J-S96035-16




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOHN W. CRAMER, JR.

                            Appellant                No. 918 WDA 2016


                Appeal from the PCRA Order Dated June 9, 2016
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000225-2014

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

MEMORANDUM BY SOLANO, J.:                              FILED MAY 10, 2017

        Appellant John W. Cramer, Jr., appeals from the order denying his

second Post Conviction Relief Act (―PCRA‖)1 petition requesting an amended

sentence. We vacate Appellant‘s judgment of sentence in part and remand

for further proceedings.

        On October 29, 2014, Appellant, represented by Vincent M. Tiberi,

Esquire, pleaded guilty to three counts of burglary, three counts of theft by

unlawful taking, three counts of criminal trespass, three counts of criminal

mischief, four counts of receiving stolen property, and four counts of theft by



____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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deception. PCRA Ct. Op., 8/18/16, at 2. 2 At the time of his sentencing,

Appellant was already serving a sentence for a prior conviction docketed at

Fayette County Docket No. CP-26-CR-0000662-2008 (―No. 662‖), and his

new conviction constituted a violation of the terms of his parole from a state

correctional institution under that sentence.

       Appellant entered into a plea agreement in the instant case under

which he would plead guilty and would testify against his codefendants in

exchange for a sentence of 4-8 years‘ incarceration in a state correctional

institution. When the trial court announced this sentence on January 9,

2015, the court stated that the 4-8 years‘ incarceration would run

concurrently with the remainder of Appellant‘s sentence at No. 662. See

N.T. Plea, 10/29/14, at 6-8; Sentencing Order, 1/15/15, at 2; see also N.T.

Sentencing Hr‘g, 1/9/15, at 10. Appellant claims that a promise that his new

sentence would run concurrently with his recommitment at No. 662 was part

of the plea bargain and that he would not have entered a guilty plea if he

had not received that promise. See Appellant‘s Br. at 9; N.T., 5/10/16, at 9.

However, Appellant‘s oral and written guilty plea colloquies are both silent

on whether Appellant‘s 4-8 year sentence would run concurrently with any

prior sentences. See Guilty Plea Colloquy, 10/29/14, at Question 8

(unpaginated document); N.T. Plea, 10/29/14, at 2-13.
____________________________________________


2
 18 Pa.C.S. §§ 3502(a)(2), 3921(a), 3503(a)(1)(i), 3304(a)(5), 3925(a),
and 3922(a)(1), respectively.



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        Because Appellant‘s original minimum sentence on No. 662 was in

excess of two years‘ incarceration, the Board of Probation and Parole

(―Board‖) had exclusive authority to revoke Appellant‘s parole at No. 662

following Appellant‘s parole violation, to recommit him for that violation, and

to extend his maximum sentence as a convicted parole violator. See

Commonwealth, Dep’t of Corr. v. Reese, 774 A.2d 1255, 1259 (Pa.

Super.), appeal denied, 790 A.2d 1016 (Pa. 2001).3 After the trial court

sentenced Appellant in the instant case, the Board determined that, contrary

to what the trial court announced during sentencing, Appellant‘s new

sentence had to be served consecutively to that under No. 662, rather than

concurrently. Therefore, Appellant would have to serve the remainder of the

sentence at No. 662 before beginning to serve the new sentence imposed by

the trial court in this case. See PCRA Ct. Op. at 3. The Board based its

decision on Section 6138 of the Prisons and Parole Code, which, in relevant

part, provides:
____________________________________________


3
    Reese explains:

        Under Pennsylvania law, the authority to parole convicted
        offenders is split between the common pleas courts and the
        Pennsylvania Board of Probation and Parole . . . . When an
        offender is sentenced to a maximum term of imprisonment of
        less than two years, the common pleas court retains authority to
        grant and revoke parole; when the maximum term is two years
        or more, authority to grant or revoke parole is vested in the
        Board.

774 A.2d at 1259 (citations, quotation marks, and brackets omitted).



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     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. § 6138(a)(5)(i); see Commonwealth v. Kelley, 136 A.3d 1007,

1013–14 (Pa. Super. 2016) (explaining that this provision mandates that

―where a state parolee gets a new state sentence, he must serve his

backtime first before commencement of the new state sentence‖ and that a

concurrent sentence would be illegal under the statute).

     On July 23, 2015, Appellant filed his first PCRA petition, pro se.

