J-S53021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

SASHA HERNANDEZ

                            Appellee               No. 2052 MDA 2014


                Appeal from the PCRA Order November 6, 2014
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001480-2009


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                          FILED OCTOBER 15, 2015

       The Commonwealth appeals from the order entered November 6,

2014, in the Lebanon County Court of Common Pleas, granting Sasha

Hernandez’s first petition for collateral relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. On November 23,

2009, Hernandez was sentenced to an aggregate term of 39½ to 79 years’

imprisonment, pursuant to her negotiated guilty plea to charges of third-

degree murder, aggravated assault, persons not to possess firearms,

possession of a firearm with altered manufacturer’s number, riot, criminal

conspiracy, possession of a firearm by minor, recklessly endangering

another person, and disorderly conduct.1 On November 6, 2014, the PCRA
____________________________________________


1
 18 Pa.C.S. §§ 2501, 2702, 6105, 6110.2, 5501(3), 903, 6110.1, 2705, and
5503(a)(1), respectively.
J-S53021-15



court granted Hernandez’s petition based upon the ineffective assistance of

plea counsel. On appeal, the Commonwealth contends the PCRA court erred

in determining plea counsel was ineffective for advising Hernandez to enter a

guilty plea. For the reasons that follow, we affirm.

      The   facts   and   procedural   history   underlying   this   appeal   were

summarized by this Court in a prior memorandum decision as follows:

            The charges arose on July 31, 2009, when police were
      called to the scene of a shooting in Lebanon City. A witness,
      Brittany Ritter (“Ritter”), told the police that she had observed a
      woman who was dressed like a man shoot the victim, Steven
      Santiago (“Santiago”). Santiago was transported from the scene
      to a hospital, where he died. Ritter indicated that the shooter’s
      name was Sasha. At the time of the shooting, Ritter was
      engaged in a fist fight with Sasha’s mother, Rosa Lopez
      (“Lopez”). After the shooting, Ritter observed Sasha run into a
      building at 46 S. 8th Street.

            The police went to the building at 46 S. 8th Street, where
      an officer spoke to Lopez. Lopez indicated that she lived there
      with her daughter, Hernandez, who was not home at the time.
      The police maintained a perimeter around the building. A female
      person later identified as Hernandez, age 16, exited the rear of
      the building and told a sheriff’s deputy that she was “the one
      you are looking for.” Hernandez indicated that she was sixteen
      years old, that her mother was involved in a fist fight, and that
      Hernandez had shot a man who was also involved in the fight.

            The police charged Hernandez with the above-mentioned
      crimes.2 Initially, she was charged with general homicide. On
      November 23, 2009, Hernandez pled guilty to the above-
      mentioned charges pursuant to a negotiated plea agreement
      with the Commonwealth. Prior to accepting Hernandez’s plea,
      the trial court conducted an oral guilty plea colloquy. N.T.,
      11/23/09, at 3-10. Hernandez also completed a written guilty
      plea colloquy form. The trial court accepted Hernandez’s guilty
      plea, and sentenced her, in accordance with the terms of the
      plea agreement, to an aggregate prison term of 39½ to 79
      years.


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J-S53021-15


        __________
        2
         Although Hernandez was sixteen years old, it appears from the
        record that she was charged as an adult with the above-
        mentioned crimes.

        __________

              On December 1, 2009, Hernandez filed a pro se Motion to
        Modify and Reduce Sentence. The Commonwealth also filed a
        Motion to modify sentence. On December 9, 2009, counsel for
        Hernandez filed a Motion to withdraw and to appoint conflict
        counsel stating that Hernandez wished to have conflict counsel
        appointed.

              On December 23, 2009, the trial court denied counsel’s
        Motion to withdraw and Hernandez’s Motion to modify and
        reduce sentence. The trial court modified the judgment of
        sentence, pursuant to the Commonwealth’s Motion, to require
        that Hernandez pay restitution to the victim’s family for funeral
        expenses.

              Hernandez filed a timely Notice of Appeal of the judgment
        of sentence.

