J-S41024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MAURICE D. HARPER                          :
                                               :
                       Appellant               :   No. 1869 EDA 2017

                    Appeal from the PCRA Order May 31, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0007104-2012


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 28, 2018

        Appellant, Maurice D. Harper, appeals from the order entered on May

31, 2017, dismissing his petition for relief filed under the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We vacate and remand.

        On July 23, 2015, Appellant pleaded nolo contendere to aggravated

assault, as a felony of the second degree.1         In exchange for the plea, the

Commonwealth agreed to recommend a sentence of two and one-half to five

years in prison, with the sentence to be served “concurrent with existing

sentence,” and with Appellant receiving credit for time served.              See

Appellant’s Written Plea Form, 7/23/15, at 1; see also N.T. Plea Hearing,

7/23/15, at 6 and 20.




____________________________________________


1   18 Pa.C.S.A. § 2702(a).
____________________________________
* Former Justice specially assigned to the Superior Court.
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      The trial court accepted Appellant’s plea and then sentenced him in

accordance with the Commonwealth’s recommendation. Specifically, the trial

court sentenced him as follows:

        I will give you the sentence of [two and one-half] to five
        [years] to run concurrent with any sentence you’re currently
        serving. You have credit for time served. The court will
        recommend release at the minimum provided [Appellant] has
        complied with, you know, all the rules of the Department of
        Correction[s] in terms of, you know, good behavior while in
        prison.

N.T. Plea Hearing, 7/23/15, at 22 (some internal capitalization omitted).

      Appellant did not file a direct appeal from his judgment of sentence.

      On October 10, 2015, Appellant filed the current, timely PCRA petition.

Within the petition, Appellant claimed that he was entitled to post-conviction

collateral relief because:   his trial counsel was ineffective for erroneously

inducing his plea and his “plea of nolo contendere was unlawfully induced

where the circumstances make it likely that the inducement caused

[Appellant] to plea[d] nolo contendere and he is innocent.” Appellant’s Pro

Se PCRA Petition, 10/10/15, at 1 and 11.      Specifically, Appellant claimed,

during the plea hearing, his counsel was ineffective and the trial court judge

unlawfully induced his plea when they assured Appellant that “he [has] over

[three] years [of] time served already” on his aggravated assault charge –

and, that if he pleaded nolo contendere to aggravated assault, the three years

of time-served “would place him over his minimum [sentencing term] date.”

Id. at 11.   As Appellant claimed, he is innocent of the aggravated assault,



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but pleaded nolo contendere to the charge because of the trial court’s (and

his counsel’s) assurances that his credit for time-served placed him over his

minimum sentencing term. See id. at 2-6 and 11. Appellant claimed that he

did not receive the benefit of his plea bargain and, “[o]n September 1, 2015[,

Appellant] was informed by the Department of Correction[s] that he was not

credited [with the amount of] time served as agreed [upon] by all parties.”

Id. at 11.

       Appellant then filed a pro se amended PCRA petition, where he more

clearly explained that he was innocent of the charges against him.        See

Appellant’s Pro Se Petition for Jail Credit for Time Served, 11/3/15, at 1. In

particular, Appellant claimed, the complainant in this case actually assaulted

him, and Appellant only “confronted his attacker in self-defense.” See id.

       The PCRA court appointed counsel to represent Appellant and counsel

filed an amended petition on Appellant’s behalf.     Amended PCRA Petition,

7/7/16, at 1-8. The amended petition again declared that Appellant’s trial

counsel was ineffective for falsely “assur[ing Appellant that] he would get the

time credit in question” and that Appellant was entitled to relief because his

guilty plea was unlawfully induced.2 Id. at 7.
____________________________________________


