Com. v. Robinson, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBBIE ROBINSON :
:
Appellant : No. 913 EDA 2020
Appeal from the PCRA Order Entered March 2, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000524-2017
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 30, 2020
Robbie Robinson appeals, pro se, from the order, entered in the Court
of Common Pleas of Chester County, denying his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review,
we reverse and remand for further proceedings.
On April 27, 2018, Robinson entered a negotiated guilty plea to four
counts of possession with intent to deliver (PWID).1 On that same day, the
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* Retired Senior Judge assigned to the Superior Court.
1 See 35 P.S. § 780-113(a)(30). On January 14, 2016, in Coatesville City,
Chester County, Pennsylvania, Robinson delivered 29 bags of heroin, weighing
a total of 1.06 grams, to a confidential informant (CI) in exchange for United
States currency. On February 18, 2016, Robinson again delivered 40 bags of
heroin, weighing 1.57 grams, to a CI in exchange for United States currency.
On March 31, 2016, Robinson delivered 30 bags (in addition to loose powder)
of heroin (weighing 1.5 grams), to a CI in exchange for United States
currency. Finally, on August 4, 2016, Robinson delivered 40 bags of heroin
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court imposed consecutive sentences of 2½ to 5 years’ incarceration on each
count, for an aggregate sentence of 10 to 20 years’ incarceration. Robinson
was on parole at the time of the alleged offenses. Robinson did not file post-
sentence motions or a direct appeal.
On April 12, 2019, Robinson filed a timely pro se PCRA petition alleging
ineffective assistance of plea counsel2 insofar as his attorney did not properly
counsel Robinson on the law, and because Robinson did not receive the benefit
of his bargained-for exchange. Specifically, Robinson alleged that his guilty
plea was conditioned upon: (1) Robinson’s new sentence running concurrently
with his backtime3 for his violation of parole; (2) the Commonwealth’s
agreement to “grant [Robinson] RRRI status”; (3) Robinson being housed in
a prison close to home so that his mother, who is in declining health, could
visit him more easily; and (4) Robinson’s wife not being charged with any
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(weighing 1.4 grams) to a CI in exchange for United States currency. See
N.T. Guilty Plea Hearing, 4/27/18, at 2-3. Additionally, police executed a
search warrant on Robinson’s home and vehicle in Coatesville City, Chester
County, and recovered over $2,000 worth of suboxone, a nine-millimeter
handgun with hollow-point bullets, and heroin, fentanyl, oxycodone, and
cocaine. Id. at 4.
2Robinson’s plea counsel, Mark J. Conte, Esquire, passed away on March 12,
2020.
3“Backtime is that part of an existing judicially imposed sentence that a parole
violator is required to serve as a result of violating the terms and conditions
of parole prior to being eligible to again apply for parole.” Santiago v. Pa.
Bd. of Prob. and Parole, 937 A.2d 610, 616 n.2 (Pa. Cmwlth. 2007) (citation
and quotation marks omitted).
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crimes related to the matter. Id. at 7. Robinson claims that the first three
conditions have yet to be met. Id.
On April 30, 2019, the court appointed C. Curtis Norcini, Esquire, to
represent Robinson throughout the PCRA proceedings. On August 28, 2019,
Attorney Norcini sent Robinson a Turner/Finley4 no-merit letter and filed a
motion to withdraw. On September 17, 2019, Robinson filed an answer to
Attorney Norcini’s motion to withdraw, requesting that alternate counsel be
appointed. On January 13, 2020, after conducting an independent review of
the record, the court entered its notice of intent to dismiss Robinson’s PCRA
petition and grant counsel’s motion to withdraw, after finding no genuine
issues of material fact alleged in Robinson’s petition. See Pa.R.Crim.P. 907.
On February 4, 2020, Robinson filed an answer to the court’s Rule 907 notice.
The court then dismissed Robinson’s petition and granted Attorney Norcini’s
request to withdraw on March 2, 2020. Robinson appealed pro se; both he
and the trial court complied with Pa.R.A.P. 1925.