Commonwealth v. Hernandez, 11 A.3d 1036 [2188 MDA 2009] (Pa.

Super. 2009) (unpublished memorandum at 1-3).

        On direct appeal, counsel filed a petition to withdraw and an Anders2

brief. On August 24, 2010, a panel of this Court affirmed the judgment of

sentence and granted counsel’s petition to withdraw. See id. Less than one

year later, on August 10, 2011, Hernandez filed a timely, pro se PCRA

petition, in which she asserted, inter alia: (1) plea counsel was ineffective in

pressuring her to plead guilty and failing to object when she was charged as

an adult; (2) some of her convictions violated double jeopardy; and (3) the
____________________________________________


2
    Anders v. California, 386 U.S. 738 (1967).



                                           -3-
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police interrogated her without permitting her to see a parent or an

attorney. See Motion for Post Conviction Collateral Relief, 8/24/2011, at 3,

7.   Counsel was appointed, but failed to amend Hernandez’s petition.

Thereafter, on December 28, 2011, the PCRA court notified Hernandez of its

intent to dismiss her petition without first conducting an evidentiary hearing

pursuant to Pa.R.Crim.P. 907.        Although Hernandez filed a counseled

response requesting a hearing, the PCRA court denied Hernandez’s petition

on January 10, 2012.

       On appeal, a panel of this Court determined that Hernandez’s petition

was essentially uncounseled since appointed counsel failed to file an

amended PCRA petition. Accordingly, the panel vacated the order denying

PCRA    relief,   and   remanded   for    the   appointment   of   new   counsel.

Commonwealth v. Hernandez, 55 A.3d 152 [212 MDA 2012] (Pa. Super.

2012) (unpublished memorandum).           Upon remand to the PCRA court, new

counsel was appointed, and, on January 3, 2013, filed an amended PCRA

petition focusing on plea counsel’s ineffectiveness in (1) inducing Hernandez

to plead guilty by advising her she would receive a lifetime sentence if she

proceeded to trial; (2) failing to file a motion to suppress the statement

Hernandez made to police without a parent or counsel present; and (3)

failing to challenge Hernandez being charged as an adult.          See Amended

Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act,

3/1/2013, at ¶ 14.      The PCRA court conducted a hearing on Hernandez’s

amended petition on May 20, 2013, at the conclusion of which it took the

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matter under advisement.           Thereafter, on November 6, 2014, the PCRA

court entered an order granting Hernandez’s PCRA petition, and providing

her the opportunity to withdraw her guilty plea.3 This timely Commonwealth

appeal follows.4

       On appeal, the Commonwealth contends the PCRA court erred in

finding plea counsel was ineffective for advising Hernandez to enter a guilty

plea to third-degree murder, and in granting her the opportunity to withdraw

her guilty plea.

       Our review of the Commonwealth’s claim on appeal is guided by the

following:

       In reviewing the propriety of an order granting or denying PCRA
       relief, an appellate court is limited to ascertaining whether the
       record supports the determination of the PCRA court and
       whether the ruling is free of legal error. Commonwealth v.
       Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009). We pay
       great deference to the findings of the PCRA court, “but its legal
       determinations are subject to our plenary review.”            Id.
       Furthermore, to be entitled to relief under the PCRA, the
       petitioner must plead and prove by a preponderance of the
       evidence that the conviction or sentence arose from one or more
       of the errors enumerated in section 9543(a)(2) of the PCRA. One
       such error involves the ineffectiveness of counsel.

____________________________________________


3
 The record does not reveal why the PCRA court failed to enter a ruling for
more than 15 months after the hearing.
4
 On December 8, 2014, the PCRA court directed the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth complied with the court’s directive, and filed a
concise statement on December 22, 2014.




                                           -5-
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      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. Id. “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) the petitioner was prejudiced by
      counsel’s act or omission. Id. at 533. A finding of “prejudice”
      requires the petitioner to show “that there is a reasonable
      probability that, but for counsel's unprofessional errors, the
      result of the proceeding would have been different.” Id.

Commonwealth v. G.Y., 63 A.3d 259, 265 (Pa. Super. 2013).

