J-S55037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TARENCE MICHAEL MOSEY                      :
                                               :
                       Appellant               :   No. 571 WDA 2019

               Appeal from the PCRA Order Entered April 8, 2019
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                           CP-07-CR-0001854-2016


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED JANUARY 10, 2020

        Appellant, Tarence Michael Mosey, appeals pro se from the order of the

Court of Common Pleas of Blair County that denied his first petition filed under

the Post Conviction Relief Act (“PCRA”).1 After careful review, we conclude

that the PCRA court did not err in denying Appellant’s motion to recuse.

Because the record shows, however, that Appellant was incorrectly advised by

his trial counsel concerning the elements of the primary offense to which he

pled guilty and was not advised at his plea colloquy of the elements of the

offense, we are compelled to conclude that the PCRA court erred in denying




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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
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Appellant’s claim of ineffective assistance of counsel with respect to his guilty

plea and therefore reverse the dismissal of Appellant’s PCRA petition.

       This case arises out of a motor vehicle accident in Logan Township, Blair

County on May 27, 2015 at approximately 3:04 a.m., in which a Jeep

Cherokee driven by Appellant struck Brandyn Boyd (Victim) while she was

standing behind her disabled vehicle, which was in the roadway. Victim, who

was pregnant at the time, and her unborn child, died from their injuries.

Appellant was charged with Driving Under the Influence (DUI) General

Impairment Incapable of Driving Safely and High Rate of Alcohol; with

Homicide by Vehicle While DUI, Aggravated Assault by Vehicle While DUI, and

Homicide by Vehicle; and with four summary offenses, Careless Driving,

Driving at an Unsafe Speed, Operating Vehicle Without Valid Inspection, and

Failure to Use Seat Belt.2         The Commonwealth’s evidence of intoxication

included an admission by Appellant that he had drunk 3-4 20-ounce beers and

test results from two blood draws that showed that Appellant had blood alcohol

levels of .104% and .102%. Commonwealth Motion in Limine for Admission

of Blood Alcohol Results; N.T. Motion in Limine at 9-12. The first of the blood

draws was requested by the police and obtained with Appellant’s consent

following warnings that were later held invalid under Birchfield v. North



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275 Pa.C.S. §§ 3802(a)(1) and (b), 3735(a), 3735.1(a), 3732, 3714(a), 3361,
4703(a), and 4581(a)(2), respectively.


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Dakota, 136 S. Ct. 2160 (2016). The other blood draw was taken by the

hospital treating Appellant for his injuries in the accident and the results of

that blood draw were obtained by the Commonwealth through a search

warrant.

      On October 10, 2017, the day that his jury trial was scheduled to begin,

Appellant entered into a negotiated plea agreement whereby he pled guilty to

Homicide by Vehicle While DUI, Aggravated Assault by Vehicle While DUI, DUI

High Rate of Alcohol, and the summary offenses of Careless Driving, Driving

at an Unsafe Speed, and Operating Vehicle Without Valid Inspection. The trial

court accepted the plea agreement and sentenced Appellant in accordance

with that agreement an aggregate 3 to 6 years’ incarceration with credit for

time served, consisting of the mandatory minimum sentence of 3 to 6 years’

incarceration for the Homicide by Vehicle While DUI conviction and a

concurrent sentence of 48 hours to 6 months’ incarceration for the DUI High

Rate of Alcohol conviction.   Sentencing Order ¶¶1, 3.      No sentence was

imposed for the Aggravated Assault by Vehicle While DUI conviction as it

merged with the Homicide by Vehicle While DUI conviction and the trial court

imposed only fines and costs of prosecution for the summary offense

convictions. Id. ¶¶2, 4-6. Appellant did not any post-sentence motion or

direct appeal.

      On March 6, 2018, Appellant filed a timely first PCRA petition. The PCRA

court appointed counsel for Appellant, but Appellant requested to proceed pro


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se. Following a Grazier hearing,3 the PCRA court granted Appellant’s request

to proceed pro se, ordered that an evidentiary hearing be scheduled on the

PCRA petition and appointed standby counsel for the PCRA hearing.            On

October 15, 2018, Appellant filed a motion to recuse the PCRA court, who was

the same judge who received Appellant’s guilty plea and sentenced him.