Appellant alleged:

     I was given an illegal sentence because at the time of my
     entering into a plea agreement with the District Attorney for the
     County of Fayette[,] it was promised as part of my plea bargain
     that my new sentence #225 of 2014 would run concurrently with
     my previous case of #662 of 2008, which is an illegal sentence
     under Pennsylvania law. My attorney did not inform me that I
     was entering into a plea bargain that could not be honored by
     the Commonwealth of Pennsylvania.

PCRA Pet., 7/23/15, at 4. The petition requested an evidentiary hearing, and

that the Commonwealth produce any and all plea agreements and offers. Id.

at 7. By way of relief, Appellant requested ―Modification of Sentence to

exclude time that the law does not allow to be run concurrently to




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compensate for the time that was promised to me in my plea bargain.‖ Id.

at 6. 4 Appellant‘s first petition also presented a claim questioning the

amount of credit Appellant should have received for the time he spent

incarcerated prior to his new sentencing. Id. at 4.

       The PCRA court appointed James A. Natale, Esquire, to represent

Appellant. PCRA Ct. Op. at 2. On October 8, 2015, the Department of

Corrections (―DOC‖) sent Attorney Natale a letter addressing Appellant‘s

credit, and also explaining that —

       [A]ny parole violator who receives a new sentence must first
       serve the balance of his original term before the commencement
       of any new term. Therefore, [Appellant] must first serve the
       balance of his backtime owed to the Parole Board and be granted
       re-parole before he is eligible to begin serving his Fayette
       County sentences.

Letter, 10/8/15. Attorney Natale thereafter filed an Amended PCRA Petition

and raised only the issue of Appellant‘s credit for the amount of time

Appellant served in prison prior to his new sentence date. PCRA Ct. Op. at 2-

3. On November 16, 2015, the PCRA court granted the relief requested in

the amended petition, and gave Appellant additional credit for the time he

spent incarcerated. Id. at 3. Appellant did not appeal this ruling. Id.

       A month after his first petition was granted, Appellant filed a second

timely pro se PCRA petition. PCRA Ct. Op. at 3. Appellant‘s second petition
____________________________________________


4
  In Appellant‘s case, this would mean a reduction of his minimum sentence
by approximately eighteen months, which is the amount of backtime he was
recommitted by the Board to serve on No. 662. PCRA Ct. Op. at 3.



                                           -5-
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again raised the issue of his concurrent sentences. See PCRA Pet.,

12/17/15, at 2 (unpaginated). The PCRA court appointed new counsel,

Dianne H. Zerega, who subsequently filed an amended petition on the issue

and alleged that both trial and prior PCRA counsel were ineffective. PCRA Ct.

Op. at 3.

      The PCRA court held a hearing on May 10, 2016, but it was not a

factual hearing. At the beginning of the hearing, the PCRA court stated,

―Miss Zerega, do we need any testimony on this? It seems to the Court like

it‘s a legal issue.‖ N.T. 5/10/16, at 2. The parties then immediately engaged

in an oral argument about whether Appellant‘s claims were cognizable in a

PCRA proceeding or whether they had to be brought as a challenge to the

action by the Board. In connection with that question, the parties stipulated

that everyone knew at the time of the sentencing that Appellant was subject

to parole violation proceedings in No. 662. See id. at 3-4. But all of the

remainder of the hearing consisted of oral argument regarding the propriety

of granting relief under the PCRA. See id. at 5-14.

      Appellant was present at the hearing and sometimes addressed the

court, but he was not sworn in as a witness. Early in the hearing, Appellant

engaged in a colloquy with the court to explain the nature of the problem.

The court began the colloquy by stating that it ran Appellant‘s sentence

―concurrently with the case he had the revocation on which was 662 of ‘08,

that‘s in paragraph 8 of the original sentence order, so I already agreed to


                                    -6-
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run it concurrent with the case that he got revoked on . . . and then . . . I

gave him credit . . . for time served [that] was off in the original sentence.‖

N.T., 5/10/16, at 5-6. When Appellant reacted by shaking his head, the

court asked why, and the following discussion ensued:

      THE DEFENDANT: Because the [Department of Corrections]
      stopped my time and they started my old case. They‘re not
      running my time right now. I have paperwork to say that.

      THE COURT: So they have ignored my order?

      THE DEFENDANT: Absolutely.

      THE COURT: So then what else could I possibly do other than to
      vacate the entire sentence and have you start over? What do
      you want me to do here is what I‘m asking?

      THE DEFENDANT: All I‘m asking for is the time. . . . I‘m asking
      that to get the benefit of my plea bargain to where my total
      sentence equals four to eight years before I‘m eligible for parole,
      I‘m asking for that 18 months to be removed from my sentence
      because they refused to go with your order.