      Furthermore,

      [i]t is clear that a criminal defendant’s right to effective counsel
      extends to the plea process, as well as during trial. However,
      “[a]llegations 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. Where the defendant enters his plea on the
      advice of counsel, the voluntariness of the plea depends on
      whether counsel’s advice was within the range of competence
      demanded of attorneys in criminal cases.”

Commonwealth v. Wah, 42 A.3d 335, 338-339 (Pa. Super. 2012) (citation

omitted).

      In the present case, the PCRA court provided two bases for its

determination that plea counsel was ineffective for advising Hernandez to

accept the Commonwealth’s plea offer. First, the court found counsel erred

in “stressing to” Hernandez that the likely outcome of a trial would be a first-




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J-S53021-15



degree murder conviction and concomitant sentence of life imprisonment.5

See PCRA Court Opinion, 11/6/2014, at 18.         Conversely, the PCRA court

determined that if Hernandez had proceeded to trial, a jury instruction on

third degree murder and voluntary manslaughter “would have been

warranted under the facts;” therefore, the court determined that, contrary to

counsel’s implications, a first-degree conviction was not a foregone

conclusion. Id. at 19. The court found that “[w]ithout such information, …

[Hernandez] was unable to make an informed decision.”             Id. at 22.

Moreover, the court noted “[t]he alternative not chosen by counsel, pursuing

a conviction of a lesser crime, had a greater likelihood of [Hernandez]

receiving a lesser sentence than that offered in the plea bargain.” Id.

       Second, the PCRA court concluded plea counsel was ineffective “for

recommending [Hernandez] accept the plea offer which was tied to her

mother receiving a more lenient sentence.”       Id. at 33 (footnote omitted).

The court opined: “this offer was not in [Hernandez’s] best interest and []

she was induced to enter her plea by being coerced into making a decision

which would impact and determine a good portion of the rest of her own life

based on what was best for her mother in the short-term.”          Id. at 31.

Accordingly, the PCRA court granted Hernandez’s petition for relief, and
____________________________________________


5
  The PCRA court recognized that “defense counsels’ foremost objective was
to prevent [Hernandez] from receiving a First Degree Murder conviction and
its accompanying mandatory life sentence[.]”         PCRA Court Opinion,
11/6/2014, at 17.



                                           -7-
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provided her with the opportunity to withdraw her guilty plea and proceed to

trial.6

          The Commonwealth asserts, however, the PCRA court improperly

granted Hernandez relief.           First, it argues the court erred in finding

Hernandez could have been convicted of voluntary manslaughter7 had her

case proceeded to trial. The Commonwealth contends the PCRA court raised

this claim sua sponte, based solely on a statement Hernandez made in a pro

se motion to modify her sentence.8 See Commonwealth’s Brief at 21. The
____________________________________________


6
  We note the PCRA court also found arguable merit in Hernandez’s claim
that plea counsel was ineffective for failing to file a pretrial motion seeking
suppression of her statement to police, which she gave without a parent or
counsel present. See PCRA Court Opinion, 11/6/2014, at 16. However, the
court ultimately determined counsel had a reasonable basis for deciding not
to pursue a suppression motion. See id. (noting that plea counsel explained
she “felt that it was more prudent not to pursue suppression of the
statements” because (1) the Commonwealth had advised counsel that no
plea offer would be extended if a pretrial motion was filed, and (2) the
Commonwealth had “ample eyewitness testimony which placed [Hernandez]
at the scene and identified her as the shooter.”).
7
  The crime of voluntary manslaughter involves either (1) a killing committed
by an actor who is acting under a “sudden and intense passion resulting
from serious provocation” by the victim or another whom the actor intended
to kill but negligently cause the death of the victim, or (2) an intentional
killing committed by an actor under an unreasonable, but mistaken, belief
that the killing is justified. 18 Pa.C.S. § 2503(a)-(b).
8
    In her pro se motion, Hernandez averred the following:

          The defendant was at her place of residence and attacked with
          her mother and reacted, in what in her eyes, was a way of
          defending herself and her mother from what she conceived as
          imminent bodily injury.

