Com. v. Hayes, L.

• Court: Superior Court of Pennsylvania
• Decided: August 5, 2024
• Docket: 771 WDA 2023
• Status: Unpublished

Opinion

J-S18013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LONICA DEWAYNE HAYES, JR. : : : No. 771 WDA 2023

Appeal from the PCRA Order Entered August 17, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001706-2020

BEFORE: PANELLA, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED: AUGUST 5, 2024

Lonica Dewayne Hayes, Jr. appeals from the order entered August 17,

2022, dismissing his first, timely petition filed pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we

affirm.

While on parole for a prior criminal offense, Hayes was charged by

criminal information with two counts of unlawful delivery of a controlled

substance, criminal use of communication facility, possession of a controlled

substance, possession of drug paraphernalia, and one count of drug delivery

resulting in death relating to his possession and sale of fentanyl.1 On October

11, 2021, Hayes entered a negotiated guilty plea to drug delivery resulting in

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1 35 Pa.C.S.A. § 780-113(a)(3), 18 Pa.C.S.A. § 7512(a), 35 Pa.C.S.A. §§ 780-

113(a)(16), 780-113(a)(32), and 18 Pa.C.S.A § 2506(a), respectively. J-S18013-24

death in exchange for the Commonwealth nolle prossing the remaining

charges and recommending a sentence of 6 years, 9 months to 13 years, 6

months. That same day, the trial court imposed the recommended sentence.

No post-sentence motion nor direct appeal was filed. From this point,

the file requires close review because the filings by Hayes have created a

somewhat complicated and confusing procedural record. On February 28,

2022, Hayes filed a timely pro se PCRA petition alleging the ineffectiveness of

trial counsel for failing to file motions and conduct an investigation. The PCRA

court appointed the Erie County Public Defender’s Office to represent Hayes

as PCRA counsel. On June 7, 2022, PCRA counsel filed a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)

(“Turner/Finley”), and a petition to withdraw as counsel. The PCRA court

denied the petition to withdraw as counsel on the basis that a first-time PCRA

petitioner is entitled to appointed counsel throughout the PCRA process. See

Order, 6/15/22 (citing Commonwealth v. Brown, 836 A.2d 997, 998-99

(Pa. Super. 2003); Pa.R.Crim.P. 904(C), (F)(2)).

On June 29, 2022, the PCRA court issued a Rule 907 notice of intent to

dismiss the PCRA petition because “upon the totality of the circumstances,

Petitioner’s claim he entered into a defective plea due to ineffectiveness of

counsel, is wholly without merit. Any additional pro se claims are meritless

and/or not cognizable under the PCRA.” Notice of Intent to Dismiss, 6/29/22,

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at 7; see Pa.R.Crim.P. 907. On July 7, 2022, Hayes filed a pro se response to

the notice arguing for the first time that trial counsel was ineffective for forcing

him to take the plea; he also asserted that his claims have merit. On August

17, 2022, the PCRA court dismissed Hayes’ PCRA petition.

On September 6, 2022, Hayes filed a pro se “Motion to Appoint Appeal

Counsel” and a “Motion for Grazier Hearing Pursuant to [Commonwealth]

v. Grazier, 713 A.2d 81 (Pa. 1998).” The PCRA court forwarded this document

to PCRA counsel pursuant to Pa.R.Crim.P. 576(a)(4). On September 19, 2022,

the clerk of courts received a letter from Hayes requesting a copy of his docket

sheet indicating that he will be filing an appeal. On that same date, Hayes filed

a pro se notice of appeal.

On September 21, 2022, PCRA counsel filed a motion to withdraw as

counsel and a request for new counsel to be appointed based upon Hayes’

September 6, 2022, motion that alleged she was ineffective. On September

28, 2022, the PCRA court granted PCRA counsel’s request to withdraw and

appointed appellate counsel.

On June 9, 2023, Hayes filed a pro se PCRA petition alleging trial counsel

was ineffective for failing to advise him that his parole revocation sentence

would be imposed consecutively to his sentence in this case. Hayes further

alleged that PCRA counsel was ineffective for filing a Turner/Finley no merit

letter instead of a PCRA petition asserting trial counsel was ineffective for

failing to advise him that the revocation sentence would be consecutive. Hayes

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did not request to withdraw his plea. Therein, Hayes stated, “that he is not

requesting to withdraw the plea but simply asking for a modification of

sentence to reflect the 6 year minimum, which has now turned into a 9 year

minimum[.]” PCRA Petition, 6/9/23, at 3 (pagination added for ease of

reference).

