J-S61042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 FRANK THOMPSON                             :
                                            :
                     Appellant              :   No. 3342 EDA 2017

                Appeal from the PCRA Order September 18, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007877-2014


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                             Filed March 19, 2019

        Appellant, Frank Thompson, challenges the order entered in the

Philadelphia County Court of Common Pleas, dismissing his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        The relevant facts and procedural history of this case are as follows. An

officer spotted Appellant with a handgun outside of a McDonald’s restaurant

in Philadelphia, and attempted to stop him. Rather than surrender, Appellant

led the officer and several backup units on a car chase throughout the city,

causing an accident when he accelerated through a red light. The chase ended

when Appellant deserted his still-moving vehicle and endeavored to flee on

foot.

        Appellant entered a negotiated guilty plea to illegal possession of a

firearm. During the colloquy, the court noted that Appellant’s conviction would
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result in a violation of his parole, which Appellant acknowledged. The court

then sentenced Appellant to three to six years’ incarceration. The court

ordered Appellant be given credit for time served.

      Appellant did not file a direct appeal. Instead, he filed a timely pro se

PCRA petition, alleging his guilty plea had been unlawfully induced. Appellant

claimed part of his plea bargain with the Commonwealth included making his

effective date of sentence the same date as his arrest, June 6, 2014, so he

would have nearly two years of time credit applied to his sentence. Appellant

asserted his time credit instead applied to his parole violation. He concluded

the PCRA court should permit him to withdraw his guilty plea.

      The PCRA court appointed counsel, who filed an amended PCRA petition.

The court filed notice of its intent to dismiss Appellant’s petition without a

hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response.

Thereafter, the PCRA court dismissed Appellant’s petition. He timely filed a

pro se notice of appeal.

      This Court remanded the case to the PCRA court, after observing that

Appellant’s counsel had not been forwarded Appellant’s pro se notice of

appeal, or granted permission to withdraw. The PCRA court granted counsel’s

motion to withdraw due to counsel’s retirement, and appointed new counsel

to represent Appellant on appeal. This appeal is now properly before us.

      Appellant presents a single issue on appeal: whether his “plea of guilty

[was] unlawfully induced when he was promised that he would receive credit

for time served from the date of his arrest through the date of his sentencing

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– a period of more than one year and nine months – where such credit is

prohibited by two statutes?” Appellant’s Brief, at 2.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id.

      The PCRA specifically provides relief for a petitioner able to prove his

plea was “unlawfully induced where the circumstances make it likely that the

inducement caused the petitioner to plead guilty and the petitioner is

innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii) (emphasis added). The PCRA also

provides relief in situations where the petitioner can demonstrate plea counsel

was ineffective in his representation. See 42 Pa.C.S.A. § 9543(a)(2)(ii); see

also Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016) (“It is

equally well established that Appellee’s claim of ineffective assistance of plea

counsel … was cognizable under the PCRA”).

      Appellant does not claim innocence. Nor does he allege trial counsel was

ineffective in his representation. Instead, he contests only the knowing,

intelligent, and voluntary nature of his plea, given that his credit time was

allocated to his parole violation sentence.

      A claim that his plea was unknowing, involuntary, or unintelligently

made could have been raised on direct appeal. See Commonwealth v.

Rachak, 62 A.3d 389, 391 (Pa. Super. 2012) (holding challenges to the

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voluntariness of a plea should be raised on direct appeal). Therefore, this issue

is waived. See 42 Pa.C.S.A. § 9544(b).

      However, even if we understood this argument to be properly couched

in terms of trial counsel’s ineffectiveness, as in the cases to which Appellant

cites, it is nevertheless without merit.

      Ineffective assistance of counsel claims arising from the plea-bargaining

process are cognizable for purposes of PCRA review. See Descardes, 136

A.3d at 501. In order to establish counsel’s ineffectiveness, a petitioner must

prove: the underlying claim has arguable merit; no reasonable basis existed

for counsel’s action or inaction; and the petitioner suffered prejudice as a

result of counsel’s errors, calculated by whether there exists a reasonable

probability the result would have been different. See Commonwealth v.

VanDivner, 178 A.3d 108, 114 (Pa. 2018).

      “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.

