J-S44026-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
       Appellee

                    v.

MARIO LOUIS DUNCAN,

       Appellant                                      No. 38 WDA 2014


            Appeal from the PCRA Order Entered December 3, 2013
              In the Court of Common Pleas of Armstrong County
             Criminal Division at No(s): CP-03-CR-0000601-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

DISSENTING MEMORANDUM BY BENDER, P.J.E.:FILED SEPTEMBER 04, 2014



conclusion that Duncan failed to satisfy the prejudice prong of the

ineffectiveness test.    For the reasons set forth herein, I would reach the

oppo

petition.



stated that he would have proceeded to trial had he known that his

                                                 Majority Decision at 7. The

prejudice standard employed by the Majority was first set forth in Hill v.

Lockhart, 106 S.Ct. 366 (1985), where the Supreme Court of the United

States held that in the guilty plea context,

                                        uirement [of the ineffectiveness

       performance affected the outcome of the plea process. In other

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      defendant must show that there is a reasonable probability that,

      would have insisted on going to trial.
Id. at 370.



application of the prejudice standard set forth in Hill. In the more recent

case of Missouri v. Frye, 132 S.Ct. 1399 (2012), the Supreme Court

clarified its holding in Hill, stating:

      In cases where a defendant complains that ineffective assistance
      led him to accept a plea offer as opposed to proceeding to trial,


                                              Hill was correctly decided
      and applies in the context in which it arose. Hill does not,
      however, provide the sole means for demonstrating
      prejudice arising from the deficient performance of
      counsel during plea negotiations. Unlike the defendant in
      Hill, Frye argues that with effective assistance he would have
      accepted an earlier plea offer (limiting his sentence to one year
      in prison) as opposed to entering an open plea (exposing him to
                                                             In a case,
      such as this, where a defendant pleads guilty to less
      favorable terms and claims that ineffective assistance of
      counsel caused him to miss out on a more favorable
      earlier plea offer,

      U.S., at 694, 104 S.Ct. 2052, requires looking not at
      whether the defendant would have proceeded to trial
      absent ineffective assistance but whether he would have
      accepted the offer to plead pursuant to the terms earlier
      proposed.
Id. at 1409-1410 (emphasis added).

      Here, Duncan does not argue that A

compelled him to accept the plea offer rather than proceeding to trial;

instead, he maintains that Attorney Yost ineffectively negotiated a plea deal


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involving a legally impossible sentence.        See

                                                   a plea that was legal and

                                                                            -

determining process that no reliable adjudication of guilt or innocence could




would apply            prejudice standard of proving that the outcome of the

proceeding would have been different, not the standard announced in Hill

and applied by the Majority.

      Moreover, under the Frye standard, I would conclude that Duncan

proved the prejudice prong of the ineffectiveness test. At the PCRA hearing,

Duncan unequivocally      and repeatedly   stated that he would have rejected

the instant plea had he known that concurrent sentences were impossible.

See N.T. PCRA Hearing, 10/24/13, at 11, 15.       He testified that he would



incarceration.    Id. at 11.   Considering that the Commonwealth agreed to

concurrent sentences in the instant plea deal, there is a reasonable

probability that the Commonwealth would have agreed to a lesser term of

incarceration had it been aware that concurrent sentences were legally

impossible.      Therefore, had Attorney Yost not acted ineffectively in the

negotiation process, Appellant likely would have received a plea deal

involving a lesser term of incarceration. In other words, the outcome of the

proceeding would have been different. Accordingly, Duncan proved he was




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                                                                      -technical

conclusion that Duncan failed to meet the prejudice standard enunciated in

Hill, i.e., that he would not have pled guilty and would have insisted on



have entered into that plea agreement if you would have known that you

could not have your time run concurrent with the old sentence and the new

sentenc

                                                                            Id.



instant plea had he known about the impossibility of concurrent sentences.

Id.

rejected the instant plea offer, I believe it is reasonable to conclude that had

                                                                            pon

going to trial. Thus, I would conclude that Duncan satisfied his burden of

proving prejudice even under         standard.1



petition.




1

impossible under the Prisons and Parole Code, 61 Pa.C.S. § 6138(a)(5).
See Commonwealth v. Berry
sentence is illegal where a statute bars the court from imposing that



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