J-S38006-15 and J-S38007-15

                               2015 PA Super 250


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellant

                    v.

STEWARD STECKLEY, JR.

                          Appellee                     No. 1995 MDA 2014



              Appeal from the PCRA Order of November 5, 2014
             In the Court of Common Pleas of Schuylkill County
             Criminal Division at Nos.: CP-54-CR-0001033-2009
                                        CP-54-CR-0001215-2009

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                    v.

STEWARD STECKLEY, JR.

                          Appellant                    No. 2103 MDA 2014

            Appeal from the Order Entered on November 5, 2014
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at Nos.: CP-54-CR-0001033-2009
                                       CP-54-CR-0001215-2009

BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

OPINION BY WECHT, J.:                            FILED NOVEMBER 30, 2015

     In this consolidated case, both the Commonwealth and Steward

Steckley   (“Steckley”)   appeal     the   November   5,   2014   order   granting

Steckley’s petition for relief pursuant to the Post Conviction Relief Act
J-S38006-15 and J-S38007-15



(“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm in part, reverse in part, and

remand for resentencing.

        In 2009, the Commonwealth charged Steckley with two counts of

possession of child pornography and one count of prohibited offensive

weapons.1 Prior to trial, the Commonwealth provided sentencing guideline

worksheets to Steckley’s attorney.                   Those worksheets contained the

guideline sentencing range for each of the above offenses.              Based upon

Steckley’s prior record score, the standard range of the sentencing

guidelines called for a sentence of nine to sixteen months’ imprisonment for

each count of possession of child pornography, with an aggravated range of

sixteen to nineteen months’ imprisonment.                 The sentencing worksheets

prepared by the Commonwealth did not indicate that any mandatory

sentences were applicable to the crimes charged.

        On December 3, 2009, immediately before jury selection began,

Steckley’s attorney engaged in guilty plea negotiations with the district

attorney. The Commonwealth offered to recommend an aggregate sentence

of three to six years’ imprisonment if Steckley pleaded guilty to all charges.

Steckley rejected that offer because it “didn’t make sense to [him]” in light
____________________________________________
1
       18 Pa.C.S. §§ 6312(d) and 908, respectively. The Commonwealth
filed these charges in two separate criminal complaints. On May 20, 2009,
the Commonwealth charged Steckley (at CR-1033-2009) with one count of
possession of child pornography and one count of prohibited offensive
weapons. On July 20, 2009, the Commonwealth charged Steckley (at CR-
1215-2009) with a second count of possession of child pornography. The
Commonwealth consolidated these cases for trial pursuant to Pa.R.Crim.P.
582.


                                               -2-
J-S38006-15 and J-S38007-15



of the sentencing guideline worksheets provided by the Commonwealth,

which indicated a standard range sentence of nine to sixteen months’

imprisonment. Notes of Testimony PCRA (“N.T.P.”), 8/5/2014, at 21. The

Commonwealth then offered to reduce the recommended sentence to a term

of two to six years’ imprisonment, which Steckley declined for the same

reason. Id. Having failed to reach an agreement, the parties proceeded to

jury selection.

      On December 10, 2009, a jury found Steckley guilty of two counts of

possession of child pornography, but found him not guilty of prohibited

offensive weapons.       The trial court ordered Steckley to undergo an

evaluation by the Sexual Offender Assessment Board (“SOAB”) prior to

sentencing.     The trial court subsequently continued Steckley’s sentencing

hearing so that he could seek an independent evaluation from a forensic

psychologist.     Once these evaluations were completed, the trial court

scheduled Steckley’s sentencing hearing for April 30, 2010.

      On April 30, 2010, the parties appeared for sentencing. However, the

Commonwealth’s witness from the SOAB failed to appear at the hearing.

The trial court continued Steckley’s sentencing until June 30, 2010. On June

22, 2010, eight days before Steckley’s rescheduled sentencing hearing, the

Commonwealth provided Steckley notice of its intent to seek imposition of a

mandatory minimum sentence of twenty-five years’ imprisonment due to

Steckley’s prior conviction, in 1994, for indecent assault. See 42 Pa.C.S. §

9718.2 (mandatory sentencing scheme for repeat sexual offenders).

