J-S27039-20

                                   2020 PA Super 169


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JAMES BROWN                                :   No. 3490 EDA 2018

             Appeal from the PCRA Order Entered October 29, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-00083552015


BEFORE:      SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                               FILED JULY 14, 2020

        The Commonwealth of Pennsylvania appeals from the order entered in

the Court of Common Pleas of Montgomery County granting Appellee James

Brown’s first petition for relief under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, which alleged ineffective assistance of counsel

induced him to agree to a negotiated plea deal predicated on an erroneously

inflated prior record score. On appeal, the Commonwealth contends Brown’s

PCRA testimony failed to prove counsel’s negligence prejudiced him, as he

never asserted he would have gone to trial had he known of counsel’s error.

         The transcript of the PCRA evidentiary hearing, however, supports the

PCRA court’s observation that Appellant was prepared to go to trial, as he

testified he would not have accepted the Commonwealth’s revised plea offer—

made three days before trial—if he had known it was based on a guideline
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*   Former Justice specially assigned to the Superior Court.
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miscalculation and did not, therefore, reflect a low-end standard range

sentence as thought. See N.T. 1/2/18, at 31. Finding no reason to disturb

the court’s credibility determinations on this pivotal testimony, we affirm.

      The PCRA court aptly sets forth the facts and procedural history, as

follows:

      On the evening of May 2, 2015, Limerick Township Police officers
      responded to a call at a home in Royersford, Limerick Township,
      Montgomery County, wherein the homeowner had invited some
      friends to watch a boxing match on pay-per-view television. A
      female acquaintance arrived at the victim’s home accompanied by
      her boyfriend, later identified as Brown. At one point during the
      evening Brown pointed a small black revolver at the victim,
      demanding money. Brown then took an Xbox game console and
      a wristwatch owned by the victim and left the victim’s home with
      his girlfriend and another male.

      Limerick Township Police officers filed a criminal complaint against
      Brown on May 4, 2015, and an arrest warrant issued on May 7,
      2015. Officers served the warrant on October 11, 2015. The
      Commonwealth charged Brown with one count each of the
      following crimes:     robbery, felony of first degree; criminal
      conspiracy to commit robbery, felony of first degree; persons not
      to possess firearms, felony of second degree; firearms not to be
      carried without a licenses, felony of third degree; and possession
      of weapon, theft by unlawful taking, receiving stolen property,
      terroristic threats and recklessly endangering another person, all
      misdemeanors.

      On January 20, 2016, George M. Griffith, Jr., Esquire (“Attorney
      Griffith”) entered his appearance on behalf of Brown and promptly
      requested pre-trial discovery from the Commonwealth.[ ] After
      speaking with his client, Attorney Griffith entered into plea
      negotiations with Assistant District Attorney Richard H. Bradbury,
      Jr. (“ADA Bradbury”) on behalf of the Commonwealth utilizing an
      erroneous prior record score of four (4) to formulate the
      sentencing guidelines.
      In February of 2016, ADA Bradbury offered Brown a sentence of
      six and one-half (6 ½) to twenty (20) years in exchange for a


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     guilty plea to robbery, count 1, and a concurrent term of four and
     one-half (4 ½) to twenty (20) years on criminal conspiracy to
     commit robbery, count 2, based upon the erroneously calculated
     guidelines. N.T. 1/2/18, (PCRA hearing) at 6, 13. The sentencing
     guidelines provided a standard range sentence of sixty-six (66) to
     seventy-eight (78) months based upon the incorrect prior record
     score [of 4].      N.T. at 8-9.      Brown did not accept the
     Commonwealth’s initial offer. N.T. at 24, 30. Eventually ADA
     Bradbury offered an aggregate sentence of five and one-half (5
     ½) to eleven (11) years’ incarceration for the pleas, which is at
     the bottom of the erroneously-calculated standard range
     guidelines. N.T. at 13, 23.