Following a hearing on December 17, 2018, the PCRA court denied this motion

on January 25, 2019.

       On April 2, 2019, the PCRA court held a hearing on Appellant’s PCRA

petition.4 Four witnesses testified at the hearing: Appellant, his mother, his

trial counsel, and Richard McEldowney, an expert accident reconstruction

witness who had been hired prior to the scheduled trial. On April 8, 2019, the

PCRA court denied the PCRA petition. This timely appeal followed.

       Appellant presents the following issues in this appeal: 1) whether the

PCRA court erred in not recusing itself from consideration of the PCRA petition;

2) whether trial counsel’s representation was ineffective with respect to

Appellant’s guilty plea and the guilty plea was invalid because the plea

colloquy and information provided to Appellant concerning the charges were

insufficient and because Appellant was on medication at the time; 3) whether


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3   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
4 Appellant proceeded pro se without standby counsel at this hearing because
standby counsel was unavailable and had requested a continuance and
Appellant advised the PCRA court that he preferred to proceed without standby
counsel rather than delay the hearing. N.T. PCRA at 2-5.

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trial counsel’s failure to file post-sentence motions and a direct appeal

constituted ineffective assistance of counsel; and 4) whether trial counsel was

ineffective in his preparation for trial by a) failing to timely move to suppress

Appellant’s blood test results under Birchfield, b) failing to file a motion for

change of venue based on pretrial publicity, and c) failing to object to the

racial composition of the jury pool.5

       We first address the denial of Appellant’s recusal motion.        It is the

burden of the party seeking recusal of a judge to produce evidence

establishing bias, prejudice or unfairness which raises a substantial doubt as

to the judge’s ability to preside impartially. Commonwealth v. Hutchinson,

25 A.3d 277, 319 (Pa. 2011); Commonwealth v. Abu-Jamal, 720 A.2d 79,

89 (Pa. 1998); Commonwealth v. Orie Melvin, 103 A.3d 1, 23 (Pa. Super.

2014). It is usually preferable for the same judge who previously presided

over the proceedings in which the defendant was convicted to preside over

post-conviction proceedings because his or her familiarity with the case will

likely assist the proper administration of justice. Hutchinson, 25 A.3d at

319; Abu-Jamal, 720 A.2d at 90. We review the denial of a motion to recuse

for abuse of discretion. Commonwealth v. Brown, 141 A.3d 491, 498 (Pa.

Super. 2016).

       As a general rule, a motion for recusal is initially directed to and
       decided by the jurist whose impartiality is being challenged. In
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5 We have reordered the issues listed by Appellant in his brief to address them
in a more orderly fashion.

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      considering a recusal request, the jurist must first make a
      conscientious determination of his or her ability to assess the
      case in an impartial manner, free of personal bias or interest in
      the outcome. The jurist must then consider whether his or her
      continued involvement in the case creates an appearance of
      impropriety and/or would tend to undermine public confidence
      in the judiciary. … Where a jurist rules that he or she can hear
      and dispose of a case fairly and without prejudice, that decision
      will not be overruled on appeal but for an abuse of discretion. In
      reviewing a denial of a disqualification motion, we recognize that
      our judges are honorable, fair and competent.

Abu-Jamal, 720 A.2d at 89 (internal citations omitted).

      In his brief, Appellant does not point to any conduct of the PCRA court

or other evidence that shows any bias, prejudice or unfairness by the PCRA

court or any appearance of impropriety. Rather, his argument on this issue

consists almost entirely of a recitation of legal propositions and case law

unconnected to any facts concerning the PCRA court. Appellant’s Brief at 26-

27.   The only reference that Appellant makes to the PCRA court in this

argument is a vague statement that the PCRA court allegedly “has not fairly

addressed” a legal issue that he claims that he raised. Id. at 27. The mere

fact that a judge did not rule in the defendant’s favor on an issue is not

sufficient to show bias that could warrant recusal.       Commonwealth v.

Birdsong, 24 A.3d 319, 331 (Pa. 2011).

