J-S57033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
      Appellee

                    v.

VANCE P. HEIN

      Appellant                                      No. 429 EDA 2014


           Appeal from the PCRA Order entered January 8, 2014
             In the Court of Common Pleas of Chester County
             Criminal Division at No: CP-15-CR-0003737-2011


BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                      FILED FEBRUARY 18, 2015

      Appellant, Vance P. Hein, appeals pro se from the January 8, 2014

order entered in the Court of Common Pleas of Chester County denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and granting PCRA counsel’s petition

to withdraw.1 For the reasons set forth herein, we vacate and remand for

further proceedings in accordance with this Memorandum.

      The PCRA court explained:

      [Appellant] pled guilty to five (5) counts of Possession of Child
      Pornography. In accordance with the plea agreement, he was
      sentenced to 15 to 30 years imprisonment.             [Appellant]
      thereafter filed this timely PCRA Petition alleging that his
      attorney provided him with ineffective assistance of counsel and

1
 PCRA counsel filed his Petition to Withdraw and served his “no-merit” letter
on Appellant pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc).
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     that his guilty plea was unlawfully induced. Specifically, he
     claims that (1) his counsel’s representation fell below minimum
     acceptable standards; (2) at the time of the guilty pleas, he was
     under medication that affected his ability to make a competent
     decision; (3) he was wrongfully told that he was facing a 25 year
     mandatory minimum sentence if he did not accept the plea and
     he was found guilty of the charges against him; and (4) the
     written colloquy indicates a sentence of 6 to 12 years, not 15 to
     30 years. See [Appellant’s] Motion for Post Conviction Collateral
     Relief.

     At a hearing on May 23, 2012 during which [Appellant] pled
     guilty, [Appellant] testified that he had time to review the matter
     thoroughly with his attorney before entering his guilty plea, and
     that he was satisfied with the services provided by his attorney.
     He also testified that he reviewed the guilty plea colloquy
     thoroughly with his attorney and that he understood the various
     matters discussed in it. [Appellant] also testified that he was
     pleading guilty because he did, in fact, commit the crimes to
     which he was pleading guilty. Further, he testified that, other
     than the sentence agreed to in the plea agreement, no one
     promised him anything in order to get him to plead guilty, and
     that no one threatened, pressured or forced him in any way to
     plead guilty. In addition, he testified that he had consumed
     Prozac within 24 hours of accepting the plea, but that it did not
     interfere with his ability to understand the proceedings or to
     communicate with his attorney. At the time the guilty plea was
     entered, the court was of the opinion that [Appellant’s] plea was
     knowingly, voluntarily and intelligently offered. The court is still
     of that opinion.

     While [Appellant’s] plea was entered on May 23, 2012,
     sentencing was deferred until an evaluation of [Appellant] by the
     State Sexual Offender Assessment Board (hereinafter “SOAB”)
     could be completed. As a result of the SOAB assessment,
     [Appellant] was found to be a sexually violent predator by Dr.
     Mapes.

     A second hearing was held on August 16, 2012, during which
     sentence was imposed. [Appellant] testified that he did not
     consume any alcohol, drugs or medication, and that he did not
     have any mental illness or any other condition that would
     interfere with his ability to understand, make decisions and
     communicate with his attorney. He then waived his right to a

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     hearing on whether he should be classified as a sexually violent
     predator.    He again testified that he reviewed the issue
     extensively with his counsel, no one promised him anything in
     order to get him to stipulate to the finding, and that he
     understood the terms and conditions of the registration
     requirements.    The court found that he made a knowing,
     voluntary and intelligent waiver of his right to have a sexually
     violent predator hearing. He was found to be a sexually violent
     predator and was subject to Megan’s Law requirements. The
     agreed upon sentence of 15 to 30 years imprisonment was then
     imposed.

