                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2008

Philmingo Jamison v. Atty Gen PA
Precedential or Non-Precedential: Precedential

Docket No. 07-1045




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Philmingo Jamison v. Atty Gen PA" (2008). 2008 Decisions. Paper 429.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/429


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                _____________________

                       Nos: 07-1045
                  _____________________

                  PHILMINGO JAMISON,

                                  Appellant

                                  v.

     EDWARD KLEM; DISTRICT ATTORNEY OF YORK
                    COUNTY;
    ATTORNEY GENERAL OF THE COMMONWEALTH OF
                 PENNSYLVANIA

                  ____________________

                 Appeal from the District Court
           for the Middle District of Pennsylvania
                  (Civ. Action No. 05-00831)
          District Court: Hon. Christopher C. Conner
                    ____________________

                    Argued July 24, 2008

|   BEFORE: McKEE, FUENTES, and WEIS Circuit Judges,

                              1
             (Opinion filed: September 30, 2008)

LEO A. LATELLA, ESQ. (Argued)
Federal Public Defender
116 North Washington Street
Kane Professional Building, Suite 2C
Middle District of Pennsylvania
Scranton, PA 18503

Attorneys for Appellant


KATHERINE L. DOUCETTE, ESQ. (Argued)
WILLIAM H. GRAFF, JR., ESQ.
York County District Attorney
45 N. George Street
York, PA 17401

Attorneys for Appellee

                             Opinion
McKEE, Circuit Judge.

       Philmingo Jamison was sentenced to five to ten years

imprisonment after pleading guilty to two separate criminal

cases involving drug offenses. After unsuccessfully challenging

his conviction in state courts, Jamison filed a pro se petition for

                                2
habeas corpus under 28 U.S.C. § 2254 in which he challenged

the voluntariness of his guilty plea. The Magistrate Judge to

whom the petition was referred issued a thorough Report and

Recommendation recommending that habeas relief be granted.

That Judge concluded that Jamison’s plea was not knowing,

voluntary and intelligent because Jamison was not advised of the

mandatory term of imprisonment that his guilty plea subjected

him to under Pennsylvania’s indeterminate sentencing scheme.

The District Court rejected the recommendation, and denied the

petition because no Supreme Court precedent specifically

requires that defendants be informed of the terms of an

applicable mandatory minimum sentence before pleading guilty.

The District Court thus concluded that the state courts’ rejection

of Jamison’s claim was neither contrary to, nor an unreasonable

application of, Supreme Court precedent.

       For the reasons that follow, we will reverse.

                                3
          I. Factual and Procedural Background.

       In September 2000, Jamison was charged in two separate

cases; one charged him with possession of cocaine and

marijuana with intent to deliver, and the other charged him with

possession of marijuana, driving without a license, and reckless

endangerment. Prior to trial, the prosecutor offered Jamison the

opportunity to plead guilty in exchange for a sentence of “4-8

years.” Pursuant to the advice of counsel, Jamison rejected that

plea offer.

       However, Jamison eventually decided to enter an open

guilty plea without executing any formal plea agreement.

Thereafter, the Commonwealth completed a one-page form

wherein the prosecutor wrote that the government would

nevertheless still recommend: “4-8 years w/ mand.”

       On July 9 th , 2001, the trial court conducted a change of

plea hearing which began with the prosecutor stating:

                               4
                    [Jamison] has filled out a guilty plea colloquy. It
                    is going to be a straight plea with a pre-sentence,
                    other than the fact that we will run the recklessly
                    endangering case concurrent with the drug case.
                    He is facing a sentence by Judge Kennedy on a
                    third-degree homicide, and we have no agreement
                    as to whether these cases are concurrent or
                    consecutive. Of course, we are going to ask for
                    them to be consecutive, and we will be filing
                    mandatory on the drug case.1

                    No other statements were made at the hearing regarding

             the mandatory minimum sentence, or the length of the sentence

             Jamison would be required to serve under state law as a result of

             the applicable mandatory minimum sentence. Moreover, other

             than the aforementioned reference to “filing mandatory . . .”,

             Jamison was never informed that his plea required the judge to

             impose a sentence of imprisonment. On the contrary, during the

             hearing, the court told Jamison that because there was no


1
 Jamison was also facing charges pertaining to an unrelated homicide. He claims that he
was primarily focused on those homicide charges, and he intended to plead guilty to the
controlled substance charges if convicted of the homicide.