2 Appellant attached a document to his amended petition titled “Credit Time
Review for State Inmates.” It declares the Director of the Philadelphia County
Prison calculated that Appellant was entitled to approximately 60 days of
credit for time served on his aggravated assault sentence. Credit Time Review
for State Inmates, dated 9/28/15, attached as Exhibit “A” to Appellant’s
Amended PCRA Petition, at 1. Further, as the Commonwealth explains in its



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       On March 6, 2017, the PCRA court notified Appellant that it intended to

dismiss his petition in 20 days, without holding a hearing. PCRA Court Notice,

3/6/17, at 1; see also Pa.R.Crim.P. 907(1). The PCRA court finally dismissed

Appellant’s petition on May 31, 2017 and Appellant filed a timely notice of

appeal. PCRA Court Order, 5/31/17, at 1.

       Appellant numbers two claims on appeal:

         [1.] Whether the [PCRA] court erred in denying Appellant’s
         PCRA petition without an evidentiary hearing on the issues
         raised in the amended PCRA petition regarding trial counsel’s
         ineffectiveness[?]

         [2.] Whether the [PCRA] court erred in not granting relief on
         the PCRA petition alleging trial counsel was ineffective[?]

Appellant’s Brief at 8 (some internal capitalization omitted).

       To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence



____________________________________________


brief, the remainder of Appellant’s time-served was credited towards a
separate sentence for possession with the intent to deliver (“PWID”). As the
Commonwealth explains:

         [Appellant] was sentenced for the PWID case about three
         months before his plea and sentence in this case. He
         received credit for time served on the PWID case reaching
         back to December 7, 2012. Because that time was credited
         to his PWID sentence, [Appellant] cannot also get credit for
         it on his aggravated assault sentence.

Commonwealth’s Brief at 12 n.2.




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resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). The two at issue here are:

         (ii) 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.

         (iii) A plea of guilty unlawfully induced where the
         circumstances make it likely that the inducement caused the
         petitioner to plead guilty and the petitioner is innocent.

42 Pa.C.S.A. § 9543(a)(2)(ii) and (iii).3

       As to Appellant’s ineffective assistance of counsel claim, we note that

counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead

and prove by a preponderance of the evidence that:

         (1) his underlying claim is of arguable merit; (2) the
         particular course of conduct pursued by counsel did not have
         some reasonable basis designed to effectuate his interests;
         and, (3) but for counsel’s ineffectiveness, there is a
         reasonable probability that the outcome of the challenged
         proceedings would have been different.




____________________________________________


3 Although Appellant pleaded nolo contendere to the aggravated assault
charge, we note “[i]t is well established that a plea of nolo contendere is
treated as a guilty plea in terms of its effect upon a given case.”
Commonwealth v. V.G., 9 A.3d 222, 226 (Pa. Super. 2010); see also
Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super. 2004) (“in terms
of its effect upon a case, a plea of nolo contendere is treated the same as a
guilty plea”).


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Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).             “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

      We also note that “[a] criminal defendant has the right to effective

counsel during a plea process as well as during trial.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).                 Yet, where the

ineffectiveness of counsel is claimed in connection with the entry of a plea, a

petitioner may only obtain relief where “counsel’s deficient stewardship

resulted in a manifest injustice, for example, by facilitating [the] entry of an

unknowing, involuntary, or unintelligent plea.” Commonwealth v. Moser,

921 A.2d 526, 530 n.3 (Pa. Super. 2007) (en banc) (internal citations and

quotations omitted). As we have explained:

        once a defendant has entered a plea of guilty [or nolo
        contendere], it is presumed that he was aware of what he
        was doing, and the burden of proving involuntariness is upon
        him. Therefore, where the record clearly demonstrates that
        a [] plea colloquy was conducted, during which it became
        evident that the defendant understood the nature of the
        charges against him, the voluntariness of the plea is
        established.


Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal

quotations, citations, and corrections omitted), quoting Commonwealth v.

Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994).         To prove prejudice, the

“defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty [or nolo contendere] and



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

(1985).

