Commonwealth v. Diehl

61 A.3d 265, 2013 Pa. Super. 15, 2013 WL 474288, 2013 Pa. Super. LEXIS 59
CourtSuperior Court of Pennsylvania
DecidedJanuary 25, 2013
StatusPublished
Cited by15 cases

This text of 61 A.3d 265 (Commonwealth v. Diehl) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Diehl, 61 A.3d 265, 2013 Pa. Super. 15, 2013 WL 474288, 2013 Pa. Super. LEXIS 59 (Pa. Ct. App. 2013).

Opinion

OPINION BY

COLVILLE, J.:

This case is an appeal from the order denying Appellant’s petition under the Post Conviction Relief Act (“PCRA”). Appellant contends the PCRA court erred in not finding his plea/sentencing counsel ineffective and in not allowing Appellant to withdraw his guilty plea. We vacate the court’s order and remand for further proceedings.

The record reveals the following facts. Charged with multiple sex-related offenses, Appellant proceeded to a guilty plea hearing. There was no agreement to a specific sentence, though the Commonwealth agreed not to seek certain mandatory penalties on two counts. During the hearing, the court advised Appellant of the maximum sentence he could receive for each charge. The longest maximum term about which Appellant was advised for any individual charge was twenty years. At no time during the plea hearing did the court, the Commonwealth or Appellant’s counsel advise him of the possibility of consecutive sentences. The record contains no written colloquy or other document through which Appellant was advised of that possibility. At a later sentencing hearing, the court sentenced Appellant to consecutive penalties aggregating to not less than twenty and not more than forty years’ incarceration.

Plea/sentencing counsel filed a post-sentence motion asking the court to modify the sentence on the grounds that it exceeded the sentencing guidelines and was otherwise inappropriate or excessive in light of various sentencing factors such as Appellant’s age, maturity, education, family situation, and the offenses themselves. [267]*267Counsel’s motion did not seek to withdraw the plea on the grounds that Appellant had been unaware of the possibility of consecutive penalties. Likewise, the motion did not challenge the sentence based on Appellant’s unawareness of the potential for consecutive penalties. The court denied the motion.

Appellant filed a direct appeal and was represented by new counsel. On that appeal, Appellant contended, inter alia, that his plea/sentencing counsel was ineffective for not advising him regarding the possibility of consecutive sentences. This Court dismissed Appellant’s ineffectiveness claim without prejudice so that it could be raised by Appellant in a PCRA petition. Commonwealth v. C.T.D., 29 A.3d 822 (Pa.Super.2011) (unpublished memorandum at 3-4). After addressing other issues raised by Appellant, we affirmed his judgment of sentence. C.T.D., 29 A.3d 822 (unpublished memorandum at 17). The Pennsylvania Supreme Court later denied Appellant’s petition for allowance of appeal. Commonwealth v. C.T.D., 612 Pa. 687, 29 A.3d 794 (2011).

Appellant then filed a timely, counseled PCRA petition alleging that plea/sentene-ing counsel was ineffective for not informing Appellant he could receive consecutive sentences, for not objecting to the plea court’s failure to advise Appellant of that possibility and for not moving to withdraw Appellant’s guilty plea on the basis that the plea was invalid because Appellant was unaware of the potential for consecutive sentences when he pled guilty.

The court held a PCRA hearing on Appellant’s petition. At the hearing, plea/sentencing counsel’s testified he never advised Appellant about the possibility of consecutive sentences or about the potential maximum penalty. Counsel also testified that, during the sentencing hearing, and within a second of Appellant having been sentenced, Appellant turned to counsel and was upset, stating, “She just gave me 20 years.” N.T., 02/23/12, at 8. When Appellant did so, counsel told Appellant that he should not say anything and that counsel would “file for reconsideration” and “file an appeal.” Id.

Also at the PCRA hearing, counsel testified that, during the plea hearing, he did not notice that the plea court failed to advise Appellant about the possibility of consecutive sentences. In fact, counsel’s PCRA testimony indicated he did not realize the plea court did not tell Appellant about the consecutive-penalty possibility until PCRA counsel contacted plea/sentencing counsel.

