explaining that in order to establish prejudice, the “defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”
How later courts described this case
- explaining that in order to establish prejudice, the “defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”
- finding defendant presented sufficient evidence in the form of his own testimony and correspondence from plea counsel to establish counsel's inaccurate communication to defendant regarding consequences of guilty plea with respect to setback prejudiced defendant
- holding that “counsel’s assistance is constitutionally ineffective when counsel misapprehends the consequences of a given plea and misleads his client accordingly about those consequences[.]”
- determining that the appellant waived his argument under Section 9543(a)(2)(iii) that his guilty plea was unlawfully induced where he did not maintain that he is innocent of the crimes charged
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
COLVILLE, J.:
I dissent.
First, in my view, Appellant’s claim of ineffective assistance of counsel lacks arguable merit. A review of the transcript of Appellant’s guilty plea colloquy reveals that it is devoid of any discussion of promises regarding what would occur with respect to Appellant’s sentence due to his parole violation. Moreover, during his guilty plea colloquy, the trial court asked Appellant whether he signed and understood the written guilty plea colloquy. N.T., 11/02/10, at 10. Appellant responded in the affirmative. Id.
In his written guilty plea colloquy, Appellant answered “No,” to the following question: “Have any promises been made to you to enter a plea of guilty other than any plea agreement that has been negotiated for you by yourself or your attorney?” Guilty Plea Statement, 11/02/10, at ¶ 41. Appellant also stated therein that he was satisfied with plea counsel’s representation. Id. at 41. In addition, Appellant acknowledged that he was on probation or parole, that his guilty plea would result in a violation of that probation or parole, and that he could be sentenced to prison due to that violation. Id. at 51. Appellant is bound by these statements and cannot obtain relief on grounds that contradict these statements. See Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa.Super.1999) (“A defendant is bound by the statements he makes during his plea colloquy, and may not assert grounds for withdrawing the plea that contradict statements made when he pled.”).
Secondly, Appellant failed to prove that counsel lacked a reasonable basis for his actions or inactions. At the beginning of the PCRA hearing, the district attorney indicated that plea counsel was unavailable for the hearing. N.T., 01/25/12, at 3. PCRA counsel stated that he did not intend to call plea counsel as a witness. Id. Toward the end of the hearing, the PCRA court asked PCRA counsel if the court should remain on recess until Friday, January 27, 2012, in order to allow plea counsel to testify. Id. at 26. The court also allowed Appellant the opportunity to supplement the record with a stipulation regarding how plea counsel would testify. Id. at 26-28. Ultimately, the parties did not enter a stipulation regarding plea counsel’s testimony, and the court did not hold any further PCRA proceedings.
As the Majority points out, in order to obtain relief upon his claim that counsel rendered ineffective assistance, Appellant was required to establish, inter alia, “no reasonable basis existed for counsel’s actions or failure to act[.]” Majority Opinion at 192 (citation omitted). Because Appel *202 lant failed to call plea counsel at the PCRA hearing, I cannot conclude that counsel was ineffective. See Commonwealth v. Colavita, 993 A.2d 874, 895 (2010) (“As a general rule, a lawyer should not be held ineffective without first having an opportunity to address the accusation in some fashion.”).
The Majority concludes, “we can perceive no reasonable basis for [plea counsel] to have advised Appellant to rely upon his or [the district attorney’s] or the Parole Board’s representations regarding the maximum setback Appellant would receive as a consequence of his guilty plea.” Majority Opinion at 199. I do not believe that the record, in its current state, establishes that counsel advised Appellant to rely upon these representations. Moreover, I do not believe this case is so clear-cut as to allow this Court to glean that no reasonable basis existed for counsel to inform Appellant that he would not be losing more than eleven months of his “street time” regarding his potential sentence in connection to his parole violation. See Commonwealth v. McGill, 574 Pa. 574 , 832 A.2d 1014, 1022 (2003) (“Thus, only where the record clearly establishes that the action or omission of Counsel 1 was without a reasonable basis should the court resolve the reasonable basis prong absent a remand for an evidentiary hearing as to the strategy of counsel[.]”).
For these reasons, I would affirm the order denying Appellant’s PCRA petition.