J-S69037-19 & J-S69038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BAIHEEM GRESHAN                            :
                                               :
                       Appellant               :   No. 328 EDA 2019

             Appeal from the PCRA Order Entered January 14, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0002458-2012

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BAIHEEM GRESHAN                            :
                                               :
                       Appellant               :   No. 331 EDA 2019

             Appeal from the PCRA Order Entered January 14, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008824-2014


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                 FILED JULY 31, 2020

        Appellant, Baiheem Greshan, appeals from orders of the Court of

Common Pleas of Philadelphia County (trial court) in two criminal proceedings




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*   Retired Senior Judge assigned to the Superior Court.
J-S69037-19 & J-S69038-19


that dismissed his petitions for relief pursuant to the Post Conviction Relief Act

(PCRA)1 without a hearing.        After careful review, we reverse.

        The PCRA petitions here sought relief from revocation of probation

sentences imposed in two separate criminal cases, CP-51-CR-0002458-2012

(CR-2458-2012) and CP-51-CR-0008824-2014 (CR-8824-2014).                  In CR-

2458-2012, Appellant entered a negotiated guilty plea on June 26, 2012 to

one count of manufacture, delivery or possession with intent to deliver a

controlled substance2 and was sentenced to 111/2 months to 23 months of

incarceration and 3 years of probation.        In CR-8824-2014, Appellant entered

a negotiated guilty plea on March 31, 2015 to aggravated assault and

possession of an instrument of crime,3 and was sentenced to 111/2 months to

23 months of incarceration followed by 4 years of probation for aggravated

assault and 4 years of probation for possession of an instrument of crime

consecutive to the imprisonment sentence and concurrent with the period of

probation for the aggravated assault.

        Appellant had completed serving the 111/2-to-23 month incarceration

portion of his sentence and was serving the 3-year probation sentence in CR-

2458-2012 at the time he committed the aggravated assault and possession

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1   42 Pa.C.S. §§ 9541–9546.
2   35 P.S. § 780-113(a)(30).
3   18 Pa.C.S. § 2702(a) and 18 Pa.C.S. §907(a), respectively.



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of an instrument of crime in June 2014.          See CR-2458-2012 Gagnon II4

Summary, 8/13/14. The trial court on March 31, 2015 revoked Appellant’s

probation in CR-2458-2012 and sentenced Appellant to 5 years’ probation.

CR-2458-2012 Probation Revocation Order, 3/31/15.

        On November 2, 2015, the trial court found Appellant to be in violation

of his probation in CR-2458-2012 and revoked his probation and sentenced

him to 111/2 months to 23 months of incarceration followed by 5 years of

probation.    CR-2458-2012 Probation Revocation Order, 11/2/15.       The trial

court also entered an order in CR-8824-2014 revoking Appellant’s probation

and sentencing him to 111/2 months to 23 months of incarceration followed

by 5 years of probation for aggravated assault and 4 years of probation for

possession of an instrument of crime.5 CR-8824-2014 Probation Revocation

Order, 11/2/15. In both cases, Appellant was paroled from his incarceration

sentences and the maximum date of his incarceration sentences was




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4   Gagnon v. Scarpelli, 411 U.S. 778 (1973).
5 Appellant was still on parole in CR-8824-2014 and had not yet begun serving
the probation portion of his sentence at this time. That fact, however, did not
affect the trial court’s power to revoke his probation and impose a new
sentence in lieu of the probation portions of his sentence. Commonwealth
v. Ware, 737 A.2d 251, 253-54 (Pa. Super. 1999) (court may revoke the
probation portion of a split sentence and impose a new sentence based on
conduct that occurs while defendant is still on parole from the incarceration
portion of the sentence).




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September 20, 2017.          CR-2458-2012 Gagnon II Summary, 5/6/16; CR-

8824-2014 Gagnon II Summary, 5/6/16.

