J-S27035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAKOU ARMOUR :
:
Appellant : No. 991 EDA 2018
Appeal from the PCRA Order March 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012008-2011,
CP-51-CR-0012012-2011, CP-51-CR-0012013-2011
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 22, 2020
Appellant, Sakou Armour, appeals from the order entered in the Court
of Common Pleas of Philadelphia County dismissing his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546, without an evidentiary hearing. Appellant contends that plea counsel’s
failure to advise him that the court could impose consecutive sentences after
he pleaded guilty constituted ineffective assistance of counsel causing him to
enter an unknowing and involuntary plea. Because neither the court nor
counsel informed Appellant of the possibility of consecutive sentences, and
Appellant received an aggregate sentence greater than what the court
informed him the maximum sentence for each charge would be, we are
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* Former Justice specially assigned to the Superior Court.
J-S27035-20
constrained to agree his plea was invalid. Therefore, we vacate the order in
question and remand for further proceedings consistent with this decision.
The PCRA court aptly sets forth the relevant underlying facts, as follows:
[O]n September 14, 2011, at 5063 Parrish Street in Philadelphia,
the Petitioner [hereinafter “Appellant”] got in an argument with
the complainant, A.H., the mother of his six year-old son. N.T.
(Guilty Plea Hearing), 6/21/12, at 20-21. Appellant, who had
accused the complainant of cheating on him, also complained that
he wanted to transfer her children to another school. N.T. at 2.
When A.H. stated that she would think about it, Appellant became
enraged and punched her twice with a closed fist in her left eye
causing a small bruise. N.T. at 21. A.H.’s 14 year-old daughter
called the police. N.T. at 21. Police officers arrived at the
property, however the Appellant fled through the back of the
premises upon their arrival. N.T. at 21. Following this incident,
the complainant obtained a protection from abuse order from
Family Court against Appellant. N.T. at 22. This order was served
upon Appellant and remained active on September 20, 2011, the
date relevant to the two remaining cases. N.T. at 22.
On September 20, 2011, at approximately 10:15 a.m., Appellant
went to A.H.’s home at 1214 West Susquehanna Avenue, where
she was residing with her son [M.W.] N.T. at 22. Appellant began
banging on the door and front window. N.T. at 22. After telling
her son not to let Appellant in, A.H. went upstirs to call the police.
N.T. at 22-23. Appellant punched out the first-floor window of the
home and entered the property with a gun in his hand. N.T. at
23. He proceeded directly up to the second-floor rear bedroom,
kicked open the door, straddled A.H. with his legs on her stomach
and began to pistol whip her. N.T. at 23. M.W. came upstairs
with a baseball bat and hit Appellant in the back, in an effort to
get him off of A.H. N.T. at 23. In response, Appellant turned
around and fired his weapon twice, shooting M.W. in the face.
M.W. then crawled out of the home and collapsed on a street
corner. N.T. at 24. Medics responded and were able to transport
him to Temple University Hospital. N.T. at 24. As a result of being
shot, a bullet entered the side of M.W.’s nostril, went through the
top part of his jaw, through his tongue, and ended up lodged in
the bottom portion of his jaw. N.T. at 24. Consequently, M.W.
had to undergo reconstructive surgery for his jaw in addition to
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dental work to repair his injuries. N.T. at 24. Finally, at his guilty
plea hearing, Appellant admitted that the facts as recited above
were true with one caveat, that he was not straddling A.H. while
he was pistol whipping her. N.T. at 25-27.
PCRA Court Opinion, at 1-3.
On May 21, 2012, Appellant pleaded guilty to Attempted Murder and
Persons not to Possess Firearms (CP-51-CR-0012012-2011), Burglary and
Aggravated Assault (CP-51-CR-0012013-2011), and Simple Assault (CP-51-
CR-0012008-2011). The court sentenced him to an aggregate sentence of
41-82 years’ incarceration. On June 8, 2015, this Court affirmed judgment of
sentence, rejecting Appellant’s claim that the trial court erroneously denied
his pre-sentence motion to withdraw his guilty plea based on his assertion of
innocence. On April 12, 2016, the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal.
Appellant timely filed this PCRA petition, his first, and the PCRA court
appointed counsel, who filed two amended petitions asserting that plea
counsel’s failure to advise Appellant that he potentially faced consecutive
sentencing after entering a guilty plea contributed to Appellant’s unknowing,
invalid plea. On March 5, 2018, however, the PCRA court dismissed
Appellant’s petitions without a hearing pursuant to Pa.R.A.P. 907.
