Judges Opinions, — November 9, 2016 10:00 — 0 Comments

Commonwealth vs. Corey Purnell-Jones No. CP-38-CR-0001035-2012

Criminal Action-Law-Post Conviction Collateral Relief-Ineffective Assistance of Counsel-Pennsylvania Sentencing Guidelines-Ranges of Sentence-Calculation of Prior Record Score

Defendant, who received an aggregate sentence of five (5) to ten (10) years’ incarceration after a jury convicted him of charges relating to firearm offenses, filed a Post Conviction Relief Act Petition. Defendant argued in his Petition that trial counsel rendered ineffective assistance with regard to the claimant’s rejection of a plea agreement reflecting a negotiated minimum sentence of forty-five (45) months’ imprisonment with the standard range of suggested sentences being forty-two (42) to fifty-four (54) months based upon a prior record score reflected as “3” when the claimant’s five (5) to ten (10) year sentence imposed after conviction was premised upon a prior record score calculated as “5.”

1. When reviewing the effectiveness of counsel, a court first must determine whether the underlying claim has merit. If so, then the court must consider whether trial counsel’s handling of the matter had some reasonable basis designed to effectuate his client’s interests. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by trial counsel was prejudicial to the defendant.

2. In Commonwealth v. McMullen, 530 A.2d 450 (Pa.Super. 1987), the Pennsylvania Superior Court held that when a sentencing court is not cognizant of the correct guideline sentencing ranges before imposing sentence, the sentence must be vacated, and the defendant must be re-sentenced.

3. Since Defendant pled guilty to offenses in New Jersey after the plea offer premised upon a prior record score of “3” was offered to him, his prior record score became a “4,” not a “5” as reflected at the time of his sentencing on the instant offenses.

4. Trial counsel has a duty to conduct an independent investigation of the facts, to learn the law and to evaluate the application of the facts in a case.

5. Given Defendant’s insistence before sentencing that his prior record score was inaccurate and the possible disparity recognized by trial counsel that prompted him to contact the District Attorney’s Office and the probation department prior to sentencing regarding the same, trial counsel should have put forth some effort to investigate records from New Jersey to ensure that the information upon which Defendant’s sentence was based was accurate such that there was no reasonable basis for trial counsel’s inaction in this regard.

6. Had the mistake in the calculation of the Defendant’s prior record score been noticed prior to sentencing, Defendant may have received a lesser sentence or the matter could have been raised and addressed in a timely manner after sentencing such that Defendant has established he was prejudiced.

7. Nonetheless, even if Defendant had accepted the plea offer based upon the earlier prior record score calculated of “3,” there was no guarantee that the Court would have accepted the terms of that offer in imposing sentence even if sentencing had been conducted prior to disposition of the charges in New Jersey so as to entitle him to the sentence as contemplated by that plea offer.

8. As Defendant was entitled to have the Court consider the correct information at the time of his sentence, Defendant is entitled to vacation of his sentence and re-sentencing based upon his correct prior record score at the time of his sentencing of “4.”

L.C.C.C.P. No. CP-38-CR-0001035-2012, Opinion by John C. Tylwalk, President Judge, May 16, 2016.

Jonathan Faust, Esquire, for the Commonwealth of Pennsylvania

Erin Zimmerer, Esquire, for Corey Purnell-Jones

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION NO. CP-38-CR-1035-2012

COMMONWEALTH OF PENNSYLVANIA

v.

COREY PURNELL-JONES

ORDER OF COURT

AND NOW, this 16th day of May, 2016, upon consideration of Defendant’s Petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq, the evidence adduced at the hearing conducted on August 26, 2015, and the Briefs submitted by the parties, it is hereby Ordered that said Petition is GRANTED. The Judgment of Sentence entered on June 12, 2013 is VACATED and Defendant is Ordered to appear for resentencing on July 6, 2016 at 8:30 a.m. in Courtroom 1 in accordance with the accompanying Opinion. If Defendant desires to appear for resentencing via videoconference, he is directed to notify the Court no later than June 15, 2016 and this matter will be rescheduled for a videoconference.

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

JONATHAN FAUST, ESQUIRE FOR COMMONWEALTH

ASSISTANT DISTRICT ATTORNEY OF PENNSYLVANIA

ERIN ZIMMERER, ESQUIRE FOR COREY PURNELL-JONES

MONTGOMERY & ZIMMERER, LLC

OPINON, TYLWALK, P.J., MAY 16, 2016.