        On October 12, 2017, Appellant entered a negotiated guilty plea in a

third    case,   CP-51-CR-0000389-2017           (CR-389-2017),   to   charges   of

intimidating a witness, retaliating against a witness, and terroristic threats,

and was sentenced to 111/2 months to 23 months of incarceration followed by

4 years of probation for intimidating a witness and retaliating against a witness

and 4 years of probation for terroristic threats.6       N.T., 10/12/17, at 4-10.

Based on Appellant’s guilty plea in CR-389-2017, the trial court on October

12, 2017 entered orders revoking Appellant’s probation in CR-2458-2012 and

CR-8824-2014. In CR-2458-2012, the trial sentenced Appellant to 5 to 10

years of incarceration followed by 5 years of probation.           CR-2458-2012

Probation Revocation Order, 10/12/17; N.T., 10/12/17, at 11. In CR-8824-

2014, the trial court imposed consecutive sentences of incarceration of 3 to 6

years for aggravated assault and 21/2 to 5 years for possession of an

instrument of crime. CR-8824-2014 Probation Revocation Order, 10/12/17;

N.T., 10/12/17, at 11. The trial court ordered that the sentences in CR-8824-

2014 run consecutive to the incarceration sentence in CR-2458-2012,

resulting in an aggregate sentence in CR-2458-2012 and CR-8824-2014 of



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6 At the time that he committed those offenses, Appellant was still on parole
from the incarceration portions of his November 2015 violation of probation
sentences. See footnote 5, supra.

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101/2 to 21 years of incarceration and 5 years of probation. CR-8824-2014

Probation Revocation Order, 10/12/17; N.T., 10/12/17, at 11. At the hearing,

the trial court based these sentences on the maximum legally permissible

sentences and articulated no reason for imposing sentences of that length.

N.T., 10/12/17, at 8-11.

      On October 18, 2017, trial counsel for Appellant filed timely motions in

both cases for reconsideration of these revocation of probation sentences. The

trial court did not rule on the motions for reconsideration of sentence or grant

an extension of time for decision, and the motions for reconsideration of

sentence were denied by operation of law on March 27, 2018. CR-2458-2012

Docket Entries; CR-8824-2014 Docket Entries. Appellant did not file a direct

appeal in either case.

      On April 2, 2018, Appellant filed counseled PCRA petitions in both CR-

2458-2012 and CR-8824-2014 alleging ineffective assistance of counsel. In

both petitions, Appellant alleged that trial counsel was ineffective for failing to

submit an order to vacate the sentence with the motion for reconsideration of

sentence and failing to request a hearing on the motion and alleged that this

caused the denial of the motions for reconsideration without consideration of

the merits. CR-2458-2012 PCRA Petition Procedural History ¶11, Argument

¶¶10-11; CR-8824-2014 PCRA Petition Procedural History ¶11, Argument

¶¶10-11.




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       On December 10, 2018, the trial court held an argument on the PCRA

petitions at which Appellant’s PCRA counsel explained that the relief sought

was the restoration of Appellant’s right to seek reconsideration of the

sentences. N.T., 12/10/18, at 4-5. The trial court acknowledged that trial

counsel’s failure to file rules to show cause to obtain hearings could be found

to have caused the denial of the motions for reconsideration of sentence by

operation of law, and the Commonwealth argued that the PCRA petitions

should be denied solely on the ground that Appellant did not show prejudice.

Id. at 5-6. On December 10, 2018, following the argument, the trial court

issued notices in both cases pursuant to Pa.R.Crim.P. 907 of its intent to

dismiss Appellant’s PCRA petitions without a hearing on the ground that they

were without merit. Appellant did not file a response to the trial court’s Rule

907 order in either case. On January 14, 2019, the trial court entered orders

dismissing the PCRA petitions. Appellant, represented by counsel, filed timely

appeals from both orders.

       Appellant argues that the trial court erred in dismissing his PCRA

petitions for failure to show that trial counsel’s conduct prejudiced him, the

sole ground on which it based its decision.7 We agree.

