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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAVID ROGER PROBST

                            Appellant                No. 657 MDA 2015


                 Appeal from the PCRA Order of April 10, 2015
               In the Court of Common Pleas of Lycoming County
               Criminal Division at No.: CP-41-CR-0001472-2009


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 09, 2015

       David Probst appeals the April 10, 2015 order that dismissed his

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

§§ 9541-46, without an evidentiary hearing. We reverse the order, and we

remand for an evidentiary hearing.

       The PCRA court summarized the history of this case as follows:

       On June 3, 2010, a jury found [Probst] guilty of aggravated
       indecent assault of a child, indecent assault of a child less than
       13 years of age, and corruption of a minor. “At sentencing the
       trial court determined that [Probst] had a prior predicate offense
       and sentenced him, in accordance with 42 Pa.C.S.A. § 9718.2, to
       a mandatory term of 25 to 50 years’ incarceration on . . .
       aggravated indecent assault.       The trial court imposed an
       identical concurrent sentence at . . . indecent assault and a
       consecutive term of five years’ probation at . . . corruption of
       minors.” [Commonwealth v. Probst, 682 MDA 2011, slip op.
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       at 5. Probst filed a post-sentence motion. The trial court held a
       hearing on the motion on January 14, 2011. The motion was
       denied on March 21, 2011.] On April 19, 2011, [Probst] filed a
       Notice of Appeal. On January 16, 2013, the Superior Court
       affirmed the judgment of sentence. [Probst] did not file a
       petition for allowance of appeal with the Pennsylvania Supreme
       Court.

       [On January 16, 2014, Probst filed a PCRA petition.] On April
       22, 2014, PCRA counsel filed an Amended [PCRA] Petition. . . .
       In a letter dated May 6, 2014, [Probst] requested new PCRA
       Counsel. On May 14, 2014, PCRA Counsel filed a motion on
       behalf of [Probst]. In the motion, PCRA Counsel requested that
       the [PCRA court] permit him to withdraw as counsel and appoint
       new counsel. On July 18, 2014, PCRA Counsel was granted
       leave to withdraw as counsel and current counsel was appointed.
       On July 23, 2014, the [PCRA court] ordered current PCRA
       Counsel to file an amended petition or a Turner/Finley[1] letter
       by October 2, 2014. Current PCRA Counsel did not file an
       amended petition or Turner/Finley letter. On January 5, 2015,
       the [PCRA court] held a conference during which current PCRA
       Counsel raised the arguments that are in the original PCRA
       Counsel’s amended petition.

       Original PCRA Counsel made two arguments in his Amended
       PCRA Petition. First, he argued that trial counsel was ineffective
       because he failed to advise [Probst] of the potential application
       of the 25 year mandatory minimum sentence in 42 Pa.C.S.A.
       § 9718.2(a)(1) before [Probst] rejected a plea offer of a
       minimum of five years incarceration. Second, he argued that
       trial counsel was ineffective because he failed to object to the
       competency of the child witness, who was nine years old at the
       time of the offense and ten years old at the time of the trial. . . .

       During the January 9, 2015 conference, the attorney for the
       Commonwealth argued that PCRA Counsel’s first issue was
       previously litigated.

____________________________________________


1
       See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(outlining the procedure for appointed PCRA counsel to withdraw from
representation when a PCRA appeal is frivolous).



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Trial Court Opinion and Order (“T.C.O.”), 3/17/2015, at 1-2 (footnotes

omitted).

      On March 17, 2015, the PCRA court issued an opinion and an order in

which it provided notice pursuant to Pa.R.Crim.P. 907 of its intention to

dismiss Probst’s PCRA petition without a hearing.       On March 30, 2015,

Probst prematurely filed a notice of appeal of the March 17 opinion and

order, which he later withdrew on April 2, 2015.      On April 10, 2015, the

PCRA court filed its order dismissing the petition. On April 14, 2015, Probst

filed a notice of appeal. On April 16, 2015, the PCRA court ordered Probst to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Probst timely complied. On June 8, 2015, the PCRA

court filed a statement pursuant to Pa.R.A.P. 1925(a) in which it adopted its

March 17, 2015 opinion and order.

      Probst raises one issue on appeal:

      Whether a failure of trial counsel to advise a client with no legal
      knowledge as to the sentencing ramifications of foregoing a plea
      or choosing to accept an offer is ineffective assistance of
      counsel?

Probst’s Brief at 6.

