J-S01025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 SHELDON D. SWAN                          :
                                          :
                     Appellant            :   No. 1218 MDA 2018

            Appeal from the PCRA Order Entered June 25, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0005179-2010


BEFORE:    PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

DISSENTING MEMORANDUM BY PELLEGRINI, J.:

FILED FEBRUARY 08, 2019

      I respectfully dissent. I would reverse the order and remand for a new

sentencing hearing because the PCRA court misapprehended the nature of

Swan’s ineffective assistance of counsel claim.

      Swan was resentenced as required by Montgomery v. Louisiana, 136

S.Ct. 718 (2016), and accepted the deal of thirty years to life negotiated by

his attorney.    Swan filed a PCRA petition and testified that re-sentencing

counsel was ineffective because he failed to advise him that he had the option

to accept the negotiated sentence or to allow the trial court to impose the

sentence in its discretion. The PCRA court implicitly credited Swan’s assertions

that he was unaware of the judge’s discretion to impose a lesser sentence, as




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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the court would otherwise have no need to examine the content of the

resentencing hearing.

      Both the PCRA court and the majority opine that Swan’s ineffective

assistance of counsel claim was not made out because he was informed that

“he could have possibly faced a greater sentence” than the negotiated

sentence. Majority memorandum at 4 (quoting PCRA court opinion).

      I disagree with the majority because it does not address Swan’s reason

for claiming counsel was ineffective.    He claims that resentencing counsel

ineffectively failed to inform him that the judge had the discretion to go lower

than the agreed-upon sentence. It is no answer to say that Swan was told

that the judge could go higher if he rejected the agreement.

      Not being advised that his sentence could go lower than the negotiated

term constitutes ineffectiveness because the wisdom of accepting the

Commonwealth’s offer as weighed against the countervailing risk—that the

judge would impose a higher sentence—was Swan’s choice to make.            See

Jones v. Barnes, 463 U.S. 745, 751 (1983) (“[T]he accused has the ultimate

authority to make certain fundamental decisions regarding the case, as to

whether to plead guilty, waive a jury, testify in his or her own behalf, or take

an appeal[.]”) (citations omitted).   Since Swan did not make an informed
J-S01025-19


choice, I would vacate the PCRA court’s order and send the matter back for

resentencing.1

       Accordingly, I respectfully dissent.




____________________________________________


1 A plea is validly entered only if the underlying advice to accept the plea is
sound. “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.”
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (citation
and quotation marks omitted). The failure to inform Swan that the judge
could impose a lesser sentence misapprehended the law and was therefore
not competent advice. See Commonwealth v. Hicks, 151 A.3d 216 (Pa.
Super. 2016) (holding that a trial judge has discretion in juvenile resentencing
cases to depart from the applicable minimums relative to offenses committed
on or after June 24, 2012).
