J-S60038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONALD DRAYTON                             :
                                               :
                       Appellant               :   No. 191 MDA 2019

             Appeal from the PCRA Order Entered January 29, 2019
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0004335-2015


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                         FILED JANUARY 02, 2020

        Ronald Drayton (Drayton) appeals from a January 29, 2019 order of the

Luzerne County Court of Common Pleas (PCRA Court) dismissing his petition

filed pursuant to the Post Conviction Relief Act (PCRA). 1 Drayton contends

that he involuntarily entered a guilty plea due to his counsel’s misadvice that

he would not be subject to state incarceration or parole. We find merit in this

claim and reverse the order on review so that Drayton may have the

opportunity to withdraw his plea.




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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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                                               I.

       Drayton was charged with eight criminal counts in state court stemming

from a shooting in Wilkes-Barre, Pennsylvania, on July 10, 2015.2 At the time

of that incident, Drayton was on federal pretrial release. Drayton absconded

to New York after the Wilkes-Barre shooting. Federal authorities in New York

took him into custody on September 14, 2015.          On February 23, 2017,

Drayton pled guilty in his federal case and received a prison term of 57

months, followed by three years of supervised release.

       At state court proceedings on May 5, 2017, Drayton agreed to plead

guilty to one of the eight counts – carrying a firearm without a license. During

the plea colloquy, Drayton confirmed that he and plea counsel had discussed

all the conditions of the plea. He also testified that plea counsel told him he

would serve out the maximum range of his state sentence while still being

held in federal custody on his federal sentence. See Transcript of Sentencing

Proceedings, 5/5/2017, at 7.

       The Commonwealth responded that it had not agreed to have Drayton

serve his prison sentence in purely federal custody. Id. at 8. Plea counsel


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2 In state court, Drayton was charged with the following offenses: (Count 1)
Persons not to possess, use, manufacture, control, sell or transfer firearms
(18 Pa.C.S. § 6105(a)(1)); (Count 2), Firearms not to be carried without a
license (18 Pa.C.S. § 6106(a)(1)); and (Counts 3-8) Recklessly endangering
another person (18 Pa.C.S. § 2705).




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then explained its assumption that the length of the federal sentence (57

months, followed by a three-year period of supervised release) would

necessarily exceed the 48-month maximum range of the state sentence. Id.

The Commonwealth agreed with defense counsel’s assessment and the trial

court also assumed that “federal prison would be where he would serve.” Id.3

The trial court advised that it was “between the federal penitentiary and the

state prison” as to where Drayton would be housed until the federal term

concluded. Id. Drayton did not ask any further questions, assuring the trial

court that he understood the parameters of his prospective sentence after

conferring with counsel. Id. at 9.

       The trial court accepted Drayton’s plea and imposed a term of 24-48

months, to be served concurrently with the federal sentence. The trial court

then addressed for the first time whether any credit for pretrial time served

would be awarded as to Drayton’s state sentence. Plea counsel argued that

since the federal term was concurrent, Drayton must receive credit for all time

spent in federal custody – about 20 months.




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3 The signed plea agreement provided that the Commonwealth would agree
to dismiss the remaining seven counts, and that it would not oppose Drayton’s
request to have the state sentence run concurrently with his federal term.
The agreement acknowledged that the sentencing court was not bound by any
promise by the prosecution, and that Drayton had not been guaranteed a
specific length of sentence.


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      The trial court rejected plea counsel’s argument, ruling as a matter of

law that Drayton could receive no credit on his state sentence for time served

on the federal case. See id. at 23-24. Yet the trial court also remarked that

the issue of credit time on the state sentence would be immaterial because

with or without it, Drayton would complete the state sentence while still

serving his federal term: “Again, I’m not sure how it matters. I’m giving him

. . . 24 months, but he’s got to serve 57 months federally anyway. The 24

months, all of this is going to run out; and he’s still going to be in jail on his

federal sentence.” Id. at 23. Plea counsel seemed to agree that Drayton’s

time in federal custody would exceed the state sentence regardless of credit

time. Id.

      Drayton did not timely appeal or file post-sentence motions, but on May

30, 2018, he filed a pro se petition for PCRA relief alleging that counsel’s

ineffectiveness rendered his guilty plea involuntary.        PCRA counsel was

appointed to represent [Drayton] and a supplemental PCRA petition was filed

on December 11, 2018. A PCRA hearing was held on January 29, 2019.

