J-A11030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEFFERY EUGENE ZEIGLER                     :
                                               :
                       Appellant               :   No. 1909 MDA 2017

                Appeal from the PCRA Order November 14, 2017
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0000772-2015


BEFORE:      STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 20, 2018

        Appellant Jeffery Eugene Zeigler appeals from the order denying his

petition for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. Appellant argues that plea counsel’s ineffectiveness caused him

to enter an involuntary and unknowing guilty plea. We affirm.

        On September 14, 2015, Appellant entered a negotiated guilty plea to

driving under the influence (DUI) and flight to avoid apprehension,1 and was

sentenced to an agreed-upon aggregate sentence of eighteen to seventy-two

months’ state incarceration. At the time of sentencing, Appellant was on state

parole for an unrelated matter.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 3802(c), and 18 Pa.C.S. § 5126(a), respectively.
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       Appellant filed a pro se motion to modify sentence nunc pro tunc on

September 2, 2016.         The court issued an order on September 29, 2016,

stating that Appellant’s motion would be treated as a first PCRA petition and

appointing PCRA counsel on Appellant’s behalf. On April 5, 2017, counsel filed

an amended petition alleging, in relevant part,2 that Appellant’s plea was

unlawfully induced. Specifically, Appellant asserted that plea counsel led him

to believe that the sentence in this case would begin to run on September 14,

2015, notwithstanding his outstanding parole violation. Amended PCRA Pet.,

4/5/17, at 10.

       The PCRA court conducted an evidentiary hearing on August 7, 2017.

Plea counsel testified that at the time Appellant entered his guilty plea, she

was aware of his status as a state parole violator. N.T. PCRA Hr’g, 8/7/17, at

7.   She testified that she knew Appellant was facing some period of

incarceration on his parole violation docket, but did not know if she knew how

much backtime he was facing at the time of the plea. Id. She further testified

that she did not recall specifically having a conversation about whether the

new sentence would run consecutive or concurrent to the parole violation

sentence. Id. She also stated that, “I can’t imagine that I would have told

him that they would run concurrently because that wasn’t an agreement with

the DA’s office. And there is law out there stating that, that is something that

____________________________________________


2Appellant’s amended PCRA petition included a challenge to his DUI conviction
based on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). However,
Appellant did not pursue that issue in the instant appeal.

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can’t happen.     But I don’t specifically recall having that conversation with

[Appellant].” Id. Plea counsel also said that although the sentencing sheet

indicated that Appellant’s plea sentence would commence on the date of the

plea hearing, “typically the way things work is that the sentence will

commence [that day] and the [Department of Corrections] will do what they

need to do with calculating the back time for the parole violation.” Id. at 10.

Plea counsel reiterated at the end of her testimony that she did “not recall

leading [Appellant] to believe that his sentences would run concurrent.” Id.

at 12.

         Appellant testified that with respect to his conversation with plea

counsel, “to my understanding of the conversation that took place that day,

my time would start that day and it would be running with my parole violation.

That’s why I took the 18-72 months.” Id. at 18. He also stated had he known

that the new sentence would run consecutive to his violation sentence, he

would have proceeded to trial.

         On cross-examination, the Commonwealth asked Appellant, “But would

you agree with me that at no point in time during the guilty plea colloquy or

during sentencing were you ever told that, that it would be running

concurrent?“ Id. at 21. Appellant responded, “I was led to believe that. Was

it actually stipulated to in the courtroom that day? I read my court transcripts.

And it doesn’t say in there. I can’t remember exactly what was said that day.

But according to the court transcripts, it wasn’t brought up.” Id.




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      At the conclusion of the hearing, the PCRA court directed the parties to

submit briefs. On November 13, 2017, the PCRA court entered an order and

opinion denying Appellant’s petition.      See PCRA Ct. Order, 11/13/17.

Appellant filed a timely notice of appeal on December 11, 2017. That same

date, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b) statement

of errors. Appellant timely complied on December 20, 2017.

