J-S03045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

EDWARD JAMES GEROMANOS, III

                            Appellee                  No. 1559 EDA 2015


                 Appeal from the Order Entered April 29, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000671-2013


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED FEBRUARY 16, 2016

        The Commonwealth appeals from the order entered in the Monroe

County Court of Common Pleas, which granted Appellee Edward James

Geromanos, III’s (“Geromanos”) petition for relief filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 We affirm.

        On April 24, 2013, Geromanos pled guilty to possession with intent to

deliver (“PWID”)2 heroin, an unspecified amount. He signed a written guilty

plea and colloquy that indicated he had a prior record score of “1”, and that

the standard sentence range for his offense was nine (9) to sixteen (16)

months’ incarceration.        The trial court conducted a group oral colloquy,

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    35 Pa.C.S. § 780-113(a)(30).
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during which Geromanos, in unison with several other defendants, indicated

that he read and understood the form that he had signed, and that he

signed it voluntarily. N.T., 4/24/2013, at 4-5. Geromanos indicated that he

understood the maximum penalty for his conviction was fifteen (15) years’

incarceration. Id. at 3.

       Robin Spishock, Esq. from the Monroe County Public Defender’s Office3

was listed as attorney of record for Geromanos, however she only met with

Geromanos once at the preliminary hearing. N.T., 10/17/2014, at 5. Other

attorneys    from    the    public   defender’s   office   represented   Geromanos

throughout     various     stages    of   proceedings.     Attorney   Spishock   told

Geromanos that she thought his prior record score was a “1” and apprised

him of his guideline sentence range. Id. at 37. Geromanos’s prior record

score was actually a “5”, and the court later sentenced him accordingly.

Wieslaw T. Niemoczynski, Esq., represented Geromanos during the oral

colloquy because Attorney Spishock was not available.

       Geromanos wrote a note to Attorney Spishock that indicated he wished

to withdraw his guilty plea. Attorney Spishock did not meet with Geromanos

to ascertain why he wished to withdraw the plea, but filed a motion on his

behalf to withdraw the guilty plea on May 29, 2013. N.T. 10/17/2014, at 36.


____________________________________________


3
   All other attorneys named in this memorandum were employed by the
Monroe County Public Defender’s Office while Attorney Spishock was the
listed attorney for Geromanos.



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      On June 27, 2013, the trial court conducted a brief hearing on

Geromanos’ motion to withdraw the plea.        Jason Labar, Esq., represented

Geromanos at this time because Attorney Spishock again was not available.

Attorney Labar indicated that the only communication he had with

Geromanos was his request to withdraw his guilty plea. N.T., 6/27/2013, at

3. The court then asked Geromanos why he wished to withdraw his guilty

plea, and he responded that he wanted to take the matter to trial. Id. at 3-

4.   The Commonwealth objected because Geromanos had not asserted a

valid basis for his withdrawal. The trial court denied Geromanos’ motion and

immediately proceeded to sentencing.     Id. at 5.     Counsel Labar did not

object, add any additional explanation of why Geromanos wished to

withdraw his plea, or request a continuance of sentencing.         The court

sentenced Geromanos to thirty-three (33) to one-hundred-twenty (120)

months’ incarceration.

      Geromanos did not file a direct appeal. On June 23, 2014, Geromanos

filed a pro se PCRA petition alleging ineffective assistance of counsel and

that his guilty plea was unlawfully induced.    On June 30, 2014, the PCRA

court appointed counsel, who filed an amended PCRA petition on September

10, 2014.   The PCRA court conducted hearings on October 17, 2014 and

January 13, 2015.

      At the PCRA hearing, Geromanos testified that James Gregor, Esq.

presented him with the written guilty plea that indicated he had a prior

record score of “1”, but did not go through the rights he was giving up by

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entering a plea of guilty. Id. at 23. Attorney Gregor signed the guilty plea,

but did not testify at the PCRA hearing.

       Geromanos also introduced a copy of his written guilty plea with a note

on the top that read: “Robin - ∆ says he has multiple felonies! Check. He

wants to pull plea.” Defendant Exhibit 3, 1/13/2015. The prior record score

of “1” was circled on this exhibit.            Although none of the attorneys who

testified knew who wrote the note, they stipulated that someone in the

public defender’s office was aware that Geromanos wished to withdraw his

plea and was attempting to communicate this information to Attorney

Spishock.4

       On April 29, 2015, the PCRA court granted Geromanos’ PCRA petition

and his request to withdraw his guilty plea. On May 6, 2015, the PCRA court

vacated Geromanos’ judgment of sentence.