      Drayton argued at the hearing that he pled guilty to a state charge

because his counsel had guaranteed that if the trial court ran his state

sentence concurrently with the federal sentence, he would serve the entirety

of the state sentence in a federal facility:

      The way it was explained to me by [plea counsel] . . . was that he
      had an agreement with the prosecutor to run the state sentence
      that I received concurrent with my federal sentence . . . [M]y
      interpretation was that he meant that the state sentence would

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      be less than what I received in the federal sentence. And that
      those two sentences would run concurrent, and that I
      would receive time for the time that I spent in the county
      facility, and that I would only serve the time in a federal
      institution.

                                       ....

      On November 1, 2019, according to the federal authorities,
      I’ll be released. Thereupon, I’ll be picked up by the
      sheriff’s office, transported to a county facility to be then
      transported to a state facility to be processed and then to
      have to wait to see the parole board and then have to be
      granted release from the parole board in the state.

Transcript of PCRA Hearing, 12/29/2019, at 9-10. (Emphases added).

      Nothing in the record contradicted Drayton’s account of what plea

counsel advised him. Drayton’s testimony was consistent with a letter his plea

counsel sent him on October 5, 2016, in which counsel promised that the

prosecutor of his state case had agreed to give him “less time in [his] state

case than [his] federal case so that [he] will never serve any time in a state

prison nor ever be on state parole.”

      As of the date of his plea, Drayton had accrued credit time on his federal

case from September 14, 2015, to May 5, 2017. He has also accrued 223

days of credit for good behavior. Due to those credits, Drayton’s supervised

release on his federal sentence is scheduled to begin on November 1, 2019,

and had plea counsel’s advice been true, he would be out of both state and

federal custody on that date. But as a result of plea counsel’s miscalculation,




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Drayton will go into state custody and possibly parole for up to a year-and-a-

half once the federal prison term concludes.4

       The PCRA court denied Drayton’s petition to withdraw his plea and he

appealed. Both Drayton and the PCRA court complied with Pa.R.A.P. 1925.

Drayton contended in his 1925(b) statement that plea counsel misadvised

“that he would not serve any time in state prison.”       1925(b) Statement,

3/21/2019, at ⁋ 3.

       In its Rule 1925(a) opinion, the PCRA court stated that Drayton had

acknowledged prior to his plea that he had not been guaranteed his federal

term would exceed his state sentence. See 1925(a) Opinion, 5/24/2019, at

5. The PCRA court did not address Drayton’s related but separate claim that

plea counsel had misadvised that if he received a state sentence in the

standard range concurrent with the federal term, he would complete the state

sentence before the federal term expired.

       In his brief, Drayton raises two issues which we combine and rephrase

as follows:

       Did counsel’s misadvice regarding the consequences of Drayton’s
       plea render the plea involuntary?

Appellant’s Brief, at 3.



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4 Drayton has already served the minimum range of his state sentence (24
months), and it is possible he will be granted parole in the state system prior
to the end of the maximum range of 48 months, which falls on May 5, 2021.


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                                      II.

                                        A.

      “The law presumes counsel has rendered effective assistance.”

Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa. Super. 2018).                To

prevail on such a claim, a PCRA petitioner must demonstrate, “by a

preponderance of the evidence, ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” Id. at 1023 (citation omitted).

      The petitioner must demonstrate that: “(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. Grove, 170 A.3d 1127, 1138

(Pa. Super. 2017) (citation omitted).        “The petitioner bears the burden of

proving all three prongs of the test,” and the failure to prove any single prong

is fatal to an ineffectiveness claim.        Postie, 200 A.2d at 1023 (citation

omitted).

      “Claims of counsel’s ineffectiveness in connection with a guilty plea will

provide a basis for relief only if the ineffectiveness actually caused an

involuntary or unknowing plea.” Commonwealth v. Brown, 48 A.3d 1275,

1277-78 (Pa. Super. 2012). Even if counsel misadvised a defendant in some


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respect, a defendant must still show prejudice by establishing “a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.”    Hill v. Lockhart, 474 U.S. 52, 59

(1985).

      To establish the prejudice prong of an ineffectiveness claim in the

context of a plea, a defendant bears a light burden:

      “The ‘reasonable probability’ test is not a stringent one.”
      [Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super.
      2002)]. The Court in Hickman derived this standard from Nix v.
      Whiteside, 475 U.S. 157, 175 (1986), which held that “[a]
      reasonable probability is a probability sufficient to undermine
      confidence in the outcome.”

Commonwealth. v. Rathfon, 899 A.2d 365, 369–70 (Pa. Super. 2006)

(some citations omitted).

