J-S65028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ACHILLE LEPEDIO WALKER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 885 MDA 2019

Appeal from the PCRA Order Entered, April 24, 2019,

in the Court of Common Pleas of Berks County,

Criminal Division at No(s): CP-06-CR-0004419-2015.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 22, 2020

Achille Lepedio Walker appeals pro se from the order denying his first 

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 

Pa.C.S.A. §§ 9541-46. Walker argues that plea counsel’s ineffectiveness 

caused him to enter an involuntary and unknowing plea. We reverse.

The facts and pertinent procedural history are as follows. On February 

13, 2018, Walker entered a negotiated plea agreement to one count of 

conspiracy to commit possession with intent to deliver and one count of 

criminal use of a communication facility. Under the plea agreement, Walker 

agreed to serve an aggregate sentence of 111⁄2 to 23 months of incarceration, 

followed by a five-year probationary term. Walker completed a written plea 

colloquy, and the trial court conducted a brief oral colloquy before accepting 

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* Retired Senior Judge assigned to the Superior Court.
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the plea. The trial court then sentenced Walker in accordance with the plea 

agreement. The court credited Walker for 410 days of time served, and 

granted the Commonwealth’s motion to withdraw all remaining charges. 

Walker did not file an appeal. 

On January 3, 2019, Walker filed a timely pro se PCRA petition. In this 

petition, Walker asserted that plea counsel erroneously informed him that, 

because his previous parole period had expired, he would not face the risk of 

back time being imposed if he pled guilty to the new charges. Thereafter, 

Walker was arrested for a parole violation and sentenced to serve thirty-six 

months of back time. According to Walker, had plea counsel not misinformed 

him about his parole status, he would not have entered his guilty plea.

The PCRA court appointed counsel, and, on March 29, 2019, PCRA 

counsel filed a “no-merit” letter and petition to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth 

v. Finley 550 A.2d 213 (Pa. Super. 1988) (en banc). On April 2, 2019, the 

PCRA court granted PCRA counsel’s petition to withdraw and issued 

Pa.R.Crim.P. 907 notice of its intention to dismiss Walker’s PCRA petition 

without a hearing. Walker filed a response. By order entered April 24, 2019, 

the PCRA court denied Walker’s petition. This appeal followed.1 Both Walker 

and the PCRA court have complied with Pa.R.A.P. 1925.

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1 Although the Commonwealth asserts that Walker’s appeal was untimely, we 

note that the time-stamp on the envelope in which he mailed his notice of 
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On appeal, Walker essentially argues that the PCRA court erred in 

accepting PCRA counsel’s Turner/Finley letter because plea counsel 

misinformed him about the consequences of his guilty plea. See Walker’s 

Brief at 4.2

Our scope and standard of review is well settled:

In PCRA appeals, our scope of review is limited to the 

findings of the PCRA court and the evidence on the record 

of the PCRA court's hearing, viewed in the light most 

favorable to the prevailing party. Because most PCRA 

appeals involve questions of fact and law, we employ a 

mixed standard of review. We defer to the PCRA court's 

factual findings and credibility determinations supported by 

the record. In contrast, we review the PCRA court's legal 

conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) 

(citations omitted). 

When the PCRA court has dismissed a petitioner’s PCRA 

petition without an evidentiary hearing, we review the PCRA 

court’s decision for an abuse of discretion. Commonwealth v. 

Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has 

discretion to dismiss a petition without a hearing when the court 

is satisfied that there are no genuine issues concerning any 

material fact, the defendant is not entitled to post-conviction 

collateral relief, and no legitimate purpose would be served by 

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appeal from the prison is May 24, 2019. Thus, Walker’s appeal is timely. See

Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) 

(explaining “[u]nder the prisoner mailbox rule, we deem a pro se document 

filed on the date it is placed in the hands of prison authorities for mailing.”)

2 Walker also raised an issue regarding the ineffectiveness assistance of PCRA 

counsel. Because he inappropriately raises this claim first time on appeal, we 

do not consider it. See generally, Pa.R.A.P. 302(a); Commonwealth v. 

Henkel, 90 A.3d 16 (Pa. Super. 2014).
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further proceedings. Id. To obtain a reversal of a PCRA court’s 

decision to dismiss a petition without a hearing, an appellant must 

show that he raised a genuine issue of material fact which, if 

resolved in his favor, would have entitled him to relief, or that the 

court otherwise abused its discretion in denying a hearing. 

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

Walker’s claim alleges that plea counsel was ineffective for giving him 

incorrect information regarding the consequences of entering his guilty plea. 

To obtain relief under the PCRA premised on a claim that counsel was 

ineffective, a petitioner must establish, by a preponderance of the evidence, 

that counsel's ineffectiveness so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place. 

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, 

counsel’s performance is presumed to be constitutionally adequate, and 

counsel will only be deemed ineffective upon a sufficient showing by the 

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the 

underlying claim is of arguable merit; (2) counsel had no reasonable strategic 

basis for his or her action or inaction; and (3) counsel’s act or omission 

prejudiced the petitioner. Id. at 533.

With regard to claims of ineffectiveness in relation to the entry of plea, 

we further note:

Ineffective assistance of counsel claims arising from the plea 

bargaining-process are eligible for PCRA review. Allegations 

of ineffectiveness in connection with the entry of a guilty 

plea will serve as a basis for relief only if the ineffectiveness 

caused the defendant to enter into an involuntary or

unknowing plea. Where the defendant enters his plea on 

the advice of counsel, the voluntariness of the plea depends 
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on whether counsel’s advice was within the range of 

competence demanded of attorneys in criminal cases. 

The standard for post-sentence withdraw of guilty pleas 

dovetails with the arguable merit/prejudice requirements 

for relief based on a claim of ineffective assistance of plea 

counsel, . . . under which the defendant must show that 

counsel’s deficient stewardship resulted in a manifest 

injustice, for example, by facilitating the entry of an 

unknowing, involuntary, or unintelligent plea. This standard 

is equivalent to the “manifest injustice” standard applicable 

to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016) 

(citations omitted).

In support of his ineffective assistance claim, Walker argues that prior 

to the entry of his guilty plea “he specifically asked [plea] counsel whether he

would face parole consequences as a convicted parole violator. Counsel 

affirmatively informed [Walker] he would not, as the time remaining on the 

original sentence had expired.” Walker’s Brief at 6. As noted above, Walker 

was later arrested for a parole violation and sentenced to thirty-six months of 

back time. Id. at 9. According to Walker, he would not have entered his 

guilty plea if he had known it would trigger a parole violation.

Walker bases his claim of error on this Court’s decision in 

Commonwealth v. Barndt, 74 A.3d 185 (Pa. Super. 2013). In that case, 

Barndt, following his arrest, was subject to a possible revocation of his nearly 

thirty months of “street time” spent on parole in a separate case. According 

to Barndt, his plea counsel told him that the Pennsylvania Board of Probation 

and Parole (“the parole board”) would revoke only eleven months. This was 
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patently incorrect, because, following his sentencing on the new charges, the 

parole board revoked all thirty months of Barndt’s street time. The PCRA court 

dismissed Barndt’s PCRA petition seeking relief. 

On appeal, we held that counsel was ineffective for misinforming Barndt 

that he would lose only eleven months of street time, and counsel’s action of 

affirmatively misleading Barndt caused him to enter an unknowing guilty plea. 

In reaching this conclusion, we first noted that, under Pennsylvania precedent, 

“counsel’s failure to advise his client regarding the collateral consequence