      Moreover, the PCRA court thoroughly considered the assertions raised

by Appellant in his motion to recuse and concluded that it was able to resolve

Appellant’s claims in an impartial manner, free of personal bias or interest in

the outcome, and that remaining on the case would neither create an


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appearance of impropriety nor undermine public confidence in the judiciary.

PCRA Court Opinion, 1/25/19. The PCRA court therefore did not abuse its

discretion in denying Appellant’s motion to recuse.

      Appellant’s other arguments are all claims that the PCRA court erred in

denying his PCRA petition and are based on claims of ineffective assistance of

counsel. We review the denial of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its decision is free of

legal error.   Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015);

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

Commonwealth v. Johnson, 179 A.3d 1153, 1156 (Pa. Super. 2018). To

be entitled to relief under the PCRA on a claim of ineffective assistance of

counsel, the defendant must prove: (1) that the underlying legal claim is of

arguable merit; (2) that counsel’s action or inaction had no reasonable basis

designed to effectuate his client’s interests; and (3) that he suffered prejudice

as a result of counsel’s action or inaction.       Mason, 130 A.3d at 618;

Velazquez, 216 A.3d at 1149; Johnson, 179 A.3d at 1158. The defendant

must satisfy all three prongs of this test to obtain relief under the PCRA.

Mason, 130 A.3d at 618; Velazquez, 216 A.3d at 1149; Johnson, 179 A.3d

at 1158.

      We conclude that Appellant has shown ineffective assistance of counsel

with respect to his guilty plea. A criminal defendant has the right to effective

assistance of counsel in deciding whether to plead guilty. Velazquez, 216


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A.3d at 1149; Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super.

2002). Ineffective assistance of counsel in connection with a guilty plea will

serve as a basis for PCRA relief only if the ineffectiveness caused the defendant

to enter an involuntary or unknowing plea. Velazquez, 216 A.3d at 1149;

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

defendant enters his plea on the advice of counsel, the voluntariness of the

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

demanded of attorneys in criminal cases.” Velazquez, 216 A.3d at 1149-50

(quoting Commonwealth v. Wah, 42 A.3d 335 (Pa. Super. 2012)); see also

Johnson, 179 A.3d at 1160.

      To establish that a guilty plea is voluntary and knowing, the plea

colloquy must ascertain the factual basis for the plea and that the defendant

understands the nature of the charges to which he is pleading guilty, his right

to a jury trial, the presumption of innocence, the sentencing ranges for the

charges against him, and the plea court’s power to deviate from any

recommended sentence. Commonwealth v. Flanagan, 854 A.2d 489, 500

& n.8, 504 (Pa. 2004); Commonwealth v. Reid, 117 A.3d 777, 782 (Pa.

Super. 2015); Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super.

2005); Comment to Pa.R.Crim.P. 590(A)(2).         These matters may also be

shown by a written plea colloquy read and signed by the defendant and made

part of the record when supplemented by an oral, on-the-record examination.




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Reid, 117 A.3d at 782-83; Morrison, 878 A.2d at 108; Comment to

Pa.R.Crim.P. 590(A)(2).

      Even where the oral and written plea colloquys fail to address the nature

of the charges to which the defendant is pleading guilty, the plea may

nonetheless be held voluntary and knowing if the record demonstrates that

the defendant was in fact informed of the elements of the charges or knew in

detail how the Commonwealth would prove all the elements of the charges

before he pled guilty. Commonwealth v. Shaffer, 446 A.2d 591, 596-97

(Pa. 1982); Morrison, 878 A.2d at 107-09. A guilty plea is not voluntary and

knowing, however, where there is nothing in the record showing that the

defendant was aware of the actual elements of the offense to which he pled

guilty and the record demonstrates that the defendant was incorrectly advised

concerning what the Commonwealth was required to prove. Flanagan, 854

A.2d at 500-04 (court properly granted post-conviction relief where the

defendant was given “a materially erroneous understanding of the substantive

law establishing criminal liability on the offenses charged”).