PCRA Court Order, 1/8/14, 2-3 (emphasis added).2

     Appellant filed a timely appeal from the January 8, 2014 order. In his

statement of errors filed pursuant to Pa.R.A.P. 1925(b), Appellant asserted

15 errors.    Appellant’s Statement of Matters Complained of on Appeal,

3/3/14 at 1-3. In the brief filed with this Court,3 Appellant consolidated the




2
  At the time of his 2011 arrest for child pornography, Appellant was serving
a 15–year sentence of probation stemming from 2000 convictions for
indecent assault (18 Pa.C.S.A. § 3612(a)), a misdemeanor of the second
degree), endangering welfare of children (18 Pa.C.S.A. § 4304(a)), a
misdemeanor of the first degree), and corruption of minors (18 Pa.C.S.A.
§ 6301(a)), a misdemeanor of the first degree). At both the guilty plea
hearing and the sentencing hearing, counsel for the Commonwealth
explained to the trial court that the plea agreement for a sentence of 15-30
years was agreed to in lieu of the mandatory minimum 25-year sentence
Appellant would otherwise face in light of his prior conviction. N.T. Guilty
Plea Hearing, 5/23/12, at 2-3; N.T. Sentencing Hearing, 8/16/12, at 2.
3
  We note that Appellant’s brief was due on Tuesday, July 15, 2014, by
virtue of an extension granted by this Court. Appellant’s brief was not filed
until Wednesday, July 16. In the absence of any objection to Appellant’s
non-compliance with Pa.R.A.P. 2185(a)(1), relating to the time for serving
and filing briefs, we elect to address the appeal pursuant to our discretion
under Pa.R.A.P. 105(a). AmerisourceBergen Corp. v. Doe, 81 A.3d 921,
923 n.1 (Pa. Super. 2013).
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fifteen claimed errors into seven issues for this Court’s consideration. Those

issues, stated verbatim, are:

      1. Could Mr. Hein’s February 15, 2000 conviction for Indecent
         Assault – W/O Consent of Other 18 § 3126(a)(1), a
         misdemeanor of the second degree (M-2) be designated as a
         Megan’s Law “First Offense” for sentencing purposes on new
         charges from 2011 when it did NOT become a “reportable
         offense until AFTER Mr. Hein’s August 16, 2012 sentencing for
         a Megan’s Law offense?

      2. Does the lower Court’s finding that Mr. Hein’s plea was
         “knowing and voluntary” supersede errors made by Counsel
         and the State relative to the applicability of a “mandatory
         minimum” used to justify his lengthy sentence?

      3. Was Mr. Hein denied competent and effective assistance of
         counsel during the plea bargaining process where Plea
         Counsel failed to challenge the State’s contention as to the
         applicability of a mandatory minimum?

      4. Was Mr. Hein denied his due process right to be sentenced on
         the basis of accurate information where the Assistant District
         Attorney represented to the Court that the sentence was
         within the “standard range” of the sentencing guidelines,
         when, in fact, it was outside and considerably above even the
         aggravated range?

      5. Was PCRA Counsel ineffective for failing to amend, present
         and preserve for Appellate Review, [Appellant’s] meritorious
         issue of Trial Counsel’s ineffectiveness where he failed to
         research and subsequently raise the possibility of challenges
         to Mr. Hein’s involuntary statements to his Probation Officer
         and suppression of the statements and the “fruits” of search
         of his computers which followed?

      6. Was the statute, Pa.C.S.A. § 6312(d), UNCONSTITUTIONALLY
         VAGUE and AMBIGUOUS, since the Legislature failed to
         specify a definitive Unit of Prosecution?

      7. Did the lower Court commit an abuse of discretion and error
         of law where it imposed sentences to be served consecutively,
         the aggregate of which was 15 to 30 years, where the

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         sentence was manifestly excessive to the point it constituted
         too severe a punishment given the circumstances of the crime
         and where the sentence was based solely on the seriousness
         of the crime?

Appellant’s Brief at 7.4

      This Court recently reiterated the standard of review from the denial of

PCRA relief as follows:

      “On appeal from the denial of PCRA relief, our standard and
      scope of review is limited to determining whether the PCRA
      court’s findings are supported by the record and without legal
      error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa.
      2013) (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, 614 Pa. 159, 36 A.3d 121,
      131 (2012) (citation omitted). “The PCRA court’s credibility
      determinations, when supported by the record, are binding on
      this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
      244, 259 (2011) (citation omitted). “However, this Court applies
      a de novo standard of review to the PCRA court’s legal
      conclusions.” Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014).

4
  Appellant’s brief fails to comply with Pa.R.A.P. 2111 (Brief of Appellant),
which    directs   that    the  brief   include  the   order   in   question
(Pa.R.A.P. 2111(a)(2)), and the statement of errors complained of on appeal
(Pa.R.A.P. 2111(a)(11). Despite those deficiencies and our authority to
dismiss an appeal for failure to comply with the rules governing briefs
(Pa.R.A.P. 2101), we decline to do so.

Of note also is the fact Appellant filed a Pa.R.A.P. 521 Notice to the Attorney
General of a challenge to the constitutionality of 18 Pa.C.S.A. § 6312(d)
(Sexual abuse of children—child pornography). However, the provisions of
Rule 521(a) clearly state that the notice is to be filed “in any matter in an
appellate court to which the Commonwealth or any officer thereof, acting in
his official capacity, is not a party. . . .” Because the Commonwealth is a
party to this matter, no notice was required. See Commonwealth v.
Miller, 80 A.3d 806, 811 n.3 (Pa. Super. 2013) (citing Commonwealth v.
Balog, 672 A.2d 319, 320 (Pa. Super. 1996)).
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     This Court also recently summarized the three-pronged test applied

when determining ineffectiveness of counsel.