                                     -3-
J-S38006-15 and J-S38007-15



     On June 30, 2010, the trial court imposed concurrent sentences of

twenty-five to fifty years’ imprisonment for each of Steckley’s possession of

child pornography convictions. Steckley timely filed a post-sentence motion.

Therein, Steckley maintained that the Commonwealth was required to

provide pretrial notice of its intention to seek a mandatory minimum

sentence.   Steckley based his argument upon the plain language of 42

Pa.C.S. § 9718.2(d), which, at the time, provided as follows:

     Authority of court in sentencing.—Notice of the application of
     this section shall be provided to the defendant before trial. If
     the notice is given, there shall be no authority in any court to
     impose on an offender to which this section is applicable any
     lesser sentence than provided for in subsections (a) and (b) or to
     place the offender on probation or to suspend sentence. . . .

42 Pa.C.S. § 9718.2(d) (2009) (emphasis added).

     On September 23, 2010, the trial court denied Steckley’s motion,

finding that the Commonwealth’s post-trial notice “was sufficient under the

terms of the [s]tatute.” Trial Court Opinion (“T.C.O.”), 9/23/2010, at 2. On

August 16, 2011, a divided panel of this Court affirmed Steckley’s judgment

of sentence in an unpublished memorandum decision. Commonwealth v.

Steckley, 1738 MDA 2010 (Pa. Super. Aug. 16, 2011). The majority held

that subsection 9718.2(d) imposed a duty upon defense counsel, rather than

the Commonwealth, to give his or her client notice of the mandatory

minimum sentence prior to trial. Id. at *5.

     On September 15, 2011, Steckley filed a petition for allowance of

appeal to the Pennsylvania Supreme Court.       On December 20, 2011 the

                                    -4-
J-S38006-15 and J-S38007-15



General    Assembly   amended     Subsection     9718.2(d),   eliminating   the

requirement that “[n]otice . . . be provided to the defendant before trial.”

42 Pa.C.S. § 9718.2(d) (2009).        On April 4, 2012, the Pennsylvania

Supreme Court granted Steckley’s petition for allowance of appeal, but

subsequently dismissed the appeal as having been improvidently granted.

See   Commonwealth         v.   Steckley,   41     A.3d   855    (Pa.    2012);

Commonwealth v. Steckley, 67 A.3d 758 (Pa. 2013).

      On April 29, 2014, Steckley timely filed a PCRA petition.         Therein,

Steckley alleged various instances of ineffective assistance of trial counsel.

Relevant to this appeal, Steckley alleged that his attorney was ineffective in

failing to inform him of the potential that the Commonwealth would seek

imposition of a twenty-five year mandatory minimum sentence.

      On August 5, 2014, the PCRA court held a hearing on Steckley’s

petition. Steckley’s attorney testified that she was unaware of the potential

twenty-five year mandatory minimum sentence, and, therefore, did not

apprise Steckley of the same. N.T.P. at 6. She also unequivocally testified

that her failure to recognize the extent of Steckley’s potential exposure at

sentencing negatively affected her representation of Steckley.

      Q:    If you had been aware of the mandatory minimum, would
            you have changed how you approached the case[?]

      A:    Absolutely.

      Q:    What would you have done differently?

      A:    I probably would have more strenuously discussed actually
            taking a plea or working something out by way of not


                                    -5-
J-S38006-15 and J-S38007-15


            having the Commonwealth pursue that mandatory and
            taking the offered plea.

      Q:    Do you feel you were able to adequately advise [Steckley]
            regarding the plea offer since you didn’t know about the
            mandatory minimum?

      A:    In hindsight, no, I didn’t.

Id. at 11-12.

      Steckley testified that his attorney engaged in guilty plea negotiations

with the district attorney immediately before jury selection began on

December    3,   2010.      Steckley’s    attorney   informed   him   that   the

Commonwealth was willing to recommend an aggregate sentence of three to

six years’ imprisonment if Steckley would plead guilty to all of the charges.

Steckley rejected that offer because it “didn’t make sense to [him]” in light

of the sentencing guideline worksheet provided by the Commonwealth,

which indicated a standard range sentence of nine to sixteen months’

imprisonment. Id. at 21. The Commonwealth then offered to recommend a

sentence of two to six years’ imprisonment, which Steckley declined for the

same reason. Id. Steckley testified that, had he known about the twenty-

five year mandatory minimum sentence, he would have pleaded guilty on

December 3, 2010. Id. at 23.

