J-A30032-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    COMMONWEALTH OF PENNSYLVANIA         :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
    MATTHEW GEIS                         :
                                         :
                   Appellant             :       No. 673 WDA 2017

            Appeal from the Judgment of Sentence March 7, 2017
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-SA-0000852-2016

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

MEMORANDUM BY STRASSBURGER, J.:                    FILED MARCH 19, 2019

       Matthew Geis (Appellant) appeals from the March 7, 2017 judgment of

sentence imposing 60 days of house arrest with work release and a $500 fine

plus costs, after he pleaded guilty to driving while operating privilege is

suspended or revoked. Upon review, we vacate his judgment of sentence and

remand for further proceedings.

       Appellant was convicted of the aforementioned crime in the magisterial

district court and timely appealed for a trial de novo in the Court of Common

Pleas of Allegheny County.     At the de novo hearing on March 7, 2017,

Appellant, represented by Attorney James Crosby, pleaded guilty. That same

day, the trial court sentenced him as stated. Appellant timely filed pro se a

notice of appeal on April 5, 2017.1 Appellant complied pro se with the trial


1 Appellant appears to have been abandoned by counsel, as there is no
indication in the record that Attorney Crosby sought or was granted leave to


* Retired Senior Judge assigned to the Superior Court.
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court’s order to file a Pa.R.A.P. 1925(b) statement. The trial court docketed

a Rule 1925(a) opinion on June 26, 2017, finding Appellant’s issues waived

for failure to comply with the Pennsylvania Rules of Appellate Procedure.

Appellant then obtained private counsel, who sought application with this

Court to remand the record to the trial court to allow the filing nunc pro tunc

of a supplemental Rule 1925(b) statement. This Court so ordered, Appellant

complied, and on April 3, 2018, the trial court filed an opinion addressing the

issues raised in the supplemental statement.

      On appeal, Appellant raises three challenges to his guilty plea,2 including

the claim that “trial counsel gave ineffective assistance for advising Appellant

to plead guilty when the plea was not voluntarily entered because Appellant

was told by both the trial court and trial counsel that he would go to jail if he




withdraw as counsel. This Court granted Appellant’s application for leave to
proceed in forma pauperis by order dated May 16, 2017. For reasons that are
unclear, this order was docketed with this Court at 49 WDM 2017.

2 Appellant’s brief raises four issues, but his counsel stated at oral argument
on December 5, 2018, that Appellant withdraws the first issue raised therein.
See Appellant’s Brief at 5 (“Whether the trial court erred in ruling that the
police had valid reason to stop Appellant’s mother’s car which Appellant was
driving.”). Appellant was “expressly allowed at bar at the time of the
argument” to file a post-submission letter confirming same, which this Court
received on December 7, 2018. See Pa.R.A.P. 2501(a) (“After the argument
of a case has been concluded or the case has been submitted, no brief,
memorandum or letter relating to the case shall be presented or submitted,
either directly or indirectly, to the court or any judge thereof, except upon
application or when expressly allowed at bar at the time of the argument.”);
Letter, 12/7/2018, at 2.


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did not plead guilty, but if he pleaded guilty, he would receive house arrest.”

Appellant’s Brief at 5.

      The Commonwealth responds, inter alia, by agreeing that Appellant’s

guilty plea was not entered voluntarily and recognizing that Appellant should

be “allowed to withdraw his plea and proceed with a suppression hearing and

new trial.” Commonwealth’s Brief at 17; see also id. at 12-17.

      Appellant raises a claim of ineffectiveness of trial counsel.       Absent

certain circumstances, “claims of ineffective assistance of counsel are to be

deferred to [Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546]

review; ... such claims should not be reviewed upon direct appeal.”

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (footnote

omitted). However, there are three exceptions to the general deferral rule.

      The first exception, ... affords trial courts discretion to entertain
      ineffectiveness claims in extraordinary circumstances where a
      discrete claim of trial counsel ineffectiveness is apparent from the
      record and meritorious to the extent that immediate consideration
      best serves the interests of justice. The second exception ... gives
      trial courts discretion to address ineffectiveness claims on post-
      sentence motions and direct appeal if there is good cause shown
      and the defendant knowingly and expressly waives his entitlement
      to seek subsequent PCRA review of his conviction and sentence.

Commonwealth v. Delgros, 183 A.3d 352, 360 (Pa. 2018) (citations

omitted). The third exception, which was adopted by our Supreme Court in

Delgros, requires “trial courts to address claims challenging trial counsel’s

performance where the defendant is statutorily precluded from obtaining

subsequent PCRA review.” Id. at 361.



