J-S27035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SAKOU ARMOUR                               :
                                               :
                       Appellant               :   No. 991 EDA 2018

                   Appeal from the PCRA Order March 5, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012008-2011,
              CP-51-CR-0012012-2011, CP-51-CR-0012013-2011


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

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 22, 2020

        Appellant, Sakou Armour, appeals from the order entered in the Court

of Common Pleas of Philadelphia County dismissing his first petition filed

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

9546, without an evidentiary hearing. Appellant contends that plea counsel’s

failure to advise him that the court could impose consecutive sentences after

he pleaded guilty constituted ineffective assistance of counsel causing him to

enter an unknowing and involuntary plea.           Because neither the court nor

counsel informed Appellant of the possibility of consecutive sentences, and

Appellant received an aggregate sentence greater than what the court

informed him the maximum sentence for each charge would be, we are


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*   Former Justice specially assigned to the Superior Court.
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constrained to agree his plea was invalid. Therefore, we vacate the order in

question and remand for further proceedings consistent with this decision.

     The PCRA court aptly sets forth the relevant underlying facts, as follows:

     [O]n September 14, 2011, at 5063 Parrish Street in Philadelphia,
     the Petitioner [hereinafter “Appellant”] got in an argument with
     the complainant, A.H., the mother of his six year-old son. N.T.
     (Guilty Plea Hearing), 6/21/12, at 20-21. Appellant, who had
     accused the complainant of cheating on him, also complained that
     he wanted to transfer her children to another school. N.T. at 2.
     When A.H. stated that she would think about it, Appellant became
     enraged and punched her twice with a closed fist in her left eye
     causing a small bruise. N.T. at 21. A.H.’s 14 year-old daughter
     called the police. N.T. at 21. Police officers arrived at the
     property, however the Appellant fled through the back of the
     premises upon their arrival. N.T. at 21. Following this incident,
     the complainant obtained a protection from abuse order from
     Family Court against Appellant. N.T. at 22. This order was served
     upon Appellant and remained active on September 20, 2011, the
     date relevant to the two remaining cases. N.T. at 22.

     On September 20, 2011, at approximately 10:15 a.m., Appellant
     went to A.H.’s home at 1214 West Susquehanna Avenue, where
     she was residing with her son [M.W.] N.T. at 22. Appellant began
     banging on the door and front window. N.T. at 22. After telling
     her son not to let Appellant in, A.H. went upstirs to call the police.
     N.T. at 22-23. Appellant punched out the first-floor window of the
     home and entered the property with a gun in his hand. N.T. at
     23. He proceeded directly up to the second-floor rear bedroom,
     kicked open the door, straddled A.H. with his legs on her stomach
     and began to pistol whip her. N.T. at 23. M.W. came upstairs
     with a baseball bat and hit Appellant in the back, in an effort to
     get him off of A.H. N.T. at 23. In response, Appellant turned
     around and fired his weapon twice, shooting M.W. in the face.
     M.W. then crawled out of the home and collapsed on a street
     corner. N.T. at 24. Medics responded and were able to transport
     him to Temple University Hospital. N.T. at 24. As a result of being
     shot, a bullet entered the side of M.W.’s nostril, went through the
     top part of his jaw, through his tongue, and ended up lodged in
     the bottom portion of his jaw. N.T. at 24. Consequently, M.W.
     had to undergo reconstructive surgery for his jaw in addition to

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       dental work to repair his injuries. N.T. at 24. Finally, at his guilty
       plea hearing, Appellant admitted that the facts as recited above
       were true with one caveat, that he was not straddling A.H. while
       he was pistol whipping her. N.T. at 25-27.

PCRA Court Opinion, at 1-3.

       On May 21, 2012, Appellant pleaded guilty to Attempted Murder and

Persons not to Possess Firearms (CP-51-CR-0012012-2011), Burglary and

Aggravated Assault (CP-51-CR-0012013-2011), and Simple Assault (CP-51-

CR-0012008-2011). The court sentenced him to an aggregate sentence of

41-82 years’ incarceration. On June 8, 2015, this Court affirmed judgment of

sentence, rejecting Appellant’s claim that the trial court erroneously denied

his pre-sentence motion to withdraw his guilty plea based on his assertion of

innocence.      On April 12, 2016, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal.

       Appellant timely filed this PCRA petition, his first, and the PCRA court

appointed counsel, who filed two amended petitions asserting that plea

counsel’s failure to advise Appellant that he potentially faced consecutive

sentencing after entering a guilty plea contributed to Appellant’s unknowing,

invalid plea.     On March 5, 2018, however, the PCRA court dismissed

Appellant’s petitions without a hearing pursuant to Pa.R.A.P. 907.

       On March 29, 2018, counsel for Appellant filed a timely notice of appeal.1

Appellant claims his plea was invalid because he did not know he could be
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1 Appellant filed one notice of appeal listing the three trial court docket
numbers reflected in the instant caption. On June 1, 2018, the Pennsylvania



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sentenced consecutively to a sentence greater than the longest potential

maximum sentence of any one count. He further claims ineffective assistance

of plea counsel caused his involuntary and unknowing plea. For its part, the

Commonwealth has submitted no brief for our consideration despite having

received three extensions of time in which to do so.