Defendant was charged with one count of Persons Not to Possess, Use, Manufacture, Control, Sell or Transfer a Firearm, 18 Pa.C.S.A. §6105(a)(1), and one count of Firearms Not to be Carried Without a License, 18 Pa.C.S.A. §6106(a)(1), and two summary offenses. The charges arose from a traffic stop of a vehicle he was driving on the Pennsylvania Turnpike on November 2, 2011. Defendant filed a Pretrial Motion challenging the validity of the stop and seeking suppression of the evidence seized during the search of his vehicle. After the Pretrial Motion was denied, a jury trial was conducted on April 4, 2013 and he was convicted of all charges. On June 12, 2013, he was sentenced to five (5) to ten (10) years’ incarceration on Count 1 and two (2) to four (4) years on Count 2, to run concurrent. He filed a Post-Sentence Motion charging error in the denial of his suppression motion and challenging the sufficiency and weight of the evidence. We denied his Post-Sentence Motion and his convictions were affirmed by the Superior Court of Pennsylvania on July 23, 2014. Review was denied by the Supreme Court of Pennsylvania on December 17, 2014.

On April 13, 2015, Defendant filed a pro se Petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq (“PCRA”). PCRA counsel was appointed to represent Defendant and we conducted a hearing on the Petition on August 25, 2015. Both parties have submitted Briefs in support of their positions and the matter is now before us for resolution.

At the hearing, Defendant testified that his court-appointed defense attorney (“Trial Counsel”) had shown him a Commonwealth plea offer of forty-five (45) months based on a prior record score of “3.” (Exhibit “1”) Defendant explained that he rejected the offer because he was advised that the standard range was forty-two (42) to fifty-four (54) months. Thus, he thought it was worth it to take a chance that a jury would find him not guilty because nine additional months was the most he could get even if he was found guilty. At the time, he also had charges pending against him in New Jersey which had arisen after the charges in this action. After rejecting the plea offer and deciding to go to trial, Defendant returned to New Jersey and pled guilty to a misdemeanor in that action. (See Exhibit “2” at p. 3)

After his New Jersey charges were disposed of, Defendant returned to Lebanon County and proceeded with the jury trial in this matter. Prior to Sentencing, a Pre-Sentence Investigation Report (“PSI”) was prepared which indicated that Defendant had a prior record score of “5.” (Exhibit “4”) His sentence was based on the prior record score of “5” indicated in that PSI.

Defendant testified that he noticed a discrepancy between the prior record score indicated in his PSI with that of the plea offer after Sentencing when he arrived at lockdown. He questioned Trial Counsel about the discrepancy and subsequently received an email indicating that Trial Counsel had confirmed the prior record score of “5” with the Probation Department. (Exhibit “3”)

At the PCRA hearing, the Commonwealth and PCRA counsel noted that Defendant’s correct prior record score is actually “4” as indicated in a PSI which was revised as of April 29, 2015. (Exhibit “2”) The incorrect score of “5” apparently resulted from a misinterpretation of information contained in New Jersey criminal history records. (Exhibit “5”) Defendant explained that some of his charges had been reduced and a 2009 felony conviction for a burglary which was listed on the initial PSI was incorrect. The revised PSI reflects that this was true as verified by records from the Superior Court in New Jersey on April 29, 2015.

Defendant also noted that his prior record score would have remained a “3” if he had not had a February 7, 2012 conviction for the New Jersey charges which were pending at the time the plea offer was communicated to him. He points out that after he decided to reject the plea offer in this case, Trial Counsel advised him to return to New Jersey to take care of those pending charges before coming back to Lebanon County for the jury trial in this matter.

On cross-examination, Defendant admitted that the sixty-month sentence was within the standard range for his correct prior record score of “4.” However, he explained that he believed that he would have received a lesser sentence because he was sentenced on the lower end of the range as a “5” and would have likewise been sentenced on the lower end of the scale based on a score of “4.” Defendant also noted that the issue of the prior record score was not raised in his appeal and claimed that he directed Trial Counsel to do so.

At the PCRA hearing, Trial Counsel testified that from the first time he met with Defendant, Defendant was adamant that he wanted to go to trial because he believed that his Constitutional rights had been violated during the traffic stop. When Trial Counsel presented the plea offer to Defendant, he explained the worst case scenario with regard to possible sentences to Defendant. He advised Defendant that he could be sentenced at the top of the standard guideline range and that the counts could be run consecutive to each other and to his other charges. Trial Counsel further noted that he had received Defendant’s criminal history as part of discovery and that those records supported the prior record score of “5.” It had appeared to him that Defendant’s 2009 burglary charge was a conviction and that a charge for defiant trespass had been dismissed.

Trial Counsel also testified that he had given a copy of the PSI to Defendant. After Defendant contacted him about the discrepancy, Trial Counsel reached out to both the Probation Department and the District Attorney’s Office as he felt that they had the best access to relevant information. Both confirmed that their information supported a “5.” He never directly contacted any New Jersey authority on his own in order to confirm the information contained in the criminal history. He acknowledged that he is not licensed to practice law in New Jersey and that he is not familiar with that State’s criminal histories. Trial Counsel indicated that he would have challenged the calculation of the prior record score on appeal if Defendant had asked, but that he could not recall Defendant ever instructing him to do so.

