February 18, 2014
COMMONWEALTH OF PENNSYLVANIA Appellant
MIGUEL ANGEL LANDRAU-MELENDEZ Appellee
Appeal from the Order Entered April 9, 2013 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000309-2010
BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]
The Commonwealth appeals from the April 9, 2013 order granting Appellee, Miguel Angel Landrau-Melendez's petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we reverse.
The PCRA court summarized the relevant facts and procedural history of this case as follows.
In 2010, [Appellee] was charged with numerous sexually-related offenses stemming from incidents involving two sisters that occurred between November 1, 2009 and February 3, 2010. During the pendency of the charges, [Appellee] hired Attorney John Kelsey, Esquire [(Attorney Kelsey)] to represent him. After pretrial maneuvering, [Appellee]'s case was ultimately scheduled for a trial the October 2010 term of [c]riminal [c]ourt.
A jury was scheduled to be selected in [Appellee]'s case on October 4, 2010. Immediately before jury selection, both counsel asked to meet with [the trial c]ourt in chambers. This meeting was not recorded, and a difference of opinion now exists with respect to what occurred at it. [Attorney Kelsey] testified at [Appellee]'s PCRA hearing that [the trial court] promised that he would not impose a sentence that exceeded a one-year minimum. This d[id] not at all comport with the recollection of [the trial court]. According to testimony at the PCRA hearing, [Attorney Kelsey] returned to [Appellee] following the meeting in chambers. [Attorney Kelsey] then led [Appellee] to believe that [the trial court] would impose a one[-]year minimum sentence. [Attorney Kelsey] even advised [Appellee] that there was a possibility that the sentence could be served in the Lebanon County Correctional Facility instead of a state correctional [f]acility when in fact there was no realistic possibility that a local sentence would ever be imposed.
[Appellee] decided to enter a plea of guilty. During the guilty plea colloquy, [the trial court] emphasized that the plea was an open one and that [Appellee] could be sentenced to anything up to the maximum penalty permitted by law. In addition, [the trial court] reminded [Appellee] that he was entering a plea of guilty on the first day of a scheduled jury trial. Because of the prejudice that would be created to the Commonwealth and its witnesses that would flow from renewed preparation and trial at a later date, [Appellee] was advised up front that a plea withdrawal at a later date would be extremely unlikely to occur. Effectively, [Appellee] was advised that his decision to plead guilty would be a final decision. Despite knowing this, [Appellee] proceeded to proffer his open plea of guilty.
Several days following the plea, [Appellee] contacted [Attorney Kelsey] in order to request that a [m]otion to [w]ithdraw [his g]uilty [p]lea be filed. [Attorney Kelsey] acknowledged that [Appellee] had requested to withdraw his plea. [Attorney Kelsey] reminded [Appellee] of the colloquy conducted in court with [the trial court]. [Attorney Kelsey] indicated to [Appellee] that he would not be permitted to withdraw his plea of guilty. Therefore, no [m]otion to [w]ithdraw [the guilty p]lea was filed.
Following Megan's Law litigation, [Appellee] was directed to appear for sentencing. At [Appellee]'s sentencing date, he requested permission to withdraw his plea of guilty. [The trial court] afforded the Commonwealth time to discern whether it would suffer prejudice as a result of [Appellee]'s withdrawal of this plea. On June 27, 2011, [the trial court] conducted a hearing. For multiple reasons, [the trial court] determined that [Appellee] should not have been permitted to withdraw his plea of guilty. [The trial court] therefore denied [Appellee]'s request to withdraw his plea.
PCRA Court Opinion, 6/25/13, at 2-4.
On July 13, 2011, the trial court sentenced Appellee to 18 to 72 months' imprisonment. Appellee filed a timely notice of appeal, and this Court affirmed the judgment of sentence on July 31, 2012. Commonwealth v. Landrau-Melendez, 55 A.3d 152 (Pa.Super. 2012) (unpublished memorandum). Appellee did not file a petition for allowance of appeal with our Supreme Court.
