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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
CARLOS HARRIS,                            :         No. 1448 WDA 2013
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, August 7, 2013,
               in the Court of Common Pleas of Allegheny County
               Criminal Division at Nos. CP-02-CR-0006185-2006,
                            CP-02-CR-0007765-2006


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 18, 2015

        Carlos Harris appeals from the order of August 7, 2013, denying his

PCRA1 petition. We affirm.

        The PCRA court has summarized the history of this matter as follows:

                     This is an appeal by Petitioner, Carlos Harris,
              from an order entered on August 7, 2013 dismissing
              his PCRA Petition following a hearing on August 1,
              2013.     This matter arises out of the arrest of
              Petitioner on April 15, 2006.[2] On July 29, 2009,

* Retired Senior Judge assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
              This matter arises out of Petitioner’s arrest on
              April 15, 2006 at which time he was charged at case
              No. 200606185 with one count of Possession with
              Intent to Deliver Cocaine in violation of 35 P.S.
              § 780-113(a)(30) and 780-115(a); one count of
              Possession of Cocaine in violation of 35 P.S. § 780-
J. S40001/15


           Petitioner entered into a negotiated plea agreement
           and was sentenced on that date. On July 30, 2010
           Petitioner filed a pro se PCRA Petition.           On
           September 20, 2010 an order was entered
           appointing PCRA counsel. On September 20, 2011
           this matter was assigned to this Court.            On
           September 22, 2011 an order was entered granting
           a Petition to Withdraw by the Public Defender’s office
           and appointing new PCRA counsel. On March 14,
           2012 counsel filed a Petition to Withdraw and
           Turner/Finley No Merit Letter.[3] On January 18,
           2013 an order was entered directing counsel to file
           an Amended PCRA Petition.[4] On May 14, 2013 an
           Amended PCRA Petition was filed. On June 7, 2013
           the Commonwealth filed an Answer to the Amended
           PCRA Petition. On August 1, 2013 a hearing was




           113(a)(16) and (b); one count [of] Possession of a
           Small Amount of Marijuana in violation of 35 P.S.
           § 780-113(a)(31); one count of Resisting Arrest in
           violation of 18 Pa.C.S. § 5104; and, one count of
           Fleeing or Attempting to Elude Police Officer in
           violation of 75 Pa.C.S. § 3733. Petitioner was also
           charged at case No. 200607765 with one count of
           Aggravated Assault Serious Injury Police in violation
           of 18 Pa.C.S.A. § 2702(a)(2)(c); one count of
           Assault by Prisoner in violation of 18 Pa.C.S. § 2703;
           one count of Escape in violation of 18 Pa.C.S.A.
           § 5121(a) and (d)(1)(i); and, one count of Resisting
           Arrest in violation of 18 Pa.C.S.A. § 5104.

PCRA court opinion, 7/16/14 at 2.
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
4
   Counsel filed his petition to withdraw on March 14, 2012, which was
granted on March 21, 2012. (Docket #43.) Subsequently, on January 18,
2013, “upon consideration of counsel’s letter to Petitioner of August 9, 2012
and Petitioner’s response of November 21, 2012,” counsel was ordered to
file an amended PCRA petition on appellant’s behalf. (Docket #44.)


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            held on the Amended PCRA Petition.[5] On August 7,
            2013 an order was entered denying the Amended
            PCRA Petition. On September 4, 2013 a Notice of
            Appeal was filed with the Superior Court of
            Pennsylvania. On September 10, 2013 an order was
            entered directing Petitioner to file a Concise
            Statement of Matters Complained of on Appeal
            pursuant to Pa.R.A.P. § 1925(b). On October 7,
            2013, Petitioner filed his Concise Statement. . . .[6]

PCRA court opinion, 7/16/14 at 1-2.

      Appellant has raised the following issue for this court’s review, alleging

ineffectiveness of plea counsel:

            Did the trial court err when it denied Defendant’s
            Petition for Post-Conviction Relief without an
            evidentiary hearing wherein Defendant alleged trial
            counsel’s ineffectiveness relative to Defendant’s plea
            of guilty where said guilty plea was induced by
            counsel’s erroneous statement to Defendant that he
            may be entitled to have his sentence run
            concurrently with “back time” owed to the PA Board
            of     Probation     and     Parole    pursuant     to
            Commonwealth v. Zuber?

Appellant’s brief at 4.

      Initially, we note our standard of review:




5
 The August 1, 2013 hearing was not an evidentiary hearing; no testimony
was presented, and the hearing consisted of legal argument only.
6
  Appellant was given 21 days, or until October 1, 2013, to file his concise
statement. (Docket #57.) Therefore, appellant’s statement was filed late.
However, the trial court addressed the issues raised in its Rule 1925(a) opinion
and it is unnecessary to remand. See Commonwealth v. Thompson, 39 A.3d
335, 340 (Pa.Super. 2012) (“When counsel has filed an untimely Rule 1925(b)
statement and the trial court has addressed those issues we need not remand
and may address the merits of the issues presented.”), citing Commonwealth
v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009) (en banc).