      On November 5, 2014, the PCRA court entered an order granting

Steckley’s PCRA petition, vacating his convictions, and relisting his cases for

trial. On November 24, 2014, the Commonwealth filed a notice of appeal.

Although not ordered to do so by the PCRA court, the Commonwealth filed a



                                      -6-
J-S38006-15 and J-S38007-15



concise statement of errors complained of on appeal on December 1, 2014.

Also on December 1, 2014, Steckley filed a notice of appeal. On December

8, 2014, the PCRA court ordered Steckley to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Steckley

timely complied.     On January 9, 2015, the PCRA court filed a Pa.R.A.P.

1925(a) opinion. We sua sponte consolidated the above-captioned cases for

unitary review.

     The Commonwealth presents two issues for our consideration:

     1. Did the PCRA [c]ourt err as a matter of law in determining
        th[at Steckley] carried his burden of proof to show that he
        was prejudiced by his trial counsel’s errors?

     2. Did the PCRA [c]ourt err as a matter of law in determining
        that, where trial counsel fails to inform her client that there is
        a mandatory minimum sentence applicable to the crimes
        charged, the proper remedy is vacating the conviction and
        granting a new trial?

Brief for Commonwealth (1995 MDA 2014) at 4.

     In    his     cross-appeal,   Steckley’s   sole   issue    parallels    the

Commonwealth’s second issue: “Did the [PCRA] court err and commit an

abuse of discretion when, after granting [Steckley’s] petition for post-

conviction relief, it ordered that the appropriate remedy was a new trial?”

Brief for Steckley (2013 MDA 2014) at 3 (capitalization modified).

     This Court analyzes PCRA appeals “in the light most favorable to
     the prevailing party at the PCRA level.” Commonwealth v.
     Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). Our “review is
     limited to the findings of the PCRA court and the evidence of
     record” and we do not “disturb a PCRA court’s ruling if it is
     supported by evidence of record and is free of legal error.” Id.

                                     -7-
J-S38006-15 and J-S38007-15


      Similarly, “[w]e grant great deference to the factual findings of
      the PCRA court and will not disturb those findings unless they
      have no support in the record. However, we afford no such
      deference to its legal conclusions.”    Id. (citations omitted).
      “[W]here the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary.” Finally,
      we “may affirm a PCRA court’s decision on any grounds if the
      record supports it.” Id.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

      Pennsylvania    has   recast   the   two-factor   inquiry   regarding   the

effectiveness of counsel set forth by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984), as the following three-

factor inquiry:

      [I]n order to obtain relief based on [an ineffective assistance of
      counsel] claim, a petitioner must establish: (1) the underlying
      claim has arguable merit; (2) no reasonable basis existed for
      counsel’s actions or failure to act; and (3) petitioner suffered
      prejudice as a result of counsel’s error such that there is a
      reasonable probability that the result of the proceeding would
      have been different absent such error.

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is

presumed to be effective, and a PCRA petitioner bears the burden of

pleading and proving each of the three factors by a preponderance of the

evidence.         Commonwealth       v.    Rathfon,     899   A.2d   365,     369

(Pa. Super. 2006); see Commonwealth v. Meadows, 787 A.2d 312, 319-

20 (Pa. 2001).

      Instantly, the PCRA court found that Steckley established each of the

three prongs of the Pierce test. On appeal, the Commonwealth argues only

                                      -8-
J-S38006-15 and J-S38007-15



that Steckley “wholly failed to prove the prejudice prong of his ineffective

assistance of counsel claim.” Brief for Commonwealth (1995 MDA 2014) at

18. Thus, we need not discuss at length the unreasonableness of Steckley’s

attorney’s failure to inform her client that he might be sentenced to a

lengthy mandatory term of imprisonment if he opted to go to trial and did

not prevail.2

         In Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012), the

Supreme Court of the United States elucidated the showing necessary to

satisfy Strickland’s prejudice prong (the third prong of the Pierce test) in

cases where counsel’s ineffectiveness causes a defendant to reject a plea

offer.     In that case, a criminal defendant, Cooper, shot a woman “in her

buttock, hip, and abdomen,” but the woman survived. Id. at 1383. Cooper

was charged with, inter alia, assault with intent to murder.              Id.   Cooper

twice rejected a favorable plea offer, “allegedly after his attorney convinced

him that the prosecution would be unable to establish his intent to murder

[the victim] because she had been shot below the waist.”                  Id.   Cooper

proceeded to trial and was convicted.                Id.   He then received a sentence

much harsher than the one the prosecution initially offered. Id.