                                            5
agreement with the Commonwealth, sentencing “is basically up

to the court.” The judge asked Jamison if he understood that

sentencing was “basically up to the court,” and Jamison affirmed

that he did. The court then accepted Jamison’s guilty plea. In

doing so, the court implicitly found that Jamison was entering

the plea knowingly, voluntarily, and intelligently.

       Jamison also filled out and signed a written guilty plea

colloquy. In that colloquy, Jamison acknowledged only that he

was facing a maximum term of 20 years imprisonment pursuant

to his plea.

       Six     days   after   Jamison   entered   the   plea,   the

Commonwealth sent a letter to both Jamison and defense

counsel. The letter stated in part:

       Based on your guilty plea to an offense at 35 P.A.
       C.S.A. 780-113 (a)(30) wherein the controlled
       substance, Cocaine, totaled 79.1 grams, a
       mandatory minimum sentence of 3 years, and
       $15,000 fine must be imposed, 5 years and

                                 6
                     $30,000 if second or subsequent offense.2

                     On August 1, 2001, Jamison returned to the state trial

              court for a sentencing hearing. The prosecutor noted at the

              hearing that Jamison had a juvenile record for possession of

              cocaine with intent to distribute, and that he was therefore

              subject to a mandatory minimum sentence of 5 years

              imprisonment and a $30,000 fine. The court then informed

              Jamison that he had a right to make any statement that he

              “care[d] to make,” but that he was not required to make any

              statement if he did not choose to speak.3 Jamison responded that

              he “had nothing to say.” The court then sentenced him to not

              less than five nor more than ten years for the cocaine conviction


2
  Jamison's attorney testified at a subsequent PCRA hearing that he never received this
correspondence from the Commonwealth, and that he never discussed its content with
Jamison. Jamison, acknowledged at the PCRA hearing that he received the letter but
stated that his attorney never discussed it with him.
3
   Jamison was not asked whether knowledge of the mandatory minimum changed his
mind about pleading guilty.

                                             7
and imposed a fine of $30,000. The court also imposed a

concurrent sentence of not less than two, nor more than four

years for the marijuana charge. The sentences were consecutive

to any sentence that was imposed on the conviction for third-

degree homicide.

                   A. State Court Decisions.

       On June 5, 2002, Jamison filed a pro se petition under the

Pennsylvania Post-Conviction Relief Act (“PCRA”) in which he

challenged inter alia, the validity of his guilty plea. Counsel

was thereafter appointed, and a hearing was conducted. At that

PCRA hearing, Jamison testified that prior to his guilty plea, he

was not informed by anyone that his guilty plea subjected him

to a mandatory minimum sentence, much less a mandatory

minimum sentence of five years and $30,000 fine. Jamison

further testified that when the prosecutor stated at the change of

plea colloquy that she would be “filing a mandatory on the drug

                                8
case,” he did not know what she was referencing. Jamison

maintained that he did not know he was facing a mandatory

minimum sentence of five years.       “As far as she said, a

mandatory, and that was it. I didn’t know what mandatory

would be filed. I didn’t know I was subject to a mandatory

minimum of five years and fine due to my second offense.”

Jamison testified that he would not have entered an open guilty

plea if he had known that he would have to serve at least five

years in prison as a result.

       Jamison’s PCRA testimony was confirmed by his trial

counsel, Harold Fitzkee, Jr., who had been the York County

District Attorney before returning to private practice.     He

testified that he never told Jamison that Jamison would have to

serve at least five years in prison if he pled guilty. Fitzkee

explained that he advised Jamison to enter an open guilty plea

because, based on his knowledge of Jamison’s prior record, he

                               9
thought Jamison would be better off with the court determining

the sentence than accepting the four to eight years that the

prosecutor was offering. Fitzkee also testified that he first

learned that Jamison was subject to a mandatory minimum

sentence of five years at the sentencing hearing, after Jamison’s

plea had already been accepted by the court. Fitzkee swore he

never received the letter from the prosecutor stating that a

mandatory minimum of five years in prison applied and he never

discussed the mandatory with Jamison.

       The PCRA court ruled that Jamison could not establish

that his guilty plea was constitutionally infirm. The court first

concluded that, as a matter of state law, the prosecutor’s

statement that the Commonwealth would be filing “a mandatory

on the drug case” and the writing that the Commonwealth would

recommend a sentence of “4-8 yrs w/ mand” were sufficient

notice to inform Jamison of the Commonwealth’s intent to seek

                               10
a mandatory minimum sentence. The court also concluded that

even if notice was insufficient, the guilty plea was nevertheless

valid because Jamison knew that he had no agreements

regarding sentencing, and that the maximum sentence for his

crimes was 20 years imprisonment and a fine of $200,000. The

PCRA court concluded that this knowledge, and the fact that

Jamison was sentenced to a term less than that 20 year

maximum sentence, was sufficient for a knowing, voluntary and

intelligent guilty plea. The Superior Court affirmed the PCRA

court’s denial of relief on different grounds without discussing

the PCRA court’s opinion.       The Superior Court held that

Jamison could not obtain relief because he did not plead actual

innocence as required under state law. See 42 Pa. C.S.A. §

9543(a)(2)(iii).

