Com. v. Thompson, F. ( 2019 )

J-S61042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK THOMPSON :
:
Appellant : No. 3342 EDA 2017
Appeal from the PCRA Order September 18, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007877-2014
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. Filed March 19, 2019
Appellant, Frank Thompson, challenges the order entered in the
Philadelphia County Court of Common Pleas, dismissing his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The relevant facts and procedural history of this case are as follows. An
officer spotted Appellant with a handgun outside of a McDonald’s restaurant
in Philadelphia, and attempted to stop him. Rather than surrender, Appellant
led the officer and several backup units on a car chase throughout the city,
causing an accident when he accelerated through a red light. The chase ended
when Appellant deserted his still-moving vehicle and endeavored to flee on
foot.
Appellant entered a negotiated guilty plea to illegal possession of a
firearm. During the colloquy, the court noted that Appellant’s conviction would
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result in a violation of his parole, which Appellant acknowledged. The court
then sentenced Appellant to three to six years’ incarceration. The court
ordered Appellant be given credit for time served.
Appellant did not file a direct appeal. Instead, he filed a timely pro se
PCRA petition, alleging his guilty plea had been unlawfully induced. Appellant
claimed part of his plea bargain with the Commonwealth included making his
effective date of sentence the same date as his arrest, June 6, 2014, so he
would have nearly two years of time credit applied to his sentence. Appellant
asserted his time credit instead applied to his parole violation. He concluded
the PCRA court should permit him to withdraw his guilty plea.
The PCRA court appointed counsel, who filed an amended PCRA petition.
The court filed notice of its intent to dismiss Appellant’s petition without a
hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response.
Thereafter, the PCRA court dismissed Appellant’s petition. He timely filed a
pro se notice of appeal.
This Court remanded the case to the PCRA court, after observing that
Appellant’s counsel had not been forwarded Appellant’s pro se notice of
appeal, or granted permission to withdraw. The PCRA court granted counsel’s
motion to withdraw due to counsel’s retirement, and appointed new counsel
to represent Appellant on appeal. This appeal is now properly before us.
Appellant presents a single issue on appeal: whether his “plea of guilty
[was] unlawfully induced when he was promised that he would receive credit
for time served from the date of his arrest through the date of his sentencing
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– a period of more than one year and nine months – where such credit is
prohibited by two statutes?” Appellant’s Brief, at 2.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of
law, our scope of review is de novo. See id.The PCRA specifically provides relief for a petitioner able to prove his
plea was “unlawfully induced where the circumstances make it likely that the
inducement caused the petitioner to plead guilty and the petitioner is
innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii) (emphasis added). The PCRA also
provides relief in situations where the petitioner can demonstrate plea counsel
was ineffective in his representation. See 42 Pa.C.S.A. § 9543(a)(2)(ii); see
also Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016) (“It is
equally well established that Appellee’s claim of ineffective assistance of plea
counsel … was cognizable under the PCRA”).
Appellant does not claim innocence. Nor does he allege trial counsel was
ineffective in his representation. Instead, he contests only the knowing,
intelligent, and voluntary nature of his plea, given that his credit time was
allocated to his parole violation sentence.
A claim that his plea was unknowing, involuntary, or unintelligently
made could have been raised on direct appeal. See Commonwealth v.
Rachak, 62 A.3d 389, 391 (Pa. Super. 2012) (holding challenges to the
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voluntariness of a plea should be raised on direct appeal). Therefore, this issue
is waived. See 42 Pa.C.S.A. § 9544(b).
However, even if we understood this argument to be properly couched
in terms of trial counsel’s ineffectiveness, as in the cases to which Appellant
cites, it is nevertheless without merit.
Ineffective assistance of counsel claims arising from the plea-bargaining
process are cognizable for purposes of PCRA review. See Descardes, 136
A.3d at 501. In order to establish counsel’s ineffectiveness, a petitioner must
prove: the underlying claim has arguable merit; no reasonable basis existed
for counsel’s action or inaction; and the petitioner suffered prejudice as a
result of counsel’s errors, calculated by whether there exists a reasonable
probability the result would have been different. See Commonwealth v.
VanDivner, 178 A.3d 108, 114 (Pa. 2018).
“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
defendant to enter an involuntary or unknowing plea.” Commonwealth v.