      Our standard of review in the PCRA context is well-settled: “[A]n

appellate court reviews the PCRA court’s findings of fact to determine if they

are supported by the record, and reviews its conclusions of law to determine

whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014) (citing Commonwealth v. Colavita, 993 A.2d 874,


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887 (Pa. 2010)). We apply a de novo standard of review with regard to the

PCRA court’s legal conclusions.    Commonwealth v. Rios, 920 A.2d 790,

810 (Pa. 2007).

      Probst raises a claim of ineffective assistance of counsel (“IAC”). Our

standard of review in this context is well-defined:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective 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.” 42
      Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such
      deficiency prejudiced him.” Colavita, 993 A.2d at 886 (citing
      Strickland v. Washington, 466 U.S. 668, 690 (1984)). In
      Pennsylvania, we have refined the Strickland performance and
      prejudice test into a three-part inquiry. See Commonwealth v.
      Pierce, 527 A.2d 973, 975-77 (Pa. 1987). Thus, to prove
      counsel ineffective, the petitioner must show that: (1) his
      underlying claim is of arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) the petitioner
      suffered actual prejudice as a result. Commonwealth v. Ali,
      10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any
      of these prongs, his claim fails.” Commonwealth v. Simpson,
      66 A.3d 253, 260 (Pa. 2013).



Spotz, 84 A.3d at 311 (internal citations modified). We need not analyze

“the elements of an ineffectiveness claim in any particular order of priority;

instead, if a claim fails under any necessary element of the [Pierce] test,

the court may proceed to that element first.” Commonwealth v. Lambert,

797 A.2d 232, 243 n.9 (Pa. 2001).



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      Probst argues that his trial counsel was ineffective for failing to inform

him of the applicable mandatory minimum that would result if he were found

guilty at trial. Probst contends that trial counsel advised him not to take the

Commonwealth’s five-year offer because he was facing only a five-year

maximum sentence. Probst maintains that, because he was unaware of the

mandatory sentence, he could not make an intelligent, knowing, and

voluntary decision about the Commonwealth’s plea offer. Probst argues that

his trial counsel could have no strategic reason to withhold that information.

Finally, Probst contends that he was prejudiced by trial counsel’s actions

because he is serving a twenty-five-year sentence instead of a five-year

sentence. Probst’s Brief at 7-9.

      The Commonwealth has not filed a brief, but the trial court stated that

the Commonwealth represented that this issue has been litigated previously.

T.C.O. at 2. The PCRA court also asserted that Probst failed to demonstrate

arguable merit based upon this Court’s decision on direct appeal that there

was no error in failing to provide Probst with pre-trial notice of the

mandatory sentence. Id. at 3-4.

      First, an IAC claim is distinct from the underlying issue on direct

appeal.   See Commonwealth v. Collins, 888 A.2d 564, 571 (Pa. 2005)

(“[T]he underlying claim of error is different from the collateral claim of

ineffectiveness . . . while the underlying claim of trial court error is relevant

to assessing a claim of ineffectiveness, it is only relevant to the extent that it

impacts assessment under the three prong ineffectiveness test.”). Also, on

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his   direct   appeal,   Probst   challenged   the   lack   of   notice   that   the

Commonwealth intended to pursue a mandatory sentence. See Statement

of Matters Complained of on Appeal, 4/27/2012. That is distinct from the

IAC claim that Probst sets forth here. It has not been litigated previously.

Similarly, on direct appeal, the panel dealt with the statutorily required

notice, not counsel’s failure to inform Probst. We stated that “a failure to

provide [Probst] with a pretrial notice of the applicability of section 9718.2

[did not preclude] the trial court from imposing the mandatory sentence.”

Probst, 682 MDA 2011 at 18. We held that “the purpose [of pretrial notice]

is to protect a defendant from waiving rights in ignorance of his exposure to

a potential 25-year mandatory minimum sentence. . . .              [Probst] in this

case did not waive his rights. Rather he asserted all his rights in proceeding

to a jury trial.” Id. at 19-20. We did not conclude that this particular issue

lacked arguable merit; the prior panel focused upon the statutory pretrial

notice and not trial counsel’s advice regarding entering a plea.

      We now turn to Probst’s IAC claim.       In Lafler v. Cooper, 132 S.Ct.

1376 (2012), the United States Supreme Court affirmed that the right to

effective assistance of counsel extends to the plea-bargaining process,

including when a defendant rejects a plea based upon counsel’s advice and

proceeds to trial. Id. at 1383-84. In that case, the parties conceded that

the defendant’s counsel was deficient in his performance and the Supreme

Court focused upon the prejudice prong of the Strickland test. Id. at 1384.