            B. Proceedings in the District Court.

       Jamison then filed a pro se habeas petition under 28

                               11
             U.S.C. § 2254, challenging the voluntariness of his guilty plea.

             Jamison’s petition was referred to a Magistrate Judge who held

             a hearing. During that hearing, Jamison testified that, prior to

             pleading guilty, he was not aware that he was subject to a

             mandatory minimum sentence of five years.4

                    The Magistrate Judge appropriately analyzed Jamison’s

             claim under the deferential standard required by the Anti-

             Terrorism and Effective Death Penalty Act (“AEDPA”). Under

             AEDPA, a federal habeas court can not grant relief after a state

             court has rejected the petitioner’s claim on the merits unless the

             state court’s decision was “contrary to,” or an “unreasonable

             application of,” clearly established Supreme Court precedent.

             28 U.S.C. § 2254(d).5 The Magistrate Judge concluded that

             although no Supreme Court case precisely held that a defendant

4
 Trial counsel died before the hearing in front of the Magistrate Judge.
5
 For a more thorough discussion of AEDPA’s standard of review, see Mateo v.
Superintendent S.C.I. Albion, 171 F.3d 877(3d Cir 1999) (en banc).

                                            12
must be informed of an applicable mandatory minimum

sentence in order for a guilty plea to survive constitutional

scrutiny, Jamison’s claim for relief was nevertheless clearly

governed by the Supreme Court’s decision in Boykin v.

Alabama, 395 U.S. 239 (1969).

       The Magistrate Judge ruled that the state courts had

unreasonably applied Boykin in concluding that Jamison’s plea

was based on a knowing, voluntary and intelligent waiver of his

constitutional rights.   The Magistrate Judge concluded that

Jamison’s plea was not knowing, voluntary and intelligent

because Jamison was not given adequate notice of the five year

mandatory minimum sentence he was subject to before he

decided to plead guilty. The court reasoned that a “mandatory

minimum sentence is an important circumstance that a defendant

should be aware of and take into consideration in determining

whether to plead guilty.” The Magistrate Judge also found that

                              13
             neither the statement by the prosecutor at the change of plea

             hearing that the Commonwealth would file a mandatory on the

             drug case, nor the statement that the Commonwealth would

             recommend “4-8 yrs w/mand” were sufficient to inform Jamison

             that he would have to be imprisoned for at least five years if he

             pled guilty.

                    As noted at the outset, the District Court rejected the

             Magistrate Judge’s recommendation. That decision was based

             on the fact that no Supreme Court case has precisely held that a

             defendant must be informed of the applicable mandatory

             minimum sentence and the state court decisions were not

             contrary to, or an unreasonable application of, clearly

             established federal law.

                    This appeal followed.6

6
  Jamison’s habeas petition included a claim for relief based on ineffectiveness of
counsel. However, the Magistrate Judge ruled that that claim was procedurally defaulted,
and Jamison does not appeal that ruling.

                                             14
          II. Jurisdiction and Standard of Review

       The Anti-Terrorism and Effective Death Penalty Act, 28

U.S.C. 2254(d), provides that:

       An application for a writ of habeas corpus on
       behalf of a person in custody pursuant to the
       judgment of a State court shall not be granted
       with respect to any claim that was adjudicated on
       the merits in State court proceedings unless the
       adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

       Thus, Jamison can not obtain relief in federal court unless

the state court decisions denying relief were “contrary to clearly

established Federal law, as determined by the Supreme Court of

the United States,” or “involved an unreasonable application of

clearly established Federal law, as determined by the Supreme


                               15
       Court of the United States.” 28 U.S.C.A. § 2254(d)(1). Jamison

       contends that his guilty plea was not knowing and intelligent

       because he was not told that he was subject to a mandatory

       minimum prison sentence of five years prior to pleading guilty.

