Com. v. Barbosa

• Decision Date: 26 February 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Angel Luis BARBOSA, Appellant.
• Court: Pennsylvania Superior Court

819 A.2d 81

COMMONWEALTH of Pennsylvania, Appellee v. Angel Luis BARBOSA, Appellant.

Superior Court of Pennsylvania.

Submitted October 15, 2002.

Filed February 26, 2003.

Tracy M. Sheffer, Fairfield, for appellant.

Paul T. Dean, Assistant District Attorney, Gettysburg, for Com., appellee.

Before: KLEIN, BOWES and TAMILIA, JJ.

KLEIN, J.

¶ 1 Angel Luis Barbosa appeals from the order of the Court of Common Pleas of Adams County dismissing, without a hearing, his petition brought under the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541-46. We reverse and remand.

¶ 2 We hold that if a defendant who entered a negotiated guilty plea was either misinformed or not informed as to the maximum possible sentence he could receive if he went to trial, and the misinformation or lack of information was material to his decision to accept the negotiated plea, then manifest injustice is established and the plea may be withdrawn.

¶ 3 Barbosa entered a negotiated guilty plea and was sentenced within the parameters of that agreement. He claims, however, that neither his counsel nor the trial court advised him of the permissible maximum sentence or range of sentences he could receive if he went to trial. Moreover, Barbosa claims that the district attorney overstated the maximum sentence he could receive at trial, incorrectly stating that he was subject to a life sentence under the "three strikes" rule.

¶ 4 We find that these allegations in Barbosa's PCRA petition would entitle him to relief if proven to be material to his decision to enter the plea. We therefore conclude that the PCRA court erred in dismissing Barbosa's PCRA petition without a hearing. Because we also find that Barbosa has preserved his claim of plea counsel's ineffectiveness, he is entitled to an evidentiary hearing on the merits of his PCRA petition, which should include evidence on Barbosa's ineffectiveness claim.

¶ 5 While our case law has considered situations similar to the one claimed by Barbosa, we have found no case exactly on point. Nonetheless, several principles are clear. First, if a defendant enters an open guilty plea and justifiably believes that the maximum sentence is less than what he ultimately receives, he may be permitted to withdraw his plea. See generally Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992)

. Second, if a defendant enters an open guilty plea and justifiably believes that the maximum sentence is less than what he could receive by law, he may not be permitted to withdraw the plea unless he receives a sentence greater than what he was told. See generally Commonwealth v. Carter, 540 Pa. 135, 656 A.2d 463 (1995).

¶ 6 Barbosa's situation is distinct because it involves a negotiated guilty plea. Barbosa does not claim that his sentence was outside the range of the plea negotiations. Rather, he claims that he did not have enough knowledge to make an intelligent choice as to whether to accept the negotiated plea because he did not know the range of sentences he could receive if he were found guilty at trial. In other words, he claims that to make an intelligent choice, a defendant must be able to answer the question "Compared to what?" about the plea negotiations.

¶ 7 Barbosa argues that during the plea colloquy, he was not advised of the possible maximum sentence he could receive without the plea agreement. He also argues that the district attorney falsely represented that if he did not accept the offered plea, he would be subject to Pennsylvania's "three strikes" provision, 42 Pa. C.S.A. § 9714,¹ or life in prison. Barbosa, in fact, was ineligible for "three strikes" at the time he entered the plea, as the PCRA court found. (See Trial Court Opinion, 3/14/02, at 3.)²

¶ 8 Our appellate courts have directed the withdrawal of guilty pleas in certain circumstances where the defendant justifiably was unaware of or misled about the "compared to what" of the maximum sentence. In Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super.2002), a 16-year-old defendant was permitted to withdraw a negotiated plea where he pled guilty to avoid the death penalty but was in fact ineligible for the death penalty because of his age. Similarly, in Commonwealth v. Lenhoff, 796 A.2d 338 (Pa.Super.2002), the defendant was permitted to withdraw a negotiated plea where, although his sentence was in accord with the plea bargain, he was told that he faced a 10-year maximum when it was actually less.