(Footnote Continued Next Page)


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Commonwealth emphasizes that Hernandez did not assert she acted in

defense of her mother either in her amended petition, or during her

testimony at the PCRA hearing.              Had she done so, the Commonwealth

contends it would have offered evidence to rebut such a claim. See id. at

23 n.7.

          While we acknowlege Hernandez did not specifically assert that a jury

could have found her guilty of only voluntary manslaughter, we agree with

Hernandez that “it is implicit in [her argument before the PCRA court] that

had she proceeded to trial she could have been convicted of a lesser

offense[.]” Hernandez’s Brief at 12. Because Hernandez entered a plea and

waived her right to a preliminary hearing, the certified record contains very

few facts regarding the incident in question. It is undisputed, however, that

Hernandez’s mother was involved in a fistfight with another woman when

Hernandez pulled out a gun and shot the victim.            What is unknown is

whether the victim was involved in the fight.        Even if he was an innocent

bystander, however, the facts would have supported an instruction on third-

degree murder, and, depending on extenuating circumstances, may have

supported a charge on voluntary manslaughter. Therefore, we disagree with




                       _______________________
(Footnote Continued)

Motion to Modify and Reduce Sentence, 12/8/2009, at 3.



                                            -9-
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the Commonwealth’s assertion that his claim was raised sua sponte by the

PCRA court.9

       Moreover, we note the PCRA court did not grant relief because it

determined a jury would have most likely convicted Hernandez of voluntary

manslaughter.      Rather, the court concluded plea counsel did not provide

Hernandez with the information she needed to make an informed decision.

The court opined:



____________________________________________


9
  We recognize that during the PCRA hearing, plea counsel testified that she
and co-counsel had conducted their own investigation and spoke with some
of the potential witnesses to the crime. N.T., 5/20/2013, at 26. Counsel
also testified she talked to Hernandez “about the video surveillance.” Id.
However, as the PCRA court noted in its opinion:

       It is unclear from the testimony whether defense counsel had
       viewed any video surveillance of the incident or whether they
       merely suspected that such surveillance existed. It is also
       unclear what portion of the incident was depicted in any such
       surveillance video.

PCRA Court Opinion, 11/6/2014, 12 n.8.

      Furthermore, we disagree with the Commonwealth’s assertion that the
PCRA court engaged in a “distorted hindsight analysis,” relying on
statements Hernandez made in a pro se filing after the plea was entered.
See Commonwealth’s Brief at 25. As noted above, the undisputed facts
demonstrate that, at the very least, a jury instruction on third degree
murder would have been warranted. See Commonwealth v. Morris, 958
A.2d 569, 576 (Pa. Super. 2008) (“Third degree murder occurs when a
person commits a killing which is neither intentional nor committed during
the perpetration of a felony, but contains the requisite malice.”) (citation
omitted), appeal denied, 991 A.2d 311 (Pa. 2010).




                                          - 10 -
J-S53021-15


            At the PCRA hearing, [Hernandez] stated numerous times
     that she told her attorneys that she wanted to go to trial on
     these charges. [Hernandez’s] father also urged her to go to trial
     rather than enter a plea. We believe that proceeding with trial
     on these facts should have been more fully explored with
     [Hernandez]. If [Hernandez], after discussions with counsel and
     her father, desired to go to trial based on the possibility that she
     would be convicted of a lesser offense we believe that decision
     should have been honored. The alternative not chosen by
     counsel, pursuing conviction of a lesser crime, had a greater
     likelihood of [Hernandez] receiving a lesser sentence than that
     offered in the plea bargain. [Hernandez] could have even been
     convicted of Third-Degree Murder, to which she was already
     facing the maximum penalty under the plea agreement.
     [Hernandez] has indicated that, had she been cognizant of
     possible defenses and the possibility of being convicted of a
     lesser crime than First-Degree Murder, she may have decided
     that it was worth taking the risk. Without such information,
     however, she was unable to make an informed decision.

PCRA Court Opinion, 11/6/2014, at 21-22.