              We conclude that Jamison’s claim is governed by Boykin

       v. Alabama, 395 U.S. 239 (1969) and its progeny just as the

       Magistrate Judge ruled. There, the Supreme Court held that

       courts may not accept a guilty plea without first determining, on

       the record, that the guilty plea was the result of a knowing, and

       intelligent act done with sufficient awareness of the relevant

       circumstances and likely consequences. The Court explained:

[w]hat is at stake for an accused facing death or imprisonment demands the
utmost solicitude of which courts are capable in canvassing the matter with the
accused to make sure he has a full understanding of what the plea connotes and
of its consequence. When the judge discharges that function, he leaves a
record adequate for any review that may be later sought.

       Id. at 243-44; see also Brady v. United States, 397 U.S. 742,

       749 (1970).

                                      16
       In Boykin, the trial court accepted the defendant’s guilty

plea to common-law robbery without asking the defendant any

questions regarding the plea or the defendant’s understanding of

the consequences of pleading guilty. On appeal, the Supreme

Court reasoned that since a guilty plea constitutes a waiver of

several fundamental rights, the validity of the waiver can not be

presumed from a silent record. Boykin, 395 U.S. at 243. The

Court noted:

       A majority of criminal convictions are obtained
       after a guilty plea. If these convictions are to be
       insulated from attack, the trial court is best
       advised to conduct an on the record examination
       of the defendant which should include, inter alia,
       an attempt to satisfy itself that the defendant
       understands the nature of the charges, his right to
       a jury trial, the acts sufficient to constitute the
       offenses for which he is charged and the
       permissible range of sentences.


Id. at 244, n 7.

       The Supreme Court reaffirmed Boykin in Brady v. United

                               17
States. There, the Court stated that “[w]aivers of constitutional

rights . . . must be knowing, intelligent acts done with sufficient

awareness    of   the   relevant     circumstances    and    likely

consequences.” 397 U.S. at 748 & n.6. Similarly, in Henderson

v. Morgan, 426 U.S. 637 (1976), the Court invalidated a

defendant’s guilty plea because he was not informed that the

intent to cause death was an element of the offense to which he

pleaded guilty. In doing so, the Court reiterated that a defendant

“must be informed of the consequences of his plea.” 426 U.S.

at 650 (White, J., concurring) (citing to Boykin, 395 U.S. 238).




       Here, without discussing the impact of Boykin or any of

its progeny, the District Court concluded that Jamison’s claim

was not governed by any clearly established federal law because

no Supreme Court case has specifically held that a defendant

must be informed of a mandatory minimum sentence prior to

                                18
pleading guilty. However, that view of the AEDPA standard of

review is myopic and constrained.

      AEDPA’s standard of deferential review is clearly forged

from a respectful balance of the limitations imposed by

considerations of comity on the one hand, and a recognition of

the crucial role of federal courts under our ordered system of

liberty on the other. In her concurring opinion in Williams v

Taylor, Justice O’Connor explained:

      W hen federal judges exercise th eir
      federal-question jurisdiction under the “judicial
      Power” of Article III of the Constitution, it is
      “emphatically the province and duty” of those
      judges to “say what the law is.” Marbury v.
      Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803).
      At the core of this power is the federal courts’
      independent responsibility - independent from its
      coequal branches in the Federal Government, and
      independent from the separate authority of the
      several States - to interpret federal law. A
      construction of AEDPA that would require the
      federal courts to cede this authority to the courts
      of the States would be inconsistent with the
      practice that federal judges have traditionally

                              19
       followed in discharging their duties under Article
       III of the Constitution. If Congress had intended
       to require such an important change in the
       exercise of our jurisdiction, we believe it would
       have spoken with much greater clarity than is
       found in the text of AEDPA.

529 U.S. 362, 378-79 (2000).

       If we were to uphold the District Court’s view of how

precisely a Supreme Court decision must resolve a given issue

under AEDPA, only Supreme Court holdings arising from the

identical presentation of a given legal issue would constitute

“clearly established law.”     This would collapse the dual

“unreasonable application of” and “contrary to” prongs of §

2254(d) into a single inquiry. If “clearly established” means the

Supreme Court must have previously addressed the identical

presentation of a given issue, any state court decision that does

not follow that holding would necessarily be one that is

“contrary to” that Supreme Court decision.


                               20
       Moreover, we have never interpreted the standard of

review in § 2254 to suggest that Congress intended habeas

review to turn on whether the Supreme Court had previously

decided an issue in a case involving a fact pattern that is

identical to the facts underlying a habeas petitioner’s claim for

federal relief. For instance, in resolving claims of ineffective

assistance of counsel, we have not applied AEDPA in a manner

that suggests that its deferential standard of review turns on

whether the Supreme Court has considered the precise act or

omission alleged to constitute deficient performance of counsel

under the Sixth Amendment. See Moore v. Morton, 255 F.3d

95, 107 (3d Cir.2001). (“Supreme Court precedent counsels that

the reviewing court must examine the prosecutor's offensive

actions in context and in light of the entire trial, assessing the

severity of the conduct, the effect of the curative instructions,

and the quantum of evidence against the defendant.”) (internal

                               21
citations omitted).