The Court held that, to demonstrate prejudice, the defendant must

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demonstrate that “but for the ineffective advice of counsel there is a

reasonable probability that the plea offer would have been presented to the

court . . . , 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.” Id. at 1385.

      Probst asserts that his claim has arguable merit because Prosbt

demonstrated his willingness to take a plea when he initially accepted the

Commonwealth’s two-year offer, trial counsel averred to the trial court that

he had not considered the twenty-five-year mandatory, and that Probst was

deprived of the ability to make a knowing, voluntary, and intelligent decision

to pursue a plea or go to trial without this information. Probst’s Brief at 8.

Additionally, we can conceive of no reasonable basis for trial counsel not to

inform Probst of an applicable twenty-five-year mandatory minimum.

      However, pursuant to Lafler, the prejudice prong hinges upon

whether the Commonwealth had offered a plea for a five-year sentence as

Probst alleges, or whether the only offered plea was the two-year sentence

that the Commonwealth rescinded, as the Commonwealth asserted at the

post-sentence motion hearing.    If the Commonwealth did not offer a five-

year plea, then there would be no offer for counsel to present to Probst and




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to be accepted by the court.2          Unfortunately, this factual issue cannot be

resolved at this time because the PCRA court did not hold an evidentiary

hearing.

       Dismissal pursuant to Rule 907 is authorized:

       [i]f the judge is satisfied from this review [of the petition,
       answer, and the record] that there are no genuine issues
       concerning any material fact and that the defendant is not
       entitled to post-conviction collateral relief, and no purpose would
       be served by any further proceedings, the judge shall give notice
       to the parties of the intention to dismiss the petition and shall
       state in the notice the reasons for the dismissal.

Pa.R.Crim.P. 907(1).       “A reviewing court on appeal must examine each of

the issues raised in the PCRA petition in light of the record in order to

determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and denying relief without an evidentiary

hearing.”    Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.

2001).

       Here, the parties have maintained different stories about the pleas

offered. The issue first arose at sentencing when Probst made an argument

about the notice required pursuant to section 9718.2.            Probst’s counsel

averred that Probst was before the court to accept the two-year deal, but

that the Commonwealth withdrew that offer, and that the Commonwealth

____________________________________________


2
       We cite Lafler’s discussion of proving prejudice in this type of
situation. However, we do not intend to foreclose any other avenue by
which Probst may prove prejudice.



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then wanted Probst to serve five years and a plea to that effect was offered.

Notes of Testimony (“N.T.”), 11/12/2010, at 48-49.             The Commonwealth

contended that the two-year plea was pulled because the District Attorney

realized that the twenty-five year mandatory was applicable. Id. at 48.

       At the hearing on the post-sentence motion,3 the parties again argued

about the purported five-year plea deal. Probst’s attorney asserted that the

two-year plea deal was pulled because the Commonwealth wanted Probst to

serve a five-year mandatory sentence for felony aggravated indecent

assault. N.T., 1/14/2011, at 22. The Commonwealth again averred that the

plea was pulled because of the applicable twenty-five-year mandatory,

although the assistant district attorney admitted that she was making an

assumption based upon notes written by someone else in her office. Id. at

9-10. The Commonwealth asserted that a five-year plea was never offered.

Id. at 10.     However, Probst’s counsel stated, “what they were offering at

that time, was a five-year plea.”         Id. at 37.   The only relevant testimony

from that hearing was Probst’s statement that, had he known about the

possible twenty-five-year sentence, he would have pled guilty to lesser

sentence.    Id. at 32, 34-35.       The trial court admitted there was a factual

issue regarding whether a five-year plea was ever offered:


____________________________________________


3
      At both sentencing and the post-sentence motion hearing, the
argument was focused upon whether notice was given as required pursuant
to section 9718.2.



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      And I guess that’s where your factual recollection differs from
      the DA’s position. Your factual recollection is that they said no
      to the two, but they would have taken a plea to the five-year
      mandatory, where their position is they said no to the two
      because they were seeking a 25-year mandatory.

Id. at 38-39.

      Neither Probst’s trial counsel nor anyone from the district attorney’s

office was under oath or gave testimony at either of these hearings. There

was no record evidence upon which the PCRA court could make a credibility

determination or a factual finding regarding whether a second plea offer was

made.   With this material factual issue unresolved, an evidentiary hearing

was necessary before Probst’s PCRA petition could be resolved.

      Based upon the foregoing, we reverse the April 10, 2015 order and

remand for an evidentiary hearing on Probst’ PCRA petition, at which the

involved parties should testify as to the relevant events.

      Order reversed.     Remanded for evidentiary hearing.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2015




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