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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT DAVID CALDWELL, II                  :
                                               :
                       Appellant               :   No. 297 WDA 2019

             Appeal from the PCRA Order Entered January 28, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0001359-2015


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 11, 2019

        Robert David Caldwell, II (Appellant) appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        Appellant was charged with one count each of unlawful contact with a

minor, criminal use of communication facility, display obscene/sexual

materials, and corruption of minors; he was also charged with two counts of

child pornography.1        Following a preliminary hearing, privately retained

counsel, David Shrager, Esquire (Plea Counsel), received an offer from the

district attorney’s office, which provided that in exchange for a guilty plea,

Appellant would receive intermediate punishment, i.e., house arrest.        For

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6318, 7512(a), 5903(A)(1), 6301, and 6312(D).
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reasons unclear from the record, the Commonwealth subsequently rescinded

this offer. Thereafter, Plea Counsel advised Appellant to enter an open guilty

plea. According to Plea Counsel, “[t]here was a lot of potential consequences

for going to trial, certainly a lengthier jail time here in state court and there

was potential for the Federal Courts to adopt this case, which would have

made it a more significant matter as well.” PCRA Hearing, 9/27/18, at 5.

      Ultimately, Appellant agreed to enter an open guilty plea, which the trial

court accepted on July 28, 2016. On December 22, 2016, Appellant appeared

before the trial court for sentencing.      Plea Counsel made the following

argument:

      [T]he best way to satisfy [the factors the court must consider in
      sentencing] is through community based punishment.          That
      means continued treatment and probation which is squarely in the
      guidelines. If the Court is uncomfortable with that certainly we
      would understand that and a sentence of Intermediate
      Punishment [would be appropriate]. That way [Appellant] can
      continue with [his] treatment, [he] can continue to hopefully be
      gainfully employed and [he] can move forward.

N.T., 12/22/16, at 53.

      In considering intermediate punishment, the court engaged in the

following discussion with Elizabeth Lorince (who is not identified on the record

but appears to be a probation officer), the Commonwealth, and Plea Counsel:

      THE COURT: Elizabeth, what, if any, problems do I have with
      [intermediate punishment] and interstate?      I mean is
      [intermediate punishment] even on the table?

      MISS LORINCE: No, unless it would be, the ineligibility would have
      to be waived by the District Attorney.



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     [THE COMMONWEALTH]: And we will not waive it, Judge.

     THE COURT: The ineligibility is because of the nature of the
     offense.

     MISS LORINCE: Yes.

     [PLEA COUNSEL]: Your Honor, if I may –

     THE COURT: In the absence of [intermediate punishment] is there
     something else you want to say?

     [PLEA COUNSEL]: If I could, Your Honor. I believe, and I could
     be wrong, but the fact that [Appellant is] ineligible because of
     that’s Probation’s guidelines here in Fayette –

     THE COURT: It’s statutory.

     [PLEA COUNSEL]: I believe [he is] eligible for [intermediate
     punishment], Your Honor.            I get [intermediate
     punishment] for my clients –

     [THE COMMONWEALTH]: No, they are not, Judge.

     [PLEA COUNSEL]: Statutorily?

     [THE COMMONWEALTH]: They are not eligible because of the
     nature of the crimes.

     THE COURT: I’d be happy to take a minute and let you look at it.

     [PLEA COUNSEL]: I’ll have to pull that up, Judge, but in
     Allegheny County we do it all the time.

     [THE COMMONWEALTH]: They may do it in another county but
     the law is very clear that they are not eligible for [intermediate
     punishment].

N.T., 12/22/16, at 55-56 (emphasis added).

     At the conclusion of the hearing, the court sentenced Appellant to one

to seven years of incarceration for one count of child pornography, a



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concurrent sentence of one to seven years of incarceration for criminal use of

a communications facility, and a consecutive sentence of one to five years of

incarceration for display of obscene and other sexual materials. No further

penalty was imposed. On December 29, 2016, Appellant filed a post-sentence

motion for reconsideration, which the trial court denied on January 3, 2017.

Appellant filed an appeal to this Court, which affirmed his judgment of

sentence on October 19, 2017. Commonwealth v. Caldwell II, 189 WDA

2017 (Pa. Super. Oct. 19, 2017) (unpublished memorandum).

