Comm. v. Root, 2018 PA Super 23 (Feb. 6, 2018)

This was an appeal out of Crawford County.  The appeal resulted from the lower court denying a Post Conviction Relief Act (PCRA) petition. The Superior Court reversed the lower court, finding that Root’s attorney rendered ineffective assistance of counsel.  Here’s why.

Root had been charged with a number of crimes related to a sexually violent incident.  His attorney had negotiated, what was described on appeal, as “a great plea agreement,” but it was the lower court that complicated matters.  To be specific: Root and the Commonwealth negotiated a plea to four counts, which included a “specific agreement on sentencing” of 2-to-4 years imprisonment followed by 12 years probation; however, the lower court noted that it “could not commit to that right now” and advised Root that if the court decided to give him “more time . . . than what was agreed upon,” it would not allow Root to withdraw his plea.”  Ultimately, the lower court accepted the plea and scheduled a sentencing hearing.  That is where things took a turn.

At sentencing, the Commonwealth reiterated to the lower court the “agreed-upon sentence,” but the lower court added a “twist.”  It sentenced root to 2-to-14 years of imprisonment with no probation tail, thus keeping intact the overall period of supervision.  Root’s attorney, in turn, pointed out that under this sentence there was “no guarantee that [the parole board] would let him out” before his maximum sentence.  “The lower court responded that it did not believe that would be the case, but if the parole board believes it ‘is necessary and appropriate’ for [Root] to serve more than his minimum, then that is ‘what should happen.’”  Consequently, Root’s attorney filed a post-sentence motion asking the court to reconsider the sentence, but the lower court denied that and reiterated that it had informed Root that it would not be bound by his plea agreement.  That was the last thing Root’s attorney filed on his behalf.  Following, he sought to withdraw and the lower court allowed him to do so on the last day for filing a timely appeal.  That led to the post-conviction proceedings.

In his PCRA, Root alleged that his plea counsel was ineffective.  Root had established that he wrote to his attorney about filing an appeal, but his counsel did not do so, advising that, in his experience, the Superior Court would not overturn the sentence imposed since sentencing is discretionary.  His attorney believed there was nothing further he could do.  And that is where the Superior Court found that Root’s attorney was ineffective.

The Superior Court held that “counsel lacked a reasonable basis for failing to advise [Root] that he had available remedies under the law.”  Namely, that remedy was to withdraw his plea, or take an appeal after sentencing, when the lower court sentenced inconsistent with the bargained-for agreement.  It was inconsequential that the lower court had said that it would not allow Root to withdraw his plea if it sentenced Root differently—that was not the law.  And the Superior Court was careful to spell that out. It noted:

To be clear, a trial court legally may impose a harsher sentence than the one agreed upon, even after accepting a plea with a negotiated sentence.  However, when it does so, the trial court must give the defendant the option to withdraw his plea and proceed to trial.

Thus, being clear on this point, the Superior Court vacated Root’s sentence and remanded for resentencing.  It believed that to be the appropriate remedy under these circumstances so as to not “deny the trial court its discretion to impose the sentence it has determined, so long as it is subject to [Root’s] right to seek withdrawal of his plea.”