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           Our standard of review of a PCRA court’s dismissal of
           a PCRA petition is limited to examining whether the
           PCRA court’s determination is supported by the
           evidence of record and free of legal error.
           Commonwealth v. Ceo, 812 A.2d 1263, 1265
           (Pa.Super.2002) (citation omitted). Great deference
           is granted to the findings of the PCRA court, and
           these findings will not be disturbed unless they have
           no support in the certified record. Commonwealth
           v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001)
           (citation omitted).

Commonwealth       v.   Wilson,   824   A.2d   331,   333   (Pa.Super.   2003)

(en banc), appeal denied, 839 A.2d 352 (Pa. 2003).

     On July 29, 2009, appellant entered into a negotiated plea agreement

on both cases for an aggregate sentence of 2½ to 5 years’ incarceration,

with credit for time served. (Notes of testimony, 7/29/09 at 3-4.) Appellant

was on parole at the time these offenses occurred. During the plea colloquy,

defense counsel, Candace Ragin, Esq., stated the following:

           Mr. Harris does stand before this Court accepting
           responsibility for his actions, saving us the time and
           expense of two jury trials. He was scheduled for a
           jury trial. We would ask Your Honor to take that into
           consideration. Now, with regard to his sentences,
           Mr. Harris has requested that the time that he would
           be sentenced to in these matters run concurrent to
           any backup time that he may have with the State
           Correctional Institution he’s currently housed at
           [sic].    Mr. Harris and I did look over a case,
           Commonwealth v. Zuber, Z-u-b-e-r, and it does
           indicate that there is one exception where the State
           Parole and Probation Board will run the time
           concurrent to another – or a new sentence. I did
           explain to Mr. Harris that is not a guarantee. It
           would simply be a recommendation; but moreover, I
           wanted to put on the record that with regard to the
           case that was holding Mr. Harris, his expiration – the


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              expiration of his maximum was June 30, 2009. We
              are well beyond that point. So I don’t know that he
              would even be facing any backup time for his former
              sentence, but I just wanted to put on the record that
              we would like the Court to recommend to the State
              Parole Board that the time runs concurrent to this
              sentence.    And we would ask that there is no
              probationary tail placed on this case because of the
              amount of time that Mr. Harris has spent in
              incarceration. He does have 39 months’ time credit,
              and we would also ask that Your Honor parole him
              forthwith.

Id. at 5-6.

      The trial court imposed the agreed-upon sentence of 2½ to 5 years.

Appellant argues that plea counsel was ineffective in misrepresenting that

his back time on the parole violation could be run concurrently with his new

sentence.     Appellant also completed a written plea colloquy in which he

hand wrote, “I am pleading guilty only because this time will run

concurrently with the board of probation & parole (DOC).”       (Written guilty

plea colloquy, 7/28/09 at 9; docket #28.)

      In fact, the Parole Board was statutorily required to run appellant’s

parole revocation sentence consecutively to his sentence on the new

charges. 61 Pa.C.S.A. § 6138.

              [The Parole Act] mandates that sentences for crimes
              committed on parole must be served consecutively
              with time remaining on original sentences and thus
              prohibits courts of this Commonwealth and the Board
              from imposing concurrent sentencing.      Also, the
              Board may not impose a parole violation sentence to
              run concurrently with a new sentence for an offense
              committed while on parole.



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Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 634,

638 (Pa.Cmwlth. 1999) (citations omitted).      See also Commonwealth v.

Ortiz, 745 A.2d 662 (Pa.Super. 2000), appeal denied, 795 A.2d 973 (Pa.

2000), disapproved of on other grounds by Commonwealth v.

Castillo, 888 A.2d 775 (Pa. 2005) (by statute, parole violators are required

to serve in consecutive fashion the sentence for the new crime as well as the

unexpired balance of the parole sentence). Therefore, appellant argues that

counsel’s advice in this regard was plainly erroneous and that he did not

receive the benefit of his bargained-for sentence.

            To    prevail  on     a    claim   alleging  counsel’s
            ineffectiveness under the PCRA, Appellant must
            demonstrate (1) that the underlying claim is of
            arguable merit; (2) that counsel’s course of conduct
            was without a reasonable basis designed to
            effectuate his client’s interest; and (3) that he was
            prejudiced by counsel’s ineffectiveness, i.e. there is
            a reasonable probability that but for the act or
            omission in question the outcome of the proceeding
            would have been different.        Commonwealth v.
            Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
            Commonwealth v. Douglas, 537 Pa. 588, 645
            A.2d 226, 230 (1994).

Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).

            It is clear that a criminal defendant’s right to
            effective counsel extends to the plea process, as well
            as during trial.        However, “[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 defendant to enter an
            involuntary or unknowing plea. Where the defendant
            enters his plea on the advice of counsel, the
            voluntariness of the plea depends on whether



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            counsel’s advice was within the range of competence
            demanded of attorneys in criminal cases.”

Commonwealth v. Allen, 833 A.2d 800, 802 (Pa.Super. 2003), appeal

denied, 860 A.2d 488 (Pa. 2004), quoting Commonwealth v. Hickman,

799 A.2d 136, 141 (Pa.Super. 2002) (internal citations omitted).

      In Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976), the

Commonwealth agreed to join with defense counsel in requesting the State

Board of Parole to run the defendant’s back time concurrently with the new

sentence. Id. at 443. The Commonwealth’s promise was a false and empty

one where, as stated above, neither a court nor the Parole Board has the

authority to order that a defendant’s back time be served concurrently. Id.

Therefore, the court in Zuber concluded that the defendant’s plea was not

knowingly and voluntarily entered.    Id. at 445.   The court found that the

amount of time the defendant would be required to serve before becoming

parole eligible was an important consideration in his decision to plead guilty.

Id. In addition, the Zuber court found the defendant was prejudiced by his

reasonable reliance on the Commonwealth’s promise, even though there was

no guarantee his sentences would be run concurrently:

            Furthermore, the fact that it was made known to the
            appellant on the record that such a request to the
            Parole Board in no way guaranteed the Board’s final
            decision vis-a-vis the ‘back time’ owed is of no
            moment. Part of the bargain reached was that the
            request to the Parole Board would be made on
            appellant’s behalf and the natural and obvious
            underlying inference that the Parole Board had, at
            the least, the Option to accept or reject such a


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              request thereby became an integral part of the
              bargain as well.

Id. (citation omitted).

      Ultimately, our supreme court in Zuber modified his sentence from

7 to 15 years’ imprisonment to 2½ to 15 years, thereby insuring that he

received “the benefit of the bargain” made with the Commonwealth. Id. at

446. We find Zuber to be inapposite. Instantly, other than appellant’s own

handwritten note on the explanation of rights form, there is no indication

that a recommendation that appellant serve his back time concurrently with

his sentence on the new charges was an integral part of the plea agreement.

The Commonwealth never agreed, on the record, to make such a

recommendation to the Parole Board, nor did the trial court. The trial court

indicated only that appellant would receive credit for time already served

and that it would consider immediate parole. (Notes of testimony, 7/29/09

at 3-4, 9.)7 In fact, Attorney Ragin specifically stated that, “I did explain to

[appellant]    that   is   not   a   guarantee.    It   would   simply   be   a

recommendation. . . .” (Id. at 6.) At the earlier plea hearing on the drug

charges, it was explained to appellant that he could face additional prison

time based on the parole violation:

              THE COURT: Were you on parole or probation at the
              time these offenses occurred?


7
  In its sentencing order, the trial court did recommend that appellant’s
sentence be served concurrently with any state sentence he was currently
serving. (Docket #29.)


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             [APPELLANT]: Yes, sir.

             THE COURT: You understand that by pleading guilty
             to these charges, you would be in violation of that
             period of parole or probation, and independent of
             any sentences that I might impose on you, that
             you’ll be subjecting yourself to an additional penalty
             for that period of parole violation?

             [APPELLANT]: Yes, sir.

Notes of testimony, 7/1/08 at 5.

      The “exception” in Zuber that Attorney Ragin refers to appears to be

the court’s observation that the Parole Board has the power to re-parole a

convicted parole violator at any time so that he can begin to serve the

sentence imposed on the new conviction.        Zuber, 353 A.2d at 443, 445.

See 61 Pa.C.S.A. § 6138(a)(3) (“The board may, in its discretion, reparole

whenever, in its opinion, the best interests of the inmate justify or require

the inmate’s release on parole and it does not appear that the interests of

the Commonwealth will be injured thereby.”). This reference in Zuber was

in connection with the Commonwealth’s argument that the defendant was

not prejudiced and the essence of the bargain could still be fulfilled.

      At    any   rate,   we   find   Zuber   is   distinguishable    where   the

Commonwealth never agreed to recommend that appellant serve any back

time concurrently with his sentence on the new charges.         Unlike the case

here, such recommendation was an integral part of the plea agreement in

Zuber.     Appellant received the bargained-for sentence of 2½ to 5 years.

Furthermore, even if plea counsel’s advice was legally erroneous, appellant


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cannot show prejudice. The PCRA court did not err in denying appellant’s

petition.

      Order affirmed.



      Donohue, J. joins this Memorandum.

      Strassburger, J. files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/2015




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