J-S11012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVON LAMAR SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 654 WDA 2021

Appeal from the PCRA Order Entered March 26, 2021

In the Court of Common Pleas of Blair County 

Criminal Division at No(s): CP-07-CR-0002611-2013

BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED: June 6, 2022

Davon L. Smith appeals from the order entered in the Blair County Court 

of Common Pleas on March 26, 2019, dismissing his petition filed pursuant to 

the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. Smith 

argues the PCRA court erred in dismissing his claims of ineffective assistance 

of trial counsel for failing to seek enforcement of a plea agreement. After 

careful review, we affirm. 

In January 2014, Smith was charged with violations of the Uniform 

Firearms Act1. Three months later, Smith appeared for his scheduled 

preliminary hearing. At that time, Smith and the Commonwealth reached an 

agreement where Smith would plead guilty to three separate cases, including 

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1 18 Pa.C.S.A. §§ 6101-6127. 
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the instant case, in exchange for a recommended aggregate sentence of three 

and one-half to fifteen years’ incarceration for all three cases. Pursuant to the 

agreement, Smith waived his rights to a preliminary hearing. 

Two months after that, and prior to final disposition, the Commonwealth 

withdrew the plea offer after Smith was charged in a fourth case. The 

Commonwealth extended a revised plea offer for a global resolution of all four 

pending cases. Plea negotiations continued back and forth, however neither 

side was able to reach a new plea agreement. Accordingly, a jury trial was 

scheduled. 

On May 1, 2015, after a jury trial, Smith was convicted of possession of 

a firearm by a prohibited person and carrying a firearm without a license. The 

trial court later sentenced Smith to five and one-half to eleven years’ 

incarceration. Smith filed a post-sentence motion to reconsider the sentence, 

which the trial court denied. We affirmed on direct appeal. 

On August 10, 2017, Smith filed a timely pro se PCRA petition. Counsel 

was appointed and filed an amended petition. After several continuances, an 

evidentiary hearing was held on March 15, 2019. By agreement of both 

parties, the PCRA court incorporated the record from a separate evidentiary 

hearing held on March 1, 2019. After consideration, the PCRA court entered 

an order denying and dismissing Smith’s PCRA petition. 
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On November 20, 2020, Smith filed a pro se motion to reinstate 

appellate rights nunc pro tunc. After a hearing, the PCRA court granted Smith’s 

motion and accordingly reinstated Smith’s appeal rights. 

New counsel was appointed and subsequently filed a timely nunc pro 

tunc appeal from the PCRA court’s March 26, 2019 order which dismissed 

Smith’s PCRA petition. 

Smith raises a single issue on appeal as follows: 

Whether [trial] counsel provided ineffective assistance in failing to 

file a petition with the trial court seeking to enforce the plea 

agreement made in exchange for a waiver of [Smith]’s 

constitutional right to a preliminary hearing, asserting, in 

substance, that [Smith] and the Commonwealth had exchanged 

an offer and an acceptance, and that there had been both 

consideration and detrimental reliance; and that the 

Commonwealth was duty bound to fulfill its contractual obligation.

Appellant’s Brief, at 4. 

“The standard of review for an order denying post-conviction relief is 

limited to whether the record supports the PCRA court’s determination, and 

whether that decision is free of legal error. The PCRA court’s findings will not 

be disturbed unless there is no support for the findings in the certified record” 

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation 

omitted).

Smith raises a claim of ineffective assistance of trial counsel. We 

presume counsel is effective, and an appellant bears the burden to prove 

otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). 

The test for ineffective assistance of counsel is the same under both the 
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Federal and Pennsylvania Constitutions. See Strickland v. Washington, 466 

U.S. 668, 687-88 (1984); Commonwealth v. Kimball, 724 A.2d 326, 330-

332 (Pa. 1999). An appellant must demonstrate: (1) his underlying claim is of 

arguable merit; (2) the particular course of conduct pursued by counsel did 

not have some reasonable basis designed to effectuate his interests; and (3) 

but for counsel’s ineffectiveness, there is a reasonable probability that the 

outcome of the proceedings would have been different. See Commonwealth 

v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A failure to satisfy any prong 

of the test for ineffectiveness will require rejection of the claim. See id. at 

1163. 

Smith asserts trial counsel was ineffective for failing to seek 

enforcement of the original plea deal. Specifically, Smith contends that since 

he gave up his right to a preliminary hearing, trial counsel should have sought 

specific performance of the plea agreement.

Pennsylvania Rule of Criminal Procedure 590, which governs pleas and 

plea agreements, provides, in relevant part:

(A) Generally

(1) Pleas shall be taken in open court.

(2) A defendant may plead not guilty, guilty, or, with the 

consent of the judge, nolo contendere. If the defendant 

refuses to plead, the judge shall enter a plea of not guilty 

on the defendant's behalf.

(3) The judge may refuse to accept a plea of guilty or nolo 

contendere, and shall not accept it unless the judge 

determines after inquiry of the defendant that the plea is 
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voluntarily and understandingly tendered. Such inquiry shall 

appear on the record.

(B) Plea agreements.