Id. at 6. Later, Appellant explained, ―I just want the chance to be paroled at

the four years that I accepted the plea bargain at because if the concurrency

wouldn‘t have been offered, I would not have taken that plea bargain

because I knew that I had almost two years, or a little more than two years

left before I could switch over to my new number.‖ Id. at 9.




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       The rest of the hearing was comprised of oral argument among

counsel about case law,5 at the end of which the court announced that it was

―going to review the cases‖ and would ―take this under advisement.‖ N.T.,

5/10/16 at 14. On June 9, 2016, the court entered an order denying

Appellant‘s petition.

       In a Rule 1925(a) opinion, the PCRA court held that Appellant‘s

petition was not cognizable under the PCRA because Appellant‘s issue was

more aptly categorized as a challenge to the sentence imposed on Appellant

by the Board for violation of his parole at No. 662, and it therefore should be

raised either as (1) a challenge to the computation of time by the Board and

the Department of Corrections (―DOC‖), or (2) a challenge to the DOC‘s

failure to follow the language of the trial court‘s sentencing order when

punishing Appellant‘s parole violation. See PCRA Ct. Op. at 5-7 (citing

Commonwealth           v.   Perry, 563         A.2d 511   (Pa.   Super. 1989), and

Commonwealth v. Heredia, 97 A.3d 392 (Pa. Super.), appeal denied,

104 A.3d 524 (Pa. 2014)).

       In the alternative, the PCRA court held that Appellant could not prevail

on a claim that his plea was not voluntarily and intelligently entered because

the plea colloquy shows that ―Appellant understood the terms of his plea

agreement‖ and Appellant was informed that pleading guilty would cause
____________________________________________


5
 At one point, Appellant asked to speak further, but the court responded,
―No.‖ N.T., 5/10/16, at 13.



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him to be sentenced for violating his parole. PCRA Ct. Op. at 8. The PCRA

court stated that Appellant‘s claim that his guilty plea was unlawfully induced

did not warrant relief because ―Appellant was not seeking to withdraw his

plea but was seeking a more favorable sentence.‖ Id.

      Finally, the PCRA court held that Appellant could not prevail by

challenging his trial counsel‘s effectiveness because Appellant wasn‘t

asserting his innocence. PCRA Ct. Op. at 9-10 (relying on Commonwealth

v. Moore, 653 A.2d 24, 25-26 (Pa. Super. 1995)). The court added that

Appellant ―did not provide any testimony or other evidence of his plea

counsel‘s ineffectiveness.‖ Id. at 11. The PCRA court stated that because

Appellant‘s claim that his trial counsel was ineffective lacked merit, his claim

that his PCRA counsel was ineffective lacked merit as well. Id. (citing

Commonwealth v. Tedford, 960 A.2d 1, 47 (Pa. 2008)).

      Appellant timely appealed and presents the following four questions for

our review:

      1. Was the Appellant‘s plea involuntary and unlawfully induced
      when he was given a plea bargain that would not be enforced as
      it was to run concurrent with a violation sentence[?]

      2. Was counsel ineffective when trial counsel failed to inform the
      [Appellant] that his plea would not be enforced?

      3. Was PCRA counsel ineffective when he failed to raise the issue
      that [Appellant‘s] plea was unlawfully induced and involuntary as
      it would not be enforced?

      4. Did the court err when it failed to enforce the plea bargain
      that was offered by the Commonwealth?


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Appellant‘s Br. at 4.

        Our standard of review on the denial of a PCRA petition is as follows:

        On appeal from the denial of PCRA relief, our standard and scope
        of review [are] limited to determining whether the PCRA court‘s
        findings are supported by the record and without legal error. A
        second or subsequent request for relief under the PCRA will not
        be entertained unless the petitioner presents a strong prima
        facie showing that a miscarriage of justice may have occurred.

Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa. 2008) (citations

omitted).