____________________________________________
2
      We acknowledged trial counsel’s deficient performance, albeit in dicta,
when this case was before us on direct appeal. See Steckley, 1738 MDA
2010, slip. op. at 6 (Pa. Super. Aug. 16, 2011) (“[I]t is the duty of []
defense counsel to inform his client of those things he needs to know to
make a knowing, voluntary, and intelligent decision whether to seek a
negotiated guilty plea or go to trial. Certainly, knowledge of sentencing
exposure is necessary information.”).


                                               -9-
J-S38006-15 and J-S38007-15



      The Supreme Court concluded that Cooper’s counsel had been

ineffective, and explained that a post-conviction petitioner seeking relief on

the basis that ineffective assistance of counsel caused him or her to reject a

guilty plea must demonstrate the following circumstance:

      [B]ut for the ineffective advice of counsel there is a reasonable
      probability that the plea offer would have been presented to the
      court (i.e., that the defendant would have accepted the plea and
      the prosecution would not have withdrawn it in light of
      intervening circumstances), that the court would have accepted
      its terms, and that the conviction or sentence, or both, under the
      offer’s terms would have been less severe than under the
      judgment and sentence that in fact were imposed.

Lafler, 132 S. Ct. at 1385.

      The Commonwealth maintains that Steckley failed to demonstrate

every one of these elements. The Commonwealth first argues that Steckley

did not establish that he would have accepted the Commonwealth’s plea

offer but for his attorney’s ineffectiveness. According to the Commonwealth,

Steckley did not meet his burden because he “presented nothing more than

his own self-serving statement that he would have taken the plea.” Brief for

Commonwealth (1995 MDA 2014) at 14. The Commonwealth also contends

that Steckley’s PCRA hearing testimony is contradicted by the fact that he

“maintained up through trial that he was innocent of the charges.” Id.

      As a preliminary matter, we note that nothing prevents a PCRA

petitioner from meeting his burden under Lafler with “his own self-serving

statement” that he would have entered a guilty plea but for counsel’s

ineffectiveness. As long as the PCRA court finds the petitioner’s testimony to

                                    - 10 -
J-S38006-15 and J-S38007-15



be credible, there is no coherent justification for characterizing such

evidence as inherently deficient as a matter of law. In cases such as the one

sub judice, where a petitioner’s testimony is credible and uncontradicted, it

may suffice to establish a reasonable probability that the petitioner would

have accepted the prosecution’s plea offer.

      Nonetheless, Steckley’s willingness to enter into a plea agreement

finds corroboration in the record before us. Steckley’s trial counsel testified

that she “strenuously” would have encouraged Steckley to accept the

Commonwealth’s plea offer had she known about the mandatory sentencing

scheme for repeat sexual offenders. N.T.P. at 11. At a minimum, Steckley’s

attorney believed that her client was amenable to a plea bargain.           In

addition, the substantial disparity between the recommended sentence of

two to six years’ imprisonment under the Commonwealth’s plea offer and

the twenty-five-year mandatory minimum sentence lends credence to

Steckley’s claim that he would have accepted the proposed bargain.

      The Commonwealth cites Foster v. United States, to support its

contention that a PCRA petitioner cannot carry his or her burden with “self-

serving” testimony.   735 F.3d 561 (7th Cir. 2013).     The Commonwealth’s

reliance upon Foster is misplaced for two reasons.         First, Pennsylvania

courts are not bound by the decisions of the federal courts of appeals. See

Commonwealth v. Cook, 952 A.2d 594, 609 n.12 (Pa. 2008).              Second,

Foster does not stand for the proposition that a post-conviction petitioner

can never demonstrate prejudice based upon his or her own testimony. In

                                    - 11 -
J-S38006-15 and J-S38007-15



fact, the court explicitly declined to reach that conclusion. See Foster, 735

F.3d at 567.

