J-S58040-15


                             2016 PA Super 64

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JASON ROBERT KELLEY

                        Appellant                  No. 1245 MDA 2014


                  Appeal from the PCRA Order July 9, 2014
              In the Court of Common Pleas of Adams County
            Criminal Division at No(s): CP-01-CR-0000644-2013


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

OPINION BY GANTMAN, P.J.:                          FILED MARCH 15, 2016

     Appellant, Jason Robert Kelley, appeals from the order entered in the

Adams County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A.

§§ 9541-9546. We reverse and remand for further proceedings.

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

The certified record reveals that Appellant gave his son, who was under the

age of eighteen, counterfeit currency to purchase ride tickets at a high

school carnival and receive genuine currency as change. Carnival workers

caught Appellant passing the counterfeit $20 bills, which all had the same

serial number. When handled, the carnival workers could tell the bills were

counterfeit. The carnival workers identified Appellant as the person with the


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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juvenile who was passing the fake $20 bills. When the police attempted to

speak with Appellant, he waved them off and fled.          The police chased

Appellant across several streets which had high speed traffic.       Appellant

jumped a fence, and the police eventually caught him in a yard. Along the

route of Appellant’s flight, the police recovered $300.00 of additional

counterfeit bills with the same serial number and denomination as well as a

hat and sweatshirt. A total of $140.00 worth of fake $20 bills with the same

serial number had been passed at the carnival.          When Appellant was

apprehended, he resisted arrest in a manner that created a substantial risk

of bodily injury to the police who had to use and required significant force to

overcome the resistance.    (See N.T. Plea/Sentencing Hearing, 9/23/13, at

4-5.)   The June 12, 2013 incident occurred while Appellant was on state

parole from a state sentence.

         On June 12, 2013, [he] was arrested and charged with (1)
         forgery;¹ (2) flight to avoid apprehension;² (3) corruption
         of minors;³ and (4) resisting arrest or other law
         enforcement.⁴ On September 23, 2013, [Appellant] pled
         guilty by agreement to forgery, corruption of minors, and
         resisting arrest or other law enforcement. Pursuant to the
         terms of the plea agreement, [Appellant] received a
         sentence of 21 to 60 months imprisonment on the forgery
         and corruption of minors charges and 12 to 24 months on
         the count of resisting arrest. All sentences were to run
         concurrently to one another.       As agreed, this [c]ourt
         designated the effective date of the sentence as June 12,
         2013.

            ¹ 18 Pa.C.S. § 4101(a)(3).
            ² 18 Pa.C.S. § 5126(a).
            ³ 18 Pa.C.S. § 6301(a)(1)(i).

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            ⁴ 18 Pa.C.S. § 5104.

         [Appellant] did not file post-sentence motions and did not
         file a direct appeal. On February 12, 2014, [Appellant]
         filed a pro se Motion for Post-Conviction Collateral Relief.
         A pre-hearing conference was held on [Appellant’s] motion
         on March 24, 2014. On April 2, 2014, [Appellant] filed an
         Amended PCRA Petition through his attorney.              The
         Amended PCRA Petition raises the following issues: (1)
         ineffective   assistance    of   counsel   which,    in   the
         circumstances of the particular case, so undermined the
         truth determining process that no reliable adjudication of
         guilt or innocence could have taken place; (2) a plea of
         guilty unlawfully induced where the circumstances make it
         likely that the inducement caused the petitioner to plead
         guilty and the petitioner is innocent; (3) a violation of the
         provisions of the constitution, law or treaties of the United
         States which would require the granting of federal habeas
         corpus relief to a state prisoner. A PCRA hearing was held
         before this [c]ourt on June 16, 2014).

(PCRA Court Opinion, dated July 9, 2014 at 1-2) (internal footnote 5

omitted).   Appellant’s amended petition and argument, at the hearing,

included solid specifics to support his allegations of illegal sentence and plea

counsel’s ineffectiveness for negotiating the sentence imposed.      The court

denied relief on July 9, 2014. Appellant timely filed a notice of appeal on

July 24, 2014.    On July 28, 2014, the court ordered Appellant to file a

concise statement of errors complained of on appeal, and Appellant timely

complied on August 5, 2014.

      Appellant raises these issue on appeal:

         DID THE PCRA COURT ERR[] IN DENYING [APPELLANT’S]
         PCRA CLAIM THAT HE DID NOT RECEIVE THE BENEFIT OF
         HIS BARGAIN, WHEN BOTH THE DISTRICT ATTORNEY AND
         [APPELLANT’S] PLEA COUNSEL WERE AWARE OF THE
         PAROLE SENTENCE, AND AGREED TO A CONCURRENT

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         SENTENCE IN EXCHANGE FOR [APPELLANT’S] GUILTY
         PLEA?