On appeal, Robinson presents the following claims for our review:
(1) Did the PCRA court err in dismissing without a hearing
[Robinson’s] claim that trial counsel failed to provide a full
consultation regarding [Robinson’s] decision to plead guilty
where the advice counsel offered was unreasonable because
it was legally deficient and cost [Robinson] his trial rights?
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4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (established
procedure for withdrawal of court-appointed counsel in collateral attacks on
criminal convictions); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc) (same).
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(2) Did PCRA Counsel Norcini provide ineffective assistance by
failing to do any investigation into the matters before issuing
a no-merit letter and requesting to withdraw?
Appellant’s Brief, at 6.
Our standard of review for the denial of a PCRA petition is well-settled:
We review an order granting or denying a petition for collateral
relief to determine whether the PCRA court’s decision is supported
by the evidence of record and free of legal error. We will not
disturb the findings of the PCRA court unless there is no support
for those findings in the record.
[In reviewing ineffective assistance of counsel claims, w]e
presume counsel is effective. To overcome this presumption, a
PCRA petitioner must show the underlying claim has arguable
merit, counsel’s actions lacked any reasonable basis, and
counsel’s actions prejudiced the petitioner. Prejudice means that,
absent counsel’s conduct, there is a reasonable probability the
outcome of the proceedings would have been different. A claim
will be denied if the petitioner fails to meet any one of these
prongs.
A criminal defendant’s right to effective counsel extends to the
plea process, as well as during trial. Under the PCRA, 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
petitioner to enter an involuntary or unknowing plea. 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.
To establish prejudice, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial. This
is not a stringent requirement. The reasonable probability test
refers to a probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Velazquez, 216 A.3d 1146, 1149-50 (Pa. Super. 2019)
(internal citations, quotation marks, and brackets omitted).
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In his first issue, Robinson claims ineffective assistance of counsel
insofar as his plea counsel informed him that the court could impose a
sentence that would run concurrently with Robinson’s backtime for his
violation of parole. Appellant’s Brief, at 12. Specifically, Robinson argues that
his guilty pleas should be vacated and he should be permitted to go to trial
where he would pursue a sentencing entrapment defense. See Appellant’s
Brief, at 13. With regard to the post-sentence withdrawal of a guilty plea,5
we have previously said that:
The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements for relief
based on a claim of ineffective assistance of plea counsel, . . .
under which the defendant must show that counsel’s deficient
stewardship resulted in a manifest injustice, for example, by
facilitating entry of an unknowing, involuntary, or unintelligent
plea. This standard is equivalent to the “manifest injustice”
standard applicable to all post-sentence motions to withdraw a
guilty plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (quoting
Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (en
banc)). Moreover, we have previously set forth the standard for evaluating
the validity of a guilty plea:
A valid guilty plea must be knowingly, voluntarily[,] and
intelligently entered. The Pennsylvania Rules of Criminal
Procedure mandate that pleas be taken in open court, and require
the court to conduct an on-the-record colloquy to ascertain
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5 We note that a plea of guilty generally amounts to a waiver of all defects
and defenses except those concerning the jurisdiction of the court, the legality
of the sentence, and the validity of the guilty plea. Commonwealth v.
Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991). Robinson challenges the
validity of his plea; therefore, his claim is not waived.
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whether a defendant is aware of his rights and the consequences
of his plea. Specifically, the court must affirmatively demonstrate
the defendant understands: (1) the nature of the charges to
which he is pleading guilty; (2) the factual basis for the plea; (3)
his right to trial by jury; (4) the presumption of innocence; (5)
the permissible ranges of sentences and fines possible; and
(6) that the court is not bound by the terms of the agreement
unless the court accepts the agreement. [See Pa.R.Crim.P. 590.]
This Court will evaluate the adequacy of the plea colloquy and the
voluntariness of the resulting plea by examining the totality of the
circumstances surrounding the entry of that plea.
If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated.