       On May 22, 2015, the Commonwealth timely filed a notice of appeal. 5

The Commonwealth raises the following issues for our review:


____________________________________________


4
  On October 17, 2014, the PCRA court, which was the same as the trial
court, scheduled an additional hearing so that Attorney Gregor could be
subpoenaed to explain the handwritten notes on Geromanos’ written guilty
plea. A different judge presided over the January 13, 2015 hearing, during
which the attorneys stipulated that someone in the public defender’s office
was aware that Geromanos wished to withdraw his plea before the hearing.
5
  The PCRA court did not order, and the Commonwealth did not file, a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). On July 1, 2015, the PCRA court issued a statement pursuant to
(Footnote Continued Next Page)


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          WHETHER THE [PCRA] COURT COMMITTED AN ERROR OF
          LAW IN FINDING THAT [GEROMANOS] MET HIS BURDEN
          FOR PCRA RELIEF UNDER SECTION 42 PA.C.S.[] §
          9543(A)(2)(II)?

          WHETHER THE [PCRA] COURT COMMITTED AN ERROR OF
          LAW AND/OR ABUSED ITS DISCRETION IN GRANTING
          [GEROMANOS’] MOTION FOR POST-CONVICTION RELIEF
          BASED UPON A FINDING THAT HIS TRIAL COUNSEL WAS
          INEFFECTIVE IN RELATION TO HIS GUILTY PLEA AND
          REQUEST TO WITHDRAW THE SAME?

Commonwealth’s Brief at vii.

      The Commonwealth argues the PCRA court erred in determining

Geromanos met his burden under 42 Pa.C.S. § 9543(a)(ii) of proving by a

preponderance of the evidence that his conviction was the result of

ineffective assistance of counsel. Specifically, it claims Geromanos did not

establish prejudice in that Geromanos did not prove that counsel’s failure to

object to the en masse colloquy, counsel’s failure to place on the record the

Commonwealth’s obligation to demonstrate prejudice before denying a

motion to withdraw a guilty plea, counsel’s failure to advise Geromanos of

his correct prior record score and counsel’s failure to ask for a continuance

after Geromanos’ request to withdraw his guilty plea was denied would have

resulted in a different outcome of the proceedings.     The Commonwealth

further argues the PCRA court should not have allowed Geromanos to

withdraw his guilty plea because he failed to show the basis of the
                       _______________________
(Footnote Continued)

Pa.R.A.P. 1925(a) that indicated its opinion and order of April 29, 2015
addressed the Commonwealth’s issues on appeal.



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withdrawal was the voluntariness of his guilty plea or the legality of his

sentence. The Commonwealth concludes the PCRA court erred as a matter

of law or abused its discretion in granting Geromanos’ PCRA petition.       We

disagree.

       Our standard of review regarding PCRA relief is well-settled.      “[W]e

examine whether the PCRA court’s determination is supported by the record

and free of legal error.”        Commonwealth v. Fears, 86 A.3d 795, 803

(Pa.2014) (internal quotation marks and citation omitted).       “The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.”    Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) (citation

omitted).    “It is well-settled that a PCRA court’s credibility determinations

are binding upon an appellate court so long as they are supported by the

record.”    Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa.2013)

(citation omitted).      However, this Court reviews the PCRA court’s legal

conclusions de novo.          Commonwealth v. Rigg, 84 A.3d 1080, 1084

(Pa.Super.2014) (citation omitted).

       This Court follows the Pierce6 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

           When a petitioner alleges trial counsel’s ineffectiveness in
           a PCRA petition, he must prove by a preponderance of the
____________________________________________


6
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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        evidence that his conviction or sentence resulted from
        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. We have
        interpreted this provision in the PCRA to mean that the
        petitioner must show: (1) that his claim of counsel’s
        ineffectiveness has merit; (2) that counsel had no
        reasonable strategic basis for his action or inaction; and
        (3) that the error of counsel prejudiced the petitioner-i.e.,
        that there is a reasonable probability that, but for the error
        of counsel, the outcome of the proceeding would have
        been different. We presume that counsel is effective, and it
        is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).       The petitioner bears the burden of

proving all three prongs of this test.   Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).         “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

     “Allegations 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.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v.

Allen, 557 Pa. 135, 732 A.2d 582 (1999)). Whether a plea was voluntary

“depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.” Commonwealth v. Lynch, 820




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A.2d 728, 733 (Pa.Super.2003), appeal denied, 835 A.2d 709 (Pa.2003)

(quoting Hickman, 799 A.2d at 141).