         DID THE PCRA COURT ERR[] IN DETERMINING THAT
         [APPELLANT’S] ATTORNEY WAS NOT INEFFECTIVE WHEN,
         PLEA COUNSEL ADVISED [APPELLANT] THAT HE WOULD
         BE ABLE TO SERVE A CONCURRENT SENTENCE IN
         EXCHANGE FOR HIS GUILTY PLEA?

         DID THE PCRA COURT ERR[] IN DETERMINING THAT THE
         UNDERLYING SENTENCE OF SEPTEMBER 23, [2013], WAS
         NOT AN ILLEGAL SENTENCE?

(Appellant’s Brief at 4).

      In his issues combined Appellant argues he entered a negotiated guilty

plea in exchange for a sentence of 21 to 60 months of state incarceration,

with an effective date of June 12, 2013, the date he was arrested.        The

Court accepted his plea and imposed the negotiated sentence with the June

12, 2013 effective date.    Appellant claims all parties and the court knew

that, at the time of his offense, plea and sentencing, he was on state parole.

Appellant also avers the agreement was clear as to the effective date of the

new sentence. Appellant states he did not file any motion to withdraw his

plea or a direct appeal, because the court imposed the sentence as

expected; and he was in total agreement with it.          While incarcerated

Appellant subsequently learned that the effective date of his new sentence

was not June 12, 2013, but April 28, 2015. When he was informed of the

discrepancy, he filed a petition to enforce the plea bargain, claiming the

sentence was not implemented as agreed. Appellant asked for the benefit of

his bargain, i.e., specific performance. Appellant insists the court would not

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allow argument on his benefit-of-the-bargain claim.          Appellant submits his

plea counsel was ineffective for negotiating a plea bargain that could not be

enforced, given 61 Pa.C.S.A. § 6138(a)(5)(i), which provides: “If a new

sentence is imposed on the parolee, the service of the balance of the term

originally imposed by a Pennsylvania court shall precede the commencement

of the new term imposed in the following cases: (i) 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.”           Appellant

complains he was enticed to enter a guilty plea based on the promise of a

sentence that, while imposed, was illegal per statute and incapable of

implementation.      Counsel had no rational basis for failing to object to the

sentence or negotiating a plea bargain that could not be implemented.

Appellant reasons counsel’s error was prejudicial as it led to a plea that was

fundamentally unknowing, involuntary, and unintelligent and actually added

two years’ time to his sentence.               Appellant contends the sentence he

received per the plea bargain was actually illegal as the court had no

jurisdiction to impose it. Appellant concludes he is entitled to some relief.1

____________________________________________


1
  To the extent the Commonwealth argues, or the court suggests, Appellant
waived his claims, we reject those contentions. The terms of the plea
agreement/sentence were negotiated, but if the negotiated sentence
allegedly cannot be implemented because it is illegal, the issue is properly
before us.    From the character of his legal filings subsequent to the
plea/sentencing, Appellant would have made another plea decision in light of
the information he was denied at the time of his plea and sentencing.



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We agree.

      “In reviewing the propriety of the PCRA court’s denial of a petition for

relief, we are limited to determining whether the record supports the court’s

findings,   and    whether   the   order   is    otherwise   free    of   legal   error.”

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).                        “This

Court grants great deference to the findings of the PCRA court if the record

contains any support for those findings.” Id. We give no such deference,

however, to the court’s legal conclusions.          Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012).

      The    law   presumes    counsel     has    rendered    effective     assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005).                    “An evaluation of

counsel’s performance is highly deferential, and the reasonableness of

counsel’s decisions cannot be based upon the distorting effects of hindsight.”

Commonwealth v. Saranchak, 581 Pa. 490, 510-11, 866 A.2d 292, 304

(2005).     When asserting a claim of ineffective assistance of counsel,

Appellant is required to make the following showing: (1) that the underlying

claim is of arguable merit; (2) counsel had no reasonable strategic basis for

his action or inaction; and, (3) 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. Kimball, 555 Pa. 299, 724 A.2d

326 (1999). The failure to satisfy any prong of the test for ineffectiveness


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will cause the claim to fail. Gonzalez, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the ‘reasonable basis’
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective. If we determine that there
         was no reasonable basis for counsel’s chosen course then
         the    accused    must     demonstrate       that    counsel’s
         ineffectiveness worked to his prejudice.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

      Ineffective assistance of counsel claims arising from the plea-

bargaining process are eligible for PCRA review.      Commonwealth ex rel.

Dadario v. Goldberg, 65 Pa. 280, 773 A.2d 126 (2001) (holding all

constitutionally recognized claims of ineffective assistance are cognizable

under PCRA). “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. Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)).            “Where the defendant


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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.” Moser, supra.

