Com. v. Hickman

• Decision Date: 15 May 2002
• Citation: 799 A.2d 136,2002 PA Super 152
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Dewhight A. HICKMAN, Appellant.
• Court: Pennsylvania Superior Court

799 A.2d 136

2002 PA Super 152

COMMONWEALTH of Pennsylvania, Appellee, v. Dewhight A. HICKMAN, Appellant.

Superior Court of Pennsylvania.

Submitted September 18, 2000.

Filed May 15, 2002.

Frank C. Arcuri, Public Defender, York, for appellant.

William H. Graff, Asst. Dist. Atty., York, for Com., appellee.

Before CAVANAUGH, STEVENS, and BROSKY, JJ.

STEVENS, J.

¶ 1 Appellant challenges the denial of his petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, by the Court of Common Pleas of York County. The issue before us is whether plea counsel's erroneous advice about boot camp eligibility under the negotiated sentence invalidated Appellant's guilty plea. We reverse and remand for proceedings consistent with this decision.

¶ 2 On October 8, 1998, Appellant was charged with two counts of Possession with Intent to Deliver and one count of Criminal Conspiracy to Possess with the Intent to Deliver after he was arrested with cocaine and marijuana in his possession. With school zone enhancements applying to his case, Appellant faced a mandatory five to ten year sentence.

¶ 3 Privately retained counsel advised Appellant to enter a plea of guilty to each count in exchange for a sentence of four to eight years' imprisonment. Appellant was reluctant to accept the negotiated plea at first, but reconsidered when counsel advised him that he would be eligible for State Motivational Boot Camp, 61 P.S. §§ 1121-1129,¹ after serving the first two years of his four year minimum sentence. Appellant pled guilty on March 8, 1999, and received a four to eight year sentence, which he is currently serving at State Correctional Institute, Camp Hill.

¶ 4 Appellant filed no direct appeal, but filed the present PCRA petition on October 5, 1999, through newly retained counsel. In his petition, and at the evidentiary hearing of January 31, 2000, which followed, Appellant alleged that ineffectiveness of plea counsel induced him to enter an invalid plea. Specifically, Appellant contends that he pled guilty only because plea counsel misled him to believe that he would be eligible for boot camp after serving the first two years of his minimum sentence. In fact, Appellant was not eligible for boot camp under the enabling statute, which defines an "eligible inmate" as one "who is serving a term of confinement, the minimum of which is not more than two years and the maximum of which is five years or less or an inmate who is serving a term of confinement the minimum of which is not more than three years where that inmate is within two years of completing his minimum term...." 61 P.S. § 1123. See 204 Pa.Code § 303.12(b).

¶ 5 At the conclusion of Appellant's PCRA hearing, the court found no ineffective assistance of plea counsel because there was never a guarantee that Appellant would have gained acceptance into the Boot Camp program. Specifically, the court made the following relevant observations:

I have the plea in front of me, the plea colloquy. Attorney Morrison was the attorney at the time, and she states, the agreement with this defendant is that he will do four to eight years imprisonment. Commonwealth has agreed that if he's otherwise eligible, we would have no objection to him participating in that program. Mr. Jones then said, in other words, it's my understanding succinctly, four to eight mandatory, he'd be boot camp eligible.

My sentencing order then states, "[W]e direct the Defendant will be deemed boot camp eligible as soon as the State determines he has served enough time to apply for the boot camp program...."

While I think it's true that he anticipated being able to apply for the boot camp program, I don't see anywhere in here that there was a guarantee he would get in.

In addition, I notice he was sentenced March 8th, 1999. He wouldn't be able to apply anyway until March of 2001, so we still don't know whether or not he is boot camp eligible.

There hasn't been any proof here today the State—other than hearsay statements from Mr. Jones that the State is now considering a sentence with over three years.

I view this case similar to the people who pled guilty to a prison sentence of, say, you know, four to eight years and find out they're not getting paroled in four.