Anderson, 995 A.2d 1184, 1192 (Pa. Super. 2010) (citation omitted). “[T]he

law does not require that the defendant be pleased with the outcome of his

decision to enter a plea of guilty: All that is required is that his decision to

plead guilty be knowingly, voluntarily and intelligently made.” Id. (citation

omitted).

      If a new state sentence is imposed on a defendant already serving a

state parole term, the defendant must serve out the previously imposed

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sentence before he serves the new term. See 61 Pa.C.S.A. § 6138(a)(5)(i).

“In other words, where a state parolee gets a new state sentence, he must

serve his backtime first before commencement of the new state sentence.”

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citation

omitted).

      In Kelley, the appellant was already on parole when he entered a

negotiated guilty plea for a state sentence, with the explicit term that it would

be effective from the date of his initial incarceration. All of Kelley’s credit time,

from the date of incarceration until the date of sentencing, would therefore be

applied to his sentence under the agreement. Instead, the credit time was

applied to Kelley’s state parole violation sentence, in accordance with 61

Pa.C.S.A. § 6138(a)(5)(i). In his PCRA petition, Kelley claimed counsel was

ineffective for negotiating a plea bargain that could not be enforced. A panel

of this Court agreed, stating Kelley “entered into an agreement with the

Commonwealth to plead guilty in exchange for a definite sentence with a

specific start date.” Kelley, 136 A.3d at 1014.

      Here, Appellant was on state parole at the time he entered his plea and

was given another state sentence on the new charges. However, Appellant is

unable to point to anything in the record to show his plea contained any

negotiated terms related to his parole violation. Indeed, the only mentions in

the record of his parole violation or credit time occurs in the sentencing

transcripts are as follows:

      [Sentencing court]: Are you presently on probation or parole?

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      [Appellant]: No probation, just parole.

      [Sentencing court]: Just parole?

      [Appellant]: Yes.

      [Sentencing court]: And so this is a violation.

      [Appellant’s counsel]: Yes.

      [Sentencing court]: And understanding that this conviction will
      constitute a violation of your parole, does that change your mind
      about your decision to plead guilty today?

      [Appellant]: No.

N.T. Sentencing, 3/31/16, at 11.

      [Sentencing court]: Anything else?

      [Appellant’s counsel]: Just if I could, [Appellant] has been in since
      June 5th of 2014. We’re asking for credit for time served.

      [Sentencing court]: Credit for time served.

Id., at 17.

      The sentencing order imposes a sentence of three to six years’

incarceration, and provides “Credit for time served: Credit to be calculated by

the PA Dept of Corrections.” Sentencing Order, entered 3/31/16, at 1.

Appellant was thereafter awarded credit time of 48 days applied to the instant

sentence, and an additional 616 days of credit time applied to his state parole

sentence.

      The PCRA court observed:

      [Appellant] does not dispute that he received credit for all the time
      he spent in custody. Rather, he complains of how that credit is
      allocated. See Supplemental Memorandum, 8/16/17, pp. 1-2.

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      [Appellant] cannot have his time credit allocated away from a
      backtime sentence he was serving to a pre-trial matter in which
      he was on bail. Moreover, his claim that the State Parole Board
      would have granted him an earlier parole on the violation, had the
      time credit been allocated to the instant case, with a net result of
      a shorter cumulative period of incarceration, is purely speculative.
      Finally, we note that the case relied upon by [Appellant],
      Commonwealth v. Kelley, 136 A.3d 1007 (Pa. Super. 2016),
      stands for a proposition precisely opposite to that for which
      [Appellant] offers it: Any agreement which would have had the
      effect of crediting [Appellant’s] time in state custody prior to
      adjudication of his new case, would have resulted in an illegal
      sentence, in violation of the Parole Act's requirement that the
      backtime must be served before the new sentence. Id. at 1013-
      1014.

PCRA Court Order, filed 9/19/17, at 2.

      We agree. Appellant did receive credit for the time he was incarcerated,

applied to his state parole sentence. Appellant was not given an effective date

of sentence – an accommodation wholly different than the receipt of credit

time – beginning at the same time as his incarceration, as this would have

violated the Parole Act.

      Nothing Appellant points to in the record shows the application of credit

time in an arrangement contradictory to the Parole Act’s requirements was

even contemplated, much less a key element of his guilty plea. And, he

indicates no other basis to show his plea was not knowingly, voluntarily, or

intelligently made. Accordingly, we affirm the PCRA court’s order dismissing

his petition for relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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