     As originally established by the United States Supreme Court in
     Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
     L.Ed.2d 674 (1984), and adopted by Pennsylvania appellate
     courts, counsel is presumed to have provided effective
     representation unless a PCRA petitioner pleads and proves all of
     the following: (1) the underlying legal claim is of arguable merit;
     (2) counsel’s action or inaction lacked any objectively reasonable
     basis designed to effectuate his client’s interest; and (3)
     prejudice, to the effect that there was a reasonable probability of
     a different outcome . . . if not for counsel’s error.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citations

omitted).

     Reading Appellant’s first three issues together, Appellant is challenging

the plea bargain that resulted in his sentence of 15 to 30 years in prison.

Appellant contends he agreed to the plea bargain because he believed he

was otherwise facing a mandatory minimum sentence of 25 years due to his

prior conviction for indecent assault.   He asserts his guilty plea was not

“knowing and voluntary” because, in fact, he was not subject to the

mandatory minimum since his indecent assault conviction was graded as a

second-degree misdemeanor.

     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.



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Commonwealth v. Fears, 86 A.3d 795, 806-07 (Pa. 2014) (quoting

Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999) (internal citations

omitted)).     “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. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citations and internal quotations omitted).

      In its January 8, 2014 order, the PCRA court explained:

      [Appellant] also claims that he was wrongfully told that he was
      facing a 25 year mandatory minimum sentence if he did not
      accept a plea and he was found guilty of the charges against
      him.     [Appellant] claims that the statute on which the
      Commonwealth based its representations was not in effect until
      after the date of his sentencing. [Appellant] is mistaken. 42
      Pa.C.S.A. § 9718.2 provides in relevant part:

         (a)     Mandatory sentence. –

         Any person who is convicted in any court of this
         Commonwealth of an offense set forth in section 9799.14
         (relating to sexual offense and tier system) shall, if at the
         time of the commission of the current offense the person
         had previously been convicted of an offense set forth in
         section 9799.14 or an equivalent crime under the laws of
         this Commonwealth in effect at the time of the commission
         of that offense . . ., be sentenced to a minimum sentence
         of at least 25 years of total confinement, notwithstanding
         any other provision of this title or other statute to the
         contrary. . . .

      42 Pa.C.S.A. § 9718.2. While minor amendments to the statute
      went into effect on December 20, 2012 after [Appellant] was
      sentenced, the 25 year minimum sentence called for in the
      statute was, in fact, in effect and applicable to [Appellant] at the
      time of his sentencing. In 2000, [Appellant] was convicted of
      Indecent Assault, Endangering the Welfare of a Child and

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     Corruption of Minors. Indecent Assault is one of the enumerated
     offenses listed in 42 Pa.C.S.A. § 9799.14. See 42 Pa.C.S.A.
     § 9799.14(b)(6). Possession of Child Pornography, which forms
     the basis of [Appellant’s] current charges, is also an enumerated
     offense under the statute. See 42 Pa.C.S.A. § 9799.14(b)(9).
     Thus, while the Commonwealth agreed to waive the mandatory
     minimum sentence if he accepted a plea, he was correctly told
     that he would have been facing a sentence of not less than 25
     years if he did not accept the plea and he was found guilty of the
     charges against him.

PCRA Court Order, 1/8/14, 4-5.

     As the PCRA court correctly states, indecent assault is an offense set

forth in 42 Pa.C.S.A. § 9799.14(b)(6). However, § 9979.14(b)(6) was not in

effect until December 20, 2012, four months after Appellant was sentenced.5

Immediately prior to December 20, 2012, 42 Pa.C.S.A. § 9718.2 called for

the same mandatory minimum 25 year sentence but referred to § 9795.1

rather than § 9799.14 for the crimes subjecting an individual to that

mandatory minimum.     Indecent assault triggered the mandatory minimum

25 year sentence under § 9795.1, but only “where the offense is graded as a

misdemeanor of the first degree or higher.”      42 Pa.C.S.A. § 9795.1(a)

(repealed).   Because Appellant’s indecent assault conviction in 2000 was

graded as a second-degree misdemeanor, the registration provisions did not




5
  42 Pa.C.S.A. § 9799.14 was passed into law on December 20, 2011 as part
of P.L. 446, No. 111, and was effective one year from that date, i.e.,
December 20, 2012. The section was subsequently amended on March 14,
2014, retroactive to December 20, 2012, by P.L. 41, No. 19, which, inter
alia, removed second-degree misdemeanor indecent assault convictions from
the list of “sexually violent offenses.”
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apply to Appellant and his 2000 conviction did not constitute a previous

conviction subjecting him to the mandatory minimum.