        In Foster, an attorney neglected to inform his client that the

government might file a Section 8513 information, which would have the

effect of doubling the defendant’s mandatory minimum sentence from ten to

twenty years’ imprisonment. When, ten days prior to trial, the government

filed a Section 851 information, counsel approached his client and suggested

that he might still be able to secure a favorable plea agreement.                       The

defendant steadfastly refused to accept a plea bargain, and reiterated his

desire to proceed to trial. A jury subsequently convicted the defendant of

some, but not all, of the crimes with which he was charged.

        Following his sentencing, the defendant filed a motion to vacate his

judgment of conviction. Therein, he contended that he would have agreed

to plead guilty had his attorney informed him that the government might file

a Section 851 information.                     At a hearing on the defendant’s motion, trial

counsel testified that the defendant stated he wanted to go to trial even if it

meant that he might be sentenced to life imprisonment. According to trial

counsel, the defendant reiterated his refusal to accept a guilty plea

agreement even after the government filed its Section 851 information. In

light of this evidence, the district court found the defendant’s testimony to


____________________________________________
3
      See 21 U.S.C. § 851 (sentencing enhancements for repeat felony drug
offenders).


                                                    - 12 -
J-S38006-15 and J-S38007-15



be incredible, and his attorney’s testimony to be credible. Foster, 735 F.3d

at 566.

      Steckley did not learn about the applicable mandatory minimum until

after he was convicted at trial. In contrast, the defendant in Foster refused

to enter into a plea agreement even after he learned that the government

was seeking imposition of a twenty-year mandatory minimum sentence.

Unlike the district court in Foster, the PCRA court did not find Steckley to be

an incredible witness, nor did Steckley’s PCRA hearing testimony conflict

with his attorney’s testimony.

      Foster is neither controlling nor persuasive authority. Both the facts

of that case and its procedural posture plainly are distinguishable.

Furthermore, even if Foster were factually analogous to the case sub judice,

a close reading of the opinion belies the Commonwealth’s assertion that

Foster stands for the proposition that a petitioner cannot demonstrate

prejudice with his or her own testimony.      See Foster, 735 F.3d at 567

(noting that such a precept has “shaky foundations” and a “lack of firm

support” in case law).

      The Commonwealth’s argument that Steckley did not demonstrate a

reasonable probability of prejudice because he “maintained up through trial

that he was innocent of the charges” is also unpersuasive.       See Brief for

Commonwealth (1995 MDA 2014) at 14.           The PCRA court did not err in

concluding that Steckley demonstrated prejudice even though he had

maintained that he was innocent of the crimes charged. While a defendant’s

                                    - 13 -
J-S38006-15 and J-S38007-15



declaration of innocence is a factor that the PCRA court may consider, it is

not determinative.

        A defendant’s assertion of innocence does not necessarily belie his

later claim that he would have accepted a guilty plea offer.             A criminal

defendant might maintain his innocence up until the point of pleading guilty

in order to strengthen his bargaining position.           Indeed, a defendant may

enter a guilty plea while continuing to maintain that he is factually innocent.

See     North    Carolina    v.   Alford,    400   U.S.   25,   33   (1970).      The

Commonwealth’s argument also ignores the troublesome fact that some

innocent defendants do plead guilty. See Lafler, 132 S. Ct. at 1397 (Scalia,

J., dissenting) (“[Plea bargaining] presents grave risks of prosecutorial

overcharging that effectively compels an innocent defendant to avoid

massive risk by pleading guilty to a lesser offense[.]”).

        Next, the Commonwealth argues that Steckley “failed to show that the

plea offer would have been made to begin with if the prosecuting attorney

would     have   known      about   the     mandatory     minimum.”       Brief   for

Commonwealth (1995 MDA 2014) at 14.                Here too, the Commonwealth

attempts to expand the showing required to establish prejudice beyond the

burden enunciated in Lafler. Steckley was not required to demonstrate that

a more diligent prosecutor would have made the same offer.                 Whereas

Steckley had a Sixth Amendment right to the effective assistance of counsel,

the Commonwealth did not. Steckley’s attorney should have informed her




                                       - 14 -
J-S38006-15 and J-S38007-15



client of the possibility that he could face a mandatory twenty-five year

sentence irrespective of whether the district attorney knew of the same.