        We begin by addressing the trial court‘s conclusion that Appellant‘s

claim is precluded by Heredia and Perry. In those cases, the petitioners

claimed that the DOC did not honor the credit awarded by the trial court‘s

sentencing order, or otherwise misconstrued the sentence applied by the

trial court, when calculating the time during which they were to be

incarcerated. We held that because the petitioners were not challenging the

propriety of their convictions or the sentences imposed by the trial courts,

their claims were not cognizable under the PCRA. See Heredia, 97 A.3d at

395; Perry, 563 A.2d at 512-13. 6 The instant scenario stands in stark

____________________________________________


6
    In Perry, this Court held:

        If the alleged error is thought to be the result of an erroneous
        computation of sentence by the Bureau of Corrections, then the
        appropriate vehicle for redress would be an original action in the
        Commonwealth Court challenging the Bureau‘s computation. If,
        on the other hand, the alleged error is thought to be attributable
        to ambiguity in the srevietence imposed by the trial court, then a
(Footnote Continued Next Page)


                                          - 10 -
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contrast to Heredia and Perry: rather than challenging any action taken by

the Board or the DOC in implementing his sentence, Appellant challenges the

assistance of his plea counsel relating to his plea bargain, and the propriety

of the sentence subsequently imposed by the trial court. Heredia and Perry

are therefore inapplicable. Moreover, claims related to the plea-bargaining

process properly fall within the PCRA. See Commonwealth v. Lynch, 820

A.2d 728, 731-32 (Pa. Super.), appeal denied, 835 A.2d 709 (Pa. 2003).7

      Appellant‘s first two questions assert ineffectiveness of his trial

counsel. Before we assess the merits of Appellant‘s claim that his trial

counsel provided ineffective assistance, we must determine whether that

issue has been waived by Appellant‘s failure to raise it in his first PCRA

petition. See 42 Pa.C.S. § 9544(b) (―an issue is waived if the petitioner

could have raised it but failed to do so . . . in a prior state postconviction

proceeding‖). Appellant, in his third question presented, poses a layered

                       _______________________
(Footnote Continued)

      writ of habeas corpus ad subjiciendum lies to the trial court for
      clarification and/or correction of the sentence imposed.

563 A.2d at 512–13 (citations omitted).
7
  Appellant first frames his issue as an involuntary and unlawfully induced
guilty plea, and secondly as ineffective assistance of his trial counsel in
relation to his plea bargain. Appellant‘s Br. at 6-12. Claims related to the
plea bargaining process where there is no assertion of innocence properly
fall under the PCRA‘s ineffectiveness subsection, rather than the subsection
relating to guilty pleas. Lynch, 820 A.2d at 731-32. Appellant‘s first claim,
therefore, dovetails with his second, and poses an issue which is cognizable
under the ineffectiveness section of the PCRA. See id.



                                           - 11 -
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ineffectiveness claim, asserting that his PCRA counsel was ineffective for

waiving the claim of trial counsel‘s ineffectiveness by failing to raise that

issue in Appellant‘s first PCRA petition. See Appellant‘s Br. at 13-15; see

generally Commonwealth v. McGill, 832 A.2d 1014, 1021-23 (Pa. 2003)

(explaining that in a layered ineffectiveness claim, present counsel must

raise whether intermediate counsel were ineffective for failing to raise, and

thereby waiving, an underlying claim of ineffectiveness). Appellant states

that —

            [Prior] PCRA [c]ounsel was aware that . . . Appellant was
     arguing that he would never have entered into a plea agreement
     that would result in him receiving the additional eighteen months
     incarceration because this case would not be run concurrent with
     his prior case as agreed. [Prior] PCRA counsel was aware that his
     plea would not be enforceable under the law as no sentence can
     be run concurrent with a sentence that results from a violation of
     the terms in another case.

     . . . [Prior] PCRA [c]ounsel was clearly ineffective when he failed
     to raise the issue of the unenforceable plea in the amended
     PCRA that he filed. Counsel could have no reasonable basis for
     failing to inform his client that he would serve significantly more
     time than he had bargained for in his plea agreement. The
     Appellant was prejudiced by his counsel‘s actions and he
     received more time than he bargained for in the case. Prejudice
     resulted from his entering into a guilty plea, thus convicting
     himself of a criminal offense, without understanding the
     significance and the full consequences of his action.

           Counsel had no reasonable basis to fail to proceed with the
     Appellant‘s claim that his plea would not be enforced as
     presented. No decision can be considered reasonable where it is
     based on a misunderstanding of the law governing the
     proceeding. No strategic goal was furthered by counsel‘s failure
     to proceed with the argument that his plea was involuntary and
     unlawfully induced when the Appellant was offered a plea
     bargain that was an unenforceable bargain.

