J-S08007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACQUELYN CLAIRE GOMEZ :
:
Appellant : No. 573 WDA 2019
Appeal from the PCRA Order Entered March 22, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001285-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACQUELYN CLAIRE GOMEZ :
:
Appellant : No. 574 WDA 2019
Appeal from the PCRA Order Entered March 22, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001283-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACQUELYN CLAIRE GOMEZ :
:
Appellant : No. 575 WDA 2019
Appeal from the PCRA Order Entered March 22, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001284-2016
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
J-S08007-20
MEMORANDUM BY OLSON, J.: FILED MARCH 30, 2020
In this consolidated appeal, Appellant, Jacquelyn Claire Gomez, appeals
from the order entered March 22, 2019, denying her petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 1 We
reverse the order, vacate Appellant’s judgment of sentence, and remand the
case with instructions.
The PCRA court set forth the following procedural history:
[Appellant] was charged with multiple violations of the Controlled
Substance[, Drug, Device and Cosmetic] Act.[2] The
Commonwealth alleged further that she was part of a corrupt
organization formed for the purpose of distributing heroin and
other illegal drugs in the Altoona, Pennsylvania area. The
allegations were that beginning at some point before March[]
2015, heroin distribution began from a tattoo shop located on
Fourth Street in Altoona, Blair County, Pennsylvania. It was
alleged that [Appellant] and her husband, Norman Gomez, with
whom she lived, were the source of the heroin. It was further
alleged that [Appellant] and the codefendants traveled back and
forth to New York to obtain large amounts of heroin in a vehicle
registered to [Appellant] and were making an effort to buy half a
kilogram of heroin. [Appellant allegedly] told other codefendants
to quit giving deals on the heroin so they could make more money.
The allegation was that the police investigation included use of
confidential informants and direct police surveillance, in which
[Appellant] and her husband were observed conducting drug
transactions. After her formal arraignment, [Appellant] was
____________________________________________
1 The record demonstrates that Appellant’s notices of appeal complied with
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) and Commonwealth
v. Creese, 216 A.3d 1142 (Pa. Super. 2019). This Court consolidated
Appellant’s appeals sua sponte. Per Curiam Order, 5/3/19.
2 35 P.S. §§ 780-101 to 780-144.
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represented by several different attorneys, with her final attorney
being A. Thomas Farrell[, Esq. (“Plea Counsel”)].
After [the] jury was selected in her case, on May 1, 2017,
[Appellant] pled guilty at [CP-07-CR-0001283-2016] to Criminal
Conspiracy [for] Possession with Intent to Deliver a Controlled
Substance, (Heroin), []Corrupt Organizations, []Dealing in
Proceeds of Unlawful Activity, []Criminal Use of a Communication
Facility, [and three counts of Possession with Intent to Deliver
(Heroin).3] At [CP-07-CR-0001284-2016,] she pled guilty to
[]Use/Possession of Drug Paraphernalia[.4] At
[CP-07-CR-0001285-2016,] she pled guilty to []Possession with
Intent to Deliver (Heroin)[.5]
[Appellant] was sentenced to an aggregate period of 10 to 20
years in a state correctional institution. The [sentencing c]ourt
noted in its sentencing order that the aggregate sentence was
consistent with the negotiated plea by and between the
Commonwealth and [Appellant]. [Appellant] was also to be
afforded any and all appropriate credit for time served. In
accepting [Appellant’s] guilty pleas, the [sentencing c]ourt
conducted an oral guilty plea colloquy with [Appellant]. Before
the [sentencing c]ourt began the oral guilty plea colloquy, the
[sentencing c]ourt asked whether there was anything else before
the [sentencing c]ourt would begin the colloquy.
Attorney Weeks for the Commonwealth said, "Judge, I do, with a
question about credit for time served. The Commonwealth did
indicate that we would not have any opposition, although it's not
up to the Commonwealth obviously, for [Appellant] to receive
concurrency in her [parole violation sentence.6] Obviously[,] the
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3 18 Pa.C.S.A. §§ 903, 911(b)(1), 5111(a)(1), 7512(a) and 35 P.S.
780-113(a)(30), respectively.
4 35 P.S. 780-113(a)(32).