On October 12, 2012, Appellee filed a timely counseled PCRA petition. The Commonwealth filed its answer on December 3, 2012. The PCRA court conducted a hearing on April 8, 2013. On April 9, 2013, the PCRA court entered an order granting Appellee's petition and ordering a new trial. On May 7, 2013, the Commonwealth filed a timely notice of appeal.
On appeal, the Commonwealth raises three issues for our review.
A. Whether the [PCRA c]ourt erred when it found, by a preponderance of the evidence, that [Attorney Kelsey] was ineffective for failing to file a timely motion to withdraw guilty plea on behalf of [Appellee?]
B. Whether the [PCRA c]ourt erred when it found that [Appellee]'s guilty plea was unlawfully induced[?]
C. Whether the [PCRA c]ourt erred when it found, by a preponderance of the evidence, that [Attorney Kelsey] was ineffective[?]
Commonwealth's Brief at 4.
We begin by noting our well-settled standard of review. "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), cert. denied, Edmiston v. Pennsylvania, 134 S.Ct. 639 (2013). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court." Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted). "However, this Court applies a de novo standard of review to the PCRA court's legal conclusions." Id.
Likewise, "[i]t is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." Koehler, supra, citing Strickland v. Washington, 466 U.S. 668, 687-691 (1984). Our Supreme Court has articulated a three-prong test to determine when an appellant has received ineffective assistance of counsel. "[A defendant] must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) Appellant was prejudiced by counsel's act or omission." Id., citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). A defendant must show that his claim meets all three prongs of the Pierce framework in order to be entitled to relief. Commonwealth v. Thomas, 44 A.3d 12, 17 (Pa. 2012) (citation omitted).
In its first issue, the Commonwealth contends that the PCRA court erred in concluding that Attorney Kelsey was ineffective for not filing a timely motion to withdraw Appellee's guilty plea. Commonwealth's Brief at 12. The Commonwealth specifically argues that Appellee's claimed lacked arguable merit and he could not establish the required level of prejudice to obtain relief. Id. at 14, 15. We address the latter of these two contentions as it disposes of the argument.
Relating to the prejudice prong of the ineffectiveness test, the PCRA petitioner must demonstrate that there is a reasonable probability that, but for counsel's error or omission, the result of the proceeding would have been different. Particularly relevant herein, it is well-settled that a court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the Strickland test, the court may proceed to that element first.
Koehler, supra at 132.
In the case sub judice, Attorney Kelsey admitted that Appellee asked him to file a motion to withdraw his guilty plea and he did not do so. N.T., 4/8/13, at 26. However, as noted above, Appellee made an oral motion to withdraw his guilty plea anyway right before sentencing. PCRA Court Opinion, 6/25/13, at 4. The trial court gave the Commonwealth time to investigate the extent to which it would be prejudiced, and the trial court conducted a hearing on the matter on July 27, 2011. At the conclusion of said hearing, Appellee was not permitted to withdraw his guilty plea due to the prejudice that would be suffered by the Commonwealth. Id. This Court affirmed that determination on direct appeal. See Landrau-Melendez, supra at 7-8.
The PCRA court noted on the record that "had [Attorney] Kelsey filed the [written] motion to withdraw [it] likely would have denied that [motion]." N.T., 4/8/13, at 37; see also PCRA Court Opinion, 6/25/13, at 15 (stating, "[the PCRA court's] evaluation of the [circumstances surrounding the guilty plea] would have likely caused [it] to make a finding of prejudice sufficient to deny [Appellee]'s [m]otion to [w]ithdraw [p]lea"). In spite of acknowledging the probability that any written motion to withdraw the guilty plea filed by Attorney Kelsey would have been denied, the PCRA court concluded that it "cannot know with absolute certainty what would have occurred at a hearing that never had the chance to take place." Id.
