J-S38006-15 and J-S38007-15



                           2015 PA Super 250

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellant

                 v.

STEWARD STECKLEY, JR.

                      Appellee                 No. 1995 MDA 2014


            Appeal from the PCRA Order of November 5, 2014
            In the Court of Common Pleas of Schuylkill County
         Criminal Division at Nos.: CP-54-CR-0001033-2009 and
                         CP-54-CR-0001215-2009




COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

STEWARD STECKLEY, JR.

                      Appellant                No. 2103 MDA 2014


            Appeal from the PCRA Order of November 5, 2014
            In the Court of Common Pleas of Schuylkill County
         Criminal Division at Nos.: CP-54-CR-0001033-2009 and
                         CP-54-CR-0001215-2009


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

CONCURRING AND DISSENTING OPINION BY STABILE, J.:

                                          FILED NOVEMBER 30, 2015
J-S38006-15 and J-S38007-15



      I concur in the very thorough analysis by the Majority, but write

separately simply to offer my dissent on the remedy ordered. Prior to jury

selection, Appellant’s counsel engaged in guilty plea negotiations with the

Commonwealth. The Commonwealth initially offered an aggregate sentence

of three to six years’ imprisonment if Appellant pled guilty to all charges,

and then offered to reduce the recommended sentence to two to six years in

prison. Appellant rejected these offers that made no sense to him in light of

the sentencing guideline worksheets provided by the Commonwealth that

indicated a standard range of nine to sixteen months’ imprisonment.        The

Commonwealth apparently was unaware at the time that it could seek a

mandatory minimum sentence of twenty-five years based upon a prior 1994

conviction of Appellant for indecent assault.    Subsequently, a jury found

Appellant guilty.

      Prior to sentencing, however, the Commonwealth provided notice to

Appellant of its intention to seek a mandatory minimum sentence of twenty-

five years’ imprisonment based on Appellant’s 1994 conviction.        The trial

court thereafter sentenced Appellant to concurrent terms of twenty-five to

fifty years’ imprisonment for each of his child pornography convictions.

      Appellant eventually petitioned for PCRA relief, alleging ineffectiveness

of counsel who failed to inform him of the potential the Commonwealth could

seek imposition of a twenty-five year mandatory minimum sentence.          The

PCRA court granted the petition.



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J-S38006-15 and J-S38007-15



      On appeal, the Majority affirms the finding of the PCRA court that

counsel was ineffective, but reverses that part of the court’s order granting

Appellant a new trial. Guided by our Supreme Court’s decision in Lafler v.

Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), the Majority reasons that

granting Appellant a new trial bestows upon Appellant a windfall by giving

Appellant the chance of an acquittal, a potential result that does not address

the prejudice suffered by Appellant, i.e., a substantially longer sentence than

the one offered.    Instead, the Majority directs that upon remand, the trial

court is to require the prosecution to reoffer the plea proposal.

      I dissent from the Majority only to state that I do not think it possible

to direct the Commonwealth to offer the rejected plea again. The plea offer

was infirm, as both parties were mistaken at the time as to the minimum

sentence that Appellant could serve.       Neither recognized at the time that

Appellant   could   face   a   mandatory    minimum    of   twenty-five   years’

imprisonment, as opposed to the Commonwealth’s last offer of two to six

years in prison. Directing the trial court to order the Commonwealth to offer

the rejected plea again would be futile, since that offer was based upon a

mutual mistake. In my view, to fulfill Lafler’s dictate that a remedy must

“neutralize the taint” of a constitutional violation, any renewed offer cannot

be legally flawed, as that would amount to no offer at all. To neutralize the

constitutional taint of counsel’s ineffectiveness, it may be more appropriate,

for example, under the unique facts present here, for the trial court to



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J-S38006-15 and J-S38007-15



fashion a remedy requiring the Commonwealth instead to make a good faith

plea offer to Appellant based upon negotiations that correctly assume the

Appellant could face a mandatory twenty-five year minimum sentence.          If

accepted by Appellant, the trial court could then in its sentencing discretion,

and consistent with Lafler, either vacate Appellant’s convictions and

resentence pursuant to a plea agreement, vacate some of Appellant’s

convictions and resentence accordingly, or leave the conviction and sentence

resulting from the trial undisturbed. In the event the parties are unable to

reach a new plea agreement, the trial court may consider that fact and the

parties’ conduct in fashioning an appropriate remedy. Ultimately, it must be

the trial court that decides how best to exercise its discretion under the

circumstances of each case to fashion a remedy that is tailored to the injury

suffered from a constitutional violation that does not unnecessarily infringe

upon the competing interests of the state. See Lafler, 132 S. Ct. at 1388-

89.




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