(1) At any time prior to the verdict, when counsel for both 

sides have arrived at a plea agreement, they shall state on 

the record in open court, in the presence of the defendant, 

the terms of the agreement...

(2) The judge shall conduct a separate inquiry of the 

defendant on the record to determine whether the 

defendant understands and voluntarily accepts the terms of 

the plea agreement on which the guilty plea or plea of nolo 

contendere is based.

Pa.R.Crim.P. 590. 

This Rule has been interpreted by our [S]upreme [C]ourt to mean 

that no plea agreement exists unless and until it is presented to 

the court. Our [S]upreme [C]ourt has also held that [w]here a 

plea agreement has been entered of record and has been accepted

by the trial court, the [Commonwealth] is required to abide by the 

terms of the plea agreement. ... However, prior to the entry of a 

guilty plea, the defendant has no right to specific performance of 

an ‘executory’ agreement. 

Commonwealth v. McElroy, 665 A.2d 813, 816 (Pa. Super. 1995) (citations 

and internal quotation marks omitted; emphasis in original). 

Here, the original plea agreement had neither been entered of record 

nor accepted by the trial court prior to revocation and was, therefore, not 

enforceable. Smith concedes the Commonwealth is able to “revoke an offer 

prior to the Court accepting such an offer on the record”. Appellant’s Brief, at 

21. However, Smith argues the Commonwealth is bound to enforcement of a 

plea offer when the Commonwealth induces action of a defendant in reliance 

on the offer, and the defendant acts on those actions. See id. In support of 
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this claim, Smith only cites to cases in which our Court has enforced the terms 

of a plea agreement after the plea agreement had been entered in the record 

and accepted by the trial court.2 Neither entry nor acceptance occurred here. 

We acknowledge that this Court has previously carved out a separate, 

but narrow, avenue for specific enforcement of a plea offer where fundamental 

fairness commands it. See Commonwealth v. Mebane, 58 A.3d 1243 (Pa. 

Super. 2012). In Mebane, the Commonwealth extended a plea offer to 

Mebane, who accepted it. At that time, neither party was aware of the trial 

court's ruling on a pending suppression motion. At some point after Mebane 

accepted the plea offer, but before the guilty plea hearing, the Commonwealth 

learned that the trial court had denied Mebane's suppression motion. The 

Commonwealth did not convey this information to Mebane. 

On the day set for the guilty plea hearing, the Commonwealth, armed 

with the knowledge that the trial court had not suppressed incriminating 

evidence, withdrew its plea offer. Ultimately, this Court determined that the 

Commonwealth acted inappropriately in not disclosing that the trial court had 

denied Mebane's suppression motion and, therefore, found that enforcement 

of the plea offer was in the interest of justice. See Mebane, 58 A.3d at 1249. 

Specifically, we found that in light of the Commonwealth's bad faith in 

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2 See Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976); see also 

Commonwealth v. Kroh, 654 A.2d 1168 (Pa. Super. 1995). 
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revoking the plea offer, Mebane was entitled to the benefit of the withdrawn 

plea bargain.

The same circumstances do not exist in this case. There are simply no 

special circumstances here that would warrant enforcement of a plea 

agreement that had not yet been accepted by the trial court. Here, the 

Commonwealth timely communicated its intention to withdraw the offer and 

explained the reasoning for the withdrawal. The Commonwealth withdrew the 

plea offer in good faith for legitimate reasons; specifically, the fact that Smith 

was charged under a fourth case. Further, the Commonwealth continued plea 

negotiations with Smith in order to try to come to a new agreement that would 

incorporate the additional case. No extraordinary circumstances existed here 

that would have permitted the trial court to exercise its discretion to direct the 

Commonwealth to honor a plea agreement that had not yet been effectuated 

by colloquy.

Accordingly, the standard rule applies. Since the agreement was never 

presented to and accepted by the trial court prior to the Commonwealth 

properly withdrawing the offer, Smith is not entitled to enforcement of the 

agreement. See Commonwealth v. Martin, 5 A.3d 177, 196 (Pa. 2010). As 

such, Smith has not satisfied the arguable merit prong of the test for 

ineffective assistance. See Commonwealth v. Loner, 836 A.2d 125, 132 

(Pa. Super. 2003) (en banc) (finding counsel cannot be deemed ineffective for 

failing to pursue a meritless claim). 
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To the extent Smith contends he detrimentally relied on the initial plea 

agreement when he waived his preliminary hearing, we conclude he has failed 

to establish his waiver was to his detriment. “The purpose of a preliminary 

hearing is to avoid the incarceration or trial of a defendant unless there is 

sufficient evidence to establish a crime was committed and the probability the 

defendant could be connected with the crime.” Commonwealth v. Tyler, 587 

A.2d 326, 328 (Pa. Super. 1991). Since Smith does not allege his innocence 

of the crimes, but rather seeks the imposition of a different sentence for his 

plea of guilt, he cannot establish that he suffered any harm for waiving his 

preliminary hearing. He therefore is unable to establish arguable merit for this 

reason as well.

Because Smith has failed to satisfy the test for ineffectiveness, he is not 

entitled to relief. 

Order affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2022
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