After careful review, we conclude the PCRA court erred in granting Appellee relief on this issue. As noted above, prejudice is shown in the PCRA context where "there is a reasonable probability that, but for counsel's error or omission, the result of the proceeding would have been different." Koehler, supra. Here, the PCRA court's assertions actually demonstrate that it believed had Attorney Kelsey filed a timely written motion, there was a reasonable probability that the outcome would not have been different. See N.T., 4/8/13, at 37; PCRA Court Opinion, 6/25/13, at 15. Further, Appellee was afforded an opportunity to make an oral motion to withdraw his plea, and a hearing was held on his motion. Although the course of the proceedings may not have been perfect, our Supreme Court has held that "as it is [the defendant]'s burden to demonstrate eligibility for relief under the PCRA, mere conjecture does not establish an entitlement to relief." Commonwealth v. Hughes, 865 A.2d 761, 785 (Pa. 2004). As a result, we conclude that the PCRA court erred when it concluded that Attorney Kelsey was ineffective for not filing a timely written motion to withdraw Appellee's guilty plea. See Edmiston, supra.
We elect to address the Commonwealth's remaining two issues together as they are interrelated. The Commonwealth avers that the PCRA court erred when it concluded that Attorney Kelsey was ineffective for inadequately advising Appellee when it came to sentencing.Commonwealth's Brief at 24. Further, the Commonwealth asserts that the PCRA court's factual findings that Attorney Kelsey advised Appellee that the trial court would not impose a minimum sentence of more than one year and that there would be a possibility of a local prison sentence if he pled guilty are not supported by the record. Id. at 25, 26.
At the PCRA hearing, Attorney Kelsey testified to the following conversations with Appellee.
[PCRA Counsel]: I just want to draw your attention to the morning that [Appellee] pled guilty. Can you tell the [PCRA] court what your conversation was with him?
[Attorney Kelsey]: Yes, that was on October the 4th of 2010. … We had been previously offered I believe something along the lines of 1 and a half to 6 years I believe was the plea bargain offer. [Appellee] had not wanted to take that. … I finally[, the Commonwealth] and I went in to talk to the [trial court] to see if perhaps we could get some information which might help push him along into or make a decision. … [I]n any event, [the trial court] said … that … [it] did not have any reason at that point to sentence him beyond the minimum standard range. With that, I went back to [Appellee] that there's no deal, there's no promises just that the judge indicated that at this point in time he saw no reason to go beyond the minimum of the standard range which would have been one year. … I told him that it is possible that he could receive a local sentence. It's highly unlikely. I did not explain that to him. …
[PCRA Counsel]: Did you talk to him about the possibility of this being a time served sentence?
[Attorney Kelsey]: Yes, I said that I would ask for it. I never said that that was likely. I never said that it would happen. I only said I would ask for it.
[PCRA Counsel]: Did you explain --
[Attorney Kelsey]: I told him repeatedly that it was up to the judge to sentence him and that I didn't have any control over that.
I'm -- I don't want to interrupt but I'm having some recollection come back, my memory is sort of filling in from what happened that day. … I do believe I did discuss with him the concept of getting -- keeping the [sentence] local if he had a maximum of 2 years or less that is possible. But I think I also told him that the maximum could be higher. As I recall that -- I told him that although the judge had indicated a likelihood at that point he was willing to accept a minimum of the standard range, that he was certainly not committed to that and that there was no deal that he could sentence him anywhere in the standard range at the time of sentencing. I hope that clarifies.
[PCRA Counsel]: You made it clear it was the [trial] court's discretion about what the sentence would be?
[Attorney Kelsey]: Absolutely.
[Commonwealth]: And during any of your discussions would you have explained to [Appellee] the various ranges that went along [with] each of the charges?
[Attorney Kelsey]: Yes, that I did. I went through each [one] with him, talked to him about the specific number of months and I also talked with him about the concept of consecutive versus concurrent sentencing. …
[Commonwealth]: And at any point in time during any of your conversations whether it was before the day of the guilty plea or that same day, did you or even after, did you ever guarantee him that he would receive a local sentence?
