J-S65028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ACHILLE LEPEDIO WALKER                     :
                                               :
                       Appellant               :   No. 885 MDA 2019


             Appeal from the PCRA Order Entered, April 24, 2019,
                in the Court of Common Pleas of Berks County,
             Criminal Division at No(s): CP-06-CR-0004419-2015.


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED JANUARY 22, 2020

        Achille Lepedio Walker appeals pro se from the order denying his first

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”).      42

Pa.C.S.A. §§ 9541-46.         Walker argues that plea counsel’s ineffectiveness

caused him to enter an involuntary and unknowing plea. We reverse.

        The facts and pertinent procedural history are as follows. On February

13, 2018, Walker entered a negotiated plea agreement to one count of

conspiracy to commit possession with intent to deliver and one count of

criminal use of a communication facility. Under the plea agreement, Walker

agreed to serve an aggregate sentence of 11½ to 23 months of incarceration,

followed by a five-year probationary term. Walker completed a written plea

colloquy, and the trial court conducted a brief oral colloquy before accepting
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*   Retired Senior Judge assigned to the Superior Court.
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the plea. The trial court then sentenced Walker in accordance with the plea

agreement.      The court credited Walker for 410 days of time served, and

granted the Commonwealth’s motion to withdraw all remaining charges.

Walker did not file an appeal.

       On January 3, 2019, Walker filed a timely pro se PCRA petition. In this

petition, Walker asserted that plea counsel erroneously informed him that,

because his previous parole period had expired, he would not face the risk of

back time being imposed if he pled guilty to the new charges. Thereafter,

Walker was arrested for a parole violation and sentenced to serve thirty-six

months of back time. According to Walker, had plea counsel not misinformed

him about his parole status, he would not have entered his guilty plea.

       The PCRA court appointed counsel, and, on March 29, 2019, PCRA

counsel filed a “no-merit” letter and petition to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley 550 A.2d 213 (Pa. Super. 1988) (en banc). On April 2, 2019, the

PCRA court granted PCRA counsel’s petition to withdraw and issued

Pa.R.Crim.P. 907 notice of its intention to dismiss Walker’s PCRA petition

without a hearing. Walker filed a response. By order entered April 24, 2019,

the PCRA court denied Walker’s petition. This appeal followed.1 Both Walker

and the PCRA court have complied with Pa.R.A.P. 1925.

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1Although the Commonwealth asserts that Walker’s appeal was untimely, we
note that the time-stamp on the envelope in which he mailed his notice of



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       On appeal, Walker essentially argues that the PCRA court erred in

accepting PCRA counsel’s Turner/Finley letter because plea counsel

misinformed him about the consequences of his guilty plea.        See Walker’s

Brief at 4.2
       Our scope and standard of review is well settled:

          In PCRA appeals, our scope of review is limited to the
          findings of the PCRA court and the evidence on the record
          of the PCRA court's hearing, viewed in the light most
          favorable to the prevailing party. Because most PCRA
          appeals involve questions of fact and law, we employ a
          mixed standard of review. We defer to the PCRA court's
          factual findings and credibility determinations supported by
          the record. In contrast, we review the PCRA court's legal
          conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

              When the PCRA court has dismissed a petitioner’s PCRA
       petition without an evidentiary hearing, we review the PCRA
       court’s decision for an abuse of discretion. Commonwealth v.
       Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
       discretion to dismiss a petition without a hearing when the court
       is satisfied that there are no genuine issues concerning any
       material fact, the defendant is not entitled to post-conviction
       collateral relief, and no legitimate purpose would be served by
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appeal from the prison is May 24, 2019. Thus, Walker’s appeal is timely. See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011)
(explaining “[u]nder the prisoner mailbox rule, we deem a pro se document
filed on the date it is placed in the hands of prison authorities for mailing.”)

2Walker also raised an issue regarding the ineffectiveness assistance of PCRA
counsel. Because he inappropriately raises this claim first time on appeal, we
do not consider it. See generally, Pa.R.A.P. 302(a); Commonwealth v.
Henkel, 90 A.3d 16 (Pa. Super. 2014).


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      further proceedings. Id. To obtain a reversal of a PCRA court’s
      decision to dismiss a petition without a hearing, an appellant must
      show that he raised a genuine issue of material fact which, if
      resolved in his favor, would have entitled him to relief, or that the
      court otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

      Walker’s claim alleges that plea counsel was ineffective for giving him

incorrect information regarding the consequences of entering his guilty plea.

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.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “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) counsel’s act or omission

prejudiced the petitioner. Id. at 533.

      With regard to claims of ineffectiveness in relation to the entry of plea,

we further note:

         Ineffective assistance of counsel claims arising from the plea
         bargaining-process are eligible for PCRA review. Allegations
         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 into an involuntary or
         unknowing plea. Where the defendant enters his plea on
         the advice of counsel, the voluntariness of the plea depends

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         on whether counsel’s advice was within the range of
         competence demanded of attorneys in criminal cases.

             The standard for post-sentence withdraw of guilty pleas
         dovetails with the arguable merit/prejudice requirements
         for relief based on a claim of ineffective assistance of plea
         counsel, . . . under which the defendant must show that
         counsel’s deficient stewardship resulted in a manifest
         injustice, for example, by facilitating the entry of an
         unknowing, involuntary, or unintelligent plea. This standard
         is equivalent to the “manifest injustice” standard applicable
         to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations omitted).