Plea/sentencing counsel also indicated at the PCRA hearing that, because he did not recognize the plea court failed to tell Appellant about the consecutive-penalty potential, counsel never advised Appellant that the court’s failure could serve as a basis to withdraw the plea. For the same reason — i.e., not having noticed the colloquy lacked information about consecutive penalties — counsel never moved for plea withdrawal and did not include the consecutive-sentence issue in his post-sentence motion.

The overall thrust of counsel’s PCRA testimony was that his failure to tell Appellant about the potential maximum aggregate penalty arose largely because counsel was hoping Appellant would receive a single sentence on the most serious, most recent charge.1 Counsel also [268]*268indicated that his hope in this regard stemmed from his focus on the fact that Appellant was a minor when some or all of the earlier offenses occurred.

Counsel also testified during the PCRA proceedings that, prior to sentencing, he expected Appellant’s penalty to fall in the aggravated range of the sentencing guidelines for attempted IDSI. More particularly, counsel was roughly expecting Appellant’s sentence to be incarceration with a minimum term of sixty-six months. It appears a minimum term of sixty-six months was, in fact, the aggravated range sentence for Appellant’s guidelines at the count of attempted IDSI.

Appellant’s PCRA testimony was largely consistent with that of his counsel. Appellant indicated that his counsel never advised him about the possibility of consecutive sentences and that Appellant otherwise did not know the court could sentence him consecutively until after the court did so. He also testified that, based on his discussions with counsel, Appellant thought he would be sentenced on one charge and he expected his sentence would possibly be three to six years’ imprisonment. He testified that he would not have pled guilty had he known about the potential for consecutive sentences. He further testified that he would have sought to withdraw his plea had his plea/sentencing counsel advised him that the consecutive-sentence issue provided a basis for doing so.

Appellant also indicated he advised counsel about being upset immediately after the court imposed the incarceration of not less than twenty and not more than forty years. Appellant echoed counsel’s own testimony that, when Appellant expressed concern about the sentence during the sentencing hearing, counsel advised Appellant to say nothing more and counsel would file an appropriate motion and appeal.

The PCRA court denied relief. Appellant filed this timely appeal. Herein, he argues the PCRA court erred by not finding plea/sentencing counsel ineffective for failing to seek plea withdrawal on the grounds that the plea was invalid because Appellant, unaware of the potential for consecutive sentences when he pled guilty, was sentenced to an aggregate incarceration exceeding the maximum penalty of which he was aware when he pled. Ultimately, Appellant contends the PCRA court should have allowed him to withdraw his plea.

We call to mind several legal principles relevant to this case. To establish ineffectiveness of counsel, a PCRA petitioner must show the underlying claim has arguable merit, counsel’s actions with respect to that claim lacked any reasonable basis, and counsel’s actions prejudiced the petitioner. Commonwealth v. Carter, 540 Pa.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Johnson, C.
Superior Court of Pennsylvania, 2023
Com. v. Beers, W.
Superior Court of Pennsylvania, 2023
Com. v. Caruano, R.
Superior Court of Pennsylvania, 2021
Com. v. Armour, S.
Superior Court of Pennsylvania, 2020
Com. v. Valentin, R.
Superior Court of Pennsylvania, 2020
Com. v. Milliren, D.
Superior Court of Pennsylvania, 2018
Com. v. Kilcullen, M.
Superior Court of Pennsylvania, 2017
Com. v. Hawkins, S.
Superior Court of Pennsylvania, 2017
Com. v. Reyes, E.
Superior Court of Pennsylvania, 2017
Com. v. Hansley, S.
Superior Court of Pennsylvania, 2016
Com. v. Beam, K.
Superior Court of Pennsylvania, 2015
Com. v. Mobley, P.
Superior Court of Pennsylvania, 2015
Com. v. Riehl, L.
Superior Court of Pennsylvania, 2015
Com. v. Durney, J.
Superior Court of Pennsylvania, 2015
Com. v. Drakes, M.
Superior Court of Pennsylvania, 2014

Cite This Page — Counsel Stack

Bluebook (online)
61 A.3d 265, 2013 Pa. Super. 15, 2013 WL 474288, 2013 Pa. Super. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-diehl-pasuperct-2013.