5 35 P.S. 780-113(a)(30).
6 The record demonstrates that Appellant was recommitted to a state
correctional institution for a period of 4 years, 3 months and 12 days for a
direct violation of her parole that arose from the instant charges. PCRA
Hearing Petitioners Exhibit 4-Notice of Parole Board Decision. Appellant was
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Commonwealth can't control that. That can't be a binding part of
the agreement but the Commonwealth does not object to that and
won't make a recommendation for additional jail time."
The [sentencing c]ourt began the oral colloquy by asking
[Appellant] her name. She stated[, “]Jacquelyn Claire Alberts
Gomez.[”] She stated that she intended to enter guilty pleas to
some of the charges lodged against her. She acknowledged that
by pleading guilty to these charges she would be giving up [her]
right to []a jury trial where she would be presumed innocent and
could remain silent. At that point a jury had been picked for her,
and it was her decision as to whether to plead guilty or go to trial.
She acknowledged that by pleading guilty, she would be giving up
[her] right to [a] jury trial. She acknowledged that [Plea Counsel]
explained the maximum possible sentences to her in regards to
this matter. The [sentencing c]ourt inquired as to her
understanding that the [sentencing c]ourt does not have to accept
the plea agreement and she agreed that she understood. She
asserted that she was not under the influence of anything that
would prevent her from understanding everything that was
happening that day. She asserted that nobody was forcing her
against her will to plead guilty. The [sentencing c]ourt went
through the charges and what the plea would be. The [sentencing
c]ourt asked whether that was [Appellant’s] understanding of the
plea agreement and [Plea Counsel] replied for her, "Yes, Your
Honor[."]
[T]he [sentencing c]ourt asked [Appellant] whether she
understood what the crimes that had just been outlined were, and
whether she was specifically admitting guilt to those crimes. She
asserted that she understood what each individual crime was, and
that she was pleading guilty to that charge because she was guilty
of the charge. There was a waiver of presentence investigation.
The [sentencing c]ourt accepted the guilty pleas, finding them to
be knowing, voluntary, and intelligent. The [sentencing c]ourt
then dictated the sentence. The [sentencing c]ourt then asked
[Appellant], "Did you hear everything that was said today?"
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previously convicted of criminal conspiracy for possession with the intent to
deliver, corrupt organizations, dealing in proceeds of unlawful activity,
criminal use of a communication facility, possession with intent to deliver (7
counts), and use/possession of drug paraphernalia. Id.; see also 18
Pa.C.S.A. §§ 903, 911(b)(1), 5111(a)(1), 7512(a) and 35 P.S. §§ 780-
113(a)(30) and 780-113(a)(32), respectively.
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[Appellant] responded, "Yes[."] The [sentencing c]ourt asked,
"Did you understand everything that was said today?" [Appellant]
responded, "Yes ma'am[,"] and the [sentencing c]ourt asked, "Is
this your understanding of what you pled guilty to and are being
sentenced to?" [Appellant] responded, "Yes, ma'am[."]
PCRA Court Opinion, 3/28/19, at 1-6 (record citations omitted). Appellant did
not file a post-sentence motion.
On July 3, 2017, Appellant filed pro se a PCRA petition. The PCRA court
appointed Philip M. Masorti, Esq. (“Attorney Masorti”), as counsel to represent
Appellant. Attorney Masorti filed an amended PCRA petition on February 20,
2018, raising a claim of ineffective assistance of counsel that led Appellant to
enter an unknowing, unintelligent, and involuntary guilty plea. Appellant’s
Amended PCRA Petition, 2/20/18. Attorney Masorti also filed a
Turner/Finley7 no merit letter stating that the claims raised by Appellant in
her pro se PCRA petition were without merit, but the ineffectiveness claim
raised in the amended PCRA petition was meritorious. Turner/Finley
No Merit Letter, 2/20/18, at 1-2.
