J-S08007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JACQUELYN CLAIRE GOMEZ                :
                                       :
                   Appellant           :   No. 573 WDA 2019

          Appeal from the PCRA Order Entered March 22, 2019
 In the Court of Common Pleas of Blair County Criminal Division at No(s):
                       CP-07-CR-0001285-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JACQUELYN CLAIRE GOMEZ                :
                                       :
                   Appellant           :   No. 574 WDA 2019

          Appeal from the PCRA Order Entered March 22, 2019
 In the Court of Common Pleas of Blair County Criminal Division at No(s):
                       CP-07-CR-0001283-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JACQUELYN CLAIRE GOMEZ                :
                                       :
                   Appellant           :   No. 575 WDA 2019

          Appeal from the PCRA Order Entered March 22, 2019
 In the Court of Common Pleas of Blair County Criminal Division at No(s):
                       CP-07-CR-0001284-2016

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
J-S08007-20



MEMORANDUM BY OLSON, J.:                             FILED MARCH 30, 2020

        In this consolidated appeal, Appellant, Jacquelyn Claire Gomez, appeals

from the order entered March 22, 2019, denying her petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.          1   We

reverse the order, vacate Appellant’s judgment of sentence, and remand the

case with instructions.

        The PCRA court set forth the following procedural history:

        [Appellant] was charged with multiple violations of the Controlled
        Substance[, Drug, Device and Cosmetic] Act.[2]                The
        Commonwealth alleged further that she was part of a corrupt
        organization formed for the purpose of distributing heroin and
        other illegal drugs in the Altoona, Pennsylvania area.        The
        allegations were that beginning at some point before March[]
        2015, heroin distribution began from a tattoo shop located on
        Fourth Street in Altoona, Blair County, Pennsylvania. It was
        alleged that [Appellant] and her husband, Norman Gomez, with
        whom she lived, were the source of the heroin. It was further
        alleged that [Appellant] and the codefendants traveled back and
        forth to New York to obtain large amounts of heroin in a vehicle
        registered to [Appellant] and were making an effort to buy half a
        kilogram of heroin. [Appellant allegedly] told other codefendants
        to quit giving deals on the heroin so they could make more money.
        The allegation was that the police investigation included use of
        confidential informants and direct police surveillance, in which
        [Appellant] and her husband were observed conducting drug
        transactions. After her formal arraignment, [Appellant] was


____________________________________________


1 The record demonstrates that Appellant’s notices of appeal complied with
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) and Commonwealth
v. Creese, 216 A.3d 1142 (Pa. Super. 2019). This Court consolidated
Appellant’s appeals sua sponte. Per Curiam Order, 5/3/19.

2   35 P.S. §§ 780-101 to 780-144.



                                           -2-
J-S08007-20


        represented by several different attorneys, with her final attorney
        being A. Thomas Farrell[, Esq. (“Plea Counsel”)].

        After [the] jury was selected in her case, on May 1, 2017,
        [Appellant] pled guilty at [CP-07-CR-0001283-2016] to Criminal
        Conspiracy [for] Possession with Intent to Deliver a Controlled
        Substance, (Heroin), []Corrupt Organizations, []Dealing in
        Proceeds of Unlawful Activity, []Criminal Use of a Communication
        Facility, [and three counts of Possession with Intent to Deliver
        (Heroin).3] At [CP-07-CR-0001284-2016,] she pled guilty to
        []Use/Possession      of     Drug     Paraphernalia[.4]       At
        [CP-07-CR-0001285-2016,] she pled guilty to []Possession with
        Intent to Deliver (Heroin)[.5]

        [Appellant] was sentenced to an aggregate period of 10 to 20
        years in a state correctional institution. The [sentencing c]ourt
        noted in its sentencing order that the aggregate sentence was
        consistent with the negotiated plea by and between the
        Commonwealth and [Appellant]. [Appellant] was also to be
        afforded any and all appropriate credit for time served. In
        accepting [Appellant’s] guilty pleas, the [sentencing c]ourt
        conducted an oral guilty plea colloquy with [Appellant]. Before
        the [sentencing c]ourt began the oral guilty plea colloquy, the
        [sentencing c]ourt asked whether there was anything else before
        the [sentencing c]ourt would begin the colloquy.

        Attorney Weeks for the Commonwealth said, "Judge, I do, with a
        question about credit for time served. The Commonwealth did
        indicate that we would not have any opposition, although it's not
        up to the Commonwealth obviously, for [Appellant] to receive
        concurrency in her [parole violation sentence.6] Obviously[,] the
____________________________________________


3 18 Pa.C.S.A. §§ 903, 911(b)(1), 5111(a)(1), 7512(a) and 35 P.S.
780-113(a)(30), respectively.