      Appellant raises the following question for our review:

      Did the trial court err in denying the Appellant’s Amended Petition
      for Post Conviction Relief Pursuant to the Post Conviction Relief
      Act by order issued November 13, 2017 where testimony set forth
      at the hearing on August 7, 2017 established that the ineffective
      assistance of his counsel led the Appellant to erroneously believe
      that his sentences associated with a plea deal that were issued on
      September 14, 2015 would run concurrently with another prior
      sentence and that the Appellant, who has averred his innocence,
      would not have pled guilty had he been properly advised by his
      counsel on the matter?

Appellant’s Brief at 8.

      Appellant argues that the PCRA court should have found that the

Appellant received erroneous information from his counsel prior to his plea.

Appellant’s Brief at 14. He asserts that plea counsel “led [him] to erroneously

believe that his sentences associated with a plea deal that were issued on

September 14, 2015, would run concurrently with another prior sentence” and

that having “averred his innocence, [he] would not have pled guilty had he

been properly advised by his counsel on the matter.” Id. at 12.

      He argues that “Appellant testified to this, his counsel could not

remember otherwise, the transcript does not show otherwise, and language

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in the sentencing order . . . supports this claim.”   Id. at 15.   In support,

Appellant points to the sentencing order, which indicates that Appellant’s

sentence was to commence on that date. Id. Appellant concludes that “[t]he

PCRA’s factual finding was not supported by the record. In the absence of

said finding, the Appellant clearly demonstrated that his plea was unlawfully

induced by the totality of the circumstances surrounding the plea.” Id. at 16.

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). Our “scope

of review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the PCRA

court level.”   Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012)

(citation omitted).       “The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court.”     Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted). “However, this Court

applies a de novo standard of review to the PCRA court’s legal conclusions.”

Id. (citation omitted).

      In order to obtain relief on an ineffectiveness claim, a petitioner must

establish:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s actions or failure to act; and (3)
      petitioner suffered prejudice as a result of counsel’s error such


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      that there is a reasonable probability that the result of the
      proceeding would have been different absent such error.

      Trial counsel is presumed to be effective, and [the defendant]
      bears the burden of pleading and proving each of the three factors
      by a preponderance of the evidence.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations

omitted).    “A court is not required to analyze the elements of an

ineffectiveness claim in any particular order of priority; instead, if a claim fails

under any necessary element of the ineffectiveness test, the court may

proceed to that element first.” Commonwealth v. Tharp, 101 A.3d 736,

747 (Pa. 2014) (citations omitted).

      In Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999), the

Pennsylvania Supreme Court stated:

      Allegations of ineffectiveness in connection with the entry of a
      guilty plea will serve as a basis for relief only if the ineffectiveness
      caused appellant to enter an involuntary or unknowing plea. 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.

Id. (footnote and citations omitted); accord Commonwealth v. Robinson,

___ A.3d ___, ___, 2018 WL 2041425, at *6 (Pa. Super. 2018) (en banc).

“Thus, to establish prejudice, the defendant must show that there is a

reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Barndt, 74 A.3d at

192 (citation and internal quotation marks omitted).          Counsel’s failure to




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inform a defendant about the possibility of parole revocation in an unrelated

case does not, without more, invalidate the plea. Id. at 195. Conversely,

       [a]s clear as our case law is that counsel’s omission to mention a
       collateral consequence of a guilty plea does not constitute
       ineffectiveness of counsel, it is equally clear that 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.”

                                           ***

       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.

Id. at 196 (footnote and citation omitted), 201.            Thus, to establish

ineffectiveness, Appellant must plead and prove that counsel affirmatively

misled him with respect to the parole consequences of his guilty plea. 3 See

id.