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

                                      B.

      Drayton is entitled to withdraw his plea because his counsel misadvised

him as to whether he would be subject to state incarceration and state parole

on a standard range state sentence made concurrent to a 57-month federal

term. At the plea colloquy, Drayton stated that he was entering a plea based

on the promise that he “wouldn’t serve any time in a state penitentiary.”

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Transcript of Sentencing Proceedings, 5/5/2017, at 5.           Drayton will

nevertheless be subjected to incarceration in a state penitentiary and state

parole as a result of his plea.

       The Commonwealth argues that Drayton’s PCRA claim fails because no

sentence was ever guaranteed in exchange for a plea; Drayton received a

concurrent term within the statutory guidelines; and several state charges

were dismissed pursuant to the plea agreement. To the extent Drayton seeks

PCRA relief based merely on the length of his state sentence, the

Commonwealth is correct that such a claim has no merit.5

       However, the meritorious basis of Drayton’s ineffectiveness claim

concerns not the length of the state sentence imposed, but rather the

unfulfilled promise that Drayton would never serve any portion of the state

sentence in state custody or on state parole after the federal prison term had

concluded.     Plea counsel, the prosecution and the trial court mistakenly

assumed that the 57-month federal term would exceed a standard range state

sentence if imposed concurrently. Due to credits awarded as to the federal

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5 Drayton apparently concedes this point on appeal, stating in his brief that
Pennsylvania law precludes the application of federal credit time to his state
sentence. See Appellant’s Brief, at 10 (arguing that trial counsel was
ineffective in this respect because “when time served is credited to one
sentence it cannot also be credited to a second sentence”) (citing 42 Pa.C.S.
§ 9760; see also Commonwealth v. Merigris, 681 A.2d 194 (Pa. Super.
1996) (holding the time accrued toward a federal sentence cannot be applied
to a state sentence).




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sentence and a lack of pretrial confinement credit as to the state sentence,

the latter term will not conclude until about a year-and-a-half after the federal

prison term is over.6

       The mistaken assumption of plea counsel, the prosecution and the trial

court made a plea much more attractive to Drayton because it would have

allowed him to avoid state prison and state parole once the federal sentence

concluded. This factor weighed heavily in Drayton’s decision to plead guilty,

yet as matters now stand, Drayton will not receive the benefit of that bargain.

       Consequently,       Drayton     has     satisfied   all   three   elements    of

ineffectiveness. Defense counsel’s advice was legally unsound and devoid of

any reasonable basis designed to effectuate Drayton’s interests.                    See

Hickman, 799 A.2d at 141. This unsound advice prejudiced Drayton because

it subjected him to a period of state prison and state parole that he did not



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6 The dissent would find that Drayton was fully informed of his plea terms
because (a) the Commonwealth denied that it had agreed to allow Drayton to
serve all of his time in a federal prison, and (b) the written colloquy provided
that he would not be guaranteed any particular sentence. However, even
though Drayton was advised that any legal term could be imposed, the record
is clear that the trial court, the Commonwealth, and defense counsel all
incorrectly believed that he could not serve time in a state facility because the
state term would conclude prior to the end of the federal sentence. As
discussed above, a moment after clarifying the terms of the plea agreement,
the Commonwealth confirmed defense counsel’s understanding that “federal
prison would be where he would serve.” See Transcript of Sentencing
Proceedings, 5/5/2017, at 8. It is precisely this understandable confusion –
between what the Commonwealth agreed to contractually and what the
Commonwealth said would happen – that supports Drayton’s claim of an
involuntary plea.

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bargain for or expect. Finally, there is a reasonable probability that Drayton

would not have entered his plea had he known of his exposure to state prison

and state parole.

      Because he has established that his counsel was ineffective and the

record does not support the PCRA court’s findings, Drayton is entitled to

withdraw his plea. See id. at 143 (plea involuntary due to counsel’s misadvice

that defendant was eligible for boot camp program when defendant was in

fact ineligible); see also Barndt, 74 A.3d at 198 (“[W]e repeatedly have held

that erroneous legal advice by counsel regarding the consequences of a plea

. . . may constitute a basis for PCRA relief. Appellant alleges that he was given

such advice.”); Rathfon, 899 A.2d at 371 (“[W]e conclude that the record

supports the PCRA court’s determination that there was a reasonable

probability that Rathfon would not have pled guilty had he known that he

would not have been able to serve the sentence in a county facility.”).

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Stabile joins the memorandum.

      Judge Shogan files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/02/2020

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