4   35 P.S. 780-113(a)(32).

5   35 P.S. 780-113(a)(30).

6  The record demonstrates that Appellant was recommitted to a state
correctional institution for a period of 4 years, 3 months and 12 days for a
direct violation of her parole that arose from the instant charges. PCRA
Hearing Petitioners Exhibit 4-Notice of Parole Board Decision. Appellant was



                                           -3-
J-S08007-20


       Commonwealth can't control that. That can't be a binding part of
       the agreement but the Commonwealth does not object to that and
       won't make a recommendation for additional jail time."

       The [sentencing c]ourt began the oral colloquy by asking
       [Appellant] her name. She stated[, “]Jacquelyn Claire Alberts
       Gomez.[”] She stated that she intended to enter guilty pleas to
       some of the charges lodged against her. She acknowledged that
       by pleading guilty to these charges she would be giving up [her]
       right to []a jury trial where she would be presumed innocent and
       could remain silent. At that point a jury had been picked for her,
       and it was her decision as to whether to plead guilty or go to trial.
       She acknowledged that by pleading guilty, she would be giving up
       [her] right to [a] jury trial. She acknowledged that [Plea Counsel]
       explained the maximum possible sentences to her in regards to
       this matter.       The [sentencing c]ourt inquired as to her
       understanding that the [sentencing c]ourt does not have to accept
       the plea agreement and she agreed that she understood. She
       asserted that she was not under the influence of anything that
       would prevent her from understanding everything that was
       happening that day. She asserted that nobody was forcing her
       against her will to plead guilty. The [sentencing c]ourt went
       through the charges and what the plea would be. The [sentencing
       c]ourt asked whether that was [Appellant’s] understanding of the
       plea agreement and [Plea Counsel] replied for her, "Yes, Your
       Honor[."]

       [T]he [sentencing c]ourt asked [Appellant] whether she
       understood what the crimes that had just been outlined were, and
       whether she was specifically admitting guilt to those crimes. She
       asserted that she understood what each individual crime was, and
       that she was pleading guilty to that charge because she was guilty
       of the charge. There was a waiver of presentence investigation.
       The [sentencing c]ourt accepted the guilty pleas, finding them to
       be knowing, voluntary, and intelligent. The [sentencing c]ourt
       then dictated the sentence. The [sentencing c]ourt then asked
       [Appellant], "Did you hear everything that was said today?"
____________________________________________


previously convicted of criminal conspiracy for possession with the intent to
deliver, corrupt organizations, dealing in proceeds of unlawful activity,
criminal use of a communication facility, possession with intent to deliver (7
counts), and use/possession of drug paraphernalia. Id.; see also 18
Pa.C.S.A. §§ 903, 911(b)(1), 5111(a)(1), 7512(a) and 35 P.S. §§ 780-
113(a)(30) and 780-113(a)(32), respectively.

                                           -4-
J-S08007-20


       [Appellant] responded, "Yes[."] The [sentencing c]ourt asked,
       "Did you understand everything that was said today?" [Appellant]
       responded, "Yes ma'am[,"] and the [sentencing c]ourt asked, "Is
       this your understanding of what you pled guilty to and are being
       sentenced to?" [Appellant] responded, "Yes, ma'am[."]

PCRA Court Opinion, 3/28/19, at 1-6 (record citations omitted). Appellant did

not file a post-sentence motion.

       On July 3, 2017, Appellant filed pro se a PCRA petition. The PCRA court

appointed Philip M. Masorti, Esq. (“Attorney Masorti”), as counsel to represent

Appellant. Attorney Masorti filed an amended PCRA petition on February 20,

2018, raising a claim of ineffective assistance of counsel that led Appellant to

enter an unknowing, unintelligent, and involuntary guilty plea. Appellant’s

Amended      PCRA     Petition,    2/20/18.      Attorney   Masorti    also   filed   a

Turner/Finley7 no merit letter stating that the claims raised by Appellant in

her pro se PCRA petition were without merit, but the ineffectiveness claim

raised in the amended PCRA petition was meritorious.                  Turner/Finley

No Merit Letter, 2/20/18, at 1-2.