Id. (emphasis added; internal citations and quotation marks omitted).
Additionally, “[i]n order for a guilty plea to be constitutionally valid, the
guilty plea colloquy must affirmatively show that the defendant understood
what the plea connoted and its consequences. This determination is to be
made by examining the totality of the circumstances surrounding the entry of
the plea.” Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super.
1994) (emphasis added; citation and quotation marks omitted). Finally, we
note that “[t]he law does not require that a defendant be pleased with the
outcome of his decision to enter a plea of guilty. All that is required is that
the defendant’s decision to plead guilty be knowingly, voluntarily[,] and
intelligently made.” Id.In reviewing the validity of a guilty plea, we are cognizant that our
Supreme Court has previously emphasized the solemnity surrounding the
entry of such a plea:
A guilty plea is an acknowledgement by a defendant that he
participated in the commission of certain acts with a criminal
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intent. He acknowledges the existence of the facts and the intent.
The facts that he acknowledges may or may not be within the
powers of the Commonwealth to prove. However, the plea of guilt
admits that the facts and intent occurred, and is a confession not
only of what the Commonwealth might prove, but also as to what
the defendant knows to have happened.
Commonwealth v. Anthony, 475 A.2d 1303, 1307 (Pa. 1984).
To support his argument, Robinson cites to our decision in
Commonwealth v. Kelley, 136 A.3d 1007 (Pa. Super. 2016), wherein this
Court vacated the appellant’s guilty plea because it was not entered
knowingly, intelligently, and voluntarily. Id. at 1014. In Kelley, the
defendant entered his guilty plea in exchange for a definite sentence with a
specific start date, to be run concurrently with the defendant’s backtime. Id.
at 1011-12. The Kelley Court found that that provision of the plea agreement
was in clear contravention of the dictates of 61 Pa.C.S.A. § 6138(a)(5)(i) and
amounted to an illegal sentence.6 Id. This Court concluded that defendant’s
plea was invalid due to plea counsel’s ineffectiveness for advising him to
accept a plea bargain that called for an illegal sentence. Id. We found that
defendant “entered his plea on the advice of plea counsel whose knowledge
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6 Section 6138 states in relevant part:
If a new sentence is imposed on the parolee, the service of the
balance of the term originally imposed . . . shall precede the
commencement of the new term imposed . . . [i]f a person is
paroled from a State correctional institution and the new sentence
imposed . . . is to be served in the State correctional institution.
61 Pa.C.S.A. § 6138(a)(5)(i) (emphasis added).
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of the Parole Act was deficient and fell below the range of competence
demanded of attorneys in criminal cases.” Id. This Court also found
persuasive that neither the Commonwealth nor the court advised defendant
that his negotiated sentence could not be honored as stated or imposed. Id.
Here, Robinson’s written guilty plea colloquy states that, “The
Commonwealth is not opposed to the defendant’s state parole violation
being run concurrent to the sentence on 524-17.”7 Written Guilty Plea
Colloquy, 4/27/18, at 3 (emphasis added). Further, at Robinson’s guilty plea
hearing, the Commonwealth stated, “It is obviously, as your Honor knows, a
very healthy sentence. This will give [Robinson], even though he’s on state
parole and the other caveat of agreeing to run it concurrent, that’s up
to the Department of Corrections. It’s simply a recommendation to
them.” The PCRA court explained its ruling with regard to this issue in the
opinion accompanying its Rule 907 notice, stating that Robinson
was therefore, apprised both in writing and orally, that the
Commonwealth was only recommending that he would serve a
concurrent parole violation sentence, not guaranteeing it—
especially since the discretion to do so lies with the
Pennsylvania Board of Probation and Parole. Moreover, the court
apprised [Robinson] of the potential parole consequences of his
guilty plea:
THE COURT: You are currently on probation or parole, is
that right? Is it Pennsylvania State parole?
MR. ROBINSON: Yes.
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7The trial court docket relating to Robinson’s instant appeal is listed in Chester
County at No. 524 of 2017.