On June 27, 2023, appellate counsel requested to appeal nunc pro tunc

from the August 17, 2022, dismissal of Hayes’ first PCRA petition because he

did not receive the PCRA court’s order appointing him. That same day, the

PCRA court granted nunc pro tunc relief and ordered a notice of appeal to be

filed within 30 days. On July 5, 2023, Hayes filed a notice of appeal.

On July 7, 2023, the PCRA court dismissed Hayes’ second PCRA petition

filed on June 9, 2023.

Appellate counsel complied with the PCRA court’s order to file a Rule

1925(b) statement. See Pa.R.A.P. 1925(b).

Now that we have summarized the post-conviction filings and orders

from the lower court, we review Hayes’ one claim:

Whether former PCRA counsel was ineffective and the [PCRA c]ourt erred in failing to discern that [Hayes] was afforded a plea- bargained for sentence of 81 months to 162 months, which was then amplified by three years given the parole revocation sentence, which the [p]arole [b]oard was statutorily mandated to impose consecutively to the sentence on the new criminal conviction causing the plea-bargained for sentence to be frustrated and directly offset by the parole revocation sentencing exposure to which [Hayes] was never apprised of thereby altering his expectation of sentencing exposure as per the entry of the guilty pleas rendering said entry of pleas as invalid?

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Appellant’s Brief, at 2.

Before we address the merits of Hayes’ issue, we must first address the

Commonwealth’s contention that this Court does not have jurisdiction because

“[t]he instant petition, [Hayes’] second, was filed on June 9, 2023, and is

therefore untimely.” Appellee’s Brief, at 5. The Commonwealth’s contention is

incorrect, as this is an appeal nunc pro tunc from Hayes’ first, timely filed,

PCRA petition that was denied on August 17, 2022. See Order, 6/27/23

(granting Hayes’s request to appeal nunc pro tunc). The Commonwealth does

not argue that the PCRA court erred in granting nunc pro tunc relief. Therefore,

this Court has jurisdiction to hear the appeal.

We review an order denying PCRA relief to examine “whether the PCRA

court’s determination is supported by the evidence of record and whether it is

free of legal error. We will not disturb findings that are supported by the

record.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011)

(citations omitted).

Hayes asserts PCRA counsel was ineffective because, if she had

conducted full independent review of the record instead of filing a

Turner/Finley letter, she “[w]ould have presented and exhausted the PCRA

claim that the guilty pleas were invalidated given the failure of defense counsel

and the [c]ourt to apprise [Hayes] that the plea-bargained for sentence was

likely to be amplified by a parole revocation sentence.” Appellant’s Brief, at 5.

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Hayes raised this claim in his second pro se PCRA petition filed on June

9, 2023, which the PCRA court dismissed without comment on July 7, 2023.2

This claim was not raised in Hayes’ first, timely, PCRA petition. We do not find

this claim waived, however, as it falls under the gambit of Commonwealth

v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (holding that a PCRA petitioner

may raise claims of PCRA counsel’s stewardship on appeal if that is the first

opportunity to do so). This was Hayes’ first opportunity to raise claims of PCRA

counsel’s stewardship. Therefore, we will address whether PCRA counsel was

ineffective for filing a Turner/Finley no merit letter.

Hayes presents this as a layered claim of ineffective assistance of PCRA

counsel for failing to assert trial counsel was ineffective in not advising Hayes

of the consequences of his guilty plea.

To preserve a layered ineffective assistance of counsel claim, appellant must plead and prove that: (1) trial counsel was ineffective for a certain action or failure to act; and (2) [PCRA] counsel was ineffective for failing to raise trial counsel’s ineffectiveness. As to each relevant layer of representation, appellant must meet all three prongs of the Commonwealth v. Pierce, [] 527 A.2d 973 ([Pa.] 1987) test for ineffectiveness. A failure to satisfy any of the three prongs of the Pierce test requires rejection of a claim of ineffective assistance of trial counsel, which, in turn, requires rejection of a layered claim of ineffective assistance of [PCRA] counsel.