       Here, Appellant signed a written plea colloquy and the trial court

conducted a brief oral colloquy. These colloquys addressed Appellant’s ability

to understand the proceedings, the fact that he had sufficient opportunity to

consult with trial counsel, and his understanding of his right to a jury trial, the

presumption of innocence, the Commonwealth’s burden of proof, the possible

sentences for all of the non-summary offenses with which he was charged,


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and the plea agreement. N.T. Guilty Plea and Sentencing at 18-24; Guilty

Plea Colloquy Form. Trial counsel and the prosecutor stipulated on the record

that the averments in the criminal complaint and affidavit of probable cause

were the factual basis for the plea, but those averments were not read into

the record or set forth in the written plea colloquy.   N.T. Guilty Plea and

Sentencing at 23; Guilty Plea Colloquy Form.     Neither the written or oral

colloquy set forth the elements of any of the offenses to which Appellant was

pleading guilty or discussed what evidence would be required to prove those

elements. Rather, the only reference to the elements or nature of the charges

consisted of Appellant’s affirmative answers to conclusory questions in the

written plea colloquy asking whether counsel had “explained to you the nature

of the charge(s) to which you are pleading guilty” and whether counsel had

“explained to you the element of the criminal offense(s) to which you are

pleading guilty.” Guilty Plea Colloquy Form at 5. The trial court offered the

prosecutor the opportunity to conduct further colloquy of Appellant, but the

prosecutor declined to conduct any further colloquy.    N.T. Guilty Plea and

Sentencing at 23.

     The PCRA record shows that trial counsel did give Appellant detailed

advice concerning his sentence exposure and risks of going to trial in which

he discussed the elements of the most serious charge to which Appellant pled

guilty, Homicide by Vehicle While DUI, the offense for which he was sentenced

to 3 to 6 years’ incarceration. N.T. PCRA at 17-18, 87; 10/8/17 Trial Counsel


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Letter to Appellant. Unfortunately, it is equally clear that the advice that trial

counsel gave concerning the elements of that offense seriously misstated the

elements of that offense and understated the Commonwealth’s burden of

proof.

         The offense of Homicide by Vehicle While DUI requires proof of both of

the following two elements: 1) a conviction for DUI; and (2) proof that the

DUI caused the death of the victim. 75 Pa.C.S. § 3735(a) (in effect February

1, 2004 to December 23, 2018) (defining Homicide by Vehicle While DUI as

“unintentionally caus[ing] the death of another person as the result of a

violation of section 3802 (relating to driving under influence of alcohol or

controlled substance)” by a person “who is convicted of violating section 3802

… when the violation is the cause of death”); Commonwealth v. McCurdy,

735 A.2d 681, 685 (Pa. 1999); Commonwealth v. Thur, 906 A.2d 552, 569

(Pa. Super. 2006).        Trial counsel did not advise Appellant that the

Commonwealth had the burden of proving that Appellant’s DUI caused the

accident or Victim’s death. Instead, he advised Appellant that Homicide by

Vehicle While DUI required proof of only “a. unintentional death of a person,

and b. violation of any DUI charge” and that “[g]iven the fairly straight forward

element of the vehicular homicide while DUI (Count # 1) in that all they have

to show is an ‘unintentional death' (which is fairly obvious), we will not prevail

on that element.” 10/8/17 Trial Counsel Letter to Appellant at 2-3.




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      Such inaccurate advice concerning a critical element of the primary

charge against Appellant was not within the range of competence demanded

of attorneys in criminal cases and constitutes ineffective assistance of counsel.

Commonwealth v. Nieves, 746 A.2d 1102, 1104-05 (Pa. 2000) (legal advice

that is contrary to applicable law constitutes ineffective assistance of counsel);

Velazquez, 216 A.3d at 1151 (same). Because neither the trial court nor the

prosecutor addressed the elements of the charges to which Appellant was

pleading guilty in the oral colloquy at the time of his plea, Appellant was not

made aware that trial counsel’s advice was erroneous. His guilty plea, based

on a material misstatement as to what the Commonwealth was required to

prove, was therefore not voluntary and knowing. Flanagan, 854 A.2d at 500-

04.