¶ 9 At the same time, we do not believe that every mistake in computing the possible maximum or advising the defendant of the possible maximum will amount to manifest injustice justifying the withdrawal of a guilty plea; the mistake must be material to the defendant's decision to plead guilty. This determination must be fact- and case-specific. Certainly, if a defendant were to plead guilty to avoid a death sentence when there is no possibility of a death sentence, then this mistake would clearly be material. On the other hand, suppose there were a robbery of five people together with conspiracy and weapons charges, and the defendant were told that he faced a maximum sentence of 70 to 140 years rather than 65 to 130 years. If the plea negotiations resulted in a sentence of 5 to 10 years, then this mistake would not be material.

¶ 10 Barbosa's situation, however, falls somewhere in the middle. Our decision, therefore, is to remand for a determination as to whether (a) Barbosa knew of the possible maximum sentence and (b) whether any lack of knowledge or mistaken knowledge on Barbosa's part was material to his decision to enter the plea. A full discussion follows.

Facts and Procedure

¶ 11 On September 25, 2000, Barbosa pled guilty to robbery and aggravated assault under a negotiated plea agreement. He was sentenced to concurrent sentences of 8 to 18 years' imprisonment for robbery and 5 to 10 years' imprisonment for aggravated assault.

¶ 12 Barbosa asserts that he was not advised of the possible maximum sentence to which he was exposed. The record reveals that Barbosa was informed during the plea colloquy that he would be sentenced to a maximum of 18 years' imprisonment under the plea agreement. (Plea Colloquy Transcript, 9/25/00, at 12, 14.) At no point during the colloquy, however, was Barbosa advised of the possible maximum sentence or range of sentences that he faced without the plea agreement.

¶ 13 Barbosa further asserts that during the negotiations, the district attorney falsely represented that if he did not accept the offered plea, he would be subject to the "three strikes" provision or life in prison. Barbosa, in fact, was ineligible for "three strikes" at the time he entered the plea, as the PCRA court found. (See Trial Court Opinion, 3/14/02, at 3 ("It is clear that [Barbosa] was not subject to the `three strikes' provisions of 42 Pa.C.S.A. § 9714 because there was no history of crime of violence convictions when [he] committed the instant crimes.").)

¶ 14 Barbosa did not file a direct appeal. On January 23, 2001, Barbosa filed a timely pro se PCRA petition. Following the appointment of counsel, Barbosa filed an amended PCRA petition on May 15, 2001, alleging that his plea counsel was ineffective and that his guilty plea was unlawfully induced. At a conference on November 28, 2001, the legal issues were narrowed to the following: (1) whether Barbosa's age precluded him from understanding the nature of his plea; (2) whether the plea colloquy was defective because it did not set forth the maximum penalty to which Barbosa was exposed; and (3) whether the plea was involuntary because Barbosa was unduly influenced by the district attorney. Barbosa was also permitted to file a supplemental brief regarding the court's failure to inform him of the possible sentencing range during the colloquy and its effect on the voluntariness of his plea. At a hearing on December 21, 2001, the Commonwealth orally moved to dismiss Barbosa's PCRA petition without a hearing. The PCRA court heard brief argument on the motion, determined that there was no need for testimony, and dismissed Barbosa's petition. (See Transcript of Proceedings of Motion, 12/21/01, at 2-4.)

Discussion

¶ 15 On appeal, Barbosa asserts that the PCRA court erred in dismissing his petition without a hearing. Specifically, he claims that (1) the plea colloquy was defective because he was not advised of the possible maximum sentence to which he was exposed, and (2) his plea was involuntary because the Commonwealth unduly influenced him to enter the plea.³ Barbosa asserts that at an evidentiary hearing, he could prove the facts necessary to establish that he did not enter his plea knowingly and intelligently.

¶ 16 Barbosa argues that his plea was not properly entered because he did not know what benefit he was getting from the negotiated plea and was afraid that if he proceeded to trial, he would face a greater sentence than was legally possible. This could be the case if neither Barbosa's lawyer nor the court properly advised Barbosa of the maximum sentence or if the district attorney misinformed him by improperly threatening him with life imprisonment under the "three strikes" rule.

¶ 17 It is true that the right to an evidentiary hearing on a PCRA petition is not absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super.2001)

. If the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. See Pa.R.Crim.P. 907(1); Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915, 920-21 (1994). A court may not summarily dismiss a PCRA petition, however, "`when the facts alleged in the petition, if proven, would entitle the petitioner to relief.' " Blackwell, 647 A.2d at 921 (citation omitted). Thus, we must examine the issues raised in Barbosa's petition to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and denying relief. See Jordan, 772 A.2d at...