     We recognize that during the PCRA hearing, Hernandez acknowledged

plea counsel explained to her the different types of murder and the penalties

for each crime.   N.T., 5/20/2013, at 17.      Further, Hernandez indicated

during the plea colloquy that she was satisfied with the representation by

her attorneys, and she was entering the plea of her own volition.           N.T.,

11/23/2009, at 10. See Commonwealth v. Turetsky, 925 A.2d 876, 881

(Pa. Super. 2007), appeal denied, 940 A.2d 365 (Pa. 2007) (“A person who

elects to plead guilty is bound by the statements he makes in open court

while under oath and he may not later assert grounds for withdrawing the

plea which contradict the statements he made at his plea colloquy.”).

     Nevertheless,




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        [i]n order for a guilty plea to be constitutionally valid, the guilty
        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 guilty
        plea colloquy, a plea of guilty 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. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)

(citation omitted and emphasis supplied).

        A review of the record in the present case reveals the following.

Hernandez was only 16-years-old at the time of the shooting. Although she

had a prior criminal record, none of her prior convictions involved violent

acts.    See N.T., 11/23/2009, at 13.           The plea agreement offered by the

Commonwealth,        although      sparing     her   a   potential   sentence   of   life

imprisonment, required her to enter a plea of guilty to all the crimes with

which she was charged, and agree to consecutive statutory maximum

sentences for each conviction that did not merge.10 Furthermore, the plea

offer was contingent upon her mother’s plea.

____________________________________________


10
  Pursuant to the negotiated plea, Hernandez was sentenced as follows: 20
to 40 years’ imprisonment for third degree murder; five to 10 years’
imprisonment for persons not to posess firearms; five to 10 years’
imprisonment for possession of a firearm with altered manufacturer’s
number; three and one-half to seven years’ imprisonment for riot; three and
one-half to seven years’ imprisonment for conspiracy; and two and one-half
to five years’ imprisonment for possession of a firearm by minor. Each
sentence was imposed to run consecutively. Only the charges of aggravated
(Footnote Continued Next Page)


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      During the PCRA hearing, Hernandez testified that she initially refused

the plea offer when it was presented to her by counsel. N.T., 5/20/2013, at

12.   However, only 15 minutes later, plea counsel returned with another

attorney from the Public Defenders’ Office.          Plea counsel told her “it is

possible that [she] could get life” and “[i]t is better to take this plea than to

go to trial with a possibility that [she] could possibly lose.” Id. Hernandez

stated she also asked whether she could be convicted of involuntary

manslaughter, and the other attorney told her “involuntary manslaughter is

basically like holding a gun and it accidentally goes off.” Id. She explained

she felt “pressured” the second time counsel presented the plea. Id.

      [Plea counsel] basically told me that she did not want to gamble
      with my life. If I was to lose, I could get life. But this was the
      only plea bargain that I was going to get.

Id. at 16. Hernandez then decided to accept the plea. She noted:

      I did not know what to do at the time. I was sixteen. I just felt
      like my Public Defender knew what she was doing, so I just pled
      guilty.

Id. at 15.

      To further complicate matters, Hernandez was not permitted to speak

with her mother before deciding whether to accept the plea offer. Id. at 14.

Hernandez was told “once [she] was sentenced, [they] were allowed to be in

contact with each other.”          Id.   Although she did have an opportunity to

                       _______________________
(Footnote Continued)

assault, REAP, and disorderly conduct merged for sentencing purposes. See
Plea Offer, 10/28/2009, at 1.



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speak with her father, who urged her to reject the plea and told her he

would try to get her “better counsel,” Hernandez told plea counsel that her

father had not “really been in her life.”    Id. at 30.   Therefore, Hernandez

relied upon the advice of plea counsel, and accepted the Commonwealth’s

negotiated plea agreement.

      In the present case, Hernandez, a juvenile defendant, entered a plea

to third degree murder while believing she was virtually assured at trial to be

convicted of first-degree murder and sentenced to life imprisonment. More

importantly, there was no mention during the in-court colloquy that

Hernandez’s plea offer was contingent upon her mother’s, or that the

contingent pleas would result in a maximum county sentence for her

mother, but a maximum state sentence of 79 years’ imprisonment for

Hernandez. Accordingly, we find Hernandez’s claim has arguable merit.

