J-A01025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellant

                        v.

    DANTE OVERBY,

                             Appellee                 No. 1532 EDA 2017


                      Appeal from the Order April 27, 2017
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0604691-2006


BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 23, 2018

        The Commonwealth appeals from the order granting Appellee, Dante

Overby’s, first petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546, which resulted in the withdrawal of his guilty

plea.1 We reverse.

        We take the following factual and procedural history from our

independent review of the certified record and this Court’s December 22, 2009

decision on direct appeal.

             [Appellee] was arrested on April 22, 2006[,] as a result of
        events occurring at the Cognac Corner Bar at 21st and Reed Street
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Appellee also has appealed the PCRA court’s order, at docket number 1705
EDA 2017.
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        in Philadelphia. [Appellee] fired gunshots through the door of the
        bar, [wounding two individuals]. Trial was scheduled to begin on
        March 5, 2007, but on that date [Appellee] instead [pleaded]
        guilty to the above-described charges in exchange for the
        Commonwealth’s agreement to drop others[, and not to argue
        that Appellee waived his Rule 600 issue by pleading guilty].
        [Appellee] was sentenced to six and one half to thirteen years of
        imprisonment. Trial counsel was permitted to withdraw and new
        counsel was appointed on June 4, 2007.

(Commonwealth v. Overby, No. 832 EDA 2007, unpublished memorandum,

at *1-2 (Pa. Super. filed Dec. 22, 2009)).

        On December 22, 2009, this Court affirmed Appellee’s judgment of

sentence and granted appointed appellate counsel’s petition to withdraw. The

panel    concluded,     in   pertinent    part,   that   Appellee’s   claim   that   the

Commonwealth violated Rule 600 is “wholly without merit” because “no

violation of Rule 600 occurred in this case.” (Id. at *4). The panel also found

alternatively that the Rule 600 issue is waived where Appellee pleaded guilty.

(See id. at *4-5). On November 9, 2010, the Pennsylvania Supreme Court

denied further review, and the United States Supreme Court denied certiorari

on April 25, 2011. (See Commonwealth v. Overby, 12 A.3d 751 (Pa. 2010),

cert. denied, 563 U.S. 966 (2011)).

        On November 21, 2011, Appellee filed a pro se first PCRA petition. After

the PCRA court appointed counsel, Appellee moved to proceed pro se on July

23, 2012. The court held a Grazier2 hearing on August 13, 2015, and granted



____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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Appellee’s request. Appellee filed a pro se amended PCRA petition on October

9, 2015. In his petitions, Appellee claimed that the Commonwealth violated

Rule 600 and plea counsel was ineffective for misrepresenting that he would

be able to raise his Rule 600 claim on appeal.3

       On April 27, 2017, the PCRA court granted Appellee’s petition and

allowed him to withdraw his guilty plea. The court found that counsel had no

reasonable basis for advising Appellee that he would be able to raise the Rule

600 issue on direct appeal despite pleading guilty. The Commonwealth timely

appealed.4

       The Commonwealth raises one issue for our review:

             Did the PCRA court err in allowing [Appellee] to withdraw
       his guilty plea because plea counsel had advised him that he would
       receive appellate review of his Rule 600 claim, where this Court
       reviewed the merits of that claim on direct appeal and [Appellee]
       therefore suffered no actual prejudice as a result of counsel’s
       advice?

(Commonwealth’s Brief, at 6).

             [A]s a general proposition, we review a denial of PCRA relief
       to determine whether the findings of the PCRA court are supported
       by the record and free of legal error. A PCRA court’s credibility
       findings are to be accorded great deference, and where supported
       by the record, such determinations are binding on a reviewing
       court. . . .
____________________________________________


3Appellee also raised an Alleyne claim, but withdrew it during oral argument.
See Alleyne v. United States, 133 S. Ct. 2151 (2013); (N.T. Hearing,
3/27/17, at 10).

4On May 10, 2017, the Commonwealth filed its statement of errors raised on
appeal contemporaneously with its notice of appeal. The court did not file an
opinion. See Pa.R.A.P. 1925.

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            A criminal defendant has the right to effective counsel
      during a plea process as well as during trial. A defendant is
      permitted to withdraw his guilty plea under the PCRA if ineffective
      assistance of counsel caused the defendant to enter an
      involuntary plea of guilty.

                  We conduct our review of such a claim in
            accordance with the three-pronged ineffectiveness
            test under section 9543(a)(2)(ii) of the PCRA, 42
            Pa.C.S.A. § 9543(a)(2)(ii). The voluntariness of the
            plea depends on whether counsel’s advice was within
            the range of competence demanded of attorneys in
            criminal cases.