      Appellant has also shown that he was prejudiced by counsel’s inaccurate

advice.     The test for prejudice where counsel’s ineffective representation

involves a guilty plea is whether there is a reasonable probability that, but for

counsel’s error, the defendant would not have pled guilty and would have gone

to trial.    Velazquez, 216 A.3d at 1150; Johnson, 179 A.3d at 1159;

Hickman, 799 A.2d at 141. This standard, however, is not a high burden;

the defendant need only show that that counsel’s error undermines confidence

in whether the defendant would have pleaded guilty, not that is more likely

than not that the defendant would have rejected the guilty plea and proceeded

with trial. Velazquez, 216 A.3d at 1150; Hickman, 799 A.2d at 141.


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      That standard is satisfied here. Appellant testified that he felt that he

had to plead guilty because of trial counsel’s advice that the Commonwealth

only had to prove an unintentional death and a DUI.       N.T. at 15-18, 24-26,

34-35. Appellant further testified that he did not dispute that he caused an

accidental death, but believed that the accident would have occurred

regardless of his intoxication.   Id. at 37-39.   “[W]e have not hesitated to

afford a PCRA petitioner relief where counsel has affirmatively misled his

client.” Velazquez, 216 A.3d at 1151. The PCRA court notably did not find

that Appellant failed to satisfy the element of prejudice or find that he would

have pled guilty regardless of what he knew or was advised concerning the

elements of the charges against him.          Rather, the PCRA court denied

Appellant’s ineffective assistance of counsel claim with respect to his plea

based on its erroneous conclusion that trial counsel’s misstatement of the

elements of Homicide by Vehicle While DUI was “an adequate explanation of

the elements of this particular charge.” PCRA Court Opinion, 4/8/19, at 17.

      We recognize that Appellant’s guilty plea was pursuant to a plea bargain

that avoided the risk of a longer prison sentence. The decision to plead guilty,

however, is one of the fundamental decisions that must be made by the

defendant himself, not by counsel or by a court’s view that the plea is a wise

choice. Johnson, 179 A.3d at 1160. Moreover, the plea agreement was not

so extraordinarily lenient as to necessarily negate the effect of trial counsel’s

inaccurate advice. Appellant pled guilty to almost all of the charges against


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him, including the most serious charges, the sentence that he received under

the plea agreement involved significant imprisonment and, while the sentence

was lower than his maximum exposure, the difference between his minimum

sentence and the highest minimum sentence that he could receive, five years’

incarceration, 75 Pa.C.S. § 3735(a) (in effect February 1, 2004 to December

23, 2018); 18 Pa.C.S. § 1103(2), was only two years.      Cf. Hickman, 799

A.2d at 141-42 (prejudice from inaccurate advice concerning plea shown

where minimum sentence if convicted at trial was only year longer than plea

bargain sentence).

      In contrast, there is nothing in the record from which it could be

concluded that Appellant’s decision to plead guilty was unaffected by trial

counsel’s inaccurate advice.      The likelihood of conviction without a

requirement of proof that the DUI caused the death would be far higher than

under the Commonwealth’s actual burden of proof. This was not a case where

the defendant drove into the opposite lane of travel or off the roadway, where

the mere location of the accident would make it obvious that the accident was

caused by impairment. There is no evidence in the record that Appellant was

advised that the Commonwealth had strong accident reconstruction evidence

showing that his intoxicated condition caused this accident. To the contrary,

at the PCRA hearing, trial counsel reaffirmed his misunderstanding of the

causation element and testified that he had no discussion of how the




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Commonwealth would prove that Appellant’s intoxication caused the accident,

stating:

      Q. …did you have discussions about causation with Mr. Mosey?
      A. Again, I believe it was self-evident. I’m not sure that we
      actually had a discussion about that.
      Q. And even in the consultations that you had with [expert
      witness] Mr. McEldowney or anyone else was causation ever an
      issue?
      A. No.

N.T. PCRA at 84.

      Accordingly, we conclude that the PCRA court erred in denying

Appellant’s claim that trial counsel’s ineffective assistance invalidated his

guilty plea. We therefore remand this case to the PCRA court for the court to

afford Appellant the opportunity to withdraw his guilty plea. In light of our

ruling on this issue, we need not and do not address Appellant’s other claims

of ineffective assistance of counsel.

      Order reversed. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.

Judge McLaughlin joins the memorandum.

Judge Murray files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2020

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