       Thus, despite the seemingly limitless combinations of

acts and omissions that could give rise to a claim of ineffective

assistance of counsel, the quality of counsel's representation is

measured by the standard set forth in Strickland v. Washington,

466 U.S. 668 (1984), and its progeny. See, e.g., Florida v.

Nixon, 543 U.S. 175 (2004) (applying Strickland to a claim that

defense counsel's failure to obtain defendant's express consent

to a strategy of conceding guilt at the guilt phase of capital trial

constitutes ineffective assistance of counsel); Williams v.

Taylor, 529 U.S. 362 (2000) (finding that Strickland constitutes

clearly established law to decide petitioner's claim that his

lawyer failed to investigate and to present substantial mitigating

evidence to jury in death penalty claims); Hill v. Lockhart, 474

U.S. 52 (1985) (Strickland constitutes established law in

deciding petitioner's claim that his lawyer provided ineffective

                                22
assistance of counsel for guilty plea).

       Thus, we have never required the kind of precision and

exactitude endemic in the District Court's application of

AEDPA.      Boykin, no less than Strickland, is established

Supreme Court precedent, and both cases set forth controlling

principles. Strickland proclaims that the Sixth Amendment

affords an accused a right to effective assistance of counsel and

holds that the right is violated when a defendant is prejudiced by

counsel's deficient performance. Boykin affirms that the

constitutional rights that are relinquished by a guilty plea can not

be waived unless the waiver is knowing, voluntary, and

intelligent. As we have already noted, the Court has explained

that the Boykin inquiry “demands the utmost solicitude of

courts” to ensure that the defendant “has a full understanding of

what the plea connotes and of its consequences.” Boykin, 395

U.S. at 243-44.

                                23
       Thus, absent “a record adequate” to determine that a

guilty plea is a knowing, voluntary and intelligent waiver, a

reviewing court can not conclude that the guilty plea complied

with constitutional safeguards. Id. at 244. Accordingly, just as

we do not look beyond Strickland and its progeny for

established federal law in Sixth Amendment challenges to

assistance of counsel, we need look no farther than Boykin, and

its progeny to find clearly established federal law here.

Jamison’s challenge to his guilty plea goes to the heart of the

principle that was clearly established in Boykin, Brady, and

Henderson.

                       III. Application.

       Thus, we must determine if the state courts’ rejection of

Jamison’s claim was either “contrary to” Boykin, or “an

unreasonable application” of its requirement that a guilty plea be

a knowing, voluntary and intelligent act, undertaken with

                               24
sufficient awareness of the relevant circumstances and likely

consequences. See Boykin, 395 U.S. at 242.

       A state court decision is “contrary to . . . clearly

established federal law” when it is “‘diametrically different,’

‘opposite in character or nature,’ or ‘mutually opposed’” to a

holding of the Supreme Court of the United States. Williams v.

Taylor, 529 U.S. at 406 (citation omitted). This happens when

the state court ignores or misapprehends clear precedent and

when it “confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [Supreme Court]

precedent.” Id. The Supreme Court has held that the “state

court need not even be aware of our precedents, ‘so long as

neither the reasoning nor the result of the state-court decision

contradicts them.’” Mitchell v. Esparza, 540 U.S. 12, 16 (2003)

(per curiam) (quoting Williams v. Taylor, 529 U.S. at 405-6).

                              25
      In Mateo, we explained that an “‘unreasonable

application of’ clearly established Supreme Court precedent

encompasses [the following] three distinct scenarios:

      (1) the state court extends Supreme Court
      precedent to cover a new factual context in which
      application of the precedent is unreasonable; (2)
      the state court unreasonably fails to apply a
      precedent in a factual context that warrants its
      application; or (3) the state court applies the
      correct precedent, but unreasonably in light of the
      facts of the case before it. Of course, all three
      scenarios require a definition of “unreasonable”;
      in the Fourth Circuit's view, the habeas court must
      inquire whether “the state courts have decided the
      question by interpreting or applying the relevant
      precedent in a manner that reasonable jurists
      would all agree is reasonable.


Mateo, 171 F.3d at 887 (citing Greenv. French, 143 F.3d 865,

870 (4th Cir. 1998).