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7 Appellant’s counsel initially filed a petition to withdraw and a brief under
Anders v. California, 386 U.S. 738 (1967). On April 8, 2020, we denied
counsel’s petition to withdraw and ordered counsel to submit an advocate’s
brief or a new no-merit letter. On May 7, 2020, Appellant’s counsel filed a
brief on the merits arguing this issue. On June 1, 2020, the Commonwealth



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         We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its decision is free of legal

error.      Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015);

Commonwealth           v.   Reaves,      923     A.2d   1119,   1124   (Pa.   2007);

Commonwealth v. Sarvey, 199 A.3d 436, 445 (Pa. Super. 2018). To be

entitled to relief under the PCRA on a claim of ineffective assistance of counsel,

the convicted defendant must prove: (1) that the underlying legal claim is of

arguable merit; (2) that counsel’s action or inaction had no reasonable basis;

and (3) that he suffered prejudice as a result of counsel’s action or inaction.

Mason, 130 A.3d at 618; Sarvey, 199 A.3d at 452; Commonwealth v.

Presley, 193 A.3d 436, 442 (Pa. Super. 2018); Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa. Super. 2013) (en banc). The defendant must satisfy all

three elements of this test to obtain relief under the PCRA. Mason, 130 A.3d

at 618; Sarvey, 199 A.3d at 452; Stewart, 84 A.3d at 706. Because the trial

court did not hold that Appellant failed to satisfy the first two of these elements

and the Commonwealth does not contend that Appellant failed to satisfy those

elements, our analysis is properly limited to the issue of prejudice.

         To satisfy the prejudice element of an ineffective assistance of counsel

claim, the convicted defendant must show that there is a reasonable



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filed a brief arguing that the trial court’s dismissals of the PCRA petitions
should be affirmed.


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probability that, but for counsel’s error, the result of the proceeding would

have been different. Mason, 130 A.3d at 618; Reaves, 923 A.2d at 1127;

Stewart, 84 A.3d at 707. Where, as here, trial counsel’s error is a failure to

properly file a motion with respect to the defendant’s sentence, the prejudice

element requires that the defendant show a reasonable probability that the

motion would have resulted in a more favorable sentence. Reaves, 923 A.2d

at 1131-32; Presley, 193 A.3d at 444-45.

      In Reaves and Presley, our Supreme Court and this Court held that

the defendant had failed to show a reasonable probability that the motion that

counsel failed to file would have resulted in a reduced violation of probation

sentence and therefore failed to show prejudice. In Reaves and Presley,

however, the record contained facts that made it unlikely that the sentencing

court would have imposed a lesser sentence.

      In Reaves, the Supreme Court held that the defendant had not shown

prejudice from counsel’s failure to object to the sentencing court’s

noncompliance with Pa.Crim.P. 708’s requirement that the court state the

reasons for its violation of probation sentence at the time of the sentencing.

In holding that the defendant did not show prejudice, the Court in Reaves

specifically noted that the court in denying the PCRA petition gave an

explanation for the length of the sentence. 923 A.2d at 1132. In addition,

the revocation of probation sentence that was imposed in Reaves, an

aggregate sentence of four to eight years’ imprisonment, was far below the


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maximum sentence for the offenses as to which probation was revoked, which

included three first-degree burglary convictions, each of which carried a 20-

year maximum sentence. Id. at 1121-22 & n.5, 1132 n.13. Indeed, the Court

specifically noted that because the sentence was far below the maximum

sentence, it was “highly unlikely” that counsel’s failure had any effect on the

defendant’s sentence. Id. at 1132 n.13.

      In Presley, this Court held that the defendant did not show prejudice

from counsel’s failure to file a post-sentence motion. Although the revocation

of probation sentence of 12 to 24 years was the maximum sentence that could

be imposed, the defendant’s counsel had previously filed a post-sentence

motion for reconsideration, which the sentencing court had granted, and the

sentencing court had re-imposed the same sentence after reconsideration and

a new sentencing hearing. 193 A.3d at 439, 444-45. This Court concluded

that there was no reasonable likelihood that a second motion would result in

a more favorable sentence because the sentencing court had already

reconsidered the sentence and re-imposed the same sentence, noting that

‘[e]xpecting the same action to yield different results is the very definition of

irrational.” Id. at 444-45.