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Appellant‘s Br. at 14-15. 8 We therefore assess Appellant‘s claim that his

trial counsel was ineffective within the context of Appellant‘s claim that his

first PCRA counsel was also ineffective for failing to raise in Appellant‘s first

PCRA     petition,   and    thereby     waiving,   the   claim   of   trial   counsel‘s

ineffectiveness.9

       As with any layered ineffectiveness claim, we first assess the merits of

the underlying claim regarding trial counsel‘s ineffectiveness. McGill, 832

A.2d at 1022. To prevail on a claim of ineffectiveness, a petitioner must

plead and prove by a preponderance of the evidence:
____________________________________________


8
   We note that an appellant must allege that prior PCRA counsel was
ineffective under all the three prongs of the ineffectiveness test; boilerplate
assertions of prior PCRA counsel‘s ineffectiveness will not suffice. See
Commonwealth v. Bond, 819 A.2d 33, 40 (Pa. 2002). However, where the
Commonwealth has not argued that this claim is waived as underdeveloped,
we examine ―the merits of those issues of ineffectiveness that are properly
framed to determine whether there is any arguable merit to the claims of
trial counsel ineffectiveness.‖ See Commonwealth v. Ligons, 971 A.2d
1125, 1139 (Pa. 2009) (quotation marks and citation omitted). Instantly, the
Commonwealth does not argue that this issue has been waived, see
Commonwealth‘s Brief at 3-4 (arguing only that Appellant‘s prior PCRA
counsel was not ineffective because Appellant‘s trial counsel was not
ineffective), and we find that Appellant has preserved his claim and
presented sufficient argument for review. Ligons, 971 A.2d at 1139.
9
   Appellant‘s first PCRA petition was granted. Appellant‘s second PCRA
petition, which was filed after Appellant was no longer represented by his
first PCRA counsel, therefore presented Appellant‘s first colorable
opportunity to raise the ineffectiveness of his first PCRA counsel. See
Commonwealth v. Walker, 36 A.3d 1, 6 (Pa. 2011) (―Regarding waiver, at
the time of appellant‘s trial, direct appeal, and PCRA proceedings, he was
required to raise claims based on . . . counsel‘s performance at the first
opportunity after he had new counsel‖).



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       (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.

Kelley, 136 A.3d at 1012. 10 ―The law presumes counsel has rendered

effective assistance,‖ and ―[t]he failure to satisfy any prong of the test for

ineffectiveness will cause the claim to fail.‖ Id.

       When challenging counsel‘s assistance in the context of a guilty plea,

―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.‖ Kelley, 136 A.3d at 1013. For a guilty

plea to be valid, a defendant must be informed that his sentences could be

imposed consecutively. Commonwealth v. Allen, 732 A.2d 582, 588 (Pa.

1999). And, although a defendant need not be apprised of the possibility of

revocation of his parole in order to enter a knowing and voluntary guilty

plea, erroneous advice on how the law will affect parole and the duration of

a defendant‘s true minimum sentence can affect the validity of a guilty plea.

____________________________________________


10
  Despite the references in Section 9543(a)(2)(ii) to ―the truth-determining
process‖ and ―a reliable adjudication of guilt or innocence,‖ our Supreme
Court has instructed that the standard and scope for ineffectiveness review
under the PCRA is no higher than it is on direct appeal. Commonwealth ex
rel. Dadario v. Goldberg, 773 A.2d 126, 129-30 (Pa. 2001); see also
Commonwealth v. Haun, 32 A.3d 697, 705 (Pa. 2011) (a PCRA claim
under the ineffectiveness subsection does not require an assertion of
innocence). To the extent that the PCRA court relied on a contrary and
outdated understanding of the law, it erred.



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See, e.g., Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super.

2002) (defendant received ineffective assistance when he pleaded guilty on

counsel‘s erroneous advice that he would be eligible for boot camp and early

parole, when the length of his sentence precluded his participation in boot

camp).

      ―To succeed in showing prejudice, the defendant must show that it is

reasonably probable that, but for counsel‘s errors, he would not have

pleaded guilty and would have gone to trial. The ‗reasonable probability‘ test

is not a stringent one.‖ Hickman, 799 A.2d at 141. A court must examine

the totality of the circumstances to determine the extent of a defendant‘s

knowledge during a guilty plea. Commonwealth v. Morrison, 878 A.2d

102, 108 (Pa. Super.) (en banc), appeal denied, 887 A.2d 1241 (Pa.

2005). ―Our law presumes that a defendant who enters a guilty plea was

aware of what he was doing. He bears the burden of proving otherwise.‖

Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015) (citation

omitted).