Anderson, 995 A.2d 1184, 1192 (Pa. Super. 2010) (citation omitted). “[T]he
law does not require that the defendant be pleased with the outcome of his
decision to enter a plea of guilty: All that is required is that his decision to
plead guilty be knowingly, voluntarily and intelligently made.” Id. (citation
omitted).
If a new state sentence is imposed on a defendant already serving a
state parole term, the defendant must serve out the previously imposed
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sentence before he serves the new term. See 61 Pa.C.S.A. § 6138(a)(5)(i).
“In other words, where a state parolee gets a new state sentence, he must
serve his backtime first before commencement of the new state sentence.”
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citation
omitted).
In Kelley, the appellant was already on parole when he entered a
negotiated guilty plea for a state sentence, with the explicit term that it would
be effective from the date of his initial incarceration. All of Kelley’s credit time,
from the date of incarceration until the date of sentencing, would therefore be
applied to his sentence under the agreement. Instead, the credit time was
applied to Kelley’s state parole violation sentence, in accordance with 61
Pa.C.S.A. § 6138(a)(5)(i). In his PCRA petition, Kelley claimed counsel was
ineffective for negotiating a plea bargain that could not be enforced. A panel
of this Court agreed, stating Kelley “entered into an agreement with the
Commonwealth to plead guilty in exchange for a definite sentence with a
specific start date.” Kelley, 136 A.3d at 1014.
Here, Appellant was on state parole at the time he entered his plea and
was given another state sentence on the new charges. However, Appellant is
unable to point to anything in the record to show his plea contained any
negotiated terms related to his parole violation. Indeed, the only mentions in
the record of his parole violation or credit time occurs in the sentencing
transcripts are as follows:
[Sentencing court]: Are you presently on probation or parole?
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[Appellant]: No probation, just parole.
[Sentencing court]: Just parole?
[Appellant]: Yes.
[Sentencing court]: And so this is a violation.
[Appellant’s counsel]: Yes.
[Sentencing court]: And understanding that this conviction will
constitute a violation of your parole, does that change your mind
about your decision to plead guilty today?
[Appellant]: No.
N.T. Sentencing, 3/31/16, at 11.
[Sentencing court]: Anything else?
[Appellant’s counsel]: Just if I could, [Appellant] has been in since
June 5th of 2014. We’re asking for credit for time served.
[Sentencing court]: Credit for time served.
Id., at 17.
The sentencing order imposes a sentence of three to six years’
incarceration, and provides “Credit for time served: Credit to be calculated by
the PA Dept of Corrections.” Sentencing Order, entered 3/31/16, at 1.
Appellant was thereafter awarded credit time of 48 days applied to the instant
sentence, and an additional 616 days of credit time applied to his state parole
sentence.
The PCRA court observed:
[Appellant] does not dispute that he received credit for all the time
he spent in custody. Rather, he complains of how that credit is
allocated. See Supplemental Memorandum, 8/16/17, pp. 1-2.
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[Appellant] cannot have his time credit allocated away from a
backtime sentence he was serving to a pre-trial matter in which
he was on bail. Moreover, his claim that the State Parole Board
would have granted him an earlier parole on the violation, had the
time credit been allocated to the instant case, with a net result of
a shorter cumulative period of incarceration, is purely speculative.
Finally, we note that the case relied upon by [Appellant],
Commonwealth v. Kelley, 136 A.3d 1007 (Pa. Super. 2016),
stands for a proposition precisely opposite to that for which
[Appellant] offers it: Any agreement which would have had the
effect of crediting [Appellant’s] time in state custody prior to
adjudication of his new case, would have resulted in an illegal
sentence, in violation of the Parole Act's requirement that the
backtime must be served before the new sentence. Id. at 1013-
1014.
PCRA Court Order, filed 9/19/17, at 2.
We agree. Appellant did receive credit for the time he was incarcerated,
applied to his state parole sentence. Appellant was not given an effective date
of sentence – an accommodation wholly different than the receipt of credit
time – beginning at the same time as his incarceration, as this would have
violated the Parole Act.
Nothing Appellant points to in the record shows the application of credit
time in an arrangement contradictory to the Parole Act’s requirements was
even contemplated, much less a key element of his guilty plea. And, he
indicates no other basis to show his plea was not knowingly, voluntarily, or
intelligently made. Accordingly, we affirm the PCRA court’s order dismissing
his petition for relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2019
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