       We do, however, have the benefit of the PCRA court’s responsive Rule

1925(a) opinion, in which it opines:

       Appellant brings related claims that his guilty plea was not
       knowing and voluntary because he was supposedly not informed
       that he could be sentenced consecutively and that counsel was
       ineffective for failing to so inform him. The record clearly
       establishes that Appellant understood the maximum penalties he
       could receive. Thus, Appellant’s guilty plea was knowing and
       voluntary and his claim of ineffective assistance of counsel must
       fail.

       ...

       Here, this [PCRA court] conducted a thorough colloquy. Appellant
       confirmed that he understood, inter alia, his right to a jury trial,
       the presumption of innocence, and the limited appellate rights that
       he would have if he entered a guilty plea. N.T., at 7-11, 14-17.
       He signed written colloquy forms, which again confirmed that he
       understood his rights. N.T. at 14, 17-18. He asserted that he
____________________________________________


Supreme Court in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held
that the practice of filing a single notice of appeal for separate dockets violated
Pennsylvania Rule of Appellate Procedure 341, the result for which must be
quashal of the appeal. See Walker, 185 A.3d at 977. Because the mandate
in the Official Note to Rule 341 was contrary to “decades of case law from this
Court and the intermediate appellate courts,” the Court announced that its
holding would apply only to appeals filed after June 1, 2018, the date Walker
was filed. Id. Here, because Appellant filed his notice of appeal predates the
Walker decision by approximately two months, quashal does not apply to his
case.


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     understood each of the offenses.           N.T. at 14-17.     The
     Commonwealth then explained the factual basis for the charges.
     N.T. at 20-25. Based on this record, Appellant could not possibly
     show that his plea was unknowing or involuntary.              See
     Commonwealth v McCauley, 797 A.2d 920, 922 (Pa.Super.
     2001) (“[W]here . . . a guilty plea colloquy was conducted, during
     which it became evident that the petitioner understood the nature
     of the charges against him, the voluntariness of the plea is
     established.”). . . .

     Appellant’s specific assertion that he did not understand he could
     be sentenced to consecutive terms of imprisonment is belied by
     the record. His attorney explained, and Appellant affirmed, that
     he understood the maximum terms of imprisonment he faced for
     each of the offenses to which he was pleading guilty. N.T.
     5/21/16, pp. 14-17. This was enough to make his plea knowing
     and voluntary. See Commonwealth v. Carter, 656 A.2d 463,
     466 (Pa. 1995) (Carter’s plea knowing and voluntary were, even
     though he was not told sentences could run consecutively, he was
     informed of maximum sentence for each count and his sentence
     was less than the maximum).

PCRA Court Opinion, at 4-5.

     Initially, we note that “[t]his Court's standard of review from the grant

or denial of post-conviction relief is limited to examining whether the lower

court's determination is supported by the evidence of record and whether it is

free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.

1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.

1995)).   Where, as here, a petitioner claims that he received ineffective

assistance of counsel, our Supreme Court has stated that:

     [A] PCRA petitioner will be granted relief only when he proves, by
     a preponderance of the evidence, that his conviction or sentence
     resulted from the “[i]neffective 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.”            Generally, counsel's
     performance is presumed to be constitutionally adequate, and

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     counsel will only be deemed ineffective upon a sufficient showing
     by the petitioner. To obtain relief, a petitioner must demonstrate
     that counsel's performance was deficient and that the deficiency
     prejudiced the petitioner. A petitioner establishes prejudice when
     he demonstrates “that there is a reasonable probability that, but
     for counsel's unprofessional errors, the result of the proceeding
     would have been different.” ... [A] properly pled claim of
     ineffectiveness posits that: (1) the underlying legal issue has
     arguable merit; (2) counsel's actions lacked an objective
     reasonable basis; and actual prejudice befell the petitioner from
     counsel's act or omission.

Commonwealth v. Johnson, 966 A.2d 523, 532–33 (Pa. 2009) (citations

omitted).

     In his brief, Appellant maintains that plea counsel’s failure to advise him

that consecutive sentencing could result in a sentence greater than the

potential maximum individual sentence of which he was made aware caused

him to enter an involuntary and unknowing plea.        This was so, Appellant

continues, because counsel’s omission occurred against the backdrop of

neither the oral nor written guilty plea colloquy informing him of the real

maximum sentence he faced by virtue of an aggregate sentence.               “In

determining whether a guilty plea was entered knowingly and intelligently, a

reviewing court must review all of the circumstances surrounding the entry of

that plea.” Commonwealth v. Allen, 732 A.2d 582 (Pa. 1999).