The “Pierce test” requires appellant to prove, with respect to [PCRA] counsel: (1) the underlying claim of trial counsel’s ____________________________________________

2 The PCRA court dismissed Hayes’ second PCRA petition on July 7, 2023, because “[o]n June 27, 2023, the [PCRA court] reinstated appellate rights nunc pro tunc from the [order] of August 17, 2022 dismissing the PCRA of February 28, 2022 ([Hayes’] first).” See Order, 7/7/23.

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ineffectiveness has arguable merit; (2) [PCRA] counsel had no reasonable basis for failing to pursue the claim; and (3) but for [PCRA] counsel’s ineffectiveness, a reasonable probability exists that the outcome of the [PCRA proceedings] would have been different.

Commonwealth v. Thomas, 44 A.3d 12, 16-17 (Pa. 2012) (cleaned up,

brackets, footnote, and citations omitted). “The law presumes counsel has

rendered effective assistance.” Commonwealth v. Postie, 200 A.3d 1015,

1022 (Pa. Super. 2018) (en banc) (citation omitted). If a claim lacks arguable

merit, “counsel cannot be deemed ineffective for failing to raise it.”

Commonwealth v. Koehler, 36 A.3d 121, 140 (Pa. 2012).

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. Where the defendant entered his plea on the advice of counsel, the voluntariness of the plea depend on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases. Thus, to establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations

omitted; paragraphing edited). Notably, “a defendant’s lack of knowledge of

the collateral consequences of pleading guilty does not undermine the validity

of his guilty plea.” Id. at 193 (citation omitted). “[C]ounsel’s failure to advise

his client regarding the collateral consequence of parole revocation in an

unrelated matter would not, without more, constitute a basis for allowing the

defendant to withdraw his guilty plea.” Id. at 195-96 (citation omitted and

emphasis removed). Therefore, “counsel, in providing adequate assistance to

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a criminal defendant who is contemplating a guilty plea, is not required to

advise a defendant of the collateral consequences of pleading guilty.” Id. at

193.

Hayes acknowledges that the revocation sentence is a collateral

consequence. See Appellant’s Brief, at 10 (“this is a collateral consequence

distinct from the sentence imposed relative to the guilty pleas[.]”). Hayes

asserts, however, that he should have been advised “that the very act of

pleading guilty under the circumstances of a known probationary term to

which the defendant is then subject poses the consequence of [an] additional

sanction being imposed in the form of a revocation sentence.” Id. We

disagree.

It is well-established that a parole revocation is a collateral

consequence, and unless a defendant is affirmatively misled or erroneously

advised about the consequences of his plea, the plea is not involuntarily and

unknowingly entered simply because the defendant was unaware that his

guilty plea would subject him to a revocation sentence. See Commonwealth

v. Kelley, 136 A.3d 1007, 1013-14 (Pa. Super. 2014) (vacating the sentence

where plea counsel was ineffective for erroneously advising Kelley his new

sentence would run concurrent with his state parole revocation in violation of

the Parole Act); Barndt, 74 A.3d at 201 (“when it comes to collateral

consequences of a guilty plea, counsel’s sins of omission must be treated

differently than his sins of commission.”). Hayes does not assert his counsel

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affirmatively misled him or erroneously advised him regarding his revocation.

Hayes merely asserts he was not advised that he faced a consecutive

revocation sentence. See Appellant’s Brief, at 10. We decline to extend our

prior precedent to include that counsel must advise a client of such a collateral

consequence. Therefore, this claim does not have merit; consequently, PCRA

counsel cannot be found ineffective for failing to raise a meritless issue. See

Koehler, 36 A.3d at 140.

Our inquiry does not end here, however, because Hayes has not

requested to withdraw his guilty plea. See Appellant’s Brief, at 11-12

(“[Hayes] is not seeking to withdraw his guilty plea … .”). Hayes requests we

vacate his sentence and remand for a new sentence to be imposed that

considers the three-year revocation sentence entered by the Pennsylvania

Board of Probation and Parole. See Appellant’s Brief, at 7-8, 11 (“[Hayes]

posits that this Court possesses the authority and discretion to fashion a

remedy of this nature relative to the enforcement of the terms of plea

agreement in lieu of the withdrawal of the underlying plea.”) (citations

omitted); PCRA Petition, 6/9/23, at 3 (pagination added for ease of reference)

(“Petitioner points out that he is not requesting to withdraw the plea but

simply asking for a modification of sentence to reflect the 6 year minimum,

which has now turned into a 9 year minimum[.]”).

