J-S03009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

RAPHEAL JAMES THOMPSON

                           Appellant                No. 258 WDA 2016


               Appeal from the PCRA Order January 19, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000205-2014

BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 13, 2017

      Appellant, Rapheal James Thompson, appeals from the order entered

on January 19, 2016, dismissing his first petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. We vacate and

remand for an evidentiary hearing.

      The factual background and procedural history of this case are as

follows. On April 29, 2013, Appellant fled on foot upon noticing that police

were surveilling a vehicle he just entered. While fleeing, Appellant discarded

between 50 and 100 stamp bags of heroin. When police caught Appellant,

he resisted arrest.

      On January 24, 2014, the Commonwealth charged Appellant via

criminal information with possession with intent to deliver a controlled




* Retired Senior Judge assigned to the Superior Court
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substance,1 possession of a controlled substance,2 evidence tampering,3 and

resisting arrest.4 On May 12, 2014, pursuant to a plea agreement, Appellant

pled guilty to possession with intent to deliver a controlled substance and

resisting arrest.   Consistent with the negotiated plea agreement, he was

immediately sentenced to an aggregate term of two to four years’

imprisonment followed by four years’ probation. That sentence was ordered

to run concurrently with backtime that Appellant received for violating his

parole at case number CP-02-CR-0015001-2010.          Appellant did not file a

direct appeal.

        On April 16, 2015, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended PCRA petition. On November 17, 2015, the

PCRA court issued notice of its intent to dismiss the petition without an

evidentiary hearing.    See Pa.R.Crim.P. 907(A). On January 19, 2016, the

PCRA court dismissed the petition. This timely appeal followed.5


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    18 Pa.C.S.A. § 4910(1).
4
    18 Pa.C.S.A. § 5104.
5
  On March 10, 2016, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(a).     On March 23, 2016, Appellant filed his concise
statement. On August 15, 2016, the PCRA court issued its Rule 1925(a)
opinion.   Appellant’s lone appellate issue was included in his concise
statement.



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      Appellant presents one issue for our review:

      Did the [PCRA] court err as a matter of law in refusing to grant
      relief on the [a]mended PCRA petition . . . as all record
      indicators acknowledge that the sentence on this conviction was
      specifically ordered to be served concurrently with [Appellant’s]
      2010 sentence, which was a condition of the negotiated plea?

Appellant’s Brief at 9.

      “Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review. We defer to the PCRA court’s factual

findings and credibility determinations [that are] supported by the record.

In contrast, we review the PCRA court’s legal conclusions de novo.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015) (internal citations

omitted).

      In his lone issue, Appellant argues that trial counsel was ineffective.

“[T]he Sixth Amendment to the United States Constitution and Article I,

[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to

effective counsel.   This right is violated where counsel’s performance so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Simpson,

112 A.3d 1194, 1197 (Pa. 2015) (internal quotation marks and citation

omitted).   “[T]rial counsel is presumed to be effective.” Commonwealth

v. Patterson, 143 A.3d 394, 398 (Pa. Super. 2016) (citation omitted). To

prevail on an ineffective assistance of counsel claim, a “petitioner must plead



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and prove (1) the legal claim underlying the ineffectiveness claim has

arguable merit; (2) counsel's action or inaction lacked any reasonable basis

designed to effectuate petitioner’s interest; and (3) counsel’s action or

inaction resulted in prejudice to petitioner.”   Commonwealth v. Mason,

130 A.3d 601, 618 (Pa. 2015) (citation omitted).

     Here, Appellant’s claim is that counsel provided ineffective assistance

and unlawfully induced an unknowing guilty plea by failing to accurately

explain certain consequences of Appellant’s sentencing agreement with the

Commonwealth. In the plea context, this Court has explained that:

     A criminal defendant has the right to effective counsel during a
     plea process as well as during trial. A [petitioner] is permitted to
     withdraw his guilty plea under the PCRA if ineffective assistance
     of counsel caused the [petitioner] to enter an involuntary plea of
     guilty . . . . The voluntariness of the plea depends on whether
     counsel’s advice was within the range of competence demanded
     of attorneys in criminal cases. . . . [T]o succeed in showing
     prejudice, the [petitioner] 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.

Patterson, 143 A.3d at 397-398 (internal quotation marks, paragraph

breaks, and citations omitted).

     The outcome of this case is controlled by Commonwealth v. Kelley,

136 A.3d 1007 (Pa. Super. 2016). In Kelley, like in the case at bar, the

Commonwealth and the defendant entered into a plea agreement whereby

the defendant’s term of imprisonment would run concurrently with parole




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backtime in a separate case.6 As this Court noted in Kelley, “where a state

parolee gets a new state sentence, he must serve his backtime first before

commencement of the new state sentence.” Id. at 1013, citing 61 Pa.C.S.A.

§ 6138(a)(5)(i).   As in the case at bar, the Department of Corrections in

Kelley refused to run the sentences concurrently because doing so would

violate the statute. Cf. Lawrence v. Pennsylvania Dept. of Corrections,

941 A.2d 70 (Pa. Cmwlth. 2007) (DOC cannot run sentences concurrently

when doing so violates section 6138(a)(5)(i)).

     In Kelley, this Court stated:

     Nothing in the record indicates counsel advised [petitioner] of
     the statutory sequence for serving his old and new sentences.
     Moreover, neither the Commonwealth nor the court advised
     [petitioner] that his negotiated sentence could not be honored as
     stated or imposed. [Petitioner] 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.

Kelley, 136 A.3d at 1014.

     Contrary to the Commonwealth’s assertions, the same situation is

present in this case. Although the trial court informed Appellant that he may

receive a separate sentence for violating the terms of his parole, neither


6
  The PCRA court states that this was not part of the plea agreement that it
approved.     PCRA Court Opinion, 8/15/16, at 4.       The certified record,
however, belies that assertion.    See Sentencing Order, 5/12/14, at 2
(stating that the term of imprisonment in this case would run concurrently
with the term of imprisonment at CP-02-CR-0015001-2010); cf.
Commonwealth v. Brooker, 103 A.3d 325, 329 n.4 (Pa. Super. 2014)
(citation omitted).



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Appellant’s plea counsel, the trial court, nor the Commonwealth advised

Appellant that he was required to serve his backtime prior to serving his

sentence in this case.

        As in Kelley, we conclude that Appellant proved that counsel’s advice

was not within the range of competence demanded of attorneys in criminal

cases because counsel negotiated a plea agreement which included a

sentence that violated the Parole Act.       As the PCRA court dismissed the

instant petition without an evidentiary hearing, however, we are unable to

determine whether it is “reasonably probable that, but for counsel’s errors,

[Appellant] would not have pleaded guilty and would have gone to trial.”

Patterson, 143 A.3d at 398 (citation omitted). Accordingly, we vacate the

order    dismissing   Appellant’s   PCRA   petition   and   remand   for   further

proceedings consistent with this memorandum.

        Order vacated. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/13/2017




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