      As to the entry of a plea, our Supreme Court has held:

          In order for a guilty [or nolo contendere] plea to be
          constitutionally valid, the [] plea colloquy must affirmatively
          show that the defendant understood what the plea connoted
          and its consequences. This determination is to be made by
          examining the totality of the circumstances surrounding the
          entry of the plea. Thus, even though there is an omission or
          defect in the [] plea colloquy, a plea of guilty [or nolo
          contendere] will not be deemed invalid if the circumstances
          surrounding the entry of the plea disclose that the defendant
          had a full understanding of the nature and consequences of
          his plea and that he knowingly and voluntarily decided to
          enter the plea.

Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014) (internal

quotations and citations omitted).

      Finally, a PCRA petitioner is not automatically entitled to an evidentiary

hearing on his petition. A PCRA petition may be dismissed without a hearing

if the PCRA court “is satisfied from [its review of the petition] that there are

no genuine issues concerning any material fact and that the [petitioner] is not

entitled to post-conviction collateral relief, and no purpose would be served

by any further proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA

petition raises material issues of fact, the PCRA court “shall order a hearing.”

Pa.R.Crim.P. 908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision

to dismiss a petition without a hearing, an appellant must show that he raised

a genuine issue of fact which, if resolved in his favor, would have entitled him

to relief, or that the court otherwise abused its discretion in denying a


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hearing.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (internal

quotations and citations omitted).

      According to Appellant, he is entitled to relief – or, at least an evidentiary

hearing – on his unlawful inducement and ineffective assistance of counsel

claims. As to the former claim, Appellant contends that his plea was unlawfully

induced by the trial court because the trial court essentially assured Appellant

that, if Appellant pleaded nolo contendere to aggravated assault, Appellant

would receive three years of credit for time-served. Appellant claims that,

since he did not receive the promised credit and since he is innocent of the

aggravated assault, he is entitled to relief under the PCRA. In the same vein,

Appellant contends that his trial counsel was ineffective for advising him to

take the plea when he was not entitled to the promised credit and for also

“assur[ing] him he would get the time credit in question.” See Appellant’s

Amended PCRA Petition, 7/7/16, at 1-7. Appellant writes:

        At many instances during the July 23, 2015 [] plea
        hearing[, Appellant] was assured that the nolo contendere
        plea he was entering [] would entitle him to immediate
        release on time served. Both his trial counsel [and the trial
        court judge] made [Appellant] believe that he had sufficient
        time served and that a recommendation from the [trial] court
        to release him at minimum time served (2.5 years) would
        allow him to put this whole ordeal behind him immediately.
        As the record shows, he relied on these promises, to his
        detriment, and subsequently entered into an unlawful plea.

                                       ...

        Appellant continually asserted his innocence to both his trial
        counsel and the [trial] court. However, due to the inducing
        acts and coercive nature of both forces upon [Appellant], he

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        was unlawfully induced to plead guilty to a charge based upon
        facts to which he did not consent.

Appellant’s Brief at 11 and 15-16 (some internal capitalization omitted).

      We conclude that the PCRA court erred when it dismissed Appellant’s

PCRA petition without holding an evidentiary hearing because Appellant raised

a genuine issue of material fact that “the ineffective assistance of counsel

caused [Appellant] to enter an involuntary or unknowing plea” and that his

plea was “unlawfully induced where the circumstances make it likely that the

inducement caused [Appellant] to plead [nolo contendere] and [Appellant] is

innocent.” 42 Pa.C.S.A. § 9543(a)(2)(ii) and (iii).

      On July 23, 2015, Appellant appeared before the trial court and the trial

court explained to Appellant the Commonwealth’s plea offer. The notes of

testimony reflect the following (with special emphasis placed on the trial

court’s seeming assurances to Appellant that, if he pleaded nolo contendere

to aggravated assault, he would receive years of credit on that sentence for

time already served):

        [Trial Court]: So I said[, Commonwealth,] sweeten the deal,
        do something. Like, let’s get rid of this. Right? Let’s try to
        negotiate. What’s your last final best offer? And [the
        Commonwealth] will withdraw prosecution on [a separately-
        filed robbery charge] if you take a deal on the [aggravated]
        assault. It’s currently an F-1.

