J-S44026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

MARIO LOUIS DUNCAN

                            Appellant                         No. 38 WDA 2014


                Appeal from the PCRA Order December 3, 2013
              In the Court of Common Pleas of Armstrong County
              Criminal Division at No(s): CP-03-CR-0000601-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                             FILED SEPTEMBER 04, 2014

        Mario Louis Duncan appeals from the order of the Court of Common

Pleas of Armstrong County dismissing his petition brought pursuant to the
                                          1
                                               After careful review, we affirm.

        The trial court summarized the relevant facts as follows:

        [Duncan] was charged by information filed September 21, 2012,
        with the following crimes: [a]ggravated [a]ssault . . . [d]elivery
        of [c]ontrolled [s]ubstance . . . [p]ossession of [d]rug
        [p]araphernalia . . . [t]ampering with or [f]abricating [p]hysical
        [e]vidence . . . and [e]scape. [Duncan] entered a plea of guilty
        to one count of [a]ggravated [a]ssault on [February 7, 2013].
        In exchange for the plea, the Commonwealth agreed to nolle
        pros the remaining counts of the information and recommend a
        sentence with a minimum of two years and a maximum of four



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1
    42 Pa.C.S. §§ 9541-9546.
J-S44026-14


     then being served by [Duncan] at Armstrong County No. 2008-
     0470 . . . .

     At sentencing on April 30, 2013, the Commonwealth complied
     with the plea agreement and recommended a sentence of two to

     sentence. However, after one of the victims, Detective Frank
     Pitzer, testified that he would oppose the sentence, [Duncan]
     immediately told his counsel that he was innocent of the crimes
     charged and wished to withdraw his guilty plea and proceed to
     trial.  With the consent of the Commonwealth, the [c]ourt
     permitted the withdrawal.

     Two days later, on May 2, 2013, [Duncan] again entered a plea
     of guilty to one count of [a]ggravated [a]ssault. In the plea
     agreement, the Commonwealth agreed to nolle pros the
     remaining charges and recommend a sentence of 27 to 54
     m
     sentence.     [Duncan] also again completed a guilty plea
     questionnaire and testified that he understood its contents.

     [Duncan] for the second time was scheduled for sentencing on
     May 9, 2013. At the sentencing hearing, the [c]ourt imposed a
     sentence of 27-
     state sentence at No. 2008-0470, which was the sentence
     recommended by the Commonwealth in the plea agreement.
                                            or time served.

     [Duncan] later was informed by the Commonwealth Department
     of Corrections that, pursuant to the Parole Act of 1941, [Duncan]
     could not begin to serve the sentence imposed in this case until
     he either finished serving the maximum sentence imposed at No.
     2008-0470 or was re-paroled at that number. [Duncan] then
     filed a pro se motion for post-conviction collateral relief on July
     10, 2013.      The [c]ourt appointed counsel and scheduled a
                                                                    ded
     [m]otion for post-conviction collateral relief on September 16,
     2013 . . . .

     At the hearing on October 24, 2013, [Duncan] testified that
     when he agreed to enter a plea of guilty to [a]ggravated
     [a]ssault, he was not aware that the concurrent sentence
     recommended by the Commonwealth and imposed by the
     sentencing court was an impossibility. He further stated that
     had his counsel made him aware of the fact that his parole would
     be revoked and he would have to either serve the maximum

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J-S44026-14


      sentence at No. 2008-0470 or be re-paroled before the current
      sentence would begin to run, he would not have entered the
      guilty plea and instead would have attempted to negotiate
      something better into the plea agreement.

Trial Court Opinion, 12/3/13, at 1-5.

      Duncan filed this

petition, raising two issues for our review:

      1. Did the PCRA court make a mistake in law or fact by denying
                               -conviction relief?

      2. Is [Duncan] entitled to a sentence modification based upon
      ineffective assistance of counsel?



      When reviewing an appeal from the denial of PCRA relief, an appellate

                                     -

                                                Commonwealth v. Riga, 70

A.3d 777, 780 (Pa. 2013).

      To be eligible for relief under the PCRA, Duncan must prove by a



assistance of counsel which, in the circumstances of the particular case so

undermined the truth-determining process that no reliable adjudication of




                                         Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa




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J-S44026-14



                                               nt has suffered prejudice as a

          Commonwealth v. Prince, 719 A.2d 1086, 1089 (Pa. Super.

1998) (citing Commonwealth v. Griffin, 644 A.2d 1167, 1172 (Pa. 1994)).



consequences     of   his    pl

Commonwealth v. Lippert, 85 A.3d 1095, 1101 (Pa. Super. 2014).

Furthermore,

     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

     demanded of attorneys in criminal cases.

     Thus to establish prejudice, the defendant must show that there

     would not have pleaded guilty and would have insisted on going
     to trial.