      Here, the state courts did not ignore or misapprehend

Boykin, because they clearly understood that guilty pleas must



                              26
be knowing, intelligent and voluntary. Moreover, as the District

Court noted, no Supreme Court case expressly mandates that

defendants be informed of mandatory minimum sentences

before tendering a guilty plea. However, the state courts did

unreasonably fail to apply Boykin in a factual context that

warrants     its   application,”   and   therefore   those   courts

unreasonably applied that clearly established Supreme Court

precedent.

       The Pennsylvania courts ruled that Jamison was aware of

the statutory maximum and knew that the prosecutor would file

“a mandatory.” They therefore concluded that Jamison’s plea

was therefore knowing, voluntary and intelligent. As noted

earlier, at the guilty plea hearing, the prosecutor stated that the

Commonwealth would be filing “a mandatory in the drug case,”

and the Commonwealth stated in writing that it planned to seek



                                   27
             a sentence of “4-8 years.” The state courts concluded that this

             was sufficient notice of the mandatory minimum to allow for a

             valid guilty plea.    B e f ore   discussing       w hy this w a s a n

             unreasonable application of Boykin, and its progeny, we must

             first explain the sentencing scheme in Pennsylvania, as it differs

             dramatically   from       the   more    familiar    federal   scheme.

             Pennsylvania “employs an indeterminate sentencing scheme.”

             Commonwealth         v.    Kleinicke,     895      A.2d   562,   572

             (Pa.Super.2006). Pursuant to that scheme, when a sentencing

             court imposes a sentence of imprisonment, it must impose both

             a minimum term of imprisonment and a maximum term. Id. See

             also, 42 Pa.C.S.A. § 9756(a).            The minimum period of

             incarceration must not exceed one half the maximum.                42

             Pa.C.S.A. §§ 9756(b), 9757.7 Once the defendant completes the

7
 Such a scheme is called “indeterminate” because the term of imprisonment a defendant
will actually serve is not determined. The defendant (and the sentencing court for that
matter) knows only that he/she will be incarcerated for the minimum term and can

                                               28
              minimum term of incarceration, it is up to the Parole Board to

              determine when (and if) he/she will be released before serving

              the maximum sentence imposed by the court.8 Thus, the length

              of the defendant’s incarceration is not known “at the moment of

              sentencing because the defendant may ultimately serve only the

              minimum, the maximum or any sentence between the two.”

              Kleinicke, 895 A.2d at 572.      Statutes imposing mandatory

              minimum sentences such as the one Jamison was subject to

              “only . . . limit the sentencing court's discretion as to the

              minimum term, not as to the maximum term,” id., which must

              always be set by the Legislature. See, e.g.,18 Pa.C.S.A. §§



potentially remain in prison until the maximum term is reached.
8
 The situation is slightly different if the maximum term of incarceration is less than two
years as the sentencing court then retains discretion to release the defendant and the
defendant does not come within the purview of the Parole Board. See Commonwealth v.
Romolini, 557 A.2d 1073 (Pa. Super. 1989) (“it is the province of the Common Pleas
judge whether to grant or deny parole on a . . . sentence of less than two years duration.”)
(citing 61 P.S. § 314, and Commonwealth v. Fair, 497 A.2d 693 (Pa. Super. 1985)).

                                             29
1103,1105 (setting maximum terms for felony, misdemeanor

and summary offenses).

       Although Jamison was informed of the 20-year maximum

sentence that his plea subjected him to, nothing on this record

establishes that anything he was told by the prosecutor or the

court (either separately or cumulatively) provided Jamison with

sufficient information about the mandatory minimum sentence

his plea exposed him to. We realize, of course, that the exact

length of any mandatory minimum sentence may depend on

facts that are not known when a defendant changes his/her plea.

Here, for example, it was not clear at the change of plea hearing

whether Jamison faced a three year mandatory minimum

sentence, or a five year mandatory minimum. As is frequently

the case, that could not be determined until a subsequent

sentencing hearing. However, it was known that a finding of



                               30
guilt would expose him to a mandatory minimum sentence of

either three or five years depending on his prior record, and he

was never informed of that. Thus, when the trial court accepted

Jamison’s plea, Jamison had not been told that he would have to

receive a sentence of at least three years imprisonment, and that

he would have to serve at least five years if he had a prior

conviction for a controlled substance.

       The prosecutor’s statement, “filing mandatory,” was far

too opaque a reference to inform Jamison that he may have to

serve at least five years in prison if he pled guilty. Moreover,

that statement was not made to Jamison, it was not part of the

on-the-record colloquy, and Jamison was never afforded an

opportunity to respond to it before pleading guilty.         The

representation that the Commonwealth would recommend a

sentence of “4-8 years w/mand” suffers from the same infirmity.



