J. A26030/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    v.                  :
                                        :
RAYMEIR JYALEL HAYNES,                  :         No. 518 MDA 2015
                                        :
                         Appellant      :


               Appeal from the Order Entered February 19, 2015,
                in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0004908-2012


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 21, 2015

     Raymeir Jyalel Haynes appeals, pro se, from the order filed in the

Court of Common Pleas of Dauphin County which dismissed, without a

hearing, his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

     On March 10, 2012, appellant, Vidal Little, and Adrian Collins entered

the EZ Discount Store located at South 17th Street and Market Street in

Harrisburg.     The three individuals held two employees of the store at

gunpoint, and demanded cash from the register. The threesome made off

with several hundred dollars. No one was harmed during the course of the

robbery.      The entire episode was caught on surveillance tape.    Upon

reviewing the tape, the appellant was identified by police officers and

arrested.


* Retired Senior Judge assigned to the Superior Court.
J. A26030/15


     Appellant was charged with robbery--threat of immediate serious

bodily injury (a first-degree felony), conspiracy to commit robbery, firearms

not to be carried without a license, and possession of a firearm prohibited. 1

On September 10, 2013, appellant entered into a negotiated plea agreement

wherein he agreed to plead guilty in exchange for a sentence of 8 to

16 years of imprisonment, followed by 4 years of probation.2      Following a

guilty plea and sentencing hearing held on September 10, 2013, the trial

court accepted the plea agreement and imposed the above-stated sentence.

Appellant filed post-sentence motions which were denied as untimely.       No

direct appeal was taken.

     On August 20, 2014, appellant filed a timely pro se PCRA petition. On

September 4, 2014, PCRA counsel was appointed to represent appellant. On

October 21, 2014, counsel filed a Turner/Finley3 “No Merit” letter and a


1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c), 6106(a)(1), and 6105(a)(1),
respectively.
2
  The record shows that when he entered his guilty plea, appellant faced one
count of murder and conspiracy to commit robbery in an unrelated case
docketed at 2053 C.D. 2012, during which he was charged, along with
co-defendant, Adrian Collins, in connection with the killing of a cab driver.
(Transcript of proceedings guilty plea and sentencing, 9/10/13 at 3-5.)
Appellant’s co-defendant, Collins, had already been convicted of first-degree
murder and sentenced to life imprisonment. The Commonwealth agreed,
“following the testimony presented at the co-defendant’s trial,” that in
exchange for appellant’s negotiated guilty plea in this case, the
Commonwealth would withdraw the murder and conspiracy to commit
robbery charges at No. 2053 C.D. 2012. (Id. at 4.)
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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petition to withdraw. On November 20, 2014, the PCRA court filed its notice

of intent to dismiss within 20 days. On December 11, 2014, appellant filed a

supplemental pro se PCRA petition. On February 19, 2015, the PCRA court

filed an order dismissing the PCRA petition without a hearing and granting

counsel permission to withdraw.

      Appellant raises the following issues on appeal:

            1.     Whether the PCRA court committed error by
                   dismissing the PCRA petition for lack of merit
                   and without conducting an evidentiary hearing
                   on ineffective assistance of counsel claim of
                   errors where counsel;

                   (A)    Advised appellant to enter the
                          guilty plea under duress for crimes
                          he did not commit,

                   (B)    Counsel failed to explain      the
                          elements of the crime, and,

                   (C)    Counsel   misadvised    appellant
                          mandatory sentences applied to
                          each charge if appellant went to
                          trial?

            2.     Whether the appellant’s untimely post-
                   sentence motion filed pro-se should have been
                   treated as a first PCRA petition requiring a
                   remand to the PCRA court for appointment of
                   new counsel and the filing of a[n] amended
                   PCRA petition?

            3.     Whether this case should be remanded to the
                   PCRA court for appointment of new counsel
                   and an evidentiary hearing?

Appellant’s brief at 4.




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      The standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to a determination of whether the PCRA court’s conclusion is

supported    by   the   evidence   of    record   and   free   of   legal   error.

Commonwealth v. Boyer, 962 A.2d 1213, 1214 (Pa.Super. 2008).

      The PCRA provides relief for petitioners whose convictions resulted

from ineffectiveness of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). In reviewing

a claim of ineffective assistance of counsel, the reviewing court must begin

with the presumption that trial counsel rendered effective assistance.

Commonwealth v. Chimiel, 30 A.3d 1111, 1127 (Pa.Super. 2011).                  To

obtain relief on an ineffective assistance of counsel claim, the petitioner

must demonstrate the following: (1) that the underlying claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for his or her

action or inaction; and (3) that, but for the errors and omissions of counsel,

there is a reasonable probability that the outcome of the proceedings would

have been different.    Commonwealth v. Pierce, 527 A.2d 973, 975-976

(Pa. 1987); Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.

2010).   The failure to satisfy any prong of this test will cause the entire

claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super.

2008).

      The right to the constitutionally effective assistance of counsel extends

to counsel’s role in guiding his client with regard to the consequences of

entering into a guilty plea.



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                    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.

                    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.

                     Thus, to establish prejudice, the defendant
              must show that there is a reasonable probability
              that, but for counsel’s errors, he would not have
              pleaded guilty and would have insisted on going to
              trial.   The reasonable probability test is not a
              stringent one; it merely refers to a probability
              sufficient to undermine confidence in the outcome.

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

(citations, quotation marks, and footnote omitted).