On March 29, 2018, counsel for Appellant filed a timely notice of appeal.1
Appellant claims his plea was invalid because he did not know he could be
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1 Appellant filed one notice of appeal listing the three trial court docket
numbers reflected in the instant caption. On June 1, 2018, the Pennsylvania
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sentenced consecutively to a sentence greater than the longest potential
maximum sentence of any one count. He further claims ineffective assistance
of plea counsel caused his involuntary and unknowing plea. For its part, the
Commonwealth has submitted no brief for our consideration despite having
received three extensions of time in which to do so.
We do, however, have the benefit of the PCRA court’s responsive Rule
1925(a) opinion, in which it opines:
Appellant brings related claims that his guilty plea was not
knowing and voluntary because he was supposedly not informed
that he could be sentenced consecutively and that counsel was
ineffective for failing to so inform him. The record clearly
establishes that Appellant understood the maximum penalties he
could receive. Thus, Appellant’s guilty plea was knowing and
voluntary and his claim of ineffective assistance of counsel must
fail.
...
Here, this [PCRA court] conducted a thorough colloquy. Appellant
confirmed that he understood, inter alia, his right to a jury trial,
the presumption of innocence, and the limited appellate rights that
he would have if he entered a guilty plea. N.T., at 7-11, 14-17.
He signed written colloquy forms, which again confirmed that he
understood his rights. N.T. at 14, 17-18. He asserted that he
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Supreme Court in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held
that the practice of filing a single notice of appeal for separate dockets violated
Pennsylvania Rule of Appellate Procedure 341, the result for which must be
quashal of the appeal. See Walker, 185 A.3d at 977. Because the mandate
in the Official Note to Rule 341 was contrary to “decades of case law from this
Court and the intermediate appellate courts,” the Court announced that its
holding would apply only to appeals filed after June 1, 2018, the date Walker
was filed. Id. Here, because Appellant filed his notice of appeal predates the
Walker decision by approximately two months, quashal does not apply to his
case.
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understood each of the offenses. N.T. at 14-17. The
Commonwealth then explained the factual basis for the charges.
N.T. at 20-25. Based on this record, Appellant could not possibly
show that his plea was unknowing or involuntary. See
Commonwealth v McCauley, 797 A.2d 920, 922 (Pa.Super.
2001) (“[W]here . . . a guilty plea colloquy was conducted, during
which it became evident that the petitioner understood the nature
of the charges against him, the voluntariness of the plea is
established.”). . . .
Appellant’s specific assertion that he did not understand he could
be sentenced to consecutive terms of imprisonment is belied by
the record. His attorney explained, and Appellant affirmed, that
he understood the maximum terms of imprisonment he faced for
each of the offenses to which he was pleading guilty. N.T.
5/21/16, pp. 14-17. This was enough to make his plea knowing
and voluntary. See Commonwealth v. Carter, 656 A.2d 463,
466 (Pa. 1995) (Carter’s plea knowing and voluntary were, even
though he was not told sentences could run consecutively, he was
informed of maximum sentence for each count and his sentence
was less than the maximum).
PCRA Court Opinion, at 4-5.
Initially, we note that “[t]his Court's standard of review from the grant
or denial of post-conviction relief is limited to examining whether the lower
court's determination is supported by the evidence of record and whether it is
free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.
1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.
1995)). Where, as here, a petitioner claims that he received ineffective
assistance of counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective 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.” Generally, counsel's
performance is presumed to be constitutionally adequate, and
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counsel will only be deemed ineffective upon a sufficient showing
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel's performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different.” ... [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and actual prejudice befell the petitioner from
counsel's act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532–33 (Pa. 2009) (citations
omitted).
In his brief, Appellant maintains that plea counsel’s failure to advise him
that consecutive sentencing could result in a sentence greater than the
potential maximum individual sentence of which he was made aware caused
him to enter an involuntary and unknowing plea. This was so, Appellant
continues, because counsel’s omission occurred against the backdrop of
neither the oral nor written guilty plea colloquy informing him of the real
maximum sentence he faced by virtue of an aggregate sentence. “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.” Commonwealth v. Allen, 732 A.2d 582 (Pa. 1999).
To be valid, a guilty plea must be voluntary, knowing and
intelligent. Commonwealth v. Persinger, 615 A.2d 1305, 1307
(Pa. 1992). A plea will not be considered as having been knowing,
voluntary and intelligent if the defendant's aggregate sentence
exceeds the potential maximum sentence of which the defendant
was advised or was otherwise aware during the plea. Carter, 656
A.2d at 466; Persinger, 615 A.2d at 1307–08. Indeed, a plea
entered where the defendant later receives a sentence higher than
the potential penalty of which the defendant was informed
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constitutes a manifest injustice. Persinger, 615 A.2d at 1307–
08. A manifest injustice provides meritorious grounds for post-
sentence plea withdrawal. Id.