       Here, in concluding that Appellant’s claim was meritless, the PCRA court

explained:

       Although [plea counsel] recalled that [Appellant] was incarcerated
       for a parole revocation unrelated to the above-captioned dockets,
       she testified, “I can’t imagine that I told him it would run
____________________________________________


3 By way of background, we note that the Parole Board was statutorily required
to run Appellant’s parole revocation sentence consecutively to his sentence on
the new charges. See 61 Pa.C.S. § 6138; see also Walker v. Pa. Bd. of
Prob. & Parole, 729 A.2d 634, 638 (Pa. Cmwlth. 1999) (recognizing “the
[Parole] Board may not impose a parole violation sentence to run concurrently
with a new sentence for an offense committed while on parole[]” (citation
omitted)). Thus, under these particular facts, Appellant’s new sentence could
not commence until his parole revocation sentence was completed.

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       concurrently”[] and that she did not recall leading [Appellant] to
       believe that his new sentence would start running on September
       14, 2015, rather than upon the conclusion of his parole revocation
       sentence in 2017.       “In short when it comes to collateral
       consequences of a guilty plea, counsel’s sins of omission must be
       treated differently than [her] sins of commission.” Furthermore,
       [Appellant] himself did not recall any such discussion prior to
       entering a plea, and neither the transcripts from the sentencing
       hearing nor the written plea colloquy indicate that the sentences
       would run concurrently.

                                           ***

       Based on the evidence presented, it is clear to the [c]ourt that
       [Appellant’s] argument lacks merit as [plea] counsel did not
       affirmatively provide [Appellant] erroneous advice about the
       length or manner of service of the sentences. As such, Appellant
       could not have relied upon advice that was never provided in the
       first place.

       Failure to advise a defendant of the consequences of a guilty plea
       may indeed be cognizable under the ineffective assistance of
       counsel provisions of the PCRA, under certain circumstances. In
       the instant case, the fact that [Appellant]’s sentences at the
       above-captioned dockets would run consecutively, instead of
       concurrently, to the unrelated parole revocation term, is a
       collateral consequence, and thus does not undermine the validity
       of his guilty plea. Since collateral consequences, as opposed to
       direct consequences, are irrelevant to determining whether a
       guilty plea was entered voluntarily and knowingly, [plea] counsel
       was under no obligation to advise [Appellant] that his sentences
       for the above-captioned cases would run consecutively to his
       parole revocation on an unrelated docket. Because the [c]ourt
       finds that [Appellant]’s issue lacks merit, and with due regard to
       the [c]ourt’s finding that [plea counsel] was a more credible
       witness than [Appellant],[4] the [c]ourt need not address the
       remaining prongs of the ineffectiveness of counsel analysis.

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4 At the PCRA hearing, the Commonwealth offered evidence that Appellant
had multiple crimen falsi convictions spanning from 1999 to 2013. The PCRA
court indicated that “in consideration of this fact . . . the [c]ourt finds [plea



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Id. at 8-11 (citations omitted).

       In   light   of   the   PCRA    court’s   findings   of   fact   and   credibility

determinations, which are supported by the record, we are bound to conclude

that plea counsel did not affirmatively mislead Appellant with respect to the

consequences of his parole revocation.5 See Spotz, 18 A.3d at 259; See

Barndt, 74 A.3d at 196.          Accordingly, because counsel’s omission in this

context cannot form the basis of an ineffectiveness claim, we agree with the

PCRA court that Appellant’s claim lacks arguable merit and does not warrant

relief. See Barndt, 74 A.3d at 192.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/20/2018


____________________________________________


counsel]’s testimony to be credible and deserving of more weight than
[Appellant]’s. PCRA Ct. Op., 11/13/17, at 7.

5 We also note that during the oral guilty plea colloquy, Appellant indicated
that no promises outside of the sentence in the negotiated plea agreement in
the current case were made to him with respect to his plea. See N.T., Guilty
Plea Hr’g, 9/14/15, at 4, 6. Moreover, on the written guilty plea colloquy form,
Appellant acknowledged that no promises were made to persuade him to plead
guilty. See Written Colloquy Form, 4/14/15, at 5.

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