      Our courts have previously addressed plea bargains based on

erroneous promises regarding the outcome of a parole revocation and

misapprehension of the Board‘s authority to make recommitment run

consecutively to a new sentence. For example, in Commonwealth v.

Zuber, 353 A.2d 441 (Pa. 1976), a defendant entered into a guilty plea

based upon a promise by the Commonwealth to recommend that the


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sentence run concurrently with that imposed for revocation of parole. 353

A.2d at 442-43.11 The Supreme Court concluded that ―said promise by the

Commonwealth was a false and empty one since the law is quite clear that a

parole violator convicted and sentenced to prison for another offense must

serve his or her back time and the new sentence in consecutive order.‖ Id.

at   443    (applying    the     since-repealed    predecessor   to   61   Pa.C.S.   §

6138(a)(5)(i), which contained the same operative language as the present

statute). Because it was based on a faulty promise, the defendant‘s plea was

not knowingly and voluntarily entered. Id. at 444-45. The Court remanded

the case and instructed the sentencing court to impose a sentence that

would equate to the length of the sentence that the defendant had

contemplated when accepting the terms of the plea bargain prior to pleading

guilty. Id. at 446.12

____________________________________________


11
  The defendant in Zuber brought his challenge under the Post Conviction
Hearing Act, the predecessor of the PCRA. Zuber, 353 A.2d at 443 n.1. The
Court did not examine the effectiveness of plea counsel, see id. at 446 n.9,
but rather the validity of the guilty plea.
12
   As evidenced by Zuber, while the test for ineffectiveness relating to a
guilty plea requires a reasonable probability that the defendant would not
have pleaded guilty if it were not for counsel‘s errors, the remedy in such a
situation is not necessarily revocation of the plea, but an amendment to the
defendant‘s sentence. Zuber, 353 A.2d at 446; see also Commonwealth
v. Alvarado, 276 A.2d 526, 530 (Pa. 1971) (remanding for resentencing
rather than withdrawal of an unknowing and involuntary plea resulting from
a plea bargain); Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa.
Super.) (stating that petitioner would be due benefit of plea bargain),
appeal denied, 9 A.3d 626 (Pa. 2010); Commonwealth v. Parsons, 969
(Footnote Continued Next Page)


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      Similarly, in Commonwealth v. Barndt, 74 A.3d 185 (Pa. Super.

2013), the defendant pleaded guilty while he was on parole for another

sentence. The defendant alleged and proved to the PCRA court that his

decision to plead guilty was based in large part on a promise from his

counsel that the Board would not recommit him to serve the entire thirty

months he had spent on the street prior to his re-arrest. 74 A.3d at 198-

200. Again, pursuant to 61 Pa.C.S. § 6138, the Board had authority over the

defendant‘s recommitment, and counsel‘s advice regarding the length of

time the defendant would spend incarcerated was inaccurate. Id. at 199.

Although the defendant was advised during his guilty plea that the Board

had discretion to recommit him, that information did not cure his reliance on

his counsel‘s erroneous advice. Id. at 199-200. We held that ―counsel‘s

assistance is constitutionally ineffective when counsel misapprehends the

consequences of a given plea and misleads his client accordingly about those

consequences.‖ Id. at 196.13


                       _______________________
(Footnote Continued)

A.2d 1259, 1272 (Pa. Super.) (en banc) (―Accordingly, we vacate the
judgment of sentence and remand for imposition of the sentence contained
in the parties' plea bargain‖), appeal denied, 982 A.2d 1228 (Pa. 2009).
Therefore, to the extent that the instant PCRA court did not provide relief
because ―Appellant was not seeking to withdraw his plea but was seeking a
more favorable sentence,‖ PCRA Ct. Op. at 8, the PCRA court erred.
13
   The defendant in Barndt was permitted to withdraw his guilty plea, as he
had declined the proposed sentence modification that was offered by the
trial court. Barndt, 74 A.3d at 190, 200.



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     Most recently, in Commonwealth v. Kelley, the defendant, who all

parties knew was on state parole, entered into a negotiated guilty plea for a

term of state incarceration to commence at the date of his arrest. Kelley,

136 A.3d at 1011. However, because the defendant was thereafter

recommitted for violating his parole on his old sentence, the commencement

date of his new sentence was effectively pushed forward by approximately

two years. Id. (citing 61 Pa.C.S. § 6138(a)(5)(i)). Upon PCRA review, we

held that the defendant‘s trial counsel was ineffective for providing

erroneous advice regarding the legality and enforceability of the sentence

imposed by the sentencing court, and that the defendant‘s guilty plea was

not knowing, voluntary, and intelligent. Id. at 1014. We therefore reversed

the order denying PCRA relief and vacated the judgment of sentence. Id.