Commonwealth v. Diehl, 61 A.3d 265, 268 (Pa.Super. 2013).
In Persinger, the Pennsylvania Supreme Court held on direct appeal2
that plea counsel rendered ineffective assistance for failing to file a motion to
withdraw defendant’s guilty plea where the defendant, though informed of the
maximum sentence imposable for each charge, was not informed that the
sentences could be run consecutively. Under such circumstances, the Court
found the guilty plea colloquy was defective and the plea was not knowingly
and intelligently entered.
In Carter, our Supreme Court addressed, again on direct appeal,
whether plea counsel ineffectively failed to object to a nolo contendere plea
where the defendant had not been informed that the sentences could be
imposed consecutively. Conducting a three-prong ineffectiveness inquiry, the
Court concluded the defendant could not establish prejudice where his
aggregate sentence fell within the longest maximum sentence of all the
individual counts. Specifically, the defendant was advised at the colloquy that
he faced up to twenty years on each burglary count, and he received an
aggregate sentence of six to twelve years’ incarceration. Given this result,
the Court concluded plea counsel could not be deemed ineffective where
defendant incurred no prejudice. Id. at 466.
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2 At the time Persinger was decided, ineffectiveness claims were generally
reviewable on direct appeal.
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Diehl involved a first PCRA petition asserting ineffective assistance of
plea counsel for allowing defendant to enter an open guilty plea to multiple
offenses unaware of the possibility of consecutive sentences. The PCRA court
conducted an evidentiary hearing and denied relief. On appeal, this Court
reversed.
We first noted that the record established that neither the court, the
Commonwealth, nor counsel told the defendant of the maximum possible
sentence he faced through imposition of consecutive sentences. We then
made the observation that defendant’s aggregate sentence of 20 to 40 years’
incarceration was greater than what he was told would be the longest possible
individual maximum sentence, 20 years. This combination of facts, we held,
“rendered his plea unknowing, involuntary, and unintelligent. His plea
constituted a manifest injustice. . . . [The defendant] was prejudiced by
counsel’s inaction [in failing to file a motion to withdraw the plea].” Id. at
271. Accordingly, we vacated the PCRA order denying relief and remanded,
directing the PCRA court to enter an order finding plea counsel ineffective and
withdrawing defendant’s guilty plea. Id. at 272.
In light of the above authority, we find the case sub judice comes
squarely under Diehl. At Appellant’s guilty plea hearing, the court informed
him that he faced a possible 40-year maximum sentence for attempted
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murder involving serious injury.3 Like the aggregate sentence in Diehl,
Appellant’s aggregate sentence of 41 to 80 years greatly exceeded what he
was told would be his maximum sentence exposure.4
While Appellant was aware of the statutory maximum sentence for each
individual charge, there is no indication in the record that he knew at the time
he entered his guilty plea that consecutive sentencing was possible; the oral
colloquy and written colloquy contain no advisement about consecutive
sentencing, and both plea counsel and Appellant testified at Appellant’s
unsuccessful pre-sentence motion to withdraw his plea that Appellant received
no such advice from counsel and was otherwise unaware. Lastly, the PCRA
court does not offer a contrary observation that Appellant received or
otherwise knew of such information prior to entering his guilty plea.
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3Section 1102(c) of the Pennsylvania Crimes Code sets forth the sentence
applicable to a conviction of attempted murder, namely:
[A] person who has been convicted of attempt ... to commit
murder ... where serious bodily injury results may be sentenced
to a term of imprisonment which shall be fixed by the court at not
more than 40 years. Where serious bodily injury does not result,
the person may be sentenced to a term of imprisonment which
shall be fixed by the court at not more than 20 years.
18 Pa.C.S. § 1102(c).
4 That Appellant’s aggregate sentence exceeded the maximum sentences of
the individual counts distinguishes this case from Carter, upon which the
PCRA court relies, as Carter held no prejudice could result where the
aggregate sentence was less than the potential individual maximum sentence
of which the defendant was aware.
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Therefore, as we declared in Diehl under virtually identical
circumstances, we conclude that Appellant’s lack of knowledge about his
potential maximum sentence was a function of ineffective assistance of
counsel that rendered his plea a manifest injustice. Accordingly, we are
constrained to vacate the PCRA order and remand with instructions that the
PCRA court enter an order withdrawing Appellant’s guilty plea.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/20
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