            To be valid, a guilty plea must be voluntary, knowing and
     intelligent. Commonwealth v. Persinger, 615 A.2d 1305, 1307
     (Pa. 1992). A plea will not be considered as having been knowing,
     voluntary and intelligent if the defendant's aggregate sentence
     exceeds the potential maximum sentence of which the defendant
     was advised or was otherwise aware during the plea. Carter, 656
     A.2d at 466; Persinger, 615 A.2d at 1307–08. Indeed, a plea
     entered where the defendant later receives a sentence higher than
     the potential penalty of which the defendant was informed

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       constitutes a manifest injustice. Persinger, 615 A.2d at 1307–
       08. A manifest injustice provides meritorious grounds for post-
       sentence plea withdrawal. Id.

Commonwealth v. Diehl, 61 A.3d 265, 268 (Pa.Super. 2013).

       In Persinger, the Pennsylvania Supreme Court held on direct appeal2

that plea counsel rendered ineffective assistance for failing to file a motion to

withdraw defendant’s guilty plea where the defendant, though informed of the

maximum sentence imposable for each charge, was not informed that the

sentences could be run consecutively. Under such circumstances, the Court

found the guilty plea colloquy was defective and the plea was not knowingly

and intelligently entered.

       In Carter, our Supreme Court addressed, again on direct appeal,

whether plea counsel ineffectively failed to object to a nolo contendere plea

where the defendant had not been informed that the sentences could be

imposed consecutively. Conducting a three-prong ineffectiveness inquiry, the

Court concluded the defendant could not establish prejudice where his

aggregate sentence fell within the longest maximum sentence of all the

individual counts. Specifically, the defendant was advised at the colloquy that

he faced up to twenty years on each burglary count, and he received an

aggregate sentence of six to twelve years’ incarceration. Given this result,

the Court concluded plea counsel could not be deemed ineffective where

defendant incurred no prejudice. Id. at 466.

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2 At the time Persinger was decided, ineffectiveness claims were generally
reviewable on direct appeal.

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      Diehl involved a first PCRA petition asserting ineffective assistance of

plea counsel for allowing defendant to enter an open guilty plea to multiple

offenses unaware of the possibility of consecutive sentences. The PCRA court

conducted an evidentiary hearing and denied relief. On appeal, this Court

reversed.

      We first noted that the record established that neither the court, the

Commonwealth, nor counsel told the defendant of the maximum possible

sentence he faced through imposition of consecutive sentences.        We then

made the observation that defendant’s aggregate sentence of 20 to 40 years’

incarceration was greater than what he was told would be the longest possible

individual maximum sentence, 20 years. This combination of facts, we held,

“rendered his plea unknowing, involuntary, and unintelligent.         His plea

constituted a manifest injustice. . . . [The defendant] was prejudiced by

counsel’s inaction [in failing to file a motion to withdraw the plea].” Id. at

271. Accordingly, we vacated the PCRA order denying relief and remanded,

directing the PCRA court to enter an order finding plea counsel ineffective and

withdrawing defendant’s guilty plea. Id. at 272.

      In light of the above authority, we find the case sub judice comes

squarely under Diehl. At Appellant’s guilty plea hearing, the court informed

him that he faced a possible 40-year maximum sentence for attempted




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murder involving serious injury.3          Like the aggregate sentence in Diehl,

Appellant’s aggregate sentence of 41 to 80 years greatly exceeded what he

was told would be his maximum sentence exposure.4

       While Appellant was aware of the statutory maximum sentence for each

individual charge, there is no indication in the record that he knew at the time

he entered his guilty plea that consecutive sentencing was possible; the oral

colloquy and written colloquy contain no advisement about consecutive

sentencing, and both plea counsel and Appellant testified at Appellant’s

unsuccessful pre-sentence motion to withdraw his plea that Appellant received

no such advice from counsel and was otherwise unaware. Lastly, the PCRA

court does not offer a contrary observation that Appellant received or

otherwise knew of such information prior to entering his guilty plea.



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3Section 1102(c) of the Pennsylvania Crimes Code sets forth the sentence
applicable to a conviction of attempted murder, namely:

       [A] person who has been convicted of attempt ... to commit
       murder ... where serious bodily injury results may be sentenced
       to a term of imprisonment which shall be fixed by the court at not
       more than 40 years. Where serious bodily injury does not result,
       the person may be sentenced to a term of imprisonment which
       shall be fixed by the court at not more than 20 years.

18 Pa.C.S. § 1102(c).

4 That Appellant’s aggregate sentence exceeded the maximum sentences of
the individual counts distinguishes this case from Carter, upon which the
PCRA court relies, as Carter held no prejudice could result where the
aggregate sentence was less than the potential individual maximum sentence
of which the defendant was aware.

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     Therefore,   as   we   declared   in   Diehl   under    virtually   identical

circumstances, we conclude that Appellant’s lack of knowledge about his

potential maximum sentence was a function of ineffective assistance of

counsel that rendered his plea a manifest injustice.        Accordingly, we are

constrained to vacate the PCRA order and remand with instructions that the

PCRA court enter an order withdrawing Appellant’s guilty plea.

     Order vacated. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/20




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