     Given the foregoing precedents, the claim pleaded by Appellant has

arguable merit. Appellant‘s new sentence could not run concurrently to his

old sentence, see 61 Pa.C.S. § 6138(a)(5)(i), and Appellant has alleged that

his trial counsel provided erroneous advice on this point when he pleaded

guilty. This inaccurate advice regarding the actual length of incarceration

time he was facing would have rendered Appellant‘s guilty plea invalid. See

Zuber, 353 A.2d at 445; Kelley, 136 A.3d at 1014.

     As to the second requirement for proof of ineffectiveness of counsel,

there is scarce room for a finding that Appellant‘s trial counsel had a

reasonable basis for providing erroneous advice that induced Appellant‘s


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unlawful guilty plea. See Barndt, 74 A.3d at 199 n.16 (even absent trial

counsel‘s testimony or admission, precedent establishes that no conceivable

reasonable basis exists for providing erroneous advice to induce an unlawful

guilty plea); see also Commonwealth v. Hanible, 30 A.3d 426, 442 (Pa.

2011) (―As to the reasonable basis prong, . . . in the most clear-cut cases

. . . the reasons for counsel‘s conduct are apparent from the record‖), cert.

denied, 133 S. Ct. 835 (2013).

      We also conclude that Appellant has pleaded the third requirement,

prejudice. He contends that he would not have entered a guilty plea if he

had not been promised that his sentence would run concurrently with his

recommitment on No. 662. See Appellant‘s Br. at 9; N.T., 5/10/16, at 9;

Barndt, 74 A.3d at 199-200.

      For similar reasons, Appellant‘s allegations that his first PCRA counsel

was ineffective establish a viable claim. As we have just recognized, the

underlying claim that trial counsel was ineffective has arguable merit.

McGill, 832 A.2d at 1022. And Appellant‘s first PCRA counsel, who was

aware of Appellant‘s claim, could have had no reasonable basis for failing to

pursue relief. Barndt, 74 A.3d at 199 n.16. Because Appellant‘s first PCRA

counsel did not present the claim during his first PCRA hearing, Appellant is

set to spend an additional eighteen months incarcerated — a clear example

of prejudice. PCRA Ct. Op. at 3.




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       But although Appellant pleaded valid claims, he failed to prove them.

Because the PCRA hearing was comprised solely of oral argument and not

presentation of evidence, Appellant did not produce evidence to substantiate

his claims. Our case law is well-settled that Appellant must prove an

ineffectiveness-of-counsel claim, including that there was a reasonable

probability that he would not have entered a guilty plea but for counsel‘s

inaccurate advice in connection with the plea. Hickman, 799 A.2d at 142.

While Appellant was present at the PCRA hearing and stated on the record

that that he would not have pleaded guilty if he had not been offered a

concurrent sentence, 14 Appellant was not under oath when he made that

statement. There was no testimony by Appellant‘s plea counsel regarding

the discussions he had with Appellant during the plea-bargain process; and

there was no testimony by the Commonwealth‘s attorney regarding his

office‘s recollection of the offer it had made to Appellant. The factual

underpinnings of Appellant‘s claim therefore remain unproven.

       The trial court made two references to this lack of proof in its Rule

1925(a) opinion. First, the court noted that ―there does not appear to be

anything in the record to suggest Appellant was promised his sentence in

____________________________________________


14
   Appellant asserted, ―if the concurrency wouldn‘t have been offered, I
would not have taken that plea bargain because I knew that I had almost
two years, or a little more than two years left [on 662] before I could [start
serving my new sentence].‖ N.T., 5/10/16, at 9.




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this matter would run concurrent to his sentence at 662 of 2008.‖ PCRA Ct.

Op. at 9 n.4.15 Second, the court said that, ―[a]t the time of the evidentiary

hearing, Appellant did not provide any testimony or other evidence of his

plea counsel's ineffectiveness.‖ PCRA Ct. Op. at 11. However, the PCRA court

did not deny Appellant‘s petition based on a failure of factual proof, and it

made no findings on the factual issues in the case. Instead, the court based

its decision on its erroneous legal conclusion that Appellant‘s claim was not

eligible for relief under the PCRA. See id. at 4-11. At no time during the

hearing below did the PCRA court give any indication that it did not accept

the factual bases for Appellant‘s claim. And the Commonwealth, for its part,

filed no response to Appellant‘s amended PCRA petition, made no argument

against the factual allegations at the hearing, and still does not, on appeal,

dispute Appellant‘s factual assertions. See Commonwealth‘s Br. at 3-4.