     On Monday, August 1, 2016, Brown appeared before [the trial
     court] for the call of the trial list with his trial scheduled for
     Thursday, August 4, 2016. ADA Bradbury put the terms of the
     negotiated plea agreement on the record and Attorney Griffith
     colloquied his client on the witness stand. Brown acknowledged
     that each of the two counts as first degree felonies came with a
     possible sentence of ten to twenty years and a maximum fine of
     $25,000.00 each. Brown also admitted that on May 2, 2015, in
     the presence of his two co-conspirators, Brown pointed a firearm
     at the victim and took property from the victim’s home. N.T.
     8/1/16, (Guilty Plea Hearing), at 6-7, 8-9). [The trial court]
     conducted an additional colloquy of Brown regarding his appeal
     rights and Attorney Griffith’s representation before accepting
     Brown’s negotiated guilty plea and sentenced him accordingly.
     N.T. at 9-17.

     On March 7, 2017, Brown filed his first petition seeking relief
     pursuant to the PCRA. The court appointed Carl M. Knapp, Esquire
     (“Attorney Knapp”) to represent Brown, and Attorney Knapp
     entered his appearance on march 17, 2017. Attorney Knapp filed
     an amended petition on August 16, 2017. The court scheduled
     the PCRA hearing on the petition to address Brown’s claim that
     Attorney Griffith had rendered ineffective assistance of counsel
     when he mistakenly negotiated Brown’s plea deal based upon an
     erroneous prior record score.

     Prior to the PCRA hearing on Monday, January 2, 2018, [the PCRA
     court] met with Assistant District Attorney Adrienne Jappe (“ADA
     Jappe”) representing the Commonwealth and Attorney Knapp to
     discuss, inter alia, the possibility of modifying Brown’s sentence in
     lieu of proceeding with the PCRA hearing. Although Attorney

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     Knapp believed Brown would be willing to renegotiate his sentence
     based on the correct sentencing guidelines and withdraw his PCRA
     petition, ADA Jappe refused to discuss renegotiation.

     The [PCRA court] presided over the PCRA hearing on January 2,
     2018. Attorney Knapp called Attorney Griffith as Brown’s first
     witness. Attorney Griffith candidly admitted that he had made a
     mistake in calculating Brown’s prior record score at a four (4)
     when in actuality it should have been a two (2). N.T. (PCRA
     hearing), 1/2/18, at 6. ADA Jappe stipulated on behalf of the
     Commonwealth that Brown’s prior record score at the time of his
     plea should have been two (2) and not four (4). N.T. at 6-7.
     Attorney Griffith testified that he believed that if he had gone to
     ADA Bradbury with the correct guidelines, he would have been
     able to procure a lower sentence on behalf of Brown given past
     experience and what had already happened in the case. N.T. at
     7, 20.

     Brown also testified at the PCRA hearing on his own behalf. Brown
     testified that he had asked for an aggregated sentence of four (4)
     to (8) years but that ADA Bradbury would not agree. N.T. at 31.
     Brown explained that he would not have taken the deal he agreed
     to if he had known the standard range sentencing guidelines were
     actually fifty-four (54) to sixty-six (66) months using the correct
     prior record score of two (2). N.T. at 31. [The PCRA court] found
     the testimony of both Appellant and Attorney Griffith very
     credible. The court also determined that Appellant made a
     showing of prejudice sufficient to satisfy his burden.

     After thoroughly reviewing the record and the briefs submitted by
     the parties, the [PCRA court] entered an order on October 29,
     2018, granting Brown’s petition, permitting Brown to withdraw his
     guilty pleas and to proceed to trial on all counts in the bills of
     information. The Commonwealth filed a notice of appeal on
     November 27, 2018. In response to the court’s order on the same
     day, the Commonwealth filed its concise statement of matters
     complained of on appeal (“Statement”) on December 17, 2018.

PCRA Court Opinion, 1/8/20, at 2-6.

     The   Commonwealth      presents       the   following   question   for   our

consideration:



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     Whether the trial court erred in granting defendant a new trial on
     the basis of ineffective assistance of trial counsel in connection
     with defendant’ guilty plea where defendant failed to establish that
     his plea was entered involuntarily and unknowingly, and failed
     meet the prejudice prong of the test for ineffectiveness?

Commonwealth’s brief, at 5.

     Our standard of review is well-settled:

     We review an order granting or denying a petition for collateral
     relief to determine whether the PCRA court's decision is supported
     by the evidence of record and free of legal error.
     Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016)
     (citing Commonwealth v. Fears, 624 Pa. 446, 86 A.3d 795, 803
     (2014)). We will not disturb the findings of the PCRA court unless
     there is no support for those findings in the record.
     Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

     ...