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      Instantly, Appellant falls within the third exception.3 The PCRA requires

a petitioner to be “currently serving a sentence of imprisonment, probation or

parole for the crime” at the time relief is granted. 42 Pa.C.S. § 9543(a)(1)(i).

Appellant is precluded statutorily from obtaining subsequent PCRA review; he

can never satisfy subsection 9543(a)(1) of the PCRA because he was only

sentenced to house arrest and to pay a fine. See Delgros, 183 A.3d at 361;

see also 42 Pa.C.S. § 9802 (defining county intermediate punishment

program as a “residential or nonresidential program provided in a community

for eligible offenders”); 42 Pa.C.S. § 9721(a) (listing county intermediate

punishment, e.g., house arrest, as punishment separate from imprisonment,

probation, or parole); Commonwealth v. Williams, 941 A.2d 14, 24 (Pa.

Super. 2008) (“In adopting IPP [intermediate punishment program] as a

sentencing alternative, the Legislature’s intent was to give judges another

sentencing option which would lie between probation and incarceration with

respect to sentencing severity; to provide a more appropriate form of

punishment/treatment for certain types of non-violent offenders; to make the

offender more accountable to the community; and to help reduce the county

jail overcrowding problem while maintaining public safety.”) (citation and




3  In addition, we note that, following oral argument on December 5, 2018,
Appellant submitted to this Court a letter in which he waives his PCRA rights,
if any. Letter, 12/7/2018, at 1; see also Pa.R.A.P. 2501(a); Delgros, supra.



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internal quotation marks omitted). Accordingly, we will address Appellant’s

claim of ineffective assistance of counsel.

      We bear in mind the following.

             Counsel is presumed effective, and an appellant has the
      burden of proving otherwise. In order for Appellant to prevail on
      a claim of ineffective assistance of counsel, he must show, by a
      preponderance of the evidence, ineffective assistance of counsel
      which so undermined the truth-determining process that no
      reliable adjudication of guilt or innocence could have taken place.

            To prevail on his ineffectiveness claims, Appellant must
      plead and prove by a preponderance of the evidence that: (1) the
      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) Appellant
      suffered prejudice because of counsel’s action or inaction.

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

citations and quotation marks omitted); see also Commonwealth v.

Solano, 129 A.3d 1156, 1162-63 (Pa. 2015) (stating that the ineffective-

assistance-of-counsel standard is the same whether raised on direct review or

in the PCRA context).

      “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Orlando, 156 A.3d 1274,

1280 (Pa. Super. 2017) (quoting Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002)). “In the context of a guilty plea, an appellant

must show that plea counsel’s ineffectiveness induced him to plea.          If the

appellant makes such a showing, we deem his plea involuntarily made and

will permit its withdrawal.” Commonwealth v. Johnson, 875 A.2d 328, 331

(Pa. Super. 2005) (citation omitted). “The voluntariness of the plea depends


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on whether counsel’s advice was within the range of competence demanded

of attorneys in criminal cases.” Orlando, 156 A.3d at 1280 (citations

omitted). Further,

           [i]t is settled that a plea entered on the basis of a sentencing
     agreement in which the judge participates cannot be considered
     voluntary. Commonwealth v. Evans, [] 252 A.2d 689 ([Pa.]
     1969). Indeed, a trial judge is forbidden from participating in any
     respect in the plea bargaining process prior to the offering of a
     guilty plea.     “When a judge becomes a participant in plea
     bargaining he brings to bear the full force and majesty of his
     office…. The unquestioned pressure placed on the defendant
     because of the judge’s unique role inevitably taints the plea.” [Id.
     at 691.]

Johnson, 875 A.2d at 331-32; see also Pa.R.Crim.P. 590, Comment

(“Nothing in this rule … is intended to permit a judge to suggest to a

defendant, defense counsel, or the attorney for the Commonwealth, that a

plea agreement should be negotiated or accepted.”).

     Here, the following exchange took place at the plea hearing:

     THE COURT: Where are we? Here’s [sic] your choices: If he wants
     – you have already heard what I have to say.
     [TRIAL COUNSEL]: Yes, Your Honor.
     THE COURT: He has one of two choices; he can either plead guilty
     to this and get house arrest or not and go to the iron Hilton. It’s
     a jailable offense.
     [TRIAL COUNSEL]: Correct. He knows that, I told him that, Your
     Honor. Your Honor, he’s going to plead guilty.
     THE COURT: Good, get a form.

