and that Barndt was bound by the statements made
during the plea colloquy. Barndt, 74 A.3d at 201-02.
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not on parole. See Written Plea Colloquy, 2/23/18, at ¶ 4. Additionally, plea
counsel signed this written colloquy, noting that he had explained Walker’s
rights to him. Id. at 4. However, unlike Barndt, the PCRA court in this case
dismissed Walker’s PCRA petition without first holding an evidentiary hearing.
We conclude that Walker has “raised a genuine issue of material fact which, if
resolved in his favor, would have entitled him to relief[.]” Blakeney, supra.
Thus, we reverse the order denying Walker’s PCRA petition and remand for an
evidentiary hearing at which plea counsel can testify and, in light of the
testimony, the PCRA court could consider the remaining two prongs of the
ineffectiveness test, and rule accordingly.4
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4 The PCRA court cites no authority for its belief that plea counsel’s “erroneous
advice would have been cured when [Walker] affirmatively acknowledged and
understood the potential collateral consequences of the guilty plea[.]” Rule
907 Notice, 4/2/19, at 2. As noted above, Walker contends that plea counsel
misinformed him he was no longer on parole. Additionally, while the PCRA
court speculates that this erroneous information may not have been of
significance to Walker given the lenient sentence offered by the
Commonwealth, this fact may be explored at the evidentiary hearing following
our remand.
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Order reversed. Case remanded for an evidentiary hearing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2020
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