On May 23, 2018, the PCRA court directed Appellant to file an amended
PCRA petition regarding “the alleged claim of ineffective assistance of counsel
resulting in a guilty plea induced by the mistaken legal conclusion that
[Appellant’s] parole violation could be run concurrent to her 10 to 20[-]year
sentence[.]” PCRA Court Order, 5/23/18. On June 11, 2018, Appellant filed,
for a second time, her amended PCRA petition. After conducting a hearing on
____________________________________________
7Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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the matter, the PCRA court denied Appellant’s amended PCRA petition on
March 22, 2019. PCRA Court Order, 3/22/19. On March 28, 2019, the PCRA
court entered an order denying Appellant’s amended PCRA petition for a
second time, as well as an opinion setting forth its rationale for the denial.
PCRA Court Order and Opinion, 3/28/19. Appellant filed a timely notice of
appeal of the March 22, 2018 PCRA court order.8
Appellant raises the following issue for our review: “Whether the [PCRA]
court erred in denying Appellant's [amended] PCRA [p]etition because
Appellant's plea was entered unknowingly and involuntarily based on plea
counsel's inaccurate information regarding the possibility of the sentence
running concurrent with Appellant's state parole [violation] sentence.”
Appellant’s Brief at 5.
____________________________________________
8 The PCRA court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). A review of the record
does not demonstrate that Appellant filed of record a Rule 1925(b) statement
pursuant to Rule 1925(b)(1), as directed. However, Appellant’s brief contains,
as an appendix, a copy of her Rule 1925(b) statement dated May 16, 2019,
together with a certificate of service demonstrating that a copy of the Rule
1925(b) statement was served on the PCRA court. On June 6, 2019, the PCRA
court indicated in a letter to this Court that it relied on its March 28, 2019
opinion that addressed the merits of the issue Appellant raised in her Rule
1925(b) statement. Accordingly, Appellant did not waive her issue on appeal
for failure to file of record a Rule 1925(b) statement where a copy was
attached to Appellant’s brief, the PCRA court received a copy of the Rule
1925(b) statement, and the PCRA court addressed the merit of the issue in its
opinion. See, e.g., Commonwealth v. Presley, 193 A.3d 436, 442
(Pa. Super. 2018) (holding, appellate court may address merits of issue raised
in late-filed Rule 1925(b) statement where PCRA court addressed merits of
issue in its Rule 1925(a) opinion), appeal denied, 201 A.3d 154 (Pa. 2019).
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Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.
2014) (citations omitted). “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) (citation omitted). In contrast, we review
the PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785
(Pa. 2014).
To be eligible for relief based on a claim of ineffective assistance
of counsel, a PCRA petitioner must demonstrate, by a
preponderance of the evidence, that (1) the underlying claim is of
arguable merit; (2) no reasonable basis existed for counsel’s
action or omission; and (3) there is a reasonable probability that
the result of the proceeding would have been different absent such
error. Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).
Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013), appeal
denied, 74 A.3d 1030 (Pa. 2013). “The failure to satisfy any one of the prongs
requires rejection of the petitioner's claim.” Commonwealth v. Williams,
141 A.3d 440, 454 (Pa. 2016) (citation omitted). “[T]he law presumes that
counsel was effective and the burden of proving that this presumption is false
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rests with the petitioner.” Commonwealth v. Cox, 983 A.3d 666, 678
(Pa. 2009) (citation omitted). “Whether prejudice resulted from the entry of
the guilty plea is not measured by the severity or leniency of the sentence
imposed; prejudice inheres when an accused pleads guilty, thus convicting
himself of a criminal offense, without understanding the significance or
consequences of his action.” Commonwealth v. Zuber, 353 A.2d 441, 445
(Pa. 1976) (citation, original quotation marks, and emphasis omitted).
“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 an involuntary or unknowing plea.” Hickman, 799 A.2d
at 141 (citation omitted). “Once the defendant has entered a guilty plea, it is
presumed that he was aware of what he was doing, and the burden of proving
involuntariness is upon him.” Commonwealth v. Willis, 68 A.3d 997, 1002
(Pa. Super. 2013) (citation omitted). The totality of the circumstances
surrounding a guilty plea must be examined to determine if the guilty plea
was entered voluntarily, knowingly, and intelligently. Commonwealth v.
Allen, 732 A.2d 582, 589 (Pa. 1999).
The Pennsylvania Rules of Criminal Procedure mandate that pleas
be taken in open court, and require the [sentencing] court to
conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of his plea.