N.T., 3/7/2017, at 4-5.

     In its opinion, the trial court justified its actions by stating that




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      [t]he negotiated settlement allowed [Appellant] to spend his sixty
      days of imprisonment in intermediate punishment with house
      arrest rather than jail.

            [Appellant’s] other allegation[s] of error[]s claims that his
      plea was not voluntary because the trial court told him that he
      would get house arrest if he plead[ed] guilty, but if not, he would
      go to jail. [The trial court] did not render advice to [Appellant],
      but instead discussed the options with [Appellant’s] counsel.

            Here, [Appellant] was charged with violating 75 Pa.C.S. []
      § 1543(b), driving under a license suspension, which upon
      conviction requires the imposition of 60 to 90 days [of]
      imprisonment. [The trial court] accurately informed counsel of
      the required sentence of incarceration. The only way to avoid
      incarceration was to enter a plea. [The trial court] did not err[]
      by informing counsel of the options, nor did it render [Appellant’s]
      plea involuntary.

                                         ***

            [The trial court] informed [Appellant] of his negotiated
      sentence, and inquired whether the plea was voluntary and
      whether [Appellant] was guilty of the charge and [Appellant]
      replied “Yes, Your Honor.”

Trial Court Opinion, 4/3/2018, at 3 (unpaginated) (unnecessary capitalization

omitted).

      Notably, the Commonwealth disputes that it negotiated such a plea.

Commonwealth’s Brief at 15-16 (“The record in this case does not support an

inference that the Commonwealth negotiated this plea. The trial judge was

the one who threatened imprisonment if [Appellant] exercised his right to go

to trial. … There is no evidence of ‘negotiation.’ In fact, the Commonwealth’s

counsel was never asked whether he agreed with this ‘negotiated sentence.’”);

see also Appellant’s Brief at 34 (“[T]here was no specific plea offered by the



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Commonwealth, but the plea bargain was created by the trial judge without

objection from the Commonwealth.”).         After reviewing the plea hearing

transcript, in its entirety, we reach the same conclusion; there was no

negotiated plea in this case.

        The plea hearing excerpt quoted above clearly shows that the trial court

influenced Appellant to plead guilty, presenting Appellant with an ultimatum:

accept the judge’s offer or go to jail. Moreover, the trial court’s comments

presume Appellant’s guilt irrespective of his plea, and do not recognize the

possibility that Appellant could have been acquitted. Thus, we find Appellant’s

underlying claim has arguable merit.        See Johnson, 875 A.2d at 332.

Moreover, counsel’s inaction during this exchange was both unreasonable and

prejudicial. See id. Counsel’s assistance cannot be said to have fallen within

“the wide range of professionally competent assistance” demanded by the

Sixth Amendment. See Hickman, 799 A.2d at 141, quoting Strickland v.

Washington, 466 U.S. 668, 690 (1984).            Trial counsel’s inaction gave

Appellant reason to believe he would go to jail if he did not plead guilty, when

in fact, Appellant was eligible for house arrest whether he pleaded guilty or

not.4 Therefore, “based on an ignorance of relevant sentencing law, counsel’s

advice was legally unsound and devoid of any reasonable basis designed to

effectuate Appellant’s interests.”    Hickman, 799 A.2d at 141 (citations

omitted). Finally,


4   See 42 Pa.C.S. §§ 9763, 9804.


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      prejudice may be established by demonstrating a reasonable
      probability that Appellant would have opted to go to trial rather
      than plead guilty had he been given legally sound advice. Our
      case law makes clear that the reasonable probability standard in
      this context is not especially stringent, but requires only a
      probability sufficient to undermine confidence in the outcome.

Commonwealth v. Barndt, 74 A.3d 185, 199–200 (Pa. Super. 2013)

(citations omitted).     Had trial counsel objected, there is a reasonable

probability that Appellant would have opted to go to trial. Thus, we find that

Appellant has made a showing of unreasonableness and prejudice sufficient

to satisfy his burden.

      Based on the foregoing, we find Appellant’s guilty plea involuntarily

tendered, and as such, he is entitled to an opportunity to withdraw his plea.

See Johnson, 875 A.2d at 331.        Accordingly, we vacate his judgment of

sentence and remand for further proceedings.5 See id. at 332.

      Judgment of sentence vacated. Case remanded for further proceedings

consistent with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019



5 Given our resolution of this claim, we need not address Appellant’s remaining
claims.

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