Com. v. Drayton, R. ( 2020 )

J-S60038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD DRAYTON :
:
Appellant : No. 191 MDA 2019
Appeal from the PCRA Order Entered January 29, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004335-2015
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY PELLEGRINI, J.:
FILED SEPTEMBER 11, 2020
In my view, the record clearly demonstrates that Appellant entered a
plea in reliance on his counsel’s affirmative misadvice, rendering the plea
involuntary and entitling him to withdraw it. Because the majority has
reached the contrary conclusion by not considering key facts, I must
respectfully dissent.
I.
Appellant was arrested on July 10, 2015, in connection with a nightclub
shooting in Wilkes-Barre, Pennsylvania. At a preliminary hearing on
November 25, 2015, a magistrate judge dismissed a count of aggravated
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S60038-19
assault, finding that “there’s not a positive identification” of Appellant in the
surveillance video linking him to the discharge of a firearm in the nightclub.
Transcript of Preliminary Hearing, 11/25/2015, at 49-50.
The magistrate judge set bail as to the remaining eight charges based
on the allegations in the affidavit of probable cause and corresponding
testimony in which an officer stated that he could identify Appellant in the
surveillance video. Id. The magistrate judge found that “blips” of Appellant
in the video, in combination with the officer’s identification, were enough to
establish a prima facie case as to the other counts. Id. at 50.
Appellant absconded after he was released and federal authorities in
New York took him into custody on September 14, 2015. On February 23,
2017, Appellant pled guilty in his federal case and received a prison term of
57 months, followed by three years of supervised release.
At state court proceedings on May 5, 2017, Appellant agreed to plead
guilty to one of the eight remaining counts – carrying a firearm without a
license. During the plea colloquy, Appellant confirmed that he and plea
counsel had discussed all the conditions of the plea. He also testified that plea
counsel told him he would serve out the maximum range of his state sentence
while still being held in federal custody on his federal sentence. See Transcript
of Sentencing Proceedings, 5/5/2017, at 7.
Plea counsel confirmed that testimony, as did a letter plea counsel
previously sent Appellant on October 5, 2016, in which counsel explicitly
-2-
J-S60038-19
promised that the prosecutor of his state case had agreed to give him “less
time in [his] state case than [his] federal case so that [he] will never serve
any time in a state prison nor ever be on state parole.” The Commonwealth
responded at the plea hearing that it had not agreed, as a condition of the
plea agreement, to have Appellant serve his entire state sentence while in
federal custody. Id. at 8.
The majority relies on that lack of an agreement to hold that Appellant
knew he could serve state time as if the Commonwealth’s description of the
plea terms at that moment was the final word on the matter. However,
Appellant’s plea colloquy continued on.
Immediately after the Commonwealth had stated that the plea
agreement lacked a guarantee that no state time or parole would be served,
see id., plea counsel explained his assumption that the length of the federal
sentence (57 months followed by a three-year period of supervised release)
would necessarily exceed the 48-month maximum range of the state
sentence. Id. The Commonwealth then approved of defense counsel’s
assessment, saying, “I tend to agree with that, Judge. Id.1
____________________________________________
1 The signed plea agreement provided that the Commonwealth would agree
to dismiss seven of the eight counts charged in the criminal information, and
that it would not oppose Appellant’s request to have the state sentence run
concurrently with his federal term. The agreement acknowledged that the
trial court was not bound to its terms, and that Appellant had not been
guaranteed a specific length of sentence.
-3-
J-S60038-19
The trial court then advised that it was “between the federal penitentiary
and the state prison” as to where Appellant would be housed until the federal
term concluded. Id. However, the trial court followed that up with, “I’m
assuming federal prison would be where he would serve.” Id. Appellant did
not ask any further questions, assuring the trial court that he understood the
parameters of his sentence after conferring with counsel. Id. at 9.
The trial court accepted Appellant’s plea and imposed a term of 24-48
months, to be served concurrently with the federal sentence. Addressing
whether any credit for pretrial time served would be awarded as to Appellant’s
state sentence, plea counsel argued that since the federal term was
concurrent, Appellant must receive credit for all time spent in federal custody
– about 20 months. After rejecting plea counsel’s argument, the trial court
also remarked that the issue of credit time on the state sentence would be
immaterial because with or without it, Appellant would complete the state
sentence while still serving his federal term according to the agreement:
Again, I’m not sure how it matters. I’m giving him . . . 24 months,
but he’s got to serve 57 months federally anyway. The 24
months, all of this is going to run out; and he’s still going
to be in jail on his federal sentence.