      The relevant inquiry is whether a reasonable probability exists that the

district attorney would have discovered the mandatory minimum and

withdrawn the pendent plea offer prior to the court’s acceptance of it. See

Lafler, 132 S. Ct. at 1385. The Commonwealth argues that the PCRA court

was left to speculate on this issue. This is true. But, the test set forth in

Lafler necessarily requires courts to speculate as to what would have

transpired absent trial counsel’s ineffectiveness. Cf. Missouri v. Frye, ___

U.S. ___, 132 S. Ct. 1399, 1413 (2012) (Scalia, J., dissenting) (denouncing

Lafler’s prejudice inquiry as “retrospective crystal-ball gazing posing as

legal analysis”).

      Here,   the   Commonwealth      discovered   the   mandatory     minimum

sentence nearly seven months after Steckley rejected the Commonwealth’s

plea offer and proceeded to trial. Based upon this timeline, the PCRA court

found it to be reasonably probable that Steckley would have accepted the

plea offer long before the Commonwealth sought imposition of the

mandatory minimum sentence.         Furthermore, even if the Commonwealth

had learned of the applicable statute earlier, it does not inevitably follow that

it would have withdrawn the plea offer.          It is just as likely that the

Commonwealth would have used the draconian mandatory sentence as a

means to encourage Steckley to plead guilty, thereby avoiding the expense

and uncertainty of a jury trial.

                                     - 15 -
J-S38006-15 and J-S38007-15



      The Commonwealth next argues that Steckley failed to demonstrate

that, had he entered a guilty plea, the trial court would have accepted it. It

is well established that “[w]hile the Commonwealth and a criminal defendant

are free to enter into an arrangement that the parties deem fitting, the

terms of a plea agreement are not binding upon the court. Rather the court

may reject those terms if the court believes the terms do not serve justice.”

Commonwealth v. White, 787 A.2d 1088, 1091 (Pa. Super. 2001).

      Under the terms of the Commonwealth’s proposal, Steckley would

plead guilty to each of the crimes charged, and the Commonwealth would

recommend that the trial court impose an aggregate sentence of two to six

years’ incarceration. Because this arrangement did not involve the dismissal

of charges or a negotiated sentence that would bind the trial court upon its

acceptance of the plea, it is difficult to imagine any reason why the court

would have rejected it.    It defies common sense to believe that the trial

court, for no apparent reason, would have rejected the plea bargain and

ordered the parties to endure a lengthy and expensive trial.                  Cf.

Commonwealth v. Chazin, 873 A.2d 732, 737 (Pa. Super. 2005) (rejecting

ineffective assistance of counsel claim where the trial judge explicitly stated

that he would not have accepted petitioner’s guilty plea where the

agreement called for a negotiated sentence of four to eight years’

imprisonment).

      The   Commonwealth     underscores     that,   at   Steckley’s   sentencing

hearing, the court remarked as follows: “the legislature has commanded me

                                    - 16 -
J-S38006-15 and J-S38007-15



to impose this sentence[,] but even if the legislature did not, I would impose

it anyway.” Notes of Testimony, 6/30/2010, at 58. Lafler requires there be

a reasonable probability that the sentence “under the offer’s terms would

have been less severe” than the sentence actually imposed.                       Thus, the

sentencing court’s declaration that it would have imposed an identical

sentence notwithstanding the mandatory minimum, if taken at face value,

may have been fatal to Steckley’s claim that he suffered prejudice.                      Upon

closer inspection however, a sentence of twenty-five to fifty years’

imprisonment based upon Steckley’s convictions would have constituted an

illegal sentence unless the mandatory sentence applied.4                          This fact

controverts the sentencing court’s contention that it would have, or even

that it could have, imposed an identical sentence irrespective of 42 Pa.C.S.

§ 9718.2.