Hayes cites to two cases to support his requested relief. In Hayes’

Appellant’s Brief, at page 12, he cites to Commonwealth v. Zuber, 353 A.2d

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441 (Pa. 1976), and Commonwealth v. Alvarado, 276 A.2d 526 (Pa. 1971),

in support of his contentions. In both cases, the petitioners asserted that their

plea was induced by promises made by the Commonwealth that were not

adhered to after the plea was entered. See Zuber, 353 A.2d at 443 (the

Commonwealth agreed that the sentence imposed run concurrently with

Zuber’s back-time owed on his prior conviction for which he was on state

parole); Alvarado, 276 A.2d at 527 (the Commonwealth agreed not to seek

the death penalty, but at sentencing, the Commonwealth emphasized the

brutal nature of the crime instead of informing the court that they had agreed

not to seek the death penalty). As such, we believe Hayes is asserting that his

plea bargain was not adhered to because his expectation “failed to include a

three year bump arising from a collateral revocation.” Appellant’s Brief, at 11.

Therefore, we address whether Hayes received the benefit of his plea bargain.

See Commonwealth v. Kerns, 220 A.3d 607, 612 (Pa. Super. 2019) (“The

designation of the petition does not preclude a court from deducing the proper

nature of a pleading.”) (citation omitted).

We note that “a collateral petition to enforce a plea agreement is

regularly treated as outside the ambit of the PCRA and under the contractual

enforcement theory of specific performance.” Id. at 611-12 (citations

omitted). This is because “[a]lthough a plea agreement occurs in a criminal

context, it remains contractual in nature and is to be analyzed under contract-

law standards.” Id. at 612 (citation omitted). “Contract interpretation is a

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question of law, so our standard of review over questions of law is de novo

and to the extent necessary, the scope of our review is plenary.” Id. at 612.

We are further mindful that “disputes over any particular term of a plea

agreement must be resolved by objective standards [and a] determination of

what promises constitute the plea bargain must be based upon the totality of

the circumstances and involves a case-by-case adjudication.” Id. (citation

omitted). “Whether a particular plea agreement has been breached depends

on what the parties to the agreement reasonably understood to be the terms

of the agreement.” Id. at 613 (citation omitted).

A thorough review of the record shows that Hayes’ revocation sentence

was not part of the plea negotiations. The terms of the agreement were

straightforward: Hayes would plead guilty to drug delivery resulting in death,

the Commonwealth would recommend a sentence of 6 years, 9 months to 13

years, 6 months and the Commonwealth would enter a nolle prosequi for the

remaining charges. See Defendant’s Statement of Understanding of Rights

Prior to Guilty/No Contest Plea (single page). Specifically, the agreement

Hayes signed stated:

I understand that any plea bargain in my case is set forth here and that there has been no other bargain and no other promise or threat of any kind to induce me to plead guilty/no contest. The only plea bargain in my case is pleading guilty to Count 9 – Drug Delivery Resulting in Death, a Felony of the 1st Degree. Wherein both parties agree to recommend a sentence of 6 years and 9 months – 13 years and 6 months. In exchange, the Commonwealth will nolle pros all remaining counts, with costs on the defendant. Defendant agrees to pay restitution in the amount of $14,350 for the funeral expenses of Ryan Woods. Defendant

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agrees to pay prosecution costs in the [amount] of $1,250 (expert report). Defendant agrees to pay lab fees in the amount of $176 (drug analysis) & $113 (drug analysis) to PSP.

Id.

The terms of the agreement were fulfilled. The Commonwealth

recommended the trial court impose a sentence of 6 years, 9 months to 13

years, 6 months and the trial court did impose that sentence. See N.T. Guilty

Plea and Sentencing, 10/11/21, at 17-18, 19. The Commonwealth requested,

and the trial court granted, a nolle prosequi for the remaining charges. See

id. at 7. Hayes cannot now assert the agreement included a term never

discussed. This claim has no merit.

Therefore, where Hayes has failed to plead and prove the ineffective

assistance of plea and PCRA counsel and failed to show that he bargained for

a sentence that included his parole revocation exposure, we affirm the order

of the PCRA court dismissing Hayes’ PCRA petition.

Order affirmed.

DATE: 8/5/2024

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