Appeal from the PCRA Order Entered June 6, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007784-2009
BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J. [*]
Appellant, Terrell Lewis Owens, appeals from the trial court's June 6, 2012 order denying his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that the PCRA court erred by not conducting an evidentiary hearing on his ineffective assistance of counsel claims. For the following reasons, we agree. Thus, we vacate the PCRA court's order and remand for a hearing.
On September 16, 2010, Appellant pled guilty to aggravated assault and carrying a firearm without a license. Appellant's convictions stemmed from his shooting the victim, Sheldon Crowder, in the leg with a pistol. In accordance with Appellant's negotiated plea agreement, the court sentenced him to an aggregate term of five to ten years' imprisonment, "with the Commonwealth waiving the requirements of eligibility pursuant to the Recidivism Risk Reduction Incentive Act (RRRI), 61 Pa.C.S. § 4505, so that [Appellant] would be RRRI eligible after fifty months." PCRA Court Opinion, 3/29/12, at 1.
Appellant did not file a direct appeal. Instead, he filed a pro se PCRA petition on June 27, 2011. Counsel was appointed and an amended petition was filed on December 1, 2011. On March 29, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's amended petition. Appellant did not respond and, on June 6, 2012, the PCRA court issued an order dismissing his petition. Appellant filed a timely notice of appeal, and raises the following issue herein:
I. Did the [PCRA] court err in dismissing the amended [PCRA] petition without a hearing where Appellant's amended [PCRA] petition established arguable merit that Appellant's [plea] counsel was ineffective resulting in the entrance of an unintelligible plea to the charge of aggravated assault as a first degree felony where the elements of the offense were not provided to Appellant during oral or written colloquy and the factual basis only established an aggravated assault as a felony of the second degree?
Appellant's Brief at 3.
Initially, "[t]his Court's standard of review from the grant or denial of post-conviction relief is limited to examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received ineffective assistance of counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner. To obtain relief, a petitioner must demonstrate that counsel's performance was deficient and that the deficiency prejudiced the petitioner. A petitioner establishes prejudice when he demonstrates "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." … [A] properly pled claim of ineffectiveness posits that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice befell the petitioner from counsel's act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations omitted).
Appellant contends that his plea counsel acted ineffectively in two regards. First, he maintains that counsel was deficient "for not ensuring that  Appellant was advised of the elements of the crime of aggravated assault as a felony of the first degree…." Appellant's Brief at 8. Appellant acknowledges that in the written guilty plea colloquy, he answered "yes" to the following question:
Has your attorney explained to you all the things that a person must have done to be guilty of the crime or crimes to ...