                               31
To the extent that it provided Jamison with notice that a

mandatory would be filed against him, it was incorrect and

misleading information. Given the indeterminate sentencing

scheme requiring a maximum that is at least twice the minimum

as we have described, it is just as likely that this vague reference

refers to a minimum of four years and a maximum of eight; a

term of incarceration that the sentencing court was not even

authorized to impose under Pennsylvania law given Jamison’s

prior controlled substance conviction.

       If we can assume Jamison understood anything based on

that representation, it is that his mandatory sentence would be

less than the five years that the court actually had to impose. As

noted earlier, the confusion was compounded by the court telling

Jamison that “sentencing is basically up to the court,” even

though the court had no authority to impose any sentence less



                                32
than five to ten years in prison.

       We have already explained that Boykin and its progeny

require that an accused be aware of the “direct consequences”

of a guilty plea.    Brady v. United States, 397 U.S. at 755

(emphasis added) (citation omitted); see also Steele v. Murphy,

365 F.3d 14, 17 (1 st Cir. 2004) (defendant need only be “fully

aware of the direct consequences” of guilty plea) (citing Brady).

We therefore reject the view that knowledge of the statutory

maximum is sufficient to allow an informed choice to plead

guilty. It is at least as important for the accused to be accurately

informed of the minimum amount of incarceration that he/she

will have to serve pursuant to a guilty plea. Boykin, explicitly

included “the permissible range of sentences” as one of the

factors that defendants must be aware of before pleading guilty.

Boykin, 395 U.S. at 244, n.7 (advising trial courts to conduct



                                33
              colloquy to satisfy itself that “the defendant understands . . . the

              permissible range of sentences.”) (citation omitted). Clearly, a

              defendant must know the maximum sentence that could result

              from a guilty plea. See Dalton v. Battaglia, 402 F.3d 729, 733

              (7 th Cir. 2005) (“We can imagine no consequence of a

              defendant's guilty plea more direct, immediate, and automatic

              than the maximum amount of time she may serve as a result of

              her plea.”).   The mandatory minimum is no less direct a

              consequence of a guilty plea. In fact, the mandatory minimum

              sentence may be far more relevant than the theoretical maximum

              because that is rarely imposed. Here, for example, counsel for

              Appellee conceded at oral argument that she knew of no

              instance of a maximum sentence being imposed during her four

              years as a prosecutor.9

9
 Moreover, the maximum sentence derived from totaling statutory maximums is often as
fanciful as it is theoretical. For example, in United States v. Powell, 269 F.3d 175 (3d Cir
2001 ), the defendant was informed that the maximum period of incarceration was 830

                                              34
                    The importance of the mandatory minimum prison term

             to making an informed decision is self evident here. Jamison

             testified at his evidentiary hearings that if he had known he was

             subject to a mandatory minimum term of imprisonment of five

             years, he would not have pled guilty to the charge, and nothing

             on this record undermines that testimony. In fact, the testimony

             is bolstered by Jamison’s decision to reject the Commonwealth’s

             offer of four to eight years, and neither the PCRA court nor the

             Magistrate Judge expressed reservations about Jamison’s candor

             after he testified in support of his claim for relief. Thus, there

             is a distinct possibility that the failure to apprise Jamison of the

             mandatory minimum sentence affected his willingness to plead

             guilty when he otherwise would not have.


years. Although the court was not imposing a sentence pursuant to an indeterminate
sentencing scheme, the 830 year maximum is nevertheless instructive of the extent to
which the authorized maximum frequently bears no relationship to the sentence that is
imposed.

                                             35
       The Commonwealth cites our decision in Parry v

Rosemeyer, 64 F.3d 110, 114 (3d Cir. 1995), and notes that we

there stated: “a maximum prison term and fine for the

challenged offense are the only direct consequences of a state

court plea.” Appellee’s Br. at 12. The District Court also cited

this excerpt from Parry in concluding that Jamison did not have

to be informed that he would have to serve at least 5 years in

prison if he pled guilty. However, the references to this isolated

statement in Parry misrepresent the analysis there. Parry was

sentenced for violating the terms of a probationary sentence that

had been imposed following his guilty plea.          After being

sentenced on the violation, he sought habeas relief arguing that

his guilty plea was not knowing, voluntary and intelligent

because he had not been informed that he could be incarcerated

for violating his probation.    On appeal, we had to decide

“whether a judge's or defense counsel's failure to advise a

                               36
defendant offering a plea of guilty that, if he or she is sentenced

to probation, his or her probation can be revoked if it is violated

and a term of imprisonment substituted in its place. . .”. Id. at

111. In that context we explained: “Due process does not . . .

require that a defendant be advised of adverse collateral

consequences of pleading guilty, even if they are foreseeable.”

