Commonwealth v. Barndt

• Decision Date: 01 October 2013
• Citation: 74 A.3d 185,2013 PA Super 206
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Michael BARNDT, Appellant.
• Court: Pennsylvania Superior Court

74 A.3d 185

2013 PA Super 206

COMMONWEALTH of Pennsylvania, Appellee,

v.Michael BARNDT, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 17, 2013.

Filed July 25, 2013.

Reargument Denied Oct. 1, 2013.

Michael Barndt, appellant, pro se.

John M. Morganelli, District Attorney, Easton, for Commonwealth, appellee.

BEFORE: OLSON, J., WECHT, J., and COLVILLE, J.^*

OPINION BY WECHT, J.:

Michael Barndt (“Appellant”), appearing pro se, challenges the trial court's order denying relief under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–46. We reverse.

Appellant, as well as his girlfriend, Tonia Fucci, and his son, Michael Barndt, Jr., were arrested on May 28, 2010, for possession with intent to deliver (“PWID”) 65.2 grams of cocaine and possession of drug paraphernalia. ¹ Appellant retained private counsel, Philip D. Lauer, Esquire, to represent him. The weight of the contraband and Appellant's prior criminal record exposed him to the prospect of a mandatory minimum sentence of five years' incarceration. Trial Court Opinion (“T.C.O.”), 2/14/2012, at 1.

At the time of his arrest, Appellant had served approximately thirty months of parole attendant to a prison sentence for a separate drug charge. On the day of his arrest, the Pennsylvania Board of Probation and Parole (“Parole Board”) issued a “Warrant to Commit and Detain” Appellant, signaling its intent to treat Appellant's arrest as a parole violation.

The trial court found that, during plea negotiations with the Commonwealth, Appellant emphasized his competing concerns for his codefendants' exposure to substantial prison sentences, his own exposure to a mandatory minimum five-year sentence, and the effect of a guilty plea upon his parole status from the prior offense. See id. at 1–2. Specifically, Appellant did not want to lose the approximately thirty months of “street time” that he had accumulated against his parole sentence (a penalty referred to hereinafter as a “setback”). See id. at 2; Notes of Testimony PCRA Hearing (“N.T. PCRA”), 1/25/2012, at 4–6 (identifying the magnitude of the setback as “of the utmost importance” to his decision to plead).

During plea discussions toward a negotiated sentence in lieu of the mandatory sentence hanging over Appellant's head, Assistant District Attorney Michelle Kluk indicated that she would require confirmation that Appellant would face an offsetting parole setback before she would agree to a negotiated sentence below the mandatory minimum. N.T. PCRA at 12–14. To that end, Ms. Kluk contacted Appellant's parole officer about the effect of a guilty plea on Appellant's street time. Following her discussion with the parole officer, Ms. Kluk sent correspondence to Mr. Lauer that provided, in relevant part, as follows:

I spoke to your client[']s parole officer ... on October 27, 2010. He spoke to the deputy district director regarding [Appellant's] parole violation and his [setback]. I am satisfied that your client will lose most or all of his street time; however, I am not satisfied with the amount of street time he has. The parole board estimated that he was looking at loosing [ sic ] approximately 11 months of street time, not 30 months; however they could not give me a guarantee on the exact amount of street time he will lose. Based on this new information I propose a possible resolution. One would be to have your client plead to the upper end of the standard range ( [four and one-half years] ), but I would still not enforce the mandatory minimum. With a one [-]year [setback] he would be looking at 64 months['] minimum sentence total. If your client does in fact receive a [setback] of 30 months, and the parole violation occurs within 30 days of sentence I would have no objection to a motion to modify the sentence to the lower end of the standard range.

Letter of Michelle Kluk to Philip Lauer, 10/28/2010; see T.C.O. at 2. ^2,3

On November 2, 2010, following further negotiations with Ms. Kluk, Appellant entered a guilty plea to PWID, and the Commonwealth withdrew the paraphernalia charge. Before imposing sentence, the trial court conducted an oral plea colloquy, as required by Pa.R.Crim.P. 590(B)(2), to test the voluntariness of Appellant's guilty plea, and to review with Appellant the various rights he relinquished by waiving his right to trial. See N.T. Guilty Plea & Sentencing, 11/2/2010, at 6–11.⁴

Pursuant to the negotiated sentence recommendation agreed to by the parties, the trial court imposed a sentence of forty-eight to ninety-six months' incarceration. Id. at 12. As part of the plea negotiations, the Commonwealth granted plea bargains to Appellant's girlfriend and son that carried negotiated sentences of probation and accelerated rehabilitative disposition, respectively. See id. at 2–6; see also N.T. PCRA at 19–20. Also on November 2, 2010, the Parole Board issued another detainer against Appellant pending disposition of his PWID and paraphernalia charges. Appellant filed neither post-sentencing motions nor a direct appeal.