        [Commonwealth]: Yes.

                                     ...

        [Trial Court]: Take that off the table. Lower it to a felony of
        the second degree where it’s not a strike and it’s not gonna
        impact your future in terms of, you know, being a third strike

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       if you get arrested again. That wouldn’t be the case. I’m
       just saying. It would be a felony of the second degree. They
       would offer you two and a half to five. You could plead no
       contest and it would be concurrent with your current
       situation.

       [Appellant]: And it’s just, and the robbery charge is gone[?]

       [Trial Court]: Gone, never to come back.

       [Appellant]: All right. I agree.

       [Trial Court]: All right.   Go over the paperwork with your
       lawyer.

       [Appellant]: All right.

       [Trial Court]: And ask whatever questions you need to.

       [Appellant]: What’s the catch to it, though?

       [Trial Court]: It sounds a little too good to be true, right?

       [Appellant]: Yeah. It’s always a catch.

       [Trial Court]: You know what? . . . [T]hey don’t want to take
       a chance at getting flat-out not guilty. They’re willing to
       tweak it and bring it down. So I don’t know that there’s a
       catch. You know, it’s two and a half to five. There’s no
       probation, right?

       [Commonwealth]: Right.

       [Trial Court]: Just flat two and a half to five running
       concurrent with your current sentence. What’s your
       other sentence?

       [Appellant]: Two to five.

       [Trial Court]: Two to five. So, okay. So you may not get
       out right away but you might. You might have to do
       another six months to get to two and a half.

       [Appellant]: Question.

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       [Trial Court]: You’ll get credit. But you may have credit
       from prior to that other one, so.

       [Appellant]: You looked at the circumstances of the
       charges?

       [Trial Court]: Yeah. Look, at the end of the day –

       [Appellant]: I just want you to know the circumstances of it.

                                    ...

       [Appellant]: Is there a catch?

       [Commonwealth]: I mean, as far as F-2 aggravated assault,
       it’s two and a half to five.

       [Appellant]: Could this just be with time served so it won’t
       interfere with?

       [Trial Court]: The problem is if you do it that way it gets too
       convoluted and you can’t do time served to five years
       because they don’t know what your minimum is then.

       [Appellant]: Yeah, see.

       [Trial Court]: So that’s why I’m gonna make it
       concurrent, though. Do you know what I’m saying?
       Like, that’s why I’m saying concurrent, credit for time
       served. And that's why, [Appellant], -- listen to me -- when
       that public defender raised your bail he did you a favor,
       because if he didn't raise your bail you wouldn't get
       any time credit and you would be doing two and a half
       to five starting today if you had made bail on that case.
       Do you understand what I'm saying? But because they
       raised your bail, they sort of took care of you because
       now you've got two and a half years in probably. How
       long have you been in?

       [Appellant]: Almost three, over three years.

       [Trial Court]: There you go. Now you got credit for all
       that time, whereas if he didn't raise your bail you would not

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        be getting credit and this wouldn't be a conversation we'd be
        having. Now it's like it's over. It's literally going to be
        over. I don't know. It's an F-2. It's, you know, not that
        serious.

        [Appellant]: I just want to go home. I want to get this
        behind me. I just want to go home as long as there's
        no catches.

        [Trial Court]: I don't see a catch. The only catch I could
        think of is somehow it has some effect on your parole
        date.

N.T. Plea Hearing, 7/23/15, at 5-11 (emphasis added).