                  In order for [a]ppellant to prevail on a claim of
            ineffective assistance of counsel, he must show, by a
            preponderance of the evidence, ineffective assistance
            of counsel which, in the circumstances of the
            particular case, so undermined the truth-determining
            process that no reliable adjudication of guilt or
            innocence could have taken place. Appellant must
            demonstrate: (1) the underlying claim is of arguable
            merit; (2) that counsel had no reasonable strategic
            basis for his or her action or inaction; and (3) but for
            the errors and omissions of counsel, there is a
            reasonable probability that the outcome of the
            proceedings would have been different. The petitioner
            bears the burden of proving all three prongs of the
            test.

            Moreover, trial counsel is presumed to be effective.

Commonwealth v. Orlando, 156 A.3d 1274, 1280-81 (Pa. Super. 2017)

(case citations and quotation marks omitted).

      Instantly, the Commonwealth argues that, because “[t]his Court

reviewed (and rejected) the merits of the [Rule 600] claim on direct appeal[,]

[Appellee] [] experienced no actual prejudice as a result of plea counsel’s

actions.”   (Commonwealth’s Brief, at 15).      Therefore, the Commonwealth

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maintains that “the PCRA court’s order should be reversed.” (Id.). We are

constrained to agree.

       A review of the record reveals that Appellee argued that, “had [he]

known that [he] couldn’t appeal [his] Rule 600 right, [he] would not have

taken th[e] plea.”      (N.T. Hearing, at 11).   In its opinion, the PCRA court

expressly stated that it was not considering the merits of the underlying Rule

600 claim, and made no finding as to the required prejudice prong, focusing

instead on the reasonable basis prong and the advice given by plea counsel.

(See PCRA Court Opinion, 4/27/17, at 8-9).           However, even assuming

arguendo that the court properly found that counsel lacked a reasonable basis

for his advice,5 it did not find, and Appellee did not argue, that he suffered

any actual prejudice. (See id.). Therefore, we are constrained to conclude

that the PCRA court erred in finding counsel ineffective without considering

the prejudice prong of the ineffectiveness test.      See Commonwealth v.

W.H.M., Jr., 932 A.2d 155, 161 (Pa. Super. 2007) (“[I]f it is clear that a

defendant has failed to meet the prejudice prong, the claim may be dismissed

on that basis alone.”) (citation omitted).



____________________________________________


5 The PCRA court mistakenly finds that Appellee’s claim has underlying merit
because counsel did not have a reasonable basis for advising Appellee as he
did. (See PCRA Ct. Op., at 8). However, the underlying merit prong of the
test goes to the underlying Rule 600 claim, not to the reasonable basis prong
of the test.



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       In fact, our independent review of the record confirms that, not only did

the PCRA court not address the prejudice prong, Appellee is unable to establish

it.   In his direct appeal, this Court addressed Appellee’s Rule 600 issue

substantively and expressly concluded that it is “wholly without merit.”

(Overby, No. 832 EDA 2007, at *5).6              The fact that this Court observed,

alternatively, that Appellee waived the issue by pleading guilty does not

negate our substantive conclusion that his Rule 600 claim lacks merit.

Accordingly, Appellee did not suffer any prejudice on the basis of counsel’s

advice where he actually received appellate review of his Rule 600 motion in

spite of pleading guilty, and this Court concluded that his underlying Rule 600

claim lacks merit.7        See Orlando, supra at 1280-81.           Hence, we are


____________________________________________


6 Appellee was arrested and the Commonwealth filed charges against him, on
April 22, 2006. Pursuant to Article I, Section 14 of the Pennsylvania
Constitution, he was held without bail. See Pa. Const. Art. I, § 14. Appellee
pleaded guilty on March 5, 2007, the day scheduled for the commencement
of trial. Therefore, because the Commonwealth met its burden of bringing
Appellee to trial within 365 of charges being filed against him, Rule 600 was
not violated. See Pa.R.Crim.P. 600(A)(2)(a).

7  We also note that the PCRA court’s reliance on Commonwealth v.
Hickman, 799 A.2d 136 (Pa. Super. 2002), does not support its finding. (See
PCRA Ct. Op., at 6-7). In Hickman, plea counsel erroneously advised the
defendant “he could be released from prison in two years and be eligible for
parole six months later, when, in fact, [defendant] was statutorily ineligible
for release into the boot camp program and could not receive parole until he
had served four years imprisonment.” Hickman, supra at 141. This
prejudiced the defendant because he was required to remain imprisoned for a
longer time-period than that for which he had bargained. See id. at 142.
Here, Appellee entered his guilty plea, in part, based on his understanding
that he would be able to obtain appellate review of his Rule 600 claim, which,
in fact, he did receive. The holding of Hickman is inapposite.

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constrained to conclude that the PCRA court erred in granting Appellee PCRA

relief, and allowing him to withdraw his guilty plea.

      Order reversed. Case remanded with instructions to reinstate Appellee’s

guilty plea and judgment of sentence. Panel jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/18




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