Specifically, the [sentencing] court must affirmatively
demonstrate the defendant understands: (1) the nature of the
charges to which he is pleading guilty; (2) the factual basis for the
plea; (3) his right to trial by jury; (4) the presumption of
innocence; (5) the permissible ranges of sentences and fines
possible; and (6) that the [sentencing] court is not bound by the
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terms of the agreement unless the [sentencing] court accepts the
agreement.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations
omitted). When a plea agreement has been reached, the terms of that
agreement must be stated in open court. Zuber, 353 A.2d at 444 (citations
omitted).
“[C]ounsel'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.”9 Commonwealth v. Barndt, 74 A.3d 185, 195-196 (Pa. Super. 2013)
(citation and emphasis omitted). “[C]ounsel's omission to mention a collateral
consequence of a guilty plea does not constitute ineffective assistance of
counsel[. However,] 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.’” Id. at 196 (citation
omitted).
Section 6138 of the Prisons and Parole Code states, in pertinent part,
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9 Our Supreme Court has defined the difference between a direct consequence
and a collateral consequence of a guilty plea as the distinction between a
criminal penalty and a civil requirement over which the sentencing court has
no control. Commonwealth v. Leidig, 956 A.2d 399, 404 (Pa. 2008), citing
Commonwealth v. Duffey, 639 A.2d 1174 (Pa. 1994), cert. denied, 513 U.S.
884 (1994). A collateral consequence of a guilty plea is “one that is not related
to the length or nature of the sentence imposed on the basis of the plea.”
Leidig, 956 A.2d at 404 (citation and original quotation marks omitted).
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§ 6138. Violation of terms of parole
(a) Convicted violators.--
(1) A parolee under the jurisdiction of the board released from a
correctional facility who, during the period of parole or while
delinquent on parole, commits a crime punishable by
imprisonment, for which the parolee is convicted or found guilty
by a judge or jury or to which the parolee pleads guilty or nolo
contendere at any time thereafter in a court of record, may at the
discretion of the board be recommitted as a parole violator.
...
(5) If a new sentence is imposed on the parolee, the service of
the balance of the term originally imposed by a Pennsylvania court
shall precede the commencement of the new term imposed in the
following cases:
(i) If a person is paroled from a State correctional institution
and the new sentence imposed on the person is to be served
in the State correctional institution.
61 Pa.C.S.A. § 6138(a)(1) and (5)(i). “[W]here a state parolee gets a new
state sentence, he [or she] must serve [the parole violation sentence] first
before commencement of the new state sentence. Imposition of a new state
sentence concurrent with [the parole violation sentence] is an illegal sentence
under [Section 6138].” Kelley, 136 A.3d at 1013 (citations omitted).
Here, Appellant argues that she entered her guilty plea unknowingly,
involuntarily, and unintelligently because Plea Counsel led her to believe that
the sentence for her parole violation and the sentence she received in the
instant case could be served concurrently. Appellant’s Brief at 15. Appellant
avers that Plea Counsel was unaware of Section 6138, which precluded
concurrent sentences and required her parole violation sentence to be served
before her instant sentence, and that there is no reasonable basis for Plea
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Counsel’s failure to advise Appellant of the impossibility of concurrent
sentences. Id. at 23, 25. Appellant contends that, but for the
Commonwealth’s agreement not to oppose concurrent sentences, Appellant
would not have accepted the plea agreement and, instead, would have gone
to trial. Id. at 30-31. Appellant alleges that the only condition that changed
throughout the plea negotiations was the Commonwealth’s agreement not to
oppose concurrent sentences and it was only after this agreement that
Appellant accepted the plea agreement terms. Id.
The PCRA court found that Appellant’s argument lacked credibility
“based on a totality of the testimony of [Plea Counsel] and [Appellant]” and
because Appellant failed to “include this issue in her [pro se] PCRA [petition,
demonstrating] that this was an issue included [in her amended PCRA petition]
only after careful review of the record by new counsel, who discovered the
argument.”10 PCRA Court Opinion, 3/28/19, at 17. The PCRA court found that
“although [Plea Counsel] was [un]aware that it was not possible to run the
[parole violation] sentence concurrently with the new sentence, he did not
mislead [Appellant] or give her erroneous advice, directly or by omission.”