      A fair reading of the above reveals that the trial court judge told

Appellant that she “looked at the circumstances of the charges” and assured

Appellant that he was entitled to approximately three years of credit for time

served on any aggravated assault sentence. The judge then told Appellant

that, since the plea deal called for a two and one-half to five-year term on the

aggravated assault charge (with a recommendation that Appellant only serve

the minimum term), the three years of credit for time-served meant that, if

Appellant agreed to the deal, Appellant’s aggravated assault term of

imprisonment was “over. It's literally going to be over.” Id. Appellant claims

that he entered his plea based upon the trial court’s false assurances regarding

the credit for time served.

      Given the trial court’s language during the plea hearing, Appellant’s

claim raises a genuine issue of material fact as to whether Appellant

“understood what the plea connoted and its consequences” because, it

appears, the trial court falsely assured Appellant that, if he agreed to the deal,



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he would be entitled to three years of credit for time served on the sentence.

See Eichinger, 108 A.3d at 832 (internal quotations and citations omitted).

Further, since Appellant also claims that he is innocent of the aggravated

assault, Appellant has raised a genuine issue of material fact as to whether

his plea was “unlawfully induced where the circumstances make it likely that

the inducement caused [Appellant] to plead [nolo contendere] and [Appellant]

is innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii). The PCRA court thus erred when

it dismissed this claim without holding an evidentiary hearing.

      In like fashion, we conclude that the PCRA court erred when it dismissed

Appellant’s ineffective assistance of counsel claim without holding an

evidentiary hearing. To be sure, Appellant’s counsel was present during the

entire plea hearing and counsel presumably heard the trial court inform

Appellant that he was entitled to years of credit for time served on the ensuing

sentence. See N.T. Plea Hearing, 7/23/15, at 1-24. Yet, counsel failed to

correct the trial court; further, counsel failed to explain to Appellant that the

trial court does not calculate credit for time served and that the trial court

thus could not guarantee Appellant’s time-served would be credited towards

his aggravated assault sentence. In addition, since Appellant contends that

his counsel also “assured him he would get the time credit in question,” there

is a genuine issue of material fact as to whether Appellant’s ineffective

assistance claim has arguable merit.      Appellant’s Amended PCRA Petition,

7/7/16, at 7. Since Appellant also claims that counsel had no reasonable basis

for his faulty advice and that “but for counsel's errors, [Appellant] would not

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have pleaded guilty and would have insisted on going to trial,” Appellant has

pleaded a valid ineffective assistance of counsel claim.         Id.; see also

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)

(internal quotations and citations omitted); see also Appellant’s Pro Se PCRA

Petition, 10/10/15, at 2 (Appellant declares: “[Appellant] was [given]

ineffective assistance of counsel when he was denied his right . . . to be

confronted with the witness against him”).         The PCRA court erred when it

dismissed this claim without holding an evidentiary hearing.4

       Order vacated. Case remanded. Jurisdiction relinquished.

____________________________________________


4 The Commonwealth argues that the PCRA court properly dismissed
Appellant’s petition because:

         [Appellant] affirmed in both his written plea colloquy and his
         statements on the record during the plea colloquy that the
         only promises made with respect to the plea were for a
         sentence of [two and one-half] to five years’ incarceration to
         run concurrent with any other sentence, with credit for time
         served, and that all other charges would be dropped. The
         [trial] court sentenced him in accordance with the terms of
         the plea agreement. [Appellant] got exactly the benefit of
         the bargain he entered.

Commonwealth’s Brief at 7.

We disagree with the Commonwealth. At the very least, Appellant’s petition
raises a genuine issue of material fact as to whether the trial court assured
Appellant of the amount of credit he was going to receive for time served on
his aggravated assault sentence. Further, since Appellant has claimed that
his trial counsel was present during the plea hearing and not only failed to
correct the trial court, but also “assured [Appellant that] he would get the
time credit in question,” Appellant is entitled to an evidentiary hearing on both
his ineffective assistance and unlawful inducement claims. See Appellant’s
Amended PCRA Petition, 7/7/16, at 7.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/18




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