        In his first issue, appellant argues that trial counsel was ineffective

during the guilty plea stage for misadvising him that mandatory minimum

sentences for offenses committed with firearms, imposed at Section 9712 of

the Sentencing Code, 42 Pa.C.S.A. § 9712, would apply to the robbery and

conspiracy to commit robbery charges if he went to trial.4

        At the guilty plea and sentencing hearing, appellant was informed by

the Commonwealth:

              [Assistant District Attorney John C. Baer]:    One thing
              that is not on your colloquy form that        I need to
              inform you of.      We are alleging that      those two
              crimes, the robbery and conspiracy, were      committed
              with a firearm.

4
    We have rearranged the order of appellant’s issues for ease of disposition.


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                  When you do that, that carries a mandatory
             60-month or 5-year sentence.         So you have
             exposure to, at Counts 1 and 2, a 5-year mandatory
             sentence. Do you understand that?

             DEFENDANT: (No verbal response)

             [Assistant District Attorney John C. Baer]: You have
             to say yes or no.

             DEFENDANT: Yes.

             [Assistant District  Attorney John     C. Baer]:
             Obviously, under the terms of the plea agreement
             you are not going to get those one on top of the
             other, but you understand that you are exposed to
             that mandatory?

             DEFENDANT: Okay.

Transcript, 9/10/13 at 8.

     Appellant contends that his trial counsel should have informed him

that mandatory minimum sentence enhancements were unconstitutional

under Alleyne v. United States, 133 S.Ct. 2151 (2013) (facts that increase

mandatory minimum sentences must be submitted to the jury and must be

found beyond a reasonable doubt). He claims he was led to believe that he

could face mandatory minimum sentences of 5 years each on the robbery

and conspiracy to commit robbery charges if he went to trial and was

convicted.   He argues that there is a reasonable probability that he would

not have agreed to an 8-year minimum sentence if he was not facing a

10-year mandatory minimum sentence and would have opted to go to trial

had his counsel provided sound advice.


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     The Commonwealth contends that trial counsel was not ineffective

because this court did not hold that mandatory sentencing imposed under

Section 9712 of the Sentencing Code was unconstitutional until October 3,

2014, in Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014),

and appellant’s guilty plea was on September 10, 2013.

     Recently,   in   Commonwealth      v.   Melendez-Negron,     2015    WL

5657130 (Pa.Super. September 25, 2015), this court rejected an identical

argument raised by the Commonwealth. There, Jose Melendez-Negron was

arrested and charged with, inter alia, possession with intent to deliver

(“PWID”). At the time of his arrest, he was in possession of a firearm. The

Commonwealth gave notice of its intention to invoke the mandatory

minimum sentence provision at Section 9712.        On November 15, 2013,

Melendez-Negron entered a negotiated plea to PWID and the other charges.

He was sentenced to 5 to 10 years of incarceration. Melendez-Negron did

not file a direct appeal. He filed a PCRA petition and alleged that counsel

was ineffective for allowing Melendez-Negron to plead guilty and agree to a

sentence based on the mandatory minimum sentencing enhancement. The

PCRA court agreed and vacated his sentence and ordered that he be

resentenced.   The Commonwealth appealed.       The Commonwealth argued,

among other things, that no Pennsylvania appellate court had addressed the

constitutionality of Section 9712 at the time, and therefore, counsel “cannot




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be deemed ineffective for failing to predict the changes or developments in

the law.” Id. at *2. This court disagreed and held:

           Upon the issuance of the Alleyne decision in June
           2013,     Counsel      was    on  notice    that   the
           constitutionality of such sentencing enhancement
           was in question. There can be no reasonable basis
           for Counsel’s failure to recognize this and to advise
           Melendez-Negron to reject a plea agreement that
           incorporated a sentence based upon § 9712 a.1.
           This is so especially in light of the fact that
           application of § 9712 a.1 resulted in a sentence that
           was more than double the aggravated range
           sentence Melendez-Negron would have faced. In a
           situation such as this, where the United States
           Supreme Court has spoken, counsel need not wait
           for a pronouncement from a Pennsylvania appellate
           court. By raising such a claim or at least questioning
           the constitutionality of § 9712 a.1 during plea
           negotiations, Counsel would not be predicting
           changes in the law, as the Commonwealth contends,
           but rather conscientiously advancing an argument
           based upon the logical extension of Alleyne to
           protect his client’s interests.

Id.

      Here, appellant’s guilty plea was on September 10, 2013, which was

several months after Alleyne was decided on June 17, 2013. Trial counsel

was on notice that the constitutionality of such sentencing enhancement was

in question. Counsel was, therefore, obligated to inform appellant that he

would not face two automatic 5-year minimum sentences on the robbery

and conspiracy charges if he went to trial and was convicted. There was no

reasonable basis for counsel’s failure to recognize this and advise appellant

that the Commonwealth would have to prove to a jury beyond a reasonable



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doubt that appellant was, in fact, in possession of a firearm during the

commission of the robbery. Because guilty plea negotiations were tainted by

misinformation about sentences, appellant should be permitted to withdraw

his guilty plea.5

      Order reversed.     Appellant’s guilty plea is vacated.   The matter is

remanded for further proceedings. Jurisdiction is relinquished.6



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2015




5
  However, we wish to note that when a defendant withdraws or successfully
challenges his plea, the bargain is abrogated and the defendant must be
prepared to accept all of the consequences which the plea originally sought
to avoid. Commonwealth v. Ward, 425 A.2d 401, 406 (Pa. 1981),
cert. denied, 451 U.S. 974 (1981) (reinstatement of the original charge of
first-degree murder after defendant’s successful revocation of his plea
agreement did not violate defendant’s due process rights where there was
no showing of prosecutorial vindictiveness). Here, appellant faced extremely
serious murder and conspiracy to commit robbery charges that were
withdrawn by the Commonwealth in exchange for his guilty plea in the case
sub judice.
6
  Because of our disposition of the first issue, we need not address
appellant’s remaining issues.


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