Id. at 1100.

     Here, Dunca

assurances     that he      would be   allowed to   serve   his 2012   sentence

concurrently with his 2008 sentence.          During the plea hearing, the

prosecution stated:

     There is [a plea agreement] your Honor.                And that plea

     guilty to count number one, aggravated assault, felony of the

     on a prior record score of a repeat felon, your Honor, the district
     attorney will withdraw the remaining citations, nolle pros the
     remaining charges, and recommend at the time of sentencing


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J-S44026-14


      incarceration of 27 months to 54 months to be served in a state
      correctional institute. The sentence to be served concurrent
      with the sentence he is presently serving.

N.T. Guilty Plea, 5/2/13, at 14 (emphasis added).



concurrent

5/9/13, at 11 (emphasis added). Clearly, Duncan entered his plea with the

belief that he would serve his sentences concurrently.      Moreover, at the

PCRA hearing Duncan testified that trial counsel, Debra L. Yost, Esquire

                                                              to four running

concurrent

plea agreement. N.T. PCRA Hearing, 10/24/13, at 10 (emphasis added).

      We must first determine whether Attorney Yost misled Duncan about

the consequences of his plea.         This Court examined this question in

Commonwealth v. Barndt, 74 A.3d 185 (Pa. Super. 2013). The deciding

factor in that case, like this one, was the distinction between the failure to

mention a collateral consequence of a guilty plea to a defendant and

misleading a defendant about the collateral consequences of a guilty plea.



eleven months of backtime he had already served on parole. Upon losing

forty-one months of backtime, Barndt filed a PCRA petition, which the court

denied. On appeal, this Court held:


      collateral consequence of a guilty plea does not constitute
      ineffectiveness of counsel, it is equally clea


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J-S44026-14


       assistance    is   constitutionally ineffective when     counsel
       misapprehends the consequences of a given plea and misleads
       his client according about those consequences, without regard to


Barndt, supra at 196.

       This Court also addressed the difference between misleading a client

and omitting information in Lippert, supra

nolo contendere

told him that he would avoid sex offender registration]. On December 20,

2011, Pennsylvania enacted SORNA which characterized his crime as a tier

                                           Id. at 1001. This Court held that while

SORNA was not yet in effect, but already in place, counsel should have

known of its consequences and his incorrect assessment was grounds for a

claim of ineffective assistance of counsel.

       The facts of Lippert bear a close resemblance to the facts in the

matter before us. Like the attorney in Lippert, Attorney Yost should have

been aware of the possible consequences of the Parole Act of 1941 on



to his plea bargain was an impossibility.2

ineffectiveness has arguable merit. Lippert, supra.

____________________________________________


2
  Section 6138(a)(5) of the Prisons and Parole Code provides in relevant
part:

       If a new sentence is imposed on the parolee, the service of the
       balance of the term originally imposed by a Pennsylvania court
(Footnote Continued Next Page)


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J-S44026-14



        Next, we must determine whether any reasonable basis existed for



sentencing law, her advice was unsound and devoid of any reasonable basis

                                                  Barndt, supra at 199.

        Finally, we must decide whether Duncan has pleaded and proved that



prejudice may be established by demonstrating a reasonable probability that

appellant would have opted to go to trial rather than plead guilty had he

                                            Id. at 199-200. Here, Duncan testified

that he would not have accepted the plea agreement had he known the

sentences could not be served concurrently. N.T. PCRA Hearing, 10/24/13,

at 15.    Rather, he would have renegotiated his plea.         Id.   Duncan never

stated that he would have proceeded to trial had he known that his

sentences could not be served concurrently.3            Nor did Duncan request to

                       _______________________
(Footnote Continued)

        shall precede the commencement of the new term imposed in
        the following cases:

             If a person is paroled from a state correctional institution
             and the new sentence imposed on the person is to be
             served in the state correctional institution.

61 Pa.C.S. § 6138(a)(5).

3
    To assume otherwise, as the Dissent suggests, would ask this Court to put

within the province of this Court to divine what an appellant or an appellee
might have said or done under hypothetical circumstances. Accordingly, the
prejudice standard proposed by the Dissent is not appropriate here.



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J-S44026-14



withdraw his guilty plea on appeal.4 Because Duncan avers that he would

have renegotiated his plea bargain as opposed to withdrawing his guilty plea

and going to trial, he fails to establish prejudice and we are constrained to

affirm the order of the PCRA court.

       Order affirmed

       BENDER, P.J.E., files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2014




____________________________________________


4
  In Barndt, supra, Commonwealth v. Hickman, 799 A.2d 136 (Pa.
Super. 2002), and Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super.
2006), defendants who were misled about the collateral consequences of
their guilty pleas also requested to withdraw their guilty pleas.



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