Id. at 23 (emphasis added). Plea counsel agreed that Appellant’s time in
federal custody would exceed the state sentence regardless of credit time.
Id.
None of what transpired above could have dispelled Appellant’s
reasonable understanding that the state sentence would fully run while he
-4-
J-S60038-19
would still be serving the federal term, regardless of whether the trial court or
the Commonwealth actively directed it. At the PCRA hearing held on January
29, 2019, Appellant reiterated his counsel’s prior assurances and informed the
court that he would be released by federal authorities on November 1, 2019,
and then transported to a state facility. See Transcript of PCRA Hearing,
12/29/2019, at 9-10.
As of the date of his plea, Appellant had accrued credit time on his
federal case from September 14, 2015, to May 5, 2017. He has also accrued
223 days of credit for good behavior. Due to those credits, Appellant’s
supervised release on his federal sentence was scheduled to begin on
November 1, 2019, and had plea counsel’s advice been true, he would have
been released from both state and federal custody on that date. As a result
of plea counsel’s mistake, however, Appellant will have to go into state
custody and possibly state parole once the federal term concludes.2
II.
A.
The majority in this case affirms the denial of Appellant’s PCRA claim,
holding that he failed to plead and prove that: “(1) the underlying legal claim
is of arguable merit; (2) counsel’s action or inaction lacked any objectively
____________________________________________
2 Appellant has already served the minimum range of his state sentence (24
months), and it is possible he will be granted parole in the state system prior
to the end of the maximum range of 48 months, which falls on May 5, 2021.
-5-
J-S60038-19
reasonable basis designed to effectuate his client’s interest; and (3) prejudice,
to the effect that there was a reasonable probability of a different outcome if
not for counsel’s error.” Commonwealth v. Natividad, 938 A.2d 310, 321
(Pa. 2007); see Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001)
(same); see also Strickland v. Washington, 466 U.S. (1984). Based on
the facts outlined above (many of which the majority has not considered), I
would find that Appellant satisfied the three prongs of his claim that plea
counsel’s ineffectiveness resulted in an involuntary plea.
Throughout the plea colloquy, Appellant and plea counsel expressed a
belief that Appellant would never have to go into state custody or serve state
parole. Just as importantly, the trial court and the Commonwealth seemed to
operate under that same assumption.
It is irrelevant that the negotiated plea agreement contained no express
condition requiring the state term to run while the federal term was being
served in federal custody. Appellant was repeatedly told by counsel that this
would happen as an automatic consequence of his plea. As the trial court put
it, “The 24 months, all of this is going to run out; and he’s still going to be in
jail on his federal sentence.” Transcript of Sentencing Proceedings, 5/5/2017,
at 23.
These facts satisfy the “arguable merit” and “no reasonable basis”
prongs of Appellant’s ineffectiveness claim, as counsel gave incorrect advice
for no reasonable purpose. See Commonwealth v. Barndt, 74 A.3d 185,
-6-
J-S60038-19
196 (Pa. Super. 2013) (“[C]ounsel’s assistance is constitutionally ineffective
when counsel misapprehends the consequences of a given plea and misleads
his client accordingly about those consequences, without regard to whether
the consequences in question are ‘direct’ or ‘collateral.’”).3
B.
With respect to the final “prejudice” prong, I believe the majority has
omitted certain critical facts which, if fully considered, must lead to a different
result.
“Claims of counsel’s ineffectiveness in connection with a guilty plea will
provide a basis for relief only if the ineffectiveness actually caused an
involuntary or unknowing plea.” Commonwealth v. Brown, 48 A.3d 1275,
1277-78 (Pa. Super. 2012). When counsel has misadvised a defendant in
some respect, a defendant must show prejudice by establishing “a reasonable
____________________________________________
3 In finding that Appellant did not satisfy the arguable merit and reasonable
basis prongs, the majority emphasizes that Appellant did not elicit testimony
from his plea counsel at the PCRA hearing. I find this point to be unpersuasive.
Plea counsel had advised in a letter months prior to the plea that no state time
would be served. At the plea hearing and sentencing, counsel and Appellant
expressed that same exact understanding which, by all accounts, was
incorrect. It is unclear to me what further insight counsel’s testimony could
have provided to us or the PCRA court. Additionally, the majority’s analysis
appears to be inconsistent, as it finds there to be “no support” for Appellant’s
claim that he relied on misadvice, while also recognizing that there was
“confusion” by all parties as to how the state and federal sentences would run.
Majority Memorandum, at 11 n.2-3. However, if Appellant, counsel, the court
and the Commonwealth all plainly misunderstood a material consequence of
the plea, then that should preclude a finding that Appellant had a full and
correct understanding of the plea terms.
