Com. v. Grant, N. ( 2022 )

J-S34031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NASIR ANTHONY MALIK GRANT :
:
Appellant : No. 625 MDA 2021
Appeal from the PCRA Order Entered April 22, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001705-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NASIR ANTHONY GRANT :
:
Appellant : No. 626 MDA 2021
Appeal from the PCRA Order Entered April 22, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001532-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY McCAFFERY, J.:FILED:FEBRUARY 23, 2022
As I would reverse the orders of the PCRA court denying Appellant’s
PCRA petition, I respectfully dissent.
The Majority aptly summarizes the factual allegations underlying
Appellant’s multiple charges. The Majority also properly sets forth the relevant
law. See Majority Memo. at 1-4. I consider, however, in detail statements
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made at the January 21, 2020, combined plea and sentencing hearing, as well
as the testimony at the December 18, 2020, PCRA hearing. The same judge
presided over both the plea and PCRA proceedings.
Appellant entered a negotiated guilty plea to multiple counts across two
trial dockets, with the parties agreeing to an aggregate sentence of four to 10
years’ incarceration. In his oral colloquy, Appellant acknowledged he
understood the negotiated sentence was four to 10 years’ imprisonment, and
stated he had no further questions about the sentence. N.T., 1/21/20, at 6.
Relevant to this appeal, Appellant’s attorney, William Shreve, Esquire
(Plea Counsel), referred to boot camp in argument to the trial court:
[Appellant] is 20 years old. He is very forthright in explaining
that . . . this conduct is directly related to his use of illegal drugs.
He’s looking forward to making that change. Obviously, it is going
to be through the assistance of the state correctional system, but
he is looking forward to that change through boot camp. .
..
N.T., 1/21/20, at 7 (emphasis added). There was no further mention of boot
camp, by Plea Counsel, the Commonwealth, or the trial court, nor was there
any reference to boot camp in Appellant’s written plea colloquy.
Subsequently, Appellant’s July 30, 2020, timely, counseled amended
PCRA petition alleged Plea Counsel provided ineffective assistance by: (1)
mistakenly advising Appellant he was eligible for the prison boot camp
program, where his plea to a firearms offense precluded his eligibility, unless
the Commonwealth agreed to his eligibility; and (2) “erroneously advis[ing
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him] of an incorrect prior record score.” Appellant’s Amended PCRA Petition
at 5, 7, 9.
The PCRA court conducted an evidentiary hearing on December 18,
2020. Appellant appeared by video and testified to the following. On the day
of the plea hearing, Plea Counsel informed him the Commonwealth was
offering a plea deal, under which Appellant would plead to all charges and
receive an aggregate four-to-10 year sentence. N.T., 12/18/20, at 5.
Appellant asked whether boot camp was “an option,” and Plea Counsel replied,
“[B]oot camp can be waived in during the sentencing process.” Id. Appellant
believed boot camp was a part of the plea deal and it was “the only reason”
he accepted it. Id. Had he known he was not eligible for boot camp, he would
not have agreed to the plea deal. Id. at 6. Appellant first learned he was
not, in fact, boot camp-eligible when Plea Counsel subsequently sent him a
letter, advising him he was not eligible “based upon the length of the
sentence[.]” Id. at 11.
Plea Counsel testified by telephone to the following. Prior to the plea
hearing, he was aware that Appellant wished to participate in boot camp. N.T.,
12/18/20, at 18. Plea Counsel asked the assistant district attorney (ADA) if
they “would waive his ineligibility for boot camp.” Id. at 19. The ADA
responded, however, that “the Commonwealth would not waive his
ineligibility,” and in any event, “it was her understanding the Department of
Corrections really didn’t care if the Commonwealth did waive someone’s
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ineligibility for boot camp . . . he wouldn’t be able to do that anyway.” Id. at
19.
Plea Counsel further testified to the following. The Commonwealth
offered the plea deal on the day of the plea hearing, January 21, 2020, and
stated the offer would expire that same day. N.T., 12/18/20, at 17. Counsel
could not recall specifically what he and Appellant discussed that day
regarding the plea offer. Id. When asked whether Appellant “asked . . .
specifically about his eligibility for boot camp,” Plea Counsel responded, “I
don’t specifically recall that.” Id. Plea Counsel further testified that when
Appellant’s present counsel informed him that he did advise Appellant he was
boot camp-eligible, Plea Counsel stated, “[T]hat’s ridiculous because he had a
gun and that would have . . . made him ineligible.” Id. Nevertheless, Plea
Counsel acknowledged that he referred to boot camp at the plea hearing in
argument to the trial court. Id. at 18.
On appeal, Appellant avers Plea Counsel was ineffective for mis-advising
him he was eligible for the prison boot camp program, and this erroneous
advice “was material to [his] decision to accept the plea bargain.” Appellant’s
Brief at 15, 16. In support, Appellant cites Plea Counsel’s statement, at the
plea hearing, that Appellant was “looking forward to . . . change through boot
camp.” Id. at 16 (citation omitted). Appellant also refers to Plea Counsel’s
testimony, at the PCRA hearing, “that he [discussed] boot camp with both
Appellant and the Deputy District Attorney[,] but never requested, at the time
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of sentencing, that Appellant be made boot camp eligible.” Id. at 17.
Appellant contends “he was prejudiced by his counsel’s advice and may have
elected to go to trial had he known that he was not eligible for boot camp.”