I can't find anywhere where Mr. Jones was ineffective in his representation of the Defendant, and accordingly, I will deny the PCRA petition.

PCRA Hearing of 1/31/00 at 17.

¶ 6 Appellant timely filed an appeal, and this Court, relying on Commonwealth v. Woodrow, 743 A.2d 458 (Pa.Super.1999), affirmed on the basis that Appellant's ineffectiveness claim failed was not cognizable under 42 Pa.C.S. § 9543(a)(2)(ii) and (iii)² where his guilty plea did not implicate the truth-determining process and where he failed to allege his innocence. See Commonwealth v. Hickman, No. 586 MDA 2000, unpublished memorandum, 777 A.2d 503 (Pa.Super. filed March 26, 2001). On September 11, 2001, however, the Supreme Court of Pennsylvania granted Appellant's petition for allowance of appeal, vacated this Court's order, and remanded for consideration of this matter in light of Commonwealth ex rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126 (2001) (holding that ineffective assistance of counsel claims arising from plea bargaining process are eligible for review under § 9543(a)(2)(ii)). Therefore, we review whether plea counsel's erroneous advice amounted to ineffective assistance of counsel which invalidated Appellant's guilty plea.

¶ 7 Our review of a PCRA court's grant or denial of relief is limited to examining whether the court's determination is supported by the evidence and whether it is free of legal error. Commonwealth v. Davis, 760 A.2d 406, 409 (Pa.Super.2000). This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. Commonwealth v. Nelson, 393 Pa.Super. 611, 574 A.2d 1107, 1110 (1990). The findings of a post-conviction court will not be disturbed unless they have no support in the record. Commonwealth v. Neal, 713 A.2d 657, 660 (Pa.Super.1998).

¶ 8 Here, we note that Appellant's ineffectiveness of plea counsel claim is technically waived for failure to raise it in a direct appeal. However, because Appellant has raised the claim at the earliest opportunity, without any intervening counsel between the time of his plea and the present PCRA petition, his technical waiver of a previously unlitigated issue is excused under 42 Pa.C.S. § 9543(a)(3)(iii). Commonwealth v. Griffin, 537 Pa. 447, 644 A.2d 1167 (1994).

¶ 9 In order to prevail on an ineffectiveness claim, Appellant must satisfy a three-factor test:

We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest. If he did, our inquiry ends. If not, [an appellant may prevail on his ineffectiveness claim by demonstrating] that counsel's improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

¶ 10 A criminal defendant has the right to effective counsel during a plea process as well as during a trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). 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 defendant to enter an involuntary or unknowing plea. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999). 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.'" Hill, 474 U.S. at 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)); See also Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)

(holding that a defendant who pleads guilty upon the advice of counsel "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.").

¶ 11 Here, we find that counsel's assistance cannot be said to have fallen within "the wide range of professionally competent assistance" demanded by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, plea counsel gave Appellant reason to believe he could be released from prison in two years and be eligible for parole six months later, when, in fact, Appellant was statutorily ineligible for release into the boot camp program and could not receive parole until he had served four years imprisonment. Thus based on an ignorance of relevant sentencing law, counsel's advice was legally unsound and devoid of any reasonable basis designed to effectuate Appellant's interests. See Hill, 474 U.S. at 62,

106 S.Ct. 366,

88 L.Ed.2d 203 (counsel's failure to advise of relevant statute's affect on parole eligibility constitutes ineffectiveness) (White, J., concurring); Baker v. Barbo, 177 F.3d 149, 154 (3d Cir.1999) (acknowledging that an attorney can be ineffective by giving a defendant false information about sentencing); Meyers v. Gillis, 142 F.3d 664 (3d Cir.1998) (finding representation fell below that required by Sixth Amendment when counsel misrepresented parole eligibility to a defendant entering a guilty plea).

¶ 12 Moreover, the record shows that counsel's advice prejudiced Appellant. To succeed in showing prejudice, the defendant must show that it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would have gone...