       On May 23, 2018, the PCRA court directed Appellant to file an amended

PCRA petition regarding “the alleged claim of ineffective assistance of counsel

resulting in a guilty plea induced by the mistaken legal conclusion that

[Appellant’s] parole violation could be run concurrent to her 10 to 20[-]year

sentence[.]” PCRA Court Order, 5/23/18. On June 11, 2018, Appellant filed,

for a second time, her amended PCRA petition. After conducting a hearing on
____________________________________________


7Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

                                           -5-
J-S08007-20



the matter, the PCRA court denied Appellant’s amended PCRA petition on

March 22, 2019. PCRA Court Order, 3/22/19. On March 28, 2019, the PCRA

court entered an order denying Appellant’s amended PCRA petition for a

second time, as well as an opinion setting forth its rationale for the denial.

PCRA Court Order and Opinion, 3/28/19. Appellant filed a timely notice of

appeal of the March 22, 2018 PCRA court order.8

       Appellant raises the following issue for our review: “Whether the [PCRA]

court erred in denying Appellant's [amended] PCRA [p]etition because

Appellant's plea was entered unknowingly and involuntarily based on plea

counsel's inaccurate information regarding the possibility of the sentence

running concurrent with Appellant's state parole [violation] sentence.”

Appellant’s Brief at 5.



____________________________________________


8 The PCRA court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). A review of the record
does not demonstrate that Appellant filed of record a Rule 1925(b) statement
pursuant to Rule 1925(b)(1), as directed. However, Appellant’s brief contains,
as an appendix, a copy of her Rule 1925(b) statement dated May 16, 2019,
together with a certificate of service demonstrating that a copy of the Rule
1925(b) statement was served on the PCRA court. On June 6, 2019, the PCRA
court indicated in a letter to this Court that it relied on its March 28, 2019
opinion that addressed the merits of the issue Appellant raised in her Rule
1925(b) statement. Accordingly, Appellant did not waive her issue on appeal
for failure to file of record a Rule 1925(b) statement where a copy was
attached to Appellant’s brief, the PCRA court received a copy of the Rule
1925(b) statement, and the PCRA court addressed the merit of the issue in its
opinion. See, e.g., Commonwealth v. Presley, 193 A.3d 436, 442
(Pa. Super. 2018) (holding, appellate court may address merits of issue raised
in late-filed Rule 1925(b) statement where PCRA court addressed merits of
issue in its Rule 1925(a) opinion), appeal denied, 201 A.3d 154 (Pa. 2019).

                                           -6-
J-S08007-20



      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.”   Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.” Commonwealth v. Hickman, 799

A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review

the PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90

A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785

(Pa. 2014).

      To be eligible for relief based on a claim of ineffective assistance
      of counsel, a PCRA petitioner must demonstrate, by a
      preponderance of the evidence, that (1) the underlying claim is of
      arguable merit; (2) no reasonable basis existed for counsel’s
      action or omission; and (3) there is a reasonable probability that
      the result of the proceeding would have been different absent such
      error. Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013), appeal

denied, 74 A.3d 1030 (Pa. 2013). “The failure to satisfy any one of the prongs

requires rejection of the petitioner's claim.” Commonwealth v. Williams,

141 A.3d 440, 454 (Pa. 2016) (citation omitted). “[T]he law presumes that

counsel was effective and the burden of proving that this presumption is false



                                      -7-
J-S08007-20



rests with the petitioner.”   Commonwealth v. Cox, 983 A.3d 666, 678

(Pa. 2009) (citation omitted). “Whether prejudice resulted from the entry of

the guilty plea is not measured by the severity or leniency of the sentence

imposed; prejudice inheres when an accused pleads guilty, thus convicting

himself of a criminal offense, without understanding the significance or

consequences of his action.” Commonwealth v. Zuber, 353 A.2d 441, 445

(Pa. 1976) (citation, original quotation marks, and emphasis omitted).

      “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 an involuntary or unknowing plea.” Hickman, 799 A.2d

at 141 (citation omitted). “Once the defendant has entered a guilty plea, it is

presumed that he was aware of what he was doing, and the burden of proving

involuntariness is upon him.” Commonwealth v. Willis, 68 A.3d 997, 1002

(Pa. Super. 2013) (citation omitted).       The totality of the circumstances

surrounding a guilty plea must be examined to determine if the guilty plea

was entered voluntarily, knowingly, and intelligently.     Commonwealth v.

Allen, 732 A.2d 582, 589 (Pa. 1999).