Id. at 114 (emphasis in original).          We thus held that

incarceration for a violation of the probation that is imposed

pursuant to a guilty plea is a collateral consequence and due

process does not require that an accused be informed of all that

can happen upon violating probation before entering a guilty

plea. It was in that context that we made the statement the

Commonwealth has seized upon. However, the Commonwealth

ignores the fact that, in context with holding that imprisonment

for violating a term of probation was a collateral consequence

of a guilty plea, we also explained that “[a] plea of guilty will

                                37
not be found to be unknowing and involuntary in the absence of

proof that the defendant was not advised of, or did not

understand, the direct consequences of his plea.”. Id. at 114

(citing Brady v. United States, 397 U.S. at 755). We then

stated,“‘[t]he only consequences considered direct are the

maximum prison term and fine for the offense charged.’” Id.

We cited our decision in United States v. Salmon, 944 F.2d

1106, 1130 (3d Cir. 1991), cert. denied, 502 U.S. 1110 (1992),

for that proposition. When Parry and Salmon are considered in

context, it is clear that our holdings there are consistent with our

analysis of Jamison’s due process claim here.

       In Salmon, like Parry, we held that a defendant need not

be informed of the collateral consequences of a guilty plea. A

defendant in Salmon argued that a prior conviction could not be

used to enhance a subsequent sentence under the Guidelines



                                38
because, when he pled guilty to the earlier offense, he did not

know that the plea could be used to enhance punishment for any

subsequent crime under the applicable provisions of the

Sentencing Guidelines.      Not surprisingly, we rejected the

argument.    In doing so, we reiterated that “[d]ue process

requires . . . a defendant be advised of and understand the direct

consequences of a plea.”      944 F.2d at 1130 (emphasis in

original) (citing Brady, 397 U.S. at 755.). We added that “the

only consequences considered direct are the maximum prison

term and fine for the offense charged.” Id. We explained that

“the effect of a conviction on sentencing for a later offense

under a career offender law is such a collateral consequence.”

Id. However, it can not seriously be argued that serving five

years in prison pursuant to a mandatory minimum sentence is a

“collateral” consequence of a guilty plea and not a direct result



                               39
              of it.10 Indeed, as we have already explained, knowing the

              minimum length one will have to remain in prison is of perhaps

              greater importance than the maximum sentence.11

                     Finally, we conclude that Jamison’s failure to withdraw

              his guilty plea at the sentencing hearing has no bearing on

              whether his plea was knowing, voluntary and intelligent when

              entered. Based on our review of the transcript of the sentencing

              hearing, we do not believe that Jamison was afforded an
10
   In neither Salmon nor Parry did we have occasion to consider whether a mandatory
minimum is a direct consequence of a guilty plea.
11
   We also reject the District Court's reliance on Voils v. Hall, 151 F.Appx 793, 795 (11th
Cir. 2005). We have steadfastly attempted to discourage District Courts as well as
attorneys from relying on nonprecedential opinions of this court. See Third Circuit
Internal Operating Procedure 5.7 (indicating that “the court by tradition does not cite to its
not precedential opinions as authority”). See also, Fallon Elec. Co. v. Cincinnati Insur.
Co., 121 F.3d 125, 128 n. 1 (3d Cir. 1997) ("[We] do not regard such opinions as binding
precedent."). We do not accept these opinions as binding precedent because, unlike
precedential opinions, they do not circulate to the entire court before they are filed.
Accordingly, not every judge on the court has had an opportunity to express his/her views
about the opinion before it is filed.
     Here, the District Court relied on a decision that is not only not precedential, it is not
even a decision of a panel of this court. Accordingly, we will not explain why we think
that decision is ill- advised and poorly reasoned.

                                              40
adequate opportunity to withdraw his plea after the court told

him about the actual length of the mandatory minimum

sentence.      Jamison was never asked whether he had any

questions about the applicable mandatory minimum sentence or

whether knowledge of it changed his mind about pleading

guilty.

          Under these circumstances, this record does not establish

the knowing, voluntary, and intelligent guilty plea required by

Boykin, and the state courts’ rulings to the contrary was an

unreasonable application of clearly established Supreme Court

precedent.


                            Conclusion

          For the reasons set forth above, we reverse the District

Court’s denial of relief and we will remand to the District

Court with instructions to issue a conditional writ.


                                 41