      Appellant’s   PCRA   counsel   addressed    the   mandatory      minimum

sentencing issue in the letter to Appellant included with counsel’s petition to

withdraw filed pursuant to Finley. In his letter, counsel explained:

      The next issue you raise in your pro se PCRA Petition is that your
      lawyer and the District Attorney told you that if you did not
      accept the plea offered then you could receive a sentence of 25
      years in prison. This is a statement of fact. Because of your
      prior convictions, you were facing a mandatory minimum
      sentence of 25 years.        In exchange for you[r] plea, the
      Commonwealth waived that mandatory. If you entered into an
      open plea or decided to go to trial and were convicted, you
      would have received, at a minimum, this mandatory minimum
      sentence of 25 years. Therefore, if convicted of all counts and
      sentenced you could have easily received a sentence greater
      than the one you bargained for and received. Even if the
      mandatory minimum did not apply to you, if you were convicted
      of all 5 counts of Sexual Abuse of Children (18 Pa.C.S.A. § 6732)
      which is a Felony III with a maximum punishment of 7 years,
      you could have received a sentence greater [than] 15 years if
      the judge decided to sentence you consecutively, which is within
      his authority to do. In addition, the charges that were dropped
      by the Commonwealth in exchange for your plea could have
      been prosecuted if you went to trial. If convicted the judge
      could sentence you consecutively on all charges which could add
      up to a period of incarceration well in excess of the 15 years you
      bargained for.

PCRA Counsel Letter to Appellant, 11/12/13, at 4 (citation to Notes of

Testimony omitted).

      Applying the Strickland test to Appellant’s case, we first consider

whether Appellant’s underlying claim is of arguable merit.        Recognizing

counsel erroneously advised Appellant he was subject to a mandatory


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minimum 25-year sentence when in fact he was not, we conclude Appellant’s

claim has arguable merit. Next, because we cannot discern any objectively

reasonable basis by which counsel’s action could effectuate Appellant’s

interest, we find that Appellant has established the second prong of the

Strickland case. Clearly, misinforming Appellant of the law governing his

potential sentence in absence of entering a plea cannot be said to effectuate

Appellant’s interest. See, e.g., Commonwealth v. Barndt, 74 A.3d 185,

196-99 (Pa. Super. 2013), and cases cited therein.

      As for the third prong of the Strickland test, requiring prejudice to the

effect that a different outcome of the plea hearing was reasonably probable

but for counsel’s error, this Court has stated:

      To succeed in showing prejudice, the defendant must show that
      it is reasonably probable that, but for counsel’s errors, he would
      not have pleaded guilty and would have gone to trial. Hill [v.
      Lockhart, 474 U.S. 52, 59 (1985)].               The “reasonable
      probability” test is not a stringent one. See Nix v. Whiteside,
      475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986)
      (reasonable    probability    standard   less   demanding     than
      preponderance standard).

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).

      In Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008), our

Supreme Court considered the prejudice prong of the Strickland test in a

case involving the waiver of a jury trial.    Addressing the requirement for

achieving a better outcome or result, the Court found the United States

Supreme Court’s ruling in Hill instructive.       In Hill, which involved a

challenge to a guilty plea based on ineffectiveness, the Court concluded that

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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.” Hill, 474 U.S. at 59. “[T]he Hill Court focused on the

outcome of the guilty plea proceeding and did not require the defendant to

demonstrate that but for counsel’s error, he would not have pled guilty and

would have achieved a better outcome at trial.” Mallory at 703 (emphasis

in original). In other words, Hill required a showing of a different outcome

at the plea hearing stage but did not require a showing of a better result at

trial.

         We acknowledge that PCRA counsel’s Finley letter outlined various

alternate outcomes that could have occurred if the mandatory minimum did

not apply to Appellant. However, because the PCRA court did not conduct a

hearing before denying Appellant’s petition, the record is silent as to

whether trial counsel advised Appellant—prior to entry of his plea—of any

possible outcome other than the mandatory minimum 25-year sentence.

Neither the written colloquy nor the transcript of the guilty plea hearing

addresses alternate outcomes considered prior to entry of the plea.

Consequently, the record is insufficient for this Court to determine whether,

in absence of counsel’s deficient advice, Appellant would have declined to

enter a plea and insisted upon proceeding to trial. Therefore, we remand to

the PCRA court with instruction to conduct a hearing to ascertain what

possible outcomes, if any, other than the mandatory minimum were


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explained to Appellant before he entered his plea. If, at the conclusion of

the hearing on remand, the PCRA court determines Appellant has satisfied

the prejudice prong of the Strickland test, Appellant shall be entitled to

withdraw his guilty plea. If Appellant does not satisfy this prejudice prong of

the Strickland test, then the trial court may properly conclude Appellant is

not entitled to withdraw his plea.

      Order vacated and case remanded for proceedings consistent with this

Memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2015




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