      The Pennsylvania Rules of Criminal Procedure mandate that pleas
      be taken in open court, and require the [sentencing] court to
      conduct an on-the-record colloquy to ascertain whether a
      defendant is aware of his rights and the consequences of his plea.
      Specifically,  the   [sentencing]     court    must    affirmatively
      demonstrate the defendant understands: (1) the nature of the
      charges to which he is pleading guilty; (2) the factual basis for the
      plea; (3) his right to trial by jury; (4) the presumption of
      innocence; (5) the permissible ranges of sentences and fines
      possible; and (6) that the [sentencing] court is not bound by the


                                      -8-
J-S08007-20


       terms of the agreement unless the [sentencing] court accepts the
       agreement.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted).    When a plea agreement has been reached, the terms of that

agreement must be stated in open court. Zuber, 353 A.2d at 444 (citations

omitted).

       “[C]ounsel'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.”9 Commonwealth v. Barndt, 74 A.3d 185, 195-196 (Pa. Super. 2013)

(citation and emphasis omitted). “[C]ounsel's omission to mention a collateral

consequence of a guilty plea does not constitute ineffective assistance of

counsel[. However,] counsel's assistance is constitutionally ineffective when

counsel misapprehends the consequences of a given plea and misleads his

client accordingly about those consequences, without regard to whether the

consequences in question are ‘direct’ or ‘collateral.’”    Id. at 196 (citation

omitted).

       Section 6138 of the Prisons and Parole Code states, in pertinent part,

____________________________________________


9 Our Supreme Court has defined the difference between a direct consequence
and a collateral consequence of a guilty plea as the distinction between a
criminal penalty and a civil requirement over which the sentencing court has
no control. Commonwealth v. Leidig, 956 A.2d 399, 404 (Pa. 2008), citing
Commonwealth v. Duffey, 639 A.2d 1174 (Pa. 1994), cert. denied, 513 U.S.
884 (1994). A collateral consequence of a guilty plea is “one that is not related
to the length or nature of the sentence imposed on the basis of the plea.”
Leidig, 956 A.2d at 404 (citation and original quotation marks omitted).

                                           -9-
J-S08007-20


                   § 6138. Violation of terms of parole

      (a) Convicted violators.--

      (1) A parolee under the jurisdiction of the board released from a
      correctional facility who, during the period of parole or while
      delinquent on parole, commits a crime punishable by
      imprisonment, for which the parolee is convicted or found guilty
      by a judge or jury or to which the parolee pleads guilty or nolo
      contendere at any time thereafter in a court of record, may at the
      discretion of the board be recommitted as a parole violator.

                                       ...

      (5) If a new sentence is imposed on the parolee, the service of
      the balance of the term originally imposed by a Pennsylvania court
      shall precede the commencement of the new term imposed in the
      following cases:

         (i) If a person is paroled from a State correctional institution
         and the new sentence imposed on the person is to be served
         in the State correctional institution.

61 Pa.C.S.A. § 6138(a)(1) and (5)(i). “[W]here a state parolee gets a new

state sentence, he [or she] must serve [the parole violation sentence] first

before commencement of the new state sentence. Imposition of a new state

sentence concurrent with [the parole violation sentence] is an illegal sentence

under [Section 6138].” Kelley, 136 A.3d at 1013 (citations omitted).

      Here, Appellant argues that she entered her guilty plea unknowingly,

involuntarily, and unintelligently because Plea Counsel led her to believe that

the sentence for her parole violation and the sentence she received in the

instant case could be served concurrently. Appellant’s Brief at 15. Appellant

avers that Plea Counsel was unaware of Section 6138, which precluded

concurrent sentences and required her parole violation sentence to be served

before her instant sentence, and that there is no reasonable basis for Plea

                                     - 10 -
J-S08007-20



Counsel’s failure to advise Appellant of the impossibility of concurrent

sentences.      Id. at 23, 25.             Appellant contends that, but for the

Commonwealth’s agreement not to oppose concurrent sentences, Appellant

would not have accepted the plea agreement and, instead, would have gone

to trial. Id. at 30-31. Appellant alleges that the only condition that changed

throughout the plea negotiations was the Commonwealth’s agreement not to

oppose concurrent sentences and it was only after this agreement that

Appellant accepted the plea agreement terms. Id.