      Moreover, with regard to the second prong of the ineffectiveness test,

under the unique facts of this case, we find it was unreasonable for plea

counsel to advise Hernandez to accept the Commonwealth’s plea offer,

which spared her only the possibility of a sentence of life imprisonment,

when Hernandez initially refused to accept the offer, but relented only after

counsel returned with another attorney to convince her to do so.          This

pressure, coupled with counsel’s statement to Hernandez that she “did not




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want to gamble with [Hernandez’s] life,”11 raises concerns regarding the

voluntariness of the plea.

       Lastly, with regard to the prejudice prong, the PCRA court concluded

“had [Hernandez] been cognizant of possible defenses and the possibility of

being convicted of a lesser crime than First-Degree Murder, she may have

decided it was worth taking the risk” to proceed to trial.       PCRA Court

Opinion, 11/6/2014, at 22. We agree. Hernandez testified that she initially

rejected the plea offer when it was first presented to her, and only agreed to

accept it after plea counsel returned with another attorney, which made her

feel “pressured.”     See N.T., 5/20/2013, at 12.   She explained, “I believe

that if [they] did not come back the second time, I would have took the

trial.” Id. at 13.

       This Court has previously stated: “We do believe that when a juvenile

seeks to confess guilt to a crime, close scrutiny must be paid to the

surrounding circumstances.”         Commonwealth v. Shaffer, 449 A.2d 677,

681 (Pa. Super. 1982) (rejecting 17-year-old appellant’s claim that counsel

was ineffective for failing to suppress taped police statement in which he

confessed to fatally beating his 17-month-old niece; concluding “the


____________________________________________


11
   N.T., 5/20/2013, at 16. Although plea counsel denied that she told
Hernandez that Hernandez should take the plea, see id. at 28, credibility
determinations are left to the discretion of the PCRA court.
Commonwealth v. Treiber, ___ A.3d ___, ___, 2015 WL 4886374, at *3
(Pa. Aug. 17, 2015).



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presence of conscientious counsel before and during appellant’s tape

confession and at his guilty plea hearing enabled him to exercise his free

will.”). Here, we conclude the PCRA court did not err or abuse its discretion

when it determined plea counsel did not provide Hernandez with sufficient

information   to   make   an   informed   decision   whether   to   accept   the

Commonwealth’s plea or risk proceeding to trial. See PCRA Court Opinion,

11/6/2014, at 22.

      The Commonwealth also argues, however, that the PCRA court

“improperly raised the issue of the Commonwealth offering a plea agreement

to [Hernandez] that was conditioned upon her mother also pleading guilty.”

Commonwealth’s Brief at 24.         Rather, it contends “[t]he entirety of

[Hernandez’s] argument was that counsel induced her to plead guilty by

telling her she would receive a life sentence if she went to trial and that she

felt pressured by counsel to enter the plea.” Id.

      We disagree with the Commonwealth’s assertion that the PCRA court

improperly raised this issue sua sponte.     While this specific claim was not

included in the amended PCRA petition, Hernandez explicitly stated, in her

original, pro se petition that counsel provided ineffective assistance by

“intimidating [her into pleading guilty] by saying that [her] mother can only

get her plea bargain if [Hernandez] take[s] one.” Motion for Post Conviction

Collateral Relief, 8/24/2011, at 3. Accordingly, we find it was an appropriate

basis upon which the PCRA court could grant relief.




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      We emphasize that although the fact that Hernandez’s plea was

contingent upon her mother’s plea was outlined in the written offer provided

by the Commonwealth, the written offer did not specify the sentence her

mother would receive under the plea agreement.              See Plea Offer,

10/28/2009, at 2. More concerning, however, is the fact that the contingent

nature of the plea – particularly the fact that Hernandez’s mother would

benefit from a county sentence if Hernandez entered a guilty plea - was not

detailed in the written colloquy or explained to Hernandez during the oral

colloquy.   Rather, the written colloquy simply referenced the plea offer to

Hernandez, and the oral colloquy referenced only the agreement that

Hernandez would “receive an overall sentence of thirty-nine and one-half

years to seventy-nine years in prison.” N.T., 11/23/2009, at 8. See also

Guilty Plea Colloquy, 11/4/2009, at 6.