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10 Indigent petitioners are entitled to the appointment of PCRA counsel on
their first PCRA petition in order to help petitioners understand the law and
develop sound legal arguments for relief that the petitioners might not
otherwise understand. See, e.g., Commonwealth v. Smith, 818 A.2d 494,
501 (Pa. 2003) (stating, “[w]ithout legal counsel, an indigent first-time PCRA
petitioner would not know of the necessity of demonstrating the existence of
an exception to the [jurisdictional] time-bar”). We find no basis of support for
the PCRA court’s conclusion that Appellant failed to demonstrate prejudice
because she failed to raise the issue in her pro se PCRA petition and only
raised the issue after the appointment of PCRA counsel.
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Id. at 19. The PCRA court credited Plea Counsel’s testimony that Appellant
“decided to plead guilty based on her exposure to 40 years' incarceration, the
lack of a legitimate defense in her case, and the advice of her husband[.]” Id.
A review of the record demonstrates that Plea Counsel was unaware of
Section 6138 prior to the entry of Appellant’s guilty plea and did not
understand that Section 6138 barred concurrent service of Appellant’s instant
sentence and any sentence she received for her parole violation. Id. at 11;
see also, N.T., 8/30/18, at 11-14, N.T., 6/20/18, at Appellant’s
Exhibit 3 – Plea Counsel’s Letter. Therefore, Appellant’s ineffectiveness claim
has arguable merit.
As to the reasonable basis prong, we can conceive of no instance where
an attorney would have a reasonable basis justifying his or her failure to
understand the legal principles relevant to a client’s circumstances. Similarly,
we can conceive of no justification for an attorney to erroneously advise his
or her client or to omit a discussion of relevant legal principles pertinent to
the client’s stated concerns thereby misleading the client or allowing the client
to believe in false hopes. When asked if he had any reasonable basis to tell
Appellant that her sentences could be served concurrently, Plea Counsel
testified that his only reason was the Commonwealth’s agreement not to
object to concurrent sentences and his belief, “that would have some impact”
on Appellant’s pleading guilty. N.T., 8/30/18, at 55. Learning after the fact
that Section 6138 prohibited concurrent sentences, Plea Counsel stated he
had no reasonable basis for giving incorrect legal advice, emphasizing that
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“[n]o one should give incorrect legal advice.” Id. Therefore, Appellant has
satisfied the reasonable basis prong of her ineffectiveness claim.
Turning to the prejudice prong, we are guided by Zuber, supra, in
which our Supreme Court found that as part of the plea agreement presented
in open court, the Commonwealth stated it would “join with defense counsel
in a request to the State Board of Parole that the new sentence run
concurrently with appellant's” parole violation sentence. Zuber, 353 A.2d
at 443 (emphasis in original). Our Supreme Court found that the “promise by
the Commonwealth was a false and empty one since the law is quite clear that
a parole violator convicted and sentenced to prison for another offense must
serve his or her [parole violation sentence] and the new sentence in
consecutive order.” Id. (citations omitted). The Zuber Court found that
appellant’s rejection of prior plea offers for lengthier terms of imprisonment
demonstrated that the length of time spent in prison was an important
consideration in appellant’s decision to plead guilty. Id. at 445. Appellant
was aware that although the Commonwealth promised to join in a request for
concurrent sentences, concurrent sentences were not guaranteed. Id.
Ultimately, the Zuber Court concluded the specific promise by the
Commonwealth to join in a request for concurrent sentences made in open
court prior to appellant’s entering a guilty plea was a void promise. Id. at
444-445. And, importantly, appellant’s reliance on this promise in entering a
guilty plea rendered the plea involuntary and unknowing. Id. at 445.
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Here, the record demonstrates that prior to the sentencing court’s oral
guilty plea colloquy of Appellant, the Commonwealth stated,
The Commonwealth did indicate that we would not have any
opposition, although it’s not up to the Commonwealth obviously,
for [Appellant] to receive concurrency on her [parole violation
sentence]. Obviously[,] the Commonwealth can’t control that.
That can’t be a binding part of the [plea] agreement but the
Commonwealth does not object to that and won’t make a
recommendation for additional jail time.