       The PCRA court found that Appellant’s argument lacked credibility

“based on a totality of the testimony of [Plea Counsel] and [Appellant]” and

because Appellant failed to “include this issue in her [pro se] PCRA [petition,

demonstrating] that this was an issue included [in her amended PCRA petition]

only after careful review of the record by new counsel, who discovered the

argument.”10 PCRA Court Opinion, 3/28/19, at 17. The PCRA court found that

“although [Plea Counsel] was [un]aware that it was not possible to run the

[parole violation] sentence concurrently with the new sentence, he did not

mislead [Appellant] or give her erroneous advice, directly or by omission.”
____________________________________________


10 Indigent petitioners are entitled to the appointment of PCRA counsel on
their first PCRA petition in order to help petitioners understand the law and
develop sound legal arguments for relief that the petitioners might not
otherwise understand. See, e.g., Commonwealth v. Smith, 818 A.2d 494,
501 (Pa. 2003) (stating, “[w]ithout legal counsel, an indigent first-time PCRA
petitioner would not know of the necessity of demonstrating the existence of
an exception to the [jurisdictional] time-bar”). We find no basis of support for
the PCRA court’s conclusion that Appellant failed to demonstrate prejudice
because she failed to raise the issue in her pro se PCRA petition and only
raised the issue after the appointment of PCRA counsel.

                                          - 11 -
J-S08007-20



Id. at 19. The PCRA court credited Plea Counsel’s testimony that Appellant

“decided to plead guilty based on her exposure to 40 years' incarceration, the

lack of a legitimate defense in her case, and the advice of her husband[.]” Id.

      A review of the record demonstrates that Plea Counsel was unaware of

Section 6138 prior to the entry of Appellant’s guilty plea and did not

understand that Section 6138 barred concurrent service of Appellant’s instant

sentence and any sentence she received for her parole violation. Id. at 11;

see   also,   N.T.,   8/30/18,   at   11-14,   N.T.,   6/20/18,   at   Appellant’s

Exhibit 3 – Plea Counsel’s Letter. Therefore, Appellant’s ineffectiveness claim

has arguable merit.

      As to the reasonable basis prong, we can conceive of no instance where

an attorney would have a reasonable basis justifying his or her failure to

understand the legal principles relevant to a client’s circumstances. Similarly,

we can conceive of no justification for an attorney to erroneously advise his

or her client or to omit a discussion of relevant legal principles pertinent to

the client’s stated concerns thereby misleading the client or allowing the client

to believe in false hopes. When asked if he had any reasonable basis to tell

Appellant that her sentences could be served concurrently, Plea Counsel

testified that his only reason was the Commonwealth’s agreement not to

object to concurrent sentences and his belief, “that would have some impact”

on Appellant’s pleading guilty. N.T., 8/30/18, at 55. Learning after the fact

that Section 6138 prohibited concurrent sentences, Plea Counsel stated he

had no reasonable basis for giving incorrect legal advice, emphasizing that

                                      - 12 -
J-S08007-20



“[n]o one should give incorrect legal advice.” Id. Therefore, Appellant has

satisfied the reasonable basis prong of her ineffectiveness claim.

      Turning to the prejudice prong, we are guided by Zuber, supra, in

which our Supreme Court found that as part of the plea agreement presented

in open court, the Commonwealth stated it would “join with defense counsel

in a request to the State Board of Parole that the new sentence run

concurrently with appellant's” parole violation sentence. Zuber, 353 A.2d

at 443 (emphasis in original). Our Supreme Court found that the “promise by

the Commonwealth was a false and empty one since the law is quite clear that

a parole violator convicted and sentenced to prison for another offense must

serve his or her [parole violation sentence] and the new sentence in

consecutive order.”   Id. (citations omitted).   The Zuber Court found that

appellant’s rejection of prior plea offers for lengthier terms of imprisonment

demonstrated that the length of time spent in prison was an important

consideration in appellant’s decision to plead guilty. Id. at 445. Appellant

was aware that although the Commonwealth promised to join in a request for

concurrent sentences, concurrent sentences were not guaranteed.           Id.

Ultimately, the Zuber Court concluded the specific promise by the

Commonwealth to join in a request for concurrent sentences made in open

court prior to appellant’s entering a guilty plea was a void promise. Id. at

444-445. And, importantly, appellant’s reliance on this promise in entering a

guilty plea rendered the plea involuntary and unknowing. Id. at 445.




                                    - 13 -
J-S08007-20



      Here, the record demonstrates that prior to the sentencing court’s oral

guilty plea colloquy of Appellant, the Commonwealth stated,

      The Commonwealth did indicate that we would not have any
      opposition, although it’s not up to the Commonwealth obviously,
      for [Appellant] to receive concurrency on her [parole violation
      sentence]. Obviously[,] the Commonwealth can’t control that.
      That can’t be a binding part of the [plea] agreement but the
      Commonwealth does not object to that and won’t make a
      recommendation for additional jail time.