        The PCRA court did not err in concluding that Steckley demonstrated a

reasonable probability that, had he accepted the Commonwealth’s plea offer,

the court would have imposed a sentence less severe than the one he

received following trial. As a matter of law, Steckley necessarily would have

received       a     significantly        more   favorable   sentence   by   accepting    the
____________________________________________
4
       The jury convicted Steckley of two counts of possession of child
pornography, each of which was graded as a third degree felony. Even if the
court imposed the statutory maximum sentence for each count, and imposed
those sentences consecutively, Steckley’s aggregate sentence would have
been seven to fourteen years. See 18 Pa.C.S. § 1103 (“[A] person who has
been convicted of a [third degree] felony may be sentenced to imprisonment
. . . for a term which shall be fixed by the court at not more than seven
years.”).


                                                 - 17 -
J-S38006-15 and J-S38007-15



Commonwealth’s plea offer.                     This is true even though the proposed

agreement required Steckley to plead guilty to prohibited offensive weapons,

an offense that he ultimately was acquitted of at trial.               Even if the court

rejected       the     Commonwealth’s          recommendation   of   two   to   six   years’

imprisonment, imposed the maximum allowable sentence for each of the

three counts, and imposed all of those sentences consecutively, Steckley’s

aggregate sentence would have been nine and one-half to nineteen years’

imprisonment.5

        Viewing the record before us in the light most favorable to Steckley—

as our standard of review requires—the Commonwealth has not persuaded

us that Steckley failed to demonstrate that he was prejudiced by his

attorney’s ineffectiveness. See Rigg, 84 A.3d at 1084 (“This Court analyzes

PCRA appeals in the light most favorable to the prevailing party at the PCRA

level.”).      Steckley was not required to prove that trial counsel’s deficient

conduct caused a worse result for him.                    A “reasonable probability” is

sufficient.       See Lafler, 132 S. Ct. at 1385.           In granting Steckley post-

conviction relief, the PCRA court found reasonably probable Steckley’s

contention that he would have accepted the Commonwealth’s plea offer

without either the Commonwealth withdrawing it or the trial court rejecting
____________________________________________
5
       See 18 Pa.C.S. § 1103 (“[A] person who has been convicted of a
[third degree] felony may be sentenced to imprisonment . . . for a term
which shall be fixed by the court at not more than seven years.”); 18
Pa.C.S. § 1104 (“A person who has been convicted of a [first degree]
misdemeanor may be sentenced to imprisonment for a definite term which
shall be fixed by the court and shall be not more than . . . [f]ive years.”).


                                                 - 18 -
J-S38006-15 and J-S38007-15



it. Because the certified record supports those findings, we may not disturb

them on appeal.       See Commonwealth v. Wah, 42 A.3d 335, 338

(Pa. Super. 2012) (“The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record.”).

      Having concluded that the PCRA court did not err in granting

Steckley’s petition, we now must determine whether the appropriate remedy

was to vacate Steckley’s convictions and to order a new trial.     Both the

Commonwealth and Steckley argue that it was not. We agree.

      Although the Supreme Court left to the trial courts how best to

exercise their discretion based upon the circumstances of a particular case,

it set forth the following general principles:

      Sixth Amendment remedies should be “tailored to the injury
      suffered from the constitutional violation and should not
      unnecessarily infringe on competing interests.” United States
      v. Morrison, 449 U.S. 361, 364 (1981). Thus, a remedy must
      “neutralize the taint” of a constitutional violation, id. at 365,
      while at the same time not grant a windfall to the defendant or
      needlessly squander the considerable resources the State
      properly invested in the criminal prosecution.       See United
      States v. Mechanik, 475 U.S. 66, 72 (1986) (“The reversal of a
      conviction entails substantial social costs: it forces jurors,
      witnesses, courts, the prosecution, and the defendants to
      expend further time, energy, and other resources to repeat a
      trial that has already once taken place; victims may be asked to
      relive their disturbing experiences.”).

                                     ****

      The time continuum makes it difficult to restore the defendant
      and the prosecution to the precise positions they occupied prior
      to the rejection of the plea offer, but that baseline can be
      consulted in finding a remedy that does not require the
      prosecution to incur the expense of conducting a new trial.


                                      - 19 -
J-S38006-15 and J-S38007-15



Lafler, 132 S. Ct. at 1388-89.