      On March 21, 2018, Appellant filed the underlying PCRA petition through

newly retained counsel. The PCRA court convened a hearing on September

17, 2018. In his petition, and at the evidentiary hearing, Appellant alleged

that he pled guilty as a result of Plea Counsel’s ineffectiveness. Specifically,

Appellant argued that he pled guilty because Plea Counsel erroneously led him

to believe that he was eligible for intermediate punishment.

      The General Assembly defines an eligible offender as follows:

      “Eligible offender.” Subject to section 9721(a.1) (relating to
      sentencing generally), a person convicted of an offense who would
      otherwise be sentenced to a county correctional facility, who does
      not demonstrate a present or past pattern of violent behavior and
      who would otherwise be sentenced to partial confinement
      pursuant to section 9724 (relating to partial confinement) or total
      confinement pursuant to section 9725 (relating to total
      confinement). The term does not include an offender who
      has been convicted or adjudicated delinquent of a crime
      requiring registration under Subchapter H of Chapter 97
      (relating to registration of sexual offenders) . . . .




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42 Pa.C.S.A. § 9802. As noted by the trial court at sentencing, Appellant was

statutorily barred from receiving a sentence of intermediate punishment

because Appellant pled guilty to a crime that required registration under 42

Pa.C.S.A. § 9718.2. Thus, Appellant asserted that he should be permitted to

withdraw his guilty plea based on the unsound advice of Plea Counsel.

      On January 28, 2019, the PCRA court denied Appellant’s petition. The

court reasoned that because there was no plea agreement as to Appellant’s

sentence, the court had the discretion to impose Appellant’s sentence, and

“any prior offer of intermediate punishment or attempt to obtain was not going

to be successful.” PCRA Court Opinion, 1/28/19, at 3. Appellant filed this

timely appeal, in which he presents a single issue for our review:

      Whether the PCRA Court erred in refusing to set aside the
      Appellant’s plea on the basis of ineffective assistance of counsel
      when Appellant’s plea counsel advised Appellant that he was
      eligible for intermediate punishment prior to his plea when in fact
      he was statutorily ineligible.

Appellant’s Brief at 4 (suggested answer omitted).

      Appellant’s claim for ineffective assistance of counsel in connection with

advice rendered during his guilty plea is cognizable under the PCRA pursuant

to 42 Pa.C.S.A. § 9543(a)(2)(ii). See Commonwealth v. Lynch, 820 A.2d

728, 731-32 (Pa. Super. 2003) (“If the ineffective assistance of counsel

caused the defendant to enter an involuntary or unknowing plea, the PCRA

will afford the defendant relief.”); Commonwealth v. Rathfon, 299 A.2d

365, 369 (Pa. Super. 2006).        We review the denial of PCRA relief by



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“examining whether the PCRA court’s findings of fact are supported by the

record, and whether its conclusions of law are free from legal error.”

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012).               “Our scope of

review is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the party who prevailed in the PCRA

court proceeding.” Id.

      Appellant challenges Plea Counsel’s effectiveness in relation to

Appellant’s guilty plea. In deciding ineffective assistance of counsel claims,

we begin with the presumption that counsel rendered effective assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

the presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,

with prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.” Id. (citation omitted).

If the petitioner fails to prove any of these prongs, the claim is subject to

dismissal. Id.

      The right to constitutionally effective assistance of counsel extends to

counsel’s role in guiding his client with regard to the consequences of entering

into a guilty plea. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super.

2012). “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


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defendant to enter an involuntary or unknowing plea.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation

omitted). “Where the defendant 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.”                 Id.

(quotations and citations omitted).       “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

      With respect to valid guilty pleas, this Court has explained:

      A valid guilty plea must be knowingly, voluntarily and intelligently
      entered. 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. 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 terms of the agreement unless the court accepts the
      agreement. 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.




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Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted); see also Pa.R.Crim.P. 590.

         Appellant argues that Plea Counsel affirmatively misled Appellant to

believe that he would receive intermediate punishment if he pled guilty.