-7-
J-S60038-19
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59; Commonwealth
v. Mallory, 941 A.2d 686, 703 (Pa. 2008) (same).
To establish the prejudice prong of an ineffectiveness claim in the
context of an involuntary plea, a defendant bears a light burden:
“The ‘reasonable probability’ test is not a stringent one.”
[Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super.
2002)]. The Court in Hickman derived this standard from Nix v.
Whiteside, 475 U.S. 157, 175 (1986), which held that “[a]
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Commonwealth. v. Rathfon, 899 A.2d 365, 369–70 (Pa. Super. 2006)
(some citations omitted; emphasis in original); see also Commonwealth v.
Velazquez, 216 A.3d 1146, 1150 (Pa. Super. 2019) (same). The reasonable
probability standard of prejudice is less demanding than the preponderance
standard. See Nix, 475 U.S. at 175.
Moreover, where the issue concerns the waiver of the right to trial, the
“‘result of the proceedings’ . . . has been deemed to encompass the result of
the trial stage where the alleged ineffectiveness took place, and not
necessarily the ultimate verdict.” Mallory, 941 A.2d at 703. “[C]ounsel’s
assistance is constitutionally ineffective when counsel misapprehends the
consequences of a given plea and misleads his client accordingly[.]” Barndt,
74 A.3d at 196. “[P]rejudice 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.” Id.-8-
J-S60038-19
Under this standard for prejudice, Appellant only had to plead and prove
that there was a reasonable probability that he would have gone to trial but
for his counsel’s misadvice about a material consequence of his plea.4
Appellant should be entitled to withdraw his plea because counsel misadvised
him as to whether he would be subject to state incarceration and state parole
on a standard range state sentence made concurrent to a 57-month federal
term.
Well before the plea was entered, Appellant had specifically discussed
with counsel his wish to avoid state prison and state parole, and he was
assured a plea would get him that result. At the plea colloquy, Appellant put
particular emphasis on the fact that he was entering a plea based in part on
the promise that he “wouldn’t serve any time in a state penitentiary.”
Transcript of Sentencing Proceedings, 5/5/2017, at 7. The misapprehension
____________________________________________
4 The majority discusses Commonwealth v. Johnson, 179 A.3d 1153 (Pa.
Super. 2018), where a PCRA petitioner challenged the voluntariness of a plea
which allegedly resulted from plea counsel’s failure to file non-dispositive
suppression motions. This Court held in Johnson that the petitioner had not
satisfied the prejudice prong because he had not explained “why he would
have rejected that plea and elected to face [numerous] charges” that had
been withdrawn. Johnson, 179 A.3d at 1161. The facts of the present case
are materially different. Appellant explained, and with ample record support,
that the avoidance of a state facility and state parole was a key part of why
he entered a plea. Plea counsel falsely assured him that no state time would
have to be served outside of federal custody. Under the less stringent
standard of “reasonable probability” which applies in this context, I would find
that plea counsel’s misadvice has sufficiently undermined confidence in the
outcome of Appellant’s plea proceedings. See generally Commonwealth v.
Barndt, 74 A.3d 185, 199 (Pa. Super. 2013).
-9-
J-S60038-19
was never corrected, and as it stands, Appellant will not receive the benefit of
what he thought he was bargaining for.
Regarding Appellant’s potential sentence had he gone to trial, I do not
agree with the majority’s assumption that Appellant would have taken his plea
regardless of counsel’s misadvice. The record shows that Appellant’s trial
prospects were likely to be rather favorable. The magistrate judge found there
was no video identification of Appellant as the nightclub shooter. The most
serious of the original charges was dropped as a result, and the only
explanation for the Commonwealth’s plea offer so far below the maximum
possible sentence is that it believed the lower term reflected the weakness of
its case.
These circumstances provide a valid basis for a plea to be withdrawn at
the PCRA stage. See Barndt, 74 A.3d at 198 (“[W]e repeatedly have held
that erroneous legal advice by counsel regarding the consequences of a plea
. . . may constitute a basis for PCRA relief. Appellant alleges that he was given
such advice.”); see also Rathfon, 899 A.2d at 371 (“there was a reasonable
probability that Rathfon would not have pled guilty had he known that he
would not have been able to serve the sentence in a county facility.”);
Hickman, 799 A.2d at 143 (plea involuntary due to counsel’s misadvice that
defendant was eligible for boot camp program when defendant was, in fact,
ineligible).
- 10 -
J-S60038-19
Accordingly, because Appellant has established that his counsel was
ineffective and the record does not support the PCRA court’s findings,
Appellant should be entitled to withdraw his plea.
- 11 -