         The PCRA court vacated Steckley’s convictions and awarded him a new

trial.   Yet, the prejudice Steckley suffered—a sentence substantially longer

than the one offered under the imprudently rejected plea offer—might

remain after one retrial or even after ten retrials.            A new trial cannot

resurrect Steckley’s foregone opportunity to accept the Commonwealth’s

plea offer any more than his first constitutionally sufficient trial did.         If

Steckley is reconvicted, the Commonwealth, once again, could seek

imposition of the mandatory minimum sentence. On the other hand, a new

trial gives Steckley another opportunity to obtain an acquittal, a remedy that

would be disproportionate insofar as Steckley has neither pleaded nor

proved any irregularity in the jury’s guilty verdict.

         The PCRA court’s remedy disregards all of Lafler’s guiding precepts.

It fails to “neutralize the taint of [the] constitutional violation,” “needlessly

squander[s] the considerable resources the [Commonwealth] properly

invested in the criminal prosecution,” and risks “grant[ing Steckley] a

windfall.”6       Id.     Because the court’s sentencing discretion is confined by a
____________________________________________
6
      The PCRA court reasoned, “[t]o require the Commonwealth to reoffer
the original plea proposal, in light of the Commonwealth’s error in failing to
seek the mandatory minimum in the sentencing guidelines, would be
granting a windfall to [Steckley.]” PCRA Court Opinion, 1/9/2015, at 5. It is
true that the Commonwealth’s relinquishment of a mandatory sentence
generally is advantageous for a criminal defendant. Nevertheless, such a
“windfall” likely would have ensued in this case had Steckley’s Sixth
Amendment right to effective counsel been scrupulously honored.
      In a similar vein, the learned Dissent argues that “[d]irecting the trial
court to order the Commonwealth to offer the rejected plea again would be
(Footnote Continued Next Page)

                                               - 20 -
J-S38006-15 and J-S38007-15



mandatory minimum sentence, the only logical remedy to neutralize

Steckley’s constitutional injury is “to require the prosecution to reoffer the

plea proposal.”7 Id. Accordingly, we reverse the PCRA court’s order to the

extent that it awarded Steckley a new trial, and we remand this case to the

PCRA court with instructions to resentence Steckley according to the plea
                       _______________________
(Footnote Continued)
futile, since that offer was based upon a mutual mistake.” See Concurring
and Dissenting Op. at *3. The Dissent does not cite any cases in which
courts have held that a criminal defendant’s Sixth Amendment right to the
assistance of effective trial counsel is diminished when a prosecutor makes a
lenient plea offer.       In many cases throughout this Commonwealth,
prosecutors enter into plea agreements that they might have considered too
generous but for some misconception about the available evidence or the
applicable law.     After a defendant accepts a favorable plea offer, his
sentence remains final even if the prosecutor later learns of his or her
misjudgment. The fact that Steckley was provided with constitutionally
deficient representation should not compel a different conclusion in this
case. Stated simply, the fact that this case presents a “mutual mistake” is
of no consequence.         Counsel’s mistake amounted to a constitutional
violation; the district attorney’s mistake did not. Although we must remedy
the former, the latter is beyond our purview.
7
       Although the learned Dissent acknowledges that our remedy “must
‘neutralize the taint’ of a constitutional violation,” the remedy that it
proposes would do no such thing. See Concurring and Dissenting Op. at *3.
To require that the Commonwealth simply “make a good faith plea offer”
upon remand would put Steckley in a far worse position than that in which
he would have found himself had the state provided him with constitutionally
effective representation in the first instance. Id. Indeed, the learned
Dissent would license the trial court to “leave the conviction and sentence
resulting from the trial undisturbed.” Id. at *4. This is not a remedy at all,
and would do nothing to neutralize the violation of Steckley’s Sixth
Amendment right to effective counsel. We agree with the learned Dissent
that “it must be the trial court that decides how best to exercise its
discretion under the circumstances[.]”      Id. at *4.     Because the plea
agreement in this case did not include a negotiated sentence, the remedy
that we order today fully preserves the trial court’s sentencing discretion,
while ensuring that the court does not disregard the underlying
constitutional violation.


                                                 - 21 -
J-S38006-15 and J-S38007-15



bargain   that   he   previously   rejected    due   to   his   attorney’s   deficient

performance.

      Order affirmed in part and reversed in part.              Case remanded for

proceedings consistent with this opinion. Jurisdiction relinquished.

      Judge Musmanno joins the opinion.

      Judge Stabile files a concurring/dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2015




                                      - 22 -