N.T., 5/1/17, at 2-3. Following the Commonwealth’s statement, neither the

Commonwealth, the sentencing court, nor Plea Counsel advised Appellant that

Section 6138 prohibited concurrent sentences regardless of whether the

Commonwealth opposed concurrency or not.        Id.   Instead, the sentencing

court proceeded to ask Appellant, among other things, if she understood that

the plea agreement was for a sentence of 10 to 20 years’ incarceration to

which Appellant stated she understood the sentence.       Id. at 5, 8-9.   Plea

Counsel never objected to the Commonwealth’s statement and neither Plea

Counsel nor the sentencing court clarified the priority of the parole violation

sentence and the impossibility of concurrent sentences. Id. at 2-3.

      The PCRA court found, and the record supports, that Appellant was

offered several plea agreements, including “the first one being 30 years, the

second one being 20 years, and the third one, when she was represented by

[Plea Counsel], being 10 to 20 years, which was offered immediately before

jury selection.” PCRA Court Opinion, 3/28/19, at 13; see also N.T., 8/30/19,

at 10, 19-20. Appellant rejected all of these offers and proceeded with jury



                                    - 14 -
J-S08007-20



selection. PCRA Court Opinion, 3/28/19, at 13; see also N.T., 8/30/19, at

10, 19-20. After jury selection, Appellant was again presented with a plea

offer of 10 to 20 years’ incarceration but now with the agreement that “the

Commonwealth would have no recommendation or no objection to [the

sentence in] the instant case being run concurrently with the [parole violation

sentence.]”     N.T.,   8/30/19,    at    10-11.    When    asked    whether    the

Commonwealth’s agreement not to oppose concurrent sentences was the sole

factor that led Appellant to accept the plea agreement, Plea Counsel stated

that he did not know, but the Commonwealth’s agreement was part of the

plea offer he presented to Appellant. Id. at 11. The PCRA court rejected

Appellant’s testimony that she had no intention of pleading guilty without the

assurance of receiving concurrent sentences. PCRA Court Opinion, 3/28/19,

at 14. The record, however, belies this finding.

      In order to demonstrate prejudice, Appellant need only establish a

reasonable probability that she would have gone to trial rather than plead

guilty. Barndt, 74 A.3d at 200. “[T]he reasonable probability standard in

this context is not especially stringent, but requires only a probability sufficient

to undermine confidence in the outcome.” Id. (citations omitted).

      Here, the record demonstrates that Appellant received several plea

offers, including one for the identical length of time, 10 to 20 years, as the

plea offer she ultimately accepted. She rejected all offers involving lengthier

periods of incarceration. Moreover, the only difference between the two offers

with identical terms of imprisonment was that the offer she accepted included

                                         - 15 -
J-S08007-20



the Commonwealth’s promise not to oppose concurrent sentences. Although

the record supports a finding that this was not the only factor Appellant

considered in pleading guilty, it was the factor that swung the pendulum from

non-acceptance to acceptance of the plea offer. The promise, however, was

a false promise, void ab initio, as it constituted a legal impossibility the

Commonwealth, the sentencing court, and Plea Counsel should have known.

The Commonwealth’s extension of this false promise in open court prior to

Appellant’s guilty plea and Plea Counsel’s failure to point out the impossibility

of this promise, together with his statement to Appellant that it “can’t hurt” to

ask for concurrent sentences (N.T., 8/30/18, at 17), established sufficient

probability that Appellant was misled into believing concurrent sentences,

while not guaranteed, were at least a possibility.             The misleading

circumstances surrounding Appellant’s guilty plea, as supported by the record,

combined with counsel’s failure to advise and discuss relevant statutory law,

is sufficient, under the totality of the circumstances, to undermine our

confidence in Appellant’s guilty plea. Therefore, Appellant demonstrated she

was prejudiced by the Commonwealth’s false promise and counsel’s

ineffectiveness. Consequently, we are constrained to conclude that Appellant

did not enter a knowing, voluntary, and intelligent guilty plea.

      Under the circumstances of this case, the PCRA court erred in denying

Appellant’s PCRA petition for failure to demonstrate a claim for ineffective

assistance of trial counsel.    Accordingly, we reverse the order denying




                                     - 16 -
J-S08007-20



Appellant’s PCRA petition, vacate Appellant’s sentence, and remand this case

in order that Appellant may withdraw her guilty plea.

      Order reversed. Judgment of sentence vacated. Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2020




                                     - 17 -