Id. at 16. Appellant relies on Commonwealth v. Hickman, 799 A.2d 136(Pa. Super. 2002), which held the defendant was “prejudiced by his plea
counsel’s advice to plead guilty on the mistaken belief [the defendant] would
be eligible for boot camp and” thus the guilty plea was invalid. Id. at 16.
Appellant requests relief in the form of withdrawal of his guilty plea,
resentencing, and/or eligibility for boot camp. Id. I would conclude that he
is entitled to relief.
In considering Appellant’s claim, the PCRA court acknowledged Plea
Counsel’s “passing reference,” at the plea hearing, that Appellant “was looking
forward to a change through the boot camp program.” Memorandum Order
at 6. Nevertheless, the court observed there was no other mention of boot
camp, and specifically, the “[t]he Commonwealth did not indicate, on the
record, that it would waive [Appellant’s] ineligibility into boot camp.” Id. The
court concluded:
There is no evidence to suggest that [Appellant] would have
gone to trial and that the outcome of the proceeding would have
been different.[FN Appellant] did testify at [the] PCRA hearing that
‘but for’ the boot camp eligibility, [he] would have elected to
proceed to trial. This Court simply does not find that
testimony credible. The charges that were set forth and the
maximum punishment that [Appellant] was facing indicate the
contrary. [Appellant] did not present any witnesses at the PCRA
hearing that would have contradicted the testimony presented by
the Commonwealth at the time of the guilty plea. There was also
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no mention of a possible trial strategy or mention by [Appellant]
that he was indeed innocent of the crimes charged.[1]
____________________
[FN] To the contrary, had [Appellant] proceeded to trial and been·
found guilty of all charges, he would have faced a significant
prison sentence.
Id. at 7 & n.3 (emphasis added).
Finally, the PCRA court found unpersuasive Appellant’s reliance on
Hickman:
In Hickman, our Superior Court held that counsel’s incorrect
advice that defendant would be eligible for boot camp program
constituted ineffective assistance. However, in Hickman, the
Commonwealth agreed that if he were otherwise eligible, it would
have no objection to him participating in the boot camp program.
It was even mentioned that the understanding of the agreement
was for a four to eight year sentence with boot camp eligibility.
[Hickman, 799 A.2d at 139.] The trial judge’s sentencing order
further indicated that the [d]efendant be deemed boot camp
eligible as soon as the State determines he has served enough
time. Id.In the case at hand, the written guilty plea colloquy form
which contained the terms of the plea agreement is void of any
mention of boot camp eligibility. Additionally, at the time of the
guilty plea and sentencing, no mention was made by the
Commonwealth or the defense that boot camp eligibility was part
of the agreement. Here, plea counsel merely mentioned in his
closing remarks to the court that [Appellant] was looking forward
to making a change through the boot camp program. This Court
does not find that counsel’s assistance falls below the “wide range
of professionally competent assistance” demanded by the Sixth
Amendment.
____________________________________________
1 We note the victim in this matter — the other driver — reported the license
plate of Appellant’s car to police. N.T., 1/21/20, at 3. Police officers observed
Appellant flee on foot from the car, subsequently apprehended him, and
recovered a gun, crack cocaine, heroin, and methamphetamine pills from his
person. Id. at 5.
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Memorandum Order at 5 (some citations omitted).
I agree with the PCRA court that the facts presented in the case sub
judice are distinguishable from those in Hickman. Nevertheless, I am
persuaded by Appellant’s arguments that he is entitled to relief. Plea Counsel
was not merely aware of Appellant’s desire to participate in boot camp; Plea
Counsel contacted the ADA and requested boot-camp eligibility, but the ADA
did not agree to it. N.T., 12/18/20, at 18-19. Appellant testified that on the
day of the plea hearing, Plea Counsel told him the Commonwealth would
“waive” his ineligibility — while Plea Counsel could not recall if they discussed
boot camp that day. Id. at 5, 11, 17.
Under the circumstances presented, I disagree with the PCRA court’s
characterization of Plea Counsel’s plea-hearing reference to boot camp as a
“passing reference” that carried little or no significance. See Memorandum
Order at 6. Plea Counsel specifically argued Appellant was “looking forward”
to rehabilitation through boot camp. N.T., 1/21/20, at 7. There was no
objection by the Commonwealth, nor any attempt by the trial court, the
Commonwealth, or Plea Counsel to correct or question this misstatement.
Appellant, a layperson, would only understand — as he testified — that his
sentence would include boot camp. See N.T., 12/18/20, at 5 (indicating he
thought boot camp “was part of the deal”).
For the foregoing reasons, I would conclude the PCRA court erred in
denying relief on Appellant’s boot camp-claim. Under the particular facts
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presented, Appellant has established that counsel’s conduct caused him “to
enter an involuntary or unknowing plea.” See Wah, 42 A.3d at 338-39. Thus,
I would reverse the order denying his PCRA petition, and remand for the PCRA
court to conduct a hearing to determine whether Appellant wishes to withdraw
his guilty pleas at both dockets. I would further direct the Commonwealth to
advise the court and Appellant as to whether it will agree to boot-camp
eligibility.2
At this juncture, I note the Majority has deemed waived Appellant’s
additional claim — that the Commonwealth misstated his birth year and thus
his prior record score was calculated incorrectly. In light of my above
discussion, I would not reach this issue, but note that if this case ultimately
proceeds to re-sentencing, the parties and trial court may revisit any issues
concerning Appellant’s prior record score and/or sentencing guidelines.
For the foregoing reasons, I respectfully dissent.
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2I offer no opinion as to whether Appellant should be deemed eligible for boot
camp.
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