In this PCRA proceeding, Defendant advances claims of ineffectiveness on the part of Trial Counsel for failing to ascertain his correct prior record score and for taking no measures to see that his sentence reflected the correct score. He also claims that his right to due process was violated when he was sentenced on the basis of the incorrect prior record score. He requests “an acquittal, a new trial, a new sentence, or any other reprieve” the Court deems appropriate. After careful consideration, we believe that Defendant should be resentenced in accordance with his current prior record score of “4.”

When reviewing the effectiveness of counsel, a court must first determine whether the underlying claim has merit. If it does, then it must consider whether counsel’s handling of the matter had some reasonable basis designed to effectuate his client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant.

Commonwealth v. McMullen, 530 A.2d 450, 453 (Pa. Super. 1987).

A similar situation was present in the McMullen case. The defendant charged counsel’s ineffectiveness for failing to object to the trial court’s erroneous computation of her prior record score prior to imposing sentence. The court found that the defendant’s underlying claim had merit due to that miscalculation. The sentencing court had imposed a minimum sentence of thirty-six months, believing that the standard range was thirty-six to sixty months. The Commonwealth claimed that defendant had not shown prejudice because the sentence, even if miscalculated, still fell within the range of the guidelines. The Superior Court disagreed with the Commonwealth’s position, noting that “[i]f the court had known that the standard range was thirty-six to forty-eight months, a shorter sentence might well have been imposed. … We have held that when a sentencing court was not cognizant of the correct guideline sentence ranges before imposing sentence, the sentence must be vacated and the appellant resentenced.” 530 A.2d at 453, citing Commonwealth v. Taylor, 524 A.2d 942 (Pa. Super. 1987); Commonwealth v. Johnakin, 502 A.2d 620 (Pa. Super. 1985); Commonwealth v. Drumgoole, 491 A.2d 1352 (Pa. Super. 1985).

Here, Defendant’s prior record score was “3” at the time the plea offer was communicated to him. After Defendant pled guilty in his New Jersey case in February 2012, his prior record score became “4.” When he was sentenced in June 2012, his prior record score of “5” was incorrect.

Trial Counsel could not recall whether he noticed the problem himself after Sentencing or whether Defendant called the discrepancy to his attention. Once he realized that the calculations did not match, he contacted the Probation Department and the Office of the District Attorney to verify the number used at Sentencing. Trial Counsel acknowledged that he did not contact anyone in New Jersey.

We have examined the documentation which was available to Trial Counsel and the Commonwealth prior to Defendant’s Sentencing and understand how the information provided by the State of New Jersey could cause confusion. We also note that Trial Counsel provided a copy of the PSI to Defendant prior to Sentencing. It does not appear that Defendant indicated the specific mistakes contained in the initial PSI to Trial Counsel prior to or after Sentencing. However, Defendant and Trial Counsel both recognized the disparity and it was discussed very shortly after Sentencing at a time when some action could possibly have been taken to have the issue addressed. We believe Defendant has shown prejudice by the possibility that he may have received a lesser sentence had the mistake been caught prior to sentencing. At least, the matter could have been raised and addressed in a timely manner after sentencing had the correct number been ascertained at that time.

Defense counsel has a duty to conduct an independent investigation of the facts, learn the law, and evaluate the application to the facts of the case. Commonwealth v. Richardson, 2007 WL 3080410 (C.C.P. Pa. 2007), citing Gray v. United States, 878 F.2d 702 (3d Cir. 1989). We realize that Trial Counsel took steps to verify the information he had available to him with the Probation Department and the District Attorney. Given Defendant’s insistence that the prior record score was inaccurate and the possible disparity recognized by Trial Counsel, however, we believe that some effort should have been made to check the New Jersey records to ensure that the information on which Defendant’s sentence was based was indeed accurate. We see no reasonable basis for failing to take such measures under the circumstances present here.

Because Defendant was entitled to have the correct information before the Court at the time of sentencing, we will vacate the sentence imposed and direct him to appear for resentencing on his current prior record score of “4.” Even if Defendant had accepted the plea offer based on a prior record score of “3,” there is no guarantee that the Court would have accepted the terms of that offer in imposing his sentence, even if sentencing was conducted prior to his pleading guilty to the New Jersey charge which raised his prior record score to “4.” Moreover, Trial Counsel cannot be faulted for advising Defendant to return to New Jersey to deal with that case as Defendant was obligated to comply with the criminal laws of that State.

We will enter an appropriate Order.

1) Counts 1 and 2, respectively.

2) Driving While Operating Privilege is Suspended or Revoked, 75 Pa.C.S.A. §1543(a) and Following Too Closely, 75 Pa.C.S.A. 3310(a).

 

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