     [In reviewing ineffective assistance of counsel claims,] [w]e
     presume counsel is effective. Commonwealth v. Cox, 603 Pa.
     223, 983 A.2d 666, 678 (2009). To overcome this presumption,
     “a PCRA petitioner must show the underlying claim has arguable
     merit, counsel's actions lacked any reasonable basis, and
     counsel's actions prejudiced the petitioner.” Commonwealth v.
     Escobar, 70 A.3d 838, 841 (Pa. Super. 2013) (citing
     Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 678
     (2009)). “Prejudice means that, absent counsel's conduct, there
     is a reasonable probability the outcome of the proceedings would
     have been different.” Id. A claim will be denied if the petitioner
     fails to meet any one of these prongs. See Jarosz, 152 A.3d at
     350 (citing Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d 409,
     419 (2009)).

     “[A] criminal defendant's right to effective counsel extends to the
     plea process, as well as during trial.” Wah, 42 A.3d at 338
     (citations omitted).       Under the PCRA, “[a]llegations of
     ineffectiveness in connection with the entry of a guilty plea will
     serve as a basis for relief only if the ineffectiveness caused [the
     petitioner] to enter an involuntary or unknowing plea.” Fears, 86
     A.3d at 806–07 (citation omitted). “Where the defendant enters
     his plea on the advice of counsel, the voluntariness of the plea

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      depends on whether counsel's advice was within the range of
      competence demanded of attorneys in criminal cases.” Wah, 42
      A.3d at 338-399 (citations omitted).

      “[T]o establish prejudice, the defendant must show that there is
      a reasonable probability that, but for counsel's errors, he would
      not have pleaded guilty and would have insisted on going to trial.”
      Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)
      (citations and internal quotation marks omitted). This is not a
      stringent requirement. Id. The reasonable probability test refers
      to “a probability sufficient to undermine confidence in the
      outcome.” Id. (citations omitted).

Commonwealth v. Velazquez, 216 A.3d 1146, 1149–50 (Pa.Super. 2019).

      The Commonwealth asserts that the PCRA court should not have

granted relief because Brown failed to establish either that his plea was

involuntary and unknowing or that counsel’s ineffectiveness caused him

prejudice.    With respect to the voluntariness of Brown’s plea, the

Commonwealth argues that Brown entered his plea knowingly, intelligently,

and voluntarily, as the record is undisputed that he had the benefit of a written

and oral plea colloquy. In his written colloquy, the Commonwealth maintains,

Brown indicated that no one forced him to plead guilty, no threats or promises

had been made to him in connection with his guilty plea, and that he was

pleading of his own free will.     Moreover, during Brown’s oral colloquy, the

Commonwealth continues, he was informed of the maximum penalties—20

years’ incarceration and a $250,000.00 fine—he was facing for each offense

to which he was pleading guilty.

      We note, however, that at the PCRA hearing, the Commonwealth

conceded that Brown’s ineffective assistance of counsel claim raised an issue



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of arguable merit and that plea counsel had no reasonable basis for advising

Brown as he did.     See N.T. at 35-36.     Therefore, as the Commonwealth

centered its argument solely on whether counsel’s ineffectiveness prejudiced

Brown, we confine our review to the Commonwealth’s prejudice prong

argument.

      In Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002),

on which the PCRA court relied to grant relief in the instant case, the defendant

pleaded guilty in reliance on plea counsel’s erroneous advice that he would be

eligible for boot camp when, in fact, the length of his sentence statutorily

precluded the possibility of his participation in boot camp.     The defendant

sought PCRA relief, asking to withdraw his plea based on ineffective assistance

of counsel.

      We concluded that counsel’s erroneous advice fell below the standard

of competence required by the Sixth Amendment, that there was no

reasonable basis designed to advance the defendant’s interests, and that the

erroneous advice prejudiced defendant because it enticed him to plead guilty

when he would not have otherwise done so.

      With specific regard to the prejudice prong, we found prejudice where

the defendant established it was reasonably probable that he would not have

pled guilty had he known he was really not eligible for boot camp. Id. at 141–

42. We were persuaded by two factors: first, that the PCRA court did not

doubt the defendant's or plea counsel's credibility; and, second, that had he

gone to trial, he would have only been risking one additional year of

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incarceration on his minimum sentence.             Id.    Accordingly, counsel's

constitutionally deficient advice caused the defendant's plea to be involuntary

and unknowing. Id. at 142.