         The standard for post-sentence withdrawal of guilty pleas
         dovetails with the arguable merit/prejudice requirements
         for relief based on a claim of ineffective assistance of plea
         counsel, …under which the defendant must show that
         counsel’s deficient stewardship resulted in a manifest
         injustice, for example, by facilitating entry of an
         unknowing, involuntary, or unintelligent plea.           This
         standard is equivalent to the “manifest injustice” standard
         applicable to all post-sentence motions to withdraw a
         guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa.Super. 2005) (en

banc), appeal denied, 585 Pa. 688, 887 A.2d 1241 (2005) (internal citations

omitted).

      A valid guilty plea must be knowingly, voluntarily and intelligently

entered. Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 2003).

The Pennsylvania Rules of Criminal Procedure mandate that pleas be taken

in open court, and require the court to conduct an on-the-record colloquy to

ascertain whether a defendant is aware of his rights and the consequences

of his plea. Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002)

(citing Pa.R.Crim.P. 590).       Specifically, the court must affirmatively

demonstrate the defendant understands: (1) the nature of the charges to

which he is pleading guilty; (2) the factual basis for the plea; (3) his right to

trial by jury; (4) the presumption of innocence; (5) the permissible ranges of

sentences and fines possible; and (6) that the court is not bound by the

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terms    of   the   agreement   unless    the   court   accepts   the   agreement.

Commonwealth v. G. Watson, 835 A.2d 786 (Pa.Super. 2003).                     This

Court will evaluate the adequacy of the plea colloquy and the voluntariness

of the resulting plea by examining the totality of the circumstances

surrounding the entry of that plea. Commonwealth v. Muhammad, 794

A.2d 378, 383-84 (Pa.Super. 2002).

        “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.      An illegal sentence must be

vacated.” Commonwealth v. I. Watson, 945 A.2d 174, 178-79 (Pa.Super.

2008) (quoting Commonwealth v. Leverette, 911 A.2d 998, 1001-02

(Pa.Super. 2006)). Section 6138 of the Parole Act states in pertinent part:

          § 6138. Violation of terms of parole

                                   *      *     *

          (5) If a new sentence is imposed on the parolee, the
          service of the balance of the term originally imposed by a
          Pennsylvania court shall precede the commencement of
          the new term imposed in the following cases:

              (i)    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.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.        Id.     Imposition of a new state sentence

concurrent with parolee’s backtime on the original state sentence is an illegal

sentence under this statute.           Lawrence v. Pennsylvania Dept. of

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Corrections, 941 A.2d 70 (Pa.Cmwlth. 2007) (holding state parolee could

not serve his new state sentence before he satisfied his original state

sentence; imposition of new sentence essentially concurrent with backtime

service violates Parole Act and is illegal).     Mandamus is unavailable to

compel performance of an illegal sentencing order. Id.

      Instantly,   Appellant    entered   into   an   agreement    with   the

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

specific start date.   At the time of the plea bargain, the state had already

decided to recommit Appellant to serve the backtime he owed on his original

state parole sentence. Nevertheless, counsel negotiated the plea bargain on

Appellant’s behalf with an effective start date of June 12, 2013, the date he

was arrested for his new offenses. Nothing in the record indicates counsel

advised Appellant of the statutory sequence for serving his old and new

sentences.    Moreover, neither the Commonwealth nor the court advised

Appellant that his negotiated sentence could not be honored as stated or

imposed.     Appellant entered his plea on the advice of plea counsel whose

knowledge of the Parole Act was deficient and fell below the range of

competence demanded of attorneys in criminal cases. See Moser, supra.

Therefore, we are compelled to conclude that Appellant’s decision to plead

guilty was not knowing, voluntary and intelligent. See id.; Pollard, supra.

The sentence imposed was illegal because it violated the Parole Act. See 61

Pa.C.S.A. § 6138(a)(5)(i); Lawrence, supra. Thus, plea counsel was


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ineffective for advising Appellant to accept a plea bargain that called for an

illegal sentence.    See, e.g., Commonwealth v. Barndt, 74 A.3d 185

(Pa.Super.      2013)   (holding   allegation   of   inaccurate   information

communicated to defendant, regarding state backtime to be served as result

of new guilty plea, met all three prongs of test for ineffective assistance of

counsel).    Here, Appellant received no information regarding the statutory

sequence for serving his old and new state sentences. Likewise, the PCRA

court erred in failing to comprehend the nature of Appellant’s illegal

sentence and grant him some opportunity for relief; however, specific

performance is unavailable. See Lawrence, supra. See also I. Watson,

supra. Accordingly, we reverse the order denying PCRA relief, vacate the

judgment of sentence because it was illegal as imposed, and remand for

further proceedings.

      Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




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