N.T., 5/1/17, at 2-3. Following the Commonwealth’s statement, neither the
Commonwealth, the sentencing court, nor Plea Counsel advised Appellant that
Section 6138 prohibited concurrent sentences regardless of whether the
Commonwealth opposed concurrency or not. Id. Instead, the sentencing
court proceeded to ask Appellant, among other things, if she understood that
the plea agreement was for a sentence of 10 to 20 years’ incarceration to
which Appellant stated she understood the sentence. Id. at 5, 8-9. Plea
Counsel never objected to the Commonwealth’s statement and neither Plea
Counsel nor the sentencing court clarified the priority of the parole violation
sentence and the impossibility of concurrent sentences. Id. at 2-3.
The PCRA court found, and the record supports, that Appellant was
offered several plea agreements, including “the first one being 30 years, the
second one being 20 years, and the third one, when she was represented by
[Plea Counsel], being 10 to 20 years, which was offered immediately before
jury selection.” PCRA Court Opinion, 3/28/19, at 13; see also N.T., 8/30/19,
at 10, 19-20. Appellant rejected all of these offers and proceeded with jury
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selection. PCRA Court Opinion, 3/28/19, at 13; see also N.T., 8/30/19, at
10, 19-20. After jury selection, Appellant was again presented with a plea
offer of 10 to 20 years’ incarceration but now with the agreement that “the
Commonwealth would have no recommendation or no objection to [the
sentence in] the instant case being run concurrently with the [parole violation
sentence.]” N.T., 8/30/19, at 10-11. When asked whether the
Commonwealth’s agreement not to oppose concurrent sentences was the sole
factor that led Appellant to accept the plea agreement, Plea Counsel stated
that he did not know, but the Commonwealth’s agreement was part of the
plea offer he presented to Appellant. Id. at 11. The PCRA court rejected
Appellant’s testimony that she had no intention of pleading guilty without the
assurance of receiving concurrent sentences. PCRA Court Opinion, 3/28/19,
at 14. The record, however, belies this finding.
In order to demonstrate prejudice, Appellant need only establish a
reasonable probability that she would have gone to trial rather than plead
guilty. Barndt, 74 A.3d at 200. “[T]he reasonable probability standard in
this context is not especially stringent, but requires only a probability sufficient
to undermine confidence in the outcome.” Id. (citations omitted).
Here, the record demonstrates that Appellant received several plea
offers, including one for the identical length of time, 10 to 20 years, as the
plea offer she ultimately accepted. She rejected all offers involving lengthier
periods of incarceration. Moreover, the only difference between the two offers
with identical terms of imprisonment was that the offer she accepted included
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the Commonwealth’s promise not to oppose concurrent sentences. Although
the record supports a finding that this was not the only factor Appellant
considered in pleading guilty, it was the factor that swung the pendulum from
non-acceptance to acceptance of the plea offer. The promise, however, was
a false promise, void ab initio, as it constituted a legal impossibility the
Commonwealth, the sentencing court, and Plea Counsel should have known.
The Commonwealth’s extension of this false promise in open court prior to
Appellant’s guilty plea and Plea Counsel’s failure to point out the impossibility
of this promise, together with his statement to Appellant that it “can’t hurt” to
ask for concurrent sentences (N.T., 8/30/18, at 17), established sufficient
probability that Appellant was misled into believing concurrent sentences,
while not guaranteed, were at least a possibility. The misleading
circumstances surrounding Appellant’s guilty plea, as supported by the record,
combined with counsel’s failure to advise and discuss relevant statutory law,
is sufficient, under the totality of the circumstances, to undermine our
confidence in Appellant’s guilty plea. Therefore, Appellant demonstrated she
was prejudiced by the Commonwealth’s false promise and counsel’s
ineffectiveness. Consequently, we are constrained to conclude that Appellant
did not enter a knowing, voluntary, and intelligent guilty plea.
Under the circumstances of this case, the PCRA court erred in denying
Appellant’s PCRA petition for failure to demonstrate a claim for ineffective
assistance of trial counsel. Accordingly, we reverse the order denying
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Appellant’s PCRA petition, vacate Appellant’s sentence, and remand this case
in order that Appellant may withdraw her guilty plea.
Order reversed. Judgment of sentence vacated. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2020
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