Accordingly, Appellant contends that he should be permitted to withdraw his

guilty    plea   due   to   Plea   Counsel’s   ineffectiveness.    Appellant   cites

Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super. 2002), in which this

Court found ineffective assistance where counsel incorrectly assured the

appellant that he would be eligible for boot camp after serving two years of

his sentence.      Despite plea counsel’s assurance to the contrary, under

controlling law, the appellant would never become eligible for boot camp, and

would not even be eligible for parole until four years into his sentence. Under

these circumstances, we concluded that due to counsel’s “ignorance of

relevant sentencing law, counsel’s advice was legally unsound and devoid of

any reasonable basis designed to effectuate [the appellant’s] interests.” Id.

at 141 (citing Hill v. Lockhart, 474 U.S. 52, 62 (1985)). We further found

that the appellant was prejudiced by counsel’s error because the record

showed that the appellant would have pled not guilty and proceeded to trial

had he understood the consequences of his guilty plea. Thus, we held that

the   appellant    could    withdraw    his    plea.   Id.   at   141-42;   accord

Commonwealth v. Kersteter, 877 A.2d 466 (Pa. Super. 2005) (finding plea




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counsel   ineffective   for   failing   to   correct   the   trial   court’s   erroneous

determination that the appellant would be eligible for boot camp).

      Consistent with Hickman, we find that Appellant has pled and proven

that his challenge to Plea Counsel’s ineffectiveness has arguable merit. As set

forth above, erroneous legal advice by counsel regarding the consequence of

a plea, whether the consequence lies in the discretion of the trial court or is

prescribed by statutes or regulations, may constitute a basis for PCRA relief.

Appellant alleges that he was given such advice.

      We likewise find that, based on Plea Counsel’s ignorance of relevant

sentencing law, Plea Counsel’s advice was legally unsound and devoid of any

reasonable basis designed to effectuate Appellant’s interests.                 See Hill,

supra; Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999) (acknowledging

that an attorney can be ineffective by giving a defendant false information

about sentencing); Meyers v. Gillis, 142 F.3d 664 (3d Cir. 1998) (finding

representation fell below that required by Sixth Amendment when counsel

misrepresented parole eligibility to a defendant entering a guilty plea).

      Here, Plea Counsel gave Appellant reason to believe that he was eligible

for intermediate punishment, when in fact, Appellant was statutorily ineligible

based on his convictions requiring him to register as a sex offender. Plea

Counsel stated to the trial court that he believed Appellant was eligible for

intermediate punishment. N.T., 12/22/16, at 56. Plea Counsel added, “I get

[intermediate punishment] for my clients” and “in Allegheny County we do it


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all the time.” Id. There was no reasonable basis for Plea Counsel to give that

advice or make those statements when Appellant was statutorily ineligible for

intermediate punishment.

      Having concluded that Appellant has met the first two prongs of Bomar,

we consider the third prong, which is whether Appellant has pled and proven

that Plea Counsel’s ineffectiveness caused him prejudice.      In this context,

prejudice may be established by Appellant demonstrating a reasonable

probability that he would have opted to go to trial rather than plead guilty had

he been given legally sound advice. Barndt, 74 A.3d at 192.

      Appellant claims that he would have pled “not guilty” and gone to trial

if not for Plea Counsel’s advice that he was eligible for intermediate

punishment. However, the PCRA court rejected this claim because it did not

find Appellant’s testimony on this subject to be credible. The record supports

the court’s finding.   At the PCRA hearing, Appellant gave the following

testimony:

      [PCRA COUNSEL]: Okay.       And so could you describe the
      conversation as to what [Plea Counsel] advised you as to the
      federal charges?

      [APPELLANT]: The federal charges, he said, if you try anything –
      if you want to try habeas corpus and I didn’t know what it was
      and suppression of evidence, he said it is all instantly going to be
      referred for federal charges which will bring you up to nineteen
      years in prison. He said, you will never win. The Feds always win.

      [PCRA COUNSEL]: Okay. Did he advise you that – whether or
      not the feds bringing charges is discretionary with them and not
      – or was it an absolute that they were going to take the case?


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      [APPELLANT]: It was an absolute.

      [PCRA COUNSEL]: Based on that advice, what did you decide
      to do?

      [APPELLANT]: We decided at that point in time to go with the
      open plea.

PCRA Hearing, 9/27/18, at 27 (emphasis added).             Likewise, Plea Counsel

testified that during his discussions with Appellant, he advised Appellant of

the risks of entering a “not guilty” plea and going to trial, and recommended

that Appellant plead guilty to avoid possible federal charges.          Id. at 5.

Although Appellant now claims that he only pled guilty because of Plea

Counsel’s unsound legal advice regarding his eligibility for intermediate

punishment,     Appellant’s    testimony      and   Plea    Counsel’s   testimony

demonstrates otherwise.       Accordingly, Appellant has failed to satisfy the

prejudice prong of the ineffectiveness test and is not entitled to post-

conviction relief.

      Order affirmed.

      Judge Colins joins the memorandum.

      Judge Lazarus concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2019

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