      Here, the Commonwealth’s prejudice prong argument emphasizes the

fact that Brown’s sentence exposure by electing to go to trial was considerably

greater than that faced by the defendant in Hickman, for Brown faced

charges of robbery and criminal conspiracy—two first degree felonies carrying

maximum sentences of 20 years’ incarceration each—as well as several gun

charges with maximum sentences of 10 years.

      This Court, however, has applied Hickman despite a defendant’s

prospect of receiving a significantly greater sentence in a losing trial bid where

the record supports the PCRA court’s credibility determination that the

defendant would not have accepted the plea offer had he possessed accurate

information about the nature and duration of his sentence.

      In Commonwealth v. Rathfon, 899 A.2d 365 (Pa.Super. 2006), the

Commonwealth appealed from a PCRA order allowing the petitioner to

withdraw his guilty plea where plea counsel ineffectively failed to advise him

that he would not be able to serve his 9 to 18 month agreed-upon sentence

in county jail as negotiated. Specifically, after sentencing, it was discovered

that petitioner’s sentence would be aggregated consecutively to a state prison

sentence he was currently serving on unrelated crimes, thereby making him

statutorily ineligible to serve his sentence in the county jail.




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      We held the record supported the PCRA court's determination that there

existed a reasonable probability petitioner would not have pleaded guilty if he

had known he was ineligible to serve his sentence in county jail. We reached

this decision even after acknowledging that petitioner’s awareness of a

possible five year sentence flowing from an adverse jury verdict allowed for

the conclusion that he would have pleaded guilty anyway:

      We emphasize that our standard of review requires that we grant
      great deference to the trial court and affirm its orders if supported
      by the record, even though the record may support a contrary
      result. Indeed, this is a situation where the record could support
      a contrary result. Arguably, we could conclude that, even if
      Rathfon knew that the entire sentence would be served in a state
      prison, he still would have pled guilty because of the other benefits
      of his bargain, i.e., the indecent assault charge was nol prossed,
      his prior record score was decreased from 5 to 4, and he risked a
      maximum of five years' incarceration had he gone to trial whereas
      the recommended maximum in his plea agreement was 1 ½ years.
      However, we cannot ignore the fact that the record reveals that
      Rathfon bargained for a county sentence, that the court accepted
      the plea and sentenced Rathfon under the continuing
      misapprehension that the sentence would be served in the county
      jail, and that plea counsel was apparently not aware that the
      Sentencing Code and DOC policy would result in aggregation of
      the sentences, which would preclude the possibility of Rathfon
      serving the sentence in the county jail. Additionally, it is within
      the province of the PCRA court to make credibility determinations,
      and it apparently believed Rathfon when he testified at the PCRA
      hearing that he would not have pled guilty had he known the
      sentence would be served in state prison.

Rathfon, 899 A.2d at 370–71.

      Similarly, in the case sub judice, the PCRA court determined that Brown

had not received the benefit of his bargain where he had rejected an offer at

the high end of the standard range, held out for a plea offer at the bottom of


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the standard guideline range, and received it, only to learn after sentencing

that the applicable guideline range was twelve months lower than what

counsel had advised. In reaching this determination, the PCRA court deemed

credible Brown’s testimony that he would not have accepted the plea offer,

which was really at the top of the applicable guideline range, had he known

the offer was based on an inflated prior record score and miscalculated

guideline range. N.T. 1/2/18, at 31.

      The record in this regard supported the court’s determination where

Brown had rejected the Commonwealth’s prior offers at the top of the standard

range and was just three days from trial when the Commonwealth extended

a new offer at the bottom of the presumed standard range. As in Rathfon,

furthermore, the court made this credibility determination knowing that Brown

was aware he faced a significantly greater sentence if he elected to go to trial,

which would allow for a contrary inference.

      Viewing the present facts with the understanding it is petitioner’s burden

to show a “reasonable probability” that he would have rejected the plea offer

and gone to trial had he possessed accurate information—a standard this

Court has identified as “not stringent,” we cannot say the PCRA court abused

its discretion in granting PCRA relief, vacating judgment of sentence, and

setting a new trial date on the original charges. Accordingly, we affirm the

order entered below.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2020




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