      Here, the facts that made a lesser sentence unlikely in Reaves and

Presley are not present. Unlike the situation in Presley, the trial court has

not reconsidered Appellant’s revocation of probation sentences and re-

imposed those sentences after evaluation of whether they are appropriate


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sentences.    Rather, the trial court denied counsel’s post-trial motion by

operation of law without any consideration of the merits. Unlike Reaves, the

sentences in CR-8824-2014 are consecutive maximum sentences and the

sentence in CR-2458-2012 is close to the maximum sentence, although 5 of

the 15 years of that sentence are probation. Moreover, the trial court also

imposed the sentences in the two cases to run consecutively.

      In addition, unlike Reaves, the trial court has never articulated any

reason for the length of the sentences that it imposed from which this Court

can conclude that reconsideration would have no effect on Appellant’s

revocation of probation sentences. The record shows that at the hearing at

which it revoked probation and imposed the sentences, the only fact that the

trial court referenced was how long of a sentence it could impose in each case.

N.T., 10/12/17, at 8-11.     While the trial court in its opinion explaining its

reasons for dismissing Appellant’s PCRA petitions stated that it would have

denied the motions for reconsideration of the sentences even if they had been

properly filed, the trial court stated no reason in its opinion or at oral argument

of the PCRA petitions for the sentences that it imposed or the imposition of

consecutive sentences and did not even express a view that it considered the

sentences appropriate for Appellant’s conduct. Trial Court Opinion at 6; N.T.,

12/10/18, at 5-7.

      The requirement of reasonable probability does not mandate proof that

it is more likely than not that the outcome would in fact have changed.


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Commonwealth           v.   Jones,     210     A.3d   1014,   1018-19   (Pa.   2019);

Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009); Stewart, 84

A.3d at 707, 714-15 & n.5. Rather, a reasonable probability of a different

result sufficient to show prejudice is a probability sufficient to undermine

confidence in the outcome. Jones, 210 A.3d at 1019; Commonwealth v.

Postie, 200 A.3d 1015, 1023 (Pa. Super. 2018) (en banc); Sarvey, 199 A.3d

at 452; Stewart, 84 A.3d at 707.

       Measured against this standard, we conclude that Appellant made a

sufficient showing of prejudice. Given how close the sentences were to the

maximums and the imposition of consecutive sentences, coupled with the

absence of any prior reconsideration of the sentences or explanation by the

trial court showing that it had already fully considered the appropriateness of

such lengthy sentences, there is a sufficient probability that a properly filed

reconsideration motion would have had some favorable effect on the

sentences to undermine confidence in the outcome. Cf. Sarvey, 199 A.3d at

456-57 (defendant showed prejudice sufficient to prove ineffective assistance

of counsel where consecutive sentences that counsel had failed to challenge

resulted in an excessive sentence).8 The mere fact that the trial court stated



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8 We do not suggest that the sentences here are necessarily excessive.
Rather, it is their length in combination with the absence of any articulated
reasons for their length or prior reconsideration that makes this case different
from Reaves and Presley and creates a sufficient probability of effect on
Appellant’s aggregate sentence to satisfy the element of prejudice.

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that it would not have changed the sentences, without any articulation of

reasons for the sentences or even a brief statement of why it felt that they

were    appropriate,   does   not   give   confidence   that   a   properly   filed

reconsideration motion would have had no effect.

       Because the trial court dismissed Appellants’ PCRA petitions solely on

the ground that Appellant had not shown prejudice from counsel’s failure to

properly file motions for reconsideration of his revocation of probation

sentences and that legal conclusion is in error, the dismissal of the PCRA

petitions must be reversed. We therefore reverse the trial court’s order and

remand this case for proceedings consistent with this Memorandum.

       Order reversed. Case remanded. Jurisdiction relinquished.

       Judge Kunselman joins the Memorandum.

       Judge Shogan files a Dissenting Memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/20




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