      In support of his ineffective assistance claim, Walker argues that prior

to the entry of his guilty plea “he specifically asked [plea] counsel whether he

would face parole consequences as a convicted parole violator.              Counsel

affirmatively informed [Walker] he would not, as the time remaining on the

original sentence had expired.” Walker’s Brief at 6. As noted above, Walker

was later arrested for a parole violation and sentenced to thirty-six months of

back time. Id. at 9. According to Walker, he would not have entered his

guilty plea if he had known it would trigger a parole violation.

      Walker   bases   his   claim   of   error   on   this   Court’s   decision   in

Commonwealth v. Barndt, 74 A.3d 185 (Pa. Super. 2013). In that case,

Barndt, following his arrest, was subject to a possible revocation of his nearly

thirty months of “street time” spent on parole in a separate case. According

to Barndt, his plea counsel told him that the Pennsylvania Board of Probation

and Parole (“the parole board”) would revoke only eleven months. This was



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patently incorrect, because, following his sentencing on the new charges, the

parole board revoked all thirty months of Barndt’s street time. The PCRA court

dismissed Barndt’s PCRA petition seeking relief.

      On appeal, we held that counsel was ineffective for misinforming Barndt

that he would lose only eleven months of street time, and counsel’s action of

affirmatively misleading Barndt caused him to enter an unknowing guilty plea.

In reaching this conclusion, we first noted that, under Pennsylvania precedent,

“counsel’s failure to advise his client regarding the collateral consequence of

parole revocation in an unrelated matter would not, without more, constitute

a basis for allowing the defendant to withdraw his guilty plea.” Barndt, 74

A.3d at 196 (citation and emphasis omitted). However, we noted a distinction

in the claim raised by Barndt in his appeal:

            [Barndt’s] ineffectiveness claim in this matter is not
         couched in terms of counsel’s omission. Rather, [Barndt]
         argues that plea counsel affirmatively misled [him] to
         believe that he would receive a parole setback of no more
         than eleven months. As clear as our case law is that
         counsel’s omission to mention a collateral consequence of a
         guilty plea does not constitute ineffective assistance of
         counsel, it is equally that counsel’s assistance is
         constitutionally ineffective when counsel misapprehends the
         consequences of a given plea and misleads his client
         accordingly about the consequences, without regard to
         whether the consequences in question are “direct” or
         “collateral.”

Id. (footnote omitted).

  This Court in Barndt then discussed several cases wherein plea counsel

gave incorrect advice and concluded:


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             In light of this case law, we find that [Barndt] has
          pleaded and proved that his challenge to plea counsel’s
          ineffectiveness has arguable merit. As set forth above, we
          repeatedly have held that erroneous legal advice by counsel
          regarding the consequences of a plea, whether the
          consequence is classified as collateral or direct, may
          constitute a basis for PCRA relief. [Barndt] alleges that he
          was given such advice.

                                          ***

              [O]ur holding hinges upon the precept that the direct
          versus collateral consequence distinction does not alleviate
          counsel’s obligation to render only accurate advice to his
          client about whatever collateral consequences of a guilty
          plea he chooses to address. 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.

Barndt, 74 A.3d at 198, 201 (emphasis in the original). We then reviewed

the testimony from the evidentiary hearing and determined that Barndt had

establish that plea counsel had no reasonable basis for providing the

misinformation, and that counsel’s advice prejudiced him.        We therefore

reversed the order denying post-conviction relief, and we remanded the case

to permit Barndt to withdraw his guilty plea.3

       Here, like Barndt, Walker has pled and proven that his challenge to plea

counsel’s ineffectiveness has arguable merit. Our review of the record reveals

that, although there was no mention of possible parole consequences at

Walker’s oral plea colloquy, in his written colloquy Walker averred that he was
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3In his dissent, Judge Colville noted that plea counsel did not testify at the
evidentiary hearing, and that Barndt was bound by the statements made
during the plea colloquy. Barndt, 74 A.3d at 201-02.


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not on parole. See Written Plea Colloquy, 2/23/18, at ¶ 4. Additionally, plea

counsel signed this written colloquy, noting that he had explained Walker’s

rights to him. Id. at 4. However, unlike Barndt, the PCRA court in this case

dismissed Walker’s PCRA petition without first holding an evidentiary hearing.

We conclude that Walker has “raised a genuine issue of material fact which, if

resolved in his favor, would have entitled him to relief[.]” Blakeney, supra.

Thus, we reverse the order denying Walker’s PCRA petition and remand for an

evidentiary hearing at which plea counsel can testify and, in light of the

testimony, the PCRA court could consider the remaining two prongs of the

ineffectiveness test, and rule accordingly.4




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4 The PCRA court cites no authority for its belief that plea counsel’s “erroneous
advice would have been cured when [Walker] affirmatively acknowledged and
understood the potential collateral consequences of the guilty plea[.]” Rule
907 Notice, 4/2/19, at 2. As noted above, Walker contends that plea counsel
misinformed him he was no longer on parole. Additionally, while the PCRA
court speculates that this erroneous information may not have been of
significance to Walker given the lenient sentence offered by the
Commonwealth, this fact may be explored at the evidentiary hearing following
our remand.


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Order reversed.   Case remanded for an evidentiary hearing.   Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2020




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