     In his PCRA petition, Geromanos alleged counsel was ineffective for

causing him to enter the plea and for not effectively representing him in his

motion to withdraw it.     He further claimed he thought the guidelines

provided for a shorter sentence when he entered into the guilty plea based

on his prior record score of “1”, not his true prior record score of “5”.

Geromanos claimed counsel was ineffective for failing to effectively withdraw

the plea at the hearing or to request a continuance so that Geromanos could

withdraw the plea before sentencing.

     “Although there is no absolute right to withdraw a guilty plea, properly

received by the trial court, it is clear that a request made before sentencing

… should be liberally allowed.” Commonwealth v. Unangst, 71 A.3d 1017,

1020 (Pa.Super.2013) (quoting Commonwealth v. Forbes, 299 A.2d 268,

271 ([Pa.]1973) (emphasis in original)).

        [I]n determining whether to grant a pre-sentence motion
        for withdrawal of a guilty plea, the test to be applied by
        the trial courts is fairness and justice. If the trial court
        finds any fair and just reason, withdrawal of the plea
        before sentence should be freely permitted, unless the
        prosecution has been substantially prejudiced.         As a
        general rule, the mere articulation of innocence is a fair
        and just reason for the pre-sentence withdrawal of a guilty
        plea unless the Commonwealth has demonstrated that it
        would be substantially prejudiced.




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Commonwealth v. Prendes, 97 A.3d 337, 351-52 (Pa.Super.2014) appeal

denied, 105 A.3d 736 (Pa.2014) (internal quotation marks and citations

omitted).

      However, our jurisprudence has recognized that the denial of a pre-

sentence motion to withdraw a guilty plea is proper “where the evidence

before the court belies the reason offered.” Commonwealth v. Tennison,

969 A.2d 572, 578 (Pa.Super.2009) (citing Commonwealth v. Michael,

755 A.2d 1274 (Pa.2000)). Further, “a bare assertion of innocence is not, in

and of itself, a sufficient reason to require a court to grant such a request.”

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1285 (Pa.2015).

      At the PCRA hearing, Geromanos testified that he wished to withdraw

his guilty plea because he was innocent of the crime to which he pled guilty.

Specifically, he claimed that he was guilty of possessing heroin, but he had

no intent to deliver it.   N.T., 10/17/2014, at 29.     At the PCRA hearing,

Attorney Labar, who represented Geromanos at the hearing on the motion to

withdraw the guilty plea, could not recall the case at all. Id. at 42. At the

hearing on the motion to withdraw the guilty plea, the only statement

Attorney Labar made on Geromanos’ behalf regarding his motion was: “the

only communication that I have had with Mr. [Geromanos] is his request to

withdraw his guilty plea.” N.T., 6/27/2013, at 3.

      In granting Geromanos’ petition for PCRA relief, the PCRA court

reasoned:


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          Given the circumstances present here, we believe
          [Geromanos’] claim has arguable merit. Counsel’s failure
          to request a continuance of [Geromanos’] sentencing was
          an omission which may have adversely affected the
          outcome of the proceeding. At the time of sentencing,
          counsel could have requested a continuance of sentencing
          or he could have placed his objections on the record to the
          [c]ourt’s denial of [Geromanos’ m]otion.       We believe
          counsel’s course of conduct was without a reasonable basis
          to effectuate his client’s interest. Further, we find that
          [Geromanos] was prejudiced thereby… We believe that
          there is a reasonable probability that the outcome of the
          proceedings would have been different. Accordingly, we
          enter the following order.

PCRA Court Opinion, filed April 29, 2015, at 10.

       The PCRA court opinion is supported by the record and free of legal

error. Although the trial court was not required to grant Geromanos’ request

to withdraw his guilty plea, the PCRA court properly found Geromanos’

counsel had no reasonable basis for failing to represent him more

adequately at the hearing on his motion to withdraw his guilty plea. Further,

the PCRA court found that if counsel had represented Geromanos more

thoroughly, there was a reasonable probability that the outcome would have

been different. Thus, the PCRA court properly granted Geromanos’ petition

and allowed him to withdraw his guilty plea and proceed to trial.

Accordingly, we affirm.7

____________________________________________


7
  Due to our disposition, we need not address the Commonwealth’s
contention that the PCRA court erred in allowing Geromanos to withdraw his
guilty plea where Geromanos’ issue did not pertain to the voluntariness of
the guilty plea or the legality of the sentence. The PCRA court properly
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




                       _______________________
(Footnote Continued)

granted Geromanos relief under 42 Pa.C.S. § 9543(a)(2)(ii), not under 42
Pa.C.S. § 9543(a)(2)(iii).



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