On February 1, 2011, Appellant appeared before the Parole Board to address his parole violation. Citing Appellant's guilty plea to PWID, the Parole Board revoked Appellant's parole and ordered Appellant to serve 1,225 days in prison, approximately forty-one months, which corresponded to the sum of his street time up to the point of his guilty plea to the PWID charge. On February 16, 2011, the Parole Board ordered that Appellant's eligibility for parole from his forty-one month recommitment be deferred until he had served eighteen months of his recommitment sentence.

Following the Parole Board's rescission of Appellant's street time and imposition of a parole violation sentence of approximately forty-one months' incarceration, Appellant inquired of his counsel regarding the disparity between this penalty and Appellant's expectation that he would be subject to a setback of no more than eleven months as a consequence of his guilty plea. Mr. Lauer shared Appellant's concerns. Mr. Lauer described his pre-sentencing understanding of the import of Ms. Kluk's above-excerpted letter of October 28, 2010, as follows:

[Ms. Kluk] indicat[ed] that she [had] been informed by the Parole Board that you would be losing 11 months of street time, not 30 or more months. Based on that, our negotiations preceded [ sic ]. However, you rejected the deal that she was proposing in that correspondence.

Five days later, on November 2, 2010, we entered a plea ... with an agreement that you would receive four to eight years in a state correctional institution. There was no discussion at that time that I remember regarding the setback, but I certainly understood at that time, as I think you did, that you were looking at 11 months of street time. That may actually even have factored into the decision[-]making by both sides.

Letter of Philip Lauer to Michael Barndt, 3/4/2011.

Thereafter, Appellant evidently inquired about avenues for seeking relief, given his belief that he had been denied the benefit of his bargain with the Commonwealth. Mr. Lauer responded as follows:

[P]lease note that, while the judge does not technically have the right to do anything with respect to the sentence, [a] Motion to Withdraw your Guilty Plea nunc pro tunc may very well prevail. I will try to put that together for you, and I would suggest we pursue that first. You will also have the option, however, of pursuing [a] PCRA proceeding.... I would suggest that we pursue the Petition to Withdraw ... first. Depending upon the outcome, we can then proceed with the PCRA, in which you certainly have every right to allege ineffective assistance of counsel, since the information we provided to you was absolutely incorrect. I believe that we were given bad information by [Ms. Kluk], but certainly should not have necessarily relied on that.

Letter of Philip D. Lauer to Michael Barndt, 3/11/2011 (emphasis added).

Based upon our review of the record, it appears that Appellant's next action was to file a “Motion to Withdraw Guilty Plea and/or Correct Sentence” (“Motion to Withdraw Plea”) on April 18, 2011. Therein, Appellant argued that his setback was “[a]mong the most significant considerations for [Appellant]” during plea negotiations. Motion to Withdraw Plea at 2 ¶ 5. Appellant noted that the parole board issued a setback equal to the sum of all of his street time to that date. Id. at 2 ¶ 9. Appellant argued that, because the imposition of no more than an eleven-month setback was among the promises that engendered his guilty plea, the trial court should either allow him to withdraw his plea or modify his sentence. According to the trial court,⁵ during a July 22, 2011 conference concerning Appellant's motion to withdraw, the Commonwealth expressed its willingness to accept a sentence modification. However, Appellant declined the proposed modification, instead insisting that he be allowed to withdraw his plea. Faced with Appellant's refusal to accede to a sentencing modification, the trial court noted that, to the extent Appellant sought the right to withdraw his plea, his motion was untimely. ⁶ The trial court pointed out that Appellant should seek plea withdrawal under the PCRA, by alleging that Mr. Lauer had rendered constitutionally ineffective assistance of counsel in advising Appellant regarding the consequences of the negotiated plea. See T.C.O. at 4–5.

The trial court explained the ensuing, somewhat irregular procedural history as follows:

Mr. Lauer filed a Brief in support of the open Motion [to Withdraw] on September 1, 2011. The Commonwealth filed a

Brief in opposition on September 6, 2011. We note that we received a message from Counsel that there were continued discussions regarding an agreed resolution. We waited for additional notice from Counsel.

We continued with the original intention to file a brief Order denying [Appellant's] Motion, with a directive to perfect the subsumed PCRA claim by filing a formal...