       Our review of the record convinces us that there was no proof of

Appellant‘s claims because the court and the parties all tacitly agreed that

the first priority in the case was to resolve the legal issues presented by

Appellant‘s petition, making any factual presentation to support that position

secondary. Thus, the court began the hearing by stating its view that what

was before the court was ―a legal issue.‖ N.T., 5/10/16 at 2. And the court

ended the hearing by stating that it would take the case under advisement
____________________________________________


15
  As noted, Appellant did make an unsworn statement to that effect when
responding to the court during the hearing. N.T., 5/10/16, at 9.



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to review the case law. Id. at 14. When the court ultimately denied the

petition, it did so as a matter of law, so that there was no need to hold any

further hearing to take evidence about the facts. Because we have now

determined that the court‘s legal holdings were incorrect, it is appropriate to

remand this case to the trial court to take that evidence and to make

whatever factual determinations are appropriate on Appellant‘s claims.

        A PCRA court must take evidence to resolve factual disputes. See

Pa.R.Crim.P. 908(A)(2) (―Except as provided in Rule 907, the judge shall

order a hearing . . . when the petition for post-conviction relief or the

Commonwealth's         answer,     if   any,   raises   material   issues   of   fact‖);

Pa.R.Crim.P. 907(1) (A PCRA judge should hold a hearing where there are

genuine issues concerning material fact). It must then make findings that

are supported by the facts of record. Hawkins, 953 A.2d at 1251. A remand

is appropriate to enable the PCRA court to complete this task. See, e.g.,

Commonwealth v. Montalvo, 114 A.3d 401, 411 (Pa. 2015) (remanding

because the opinion of the PCRA court contained ―no findings of fact, no

determinations of credibility, and no legal conclusions regarding Appellant‘s

PCRA claims; in short, . . . no basis upon which to conduct meaningful

appellate review‖)16; Commonwealth v. Beasley, 967 A.2d 376, 391 (Pa.


____________________________________________


16
     In Montalvo, the Supreme Court stated:

(Footnote Continued Next Page)


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2009) (remanding for the PCRA court to resolve ―areas of material, factual

controversy    and      material     credibility    disputes‖);   Commonwealth   v.

Peoples, 961 A.2d 109 (Pa. 2008) (per curiam) (remanding for a PCRA

hearing regarding trial counsel‘s ineffectiveness, where no hearing was held

and the Commonwealth disputed material facts); Commonwealth v.

Williams, 732 A.2d 1167, 1180-81 (Pa. 1999) (remanding for a PCRA

hearing to assess the credibility of a trial witness who wished to recant

testimony). Because the PCRA court misapprehended the law and failed to

receive evidence and make factual findings, we remand for the PCRA court

to resolve all factual issues presented by Appellant‘s petition. For this

purpose, the PCRA court may hold additional hearings and admit evidence.

      Regardless of the outcome of the proceedings below, the portion of

Appellant‘s current sentence that states that it shall run concurrently with




                       _______________________
(Footnote Continued)

      [I]n order to enable appellate review, PCRA courts are required
      to provide a legally robust discussion, complete with clear
      findings of fact where required. Where a PCRA court fails to
      support its holding with sufficient explanations of the facts and
      law, or fails to provide an adequate opinion addressing all of the
      claims raised in a PCRA petition, including factual and credibility
      disputes, a remand is appropriate. In addition, such a remand
      may necessitate further proceedings below.

114 A.3d at 410 (quotation marks and citations omitted).



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the sentence on No. 662 is illegal, and we vacate that portion of the

sentence. See 42 Pa.C.S. § 706.17

       Order vacated. Judgment of sentence vacated in part. Case remanded

with instructions. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2017




____________________________________________


17
   Appellant‘s fourth issue is that the trial court erred by failing to enforce his
plea bargain. Appellant‘s Brief at 16. Appellant makes no argument as to
how his issue, framed in this manner, is cognizable for relief under the
PCRA. His claim is therefore waived. See 42 Pa.C.S. § 9543 (listing which
types of claims are eligible for PCRA relief); Commonwealth v. Perez, 93
A.3d 829, 841 (Pa.) (appellate claims lacking developed argument or legal
citation are deemed waived), cert. denied, 135 S. Ct. 480 (2014).



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