[Attorney Kelsey]: No absolutely not. I always said the sentencing is up to the judge. The most I can do is ask for some -- for him and he said well you ask. I said yeah I'll ask him but you got to understand it's not up to me, it's up to him. It's up to the judge. I can only ask. I said to him many, many times.
N.T, 4/8/13, at 19-21, 23, 24, 25, 29-30.
The PCRA court concluded that Attorney Kelsey was ineffective in more than one respect given the above-quoted exchanges.
In this case, [the PCRA court] find[s] that [Attorney Kelsey]'s advice to [Appellee] fell short of what should have been expected of a competent defense counsel. Given the charges proffered against [Appellee], [Attorney Kelsey] should have advised [Appellee] that the most likely outcome of the guilty plea would be the outcome that actually occurred – a state prison sentence. [Attorney Kelsey] should never have advised [Appellee] that the [trial c]ourt indicated a willingness to impose a minimum sentence of only one year. He never should have led [Appellee] to believe that a local sentence would be possible. Moreover, [Attorney Kelsey] should have at least provided some basic information to [Appellee] regarding the consequences of entering a plea that would result in a state prison sentence. None of the above occurred, and we thus find [Attorney Kelsey]'s advice to [Appellee] to be deficient.
PCRA Court Opinion, 6/25/13, at 11-12.
After careful review of the record, we conclude the PCRA court's relevant factual findings are not supported by the record. Here, the PCRA court found as a matter of fact that "[Attorney Kelsey] advised [Appellee] that he met with the Judge in private and the [trial c]ourt would not impose a minimum sentence of more than one year if he entered a plea of guilty. At no time did th[e trial c]ourt ever promise to impose such a sentence." Id. at 5. At no point did Attorney Kelsey make an absolutist statement that if Appellee pled guilty the trial court would not impose a minimum sentence higher than one year. The PCRA hearing testimony reveals that what Attorney Kelsey testified to was that "[the trial court indicated it] did not have any reason at that point to sentence him beyond the minimum standard range." N.T., 4/8/13, at 20. In our view, that is quite a different assertion than a promise of a specific sentence. Moreover, Attorney Kelsey repeatedly stated that the ultimate sentence was up to the trial court, it was free to sentence him anywhere within the standard range that it pleased, and there was no deal in regard to the specific sentence between Appellee and the Commonwealth. Id. at 23, 24.
The PCRA court found that "[Attorney Kelsey] advised [Appellee] that if he pled guilty, there would be a possibility that he would receive a local prison sentence. At no time did th[e trial court] ever consider a local sentence to be a possibility." PCRA Court Opinion, 6/25/13, at 5-6. The PCRA court also noted that the trial court did not "apprise [Attorney Kelsey] that a local sentence would be considered." Id. While it appears to be true the trial court never affirmatively advised Attorney Kelsey that a local sentence would be considered, Attorney Kelsey also never testified that he told Appellee the trial court would consider such a local sentence. To the contrary, Attorney Kelsey testified that if indeed Appellee was sentenced at the bottom of the standard range of 12 months' imprisonment, and his maximum sentence was two years' imprisonment, a local sentence would be possible. N.T., 4/8/13, at 24; see also 42 Pa.C.S.A. § 9762(b)(2) (stating conditions for imposition of a county sentence for sentences with a maximum sentence of two to five years). Based on these considerations, we conclude that Appellee did not meet his burden to show that his claim of ineffectiveness had arguable merit. See Koehler, supra. As a result, the PCRA court erred when it granted relief on this issue.
Based on the foregoing, we conclude the PCRA court erred when it granted Appellee's PCRA petition and ordered a new trial. See Edmiston, supra. Accordingly, the PCRA court's April 8, 2013 order is reversed and the original July 13, 2011 judgment of sentence is hereby reinstated.
Order reversed. Judgment of sentence reinstated. Jurisdiction relinquished.
Justice Fitzgerald Concurs in the Result.