      Here, the PCRA court was justifiably concerned that Hernandez’s plea

was connected to her mother’s plea. The court opined:

      [T]he case before us presents a unique situation … [Hernandez]
      was a sixteen-year-old girl who had lived her entire life with her
      mother and had very limited involvement with her father. She
      knew that her mother’s chance of getting a plea agreement for a
      local sentence was entirely dependent upon her entering a plea
      of guilt under the terms offered to her by the Commonwealth
      and that no different offer would be extended. [Hernandez]
      indicated to [plea counsel] that her mother was “100 per cent”
      behind her entering a guilty plea.

            Although [Hernandez] was by no means an innocent
      sixteen-year-old girl, having a juvenile record and having
      committed “the most adult type crime that you can do,” and the
      fact that her mother had not been an ideal role model, we
      cannot help but find that [Hernandez’s] decision to forego trial

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J-S53021-15


     and plead guilty was compromised by her desire to protect her
     mother to the point of coercion.       Such psychological and
     emotional pressure could certainly be expected to overshadow
     her ability to make a conscious choice of the best option for her
     own welfare. We cannot help but feel that her ability to consider
     what was in her own best interest was clouded by her youth and
     devotion and that she should have been able to make such a
     momentous decision without shouldering responsibility for her
     mother’s welfare.

PCRA Court Opinion, 11/6/2014, at 28-29 (record citation omitted).

      The fact remains that this issue was not fully explored by either plea

counsel or the trial court before Hernandez entered her guilty plea. Counsel

testified, at the PCRA hearing, that Hernandez stated her mother was

“behind her one hundred percent” and Hernandez knew her mother would be

“receiving a local jail sentence.”   N.T., 5/20/2013, at 27, 34.     However,

Hernandez testified she was not allowed to speak with her mother before

she took the plea and was sentenced.      Id. at 14. It is certainly not clear

how much Hernandez knew about her mother’s proposed plea offer before

she entered her own plea, and whether the contingent aspect of the deal

placed undue pressure on her to spare her mother significant jail time.

     We recognize that a defendant may enter a guilty plea for any number

of reasons, including to “shield others” from prosecution or lengthy

sentences.    Commonwealth v. Yager, 441, 685 A.2d 1000, 1006 (Pa.

Super. 1996) (en banc) (citation omitted), appeal denied, 701 A.2d 577

(Pa. 1997). However, when that defendant is a juvenile, charged with the

most serious crime, and her decision to enter a guilty plea may be based, in

part on her desire to protect her mother from a lengthy prison term, we


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agree great care must be taken to ensure the plea is entered knowingly and

voluntarily. This is especially true where, as here, her mother was also her

co-defendant, whom she was not permitted to consult before making this

momentous decision.12

       Therefore, under the unique facts of the case before us, we find the

PCRA court did not err or abuse its discretion in concluding plea counsel

provided ineffective assistance, which resulted in an unknowing and

involuntary plea.13      Accordingly, we affirm the order of the PCRA court

granting    relief   and     remand      for   proceedings   consistent   with    this

memorandum.




____________________________________________


12
   We recognize there is not requirement that a juvenile, charged as an
adult, be permitted to speak with a parent prior to entering a guilty plea. So
long as the juvenile is represented by “conscientious counsel,” her rights
have been protected. Shaffer, supra, 449 A/2d at 681. Nevertheless,
when, as here, there is a question as to whether counsel acted in the
juvenile’s best interest, the fact that Hernandez was not permitted to speak
with her mother, the most important adult figure in her life, before having to
decide whether to accept the plea, is significant. Moreover, the only other
interested adult who provided advice, Hernandez’s absent father, urged her
to reject the plea.
13
   We emphasize the judge who presided                   over   Hernandez’s      PCRA
proceedings also presided over her guilty plea.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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