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THE COURT: Do you understand that by entering these
guilty pleas that may very well result [in] your being found
in violation of your existing state parole and may result in
the imposition of an additional penalty in that case or
those cases?
MR. ROBINSON: I understand.
[]N.T. [Guilty Plea Hearing,] 4/27/18, [at] 8-9[].
Even if counsel had incorrectly guaranteed him that his
parole would run concurrent to this sentence, [Robinson]
was specifically advised by both the Commonwealth and
the court that pleading guilty may have adverse
consequences on his parole. Having been so advised,
[Robinson] nevertheless chose to enter a plea.
Notice of Intent to Dismiss PCRA Petition Pursuant to Pa.R.Crim.P. 907(1),
1/13/20, at 1 n.1 (emphasis added and in original).
Here, we find that under the totality of the circumstances, Myers,
supra, Robinson did not enter his plea knowingly, intelligently, and
voluntarily. See Kelley, supra at 1013. Our review of the record
demonstrates that, based on the notation in the written guilty plea colloquy,
the Commonwealth’s attorney’s statements at the guilty plea hearing, and the
court’s analysis in its Rule 907 opinion, Robinson believed that the Parole
Board had the discretion to run Robinson’s new sentence and his backtime
concurrently. It does not. See 61 Pa.C.S.A. § 6138(a)(5)(i); see also
Kelley, supra at 1013 (citing Lawrence v. Pennsylvania Dept. of
Corrections, 941 A.2d 70, 73 (Pa. Cmwlth. 2007) (“Imposition of a new state
sentence concurrent with parolee’s backtime on the original state sentence is
an illegal sentence under this statute.”)). Here, the Commonwealth, the trial
court, and Robinson’s plea counsel all contributed to Robinson’s false
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assumption that his new sentence and backtime could be run concurrently.
We find that, under the totality of the circumstances, see Myers, supra,Robinson was neither fully aware of the “permissible ranges of sentences,”
see Pa.R.Crim.P. 590 cmt., nor of the “consequences” his plea connoted. See
Myers, supra. See also Commonwealth v. Barbosa, 819 A.2d 81, 82 (Pa.
Super. 2003) (where defendant is either misinformed or not informed as to
maximum possible sentence, and misinformation or lack of information was
material to decision to accept negotiated guilty plea, manifest injustice is
established and plea may be withdrawn). We note that the PCRA court should
have discovered that Robinson’s plea called for the recommendation of an
illegal sentence when it conducted its independent review of the record. See
Pa.R.Crim.P. 907(1).
Moreover, we find plea counsel was ineffective for advising Robinson to
bargain for and accept a plea deal that called for recommendation of the
imposition of an illegal sentence.8 See Kelley, supra at 1014 (“[P]lea counsel
was ineffective for advising Appellant to accept a plea bargain that called for
an illegal sentence.”). Finally, we find that the court’s warning to Robinson
regarding the possibility of “additional penalties,” see N.T. Guilty Plea
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8 Even if Robinson was aware that a recommendation to the Parole Board
was the best he could receive, plea counsel’s “knowledge of the Parole Act
was deficient and fell below the range of competence demanded of attorneys
in criminal cases,” see Kelley, supra at 1014, because the Parole Board
never had the power to order that Robinson’s sentences be run concurrently
in this case. See 61 Pa.C.S.A. § 6138(a)(5)(i).
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Hearing, 4/27/18, at 8-9, could not have properly apprised Robinson that his
sentences were required to be run consecutively. Consequently, Robinson’s
entry of his guilty pleas was not knowing, intelligent, and voluntary. See
Velazquez, supra. We, therefore, reverse the order denying PCRA relief,
vacate the judgment of sentence, and remand to the PCRA court for further
proceedings consistent with this memorandum.9
Order reversed, judgment of sentence vacated, case remanded for
further proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/20
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9Because we find Robinson’s guilty plea invalid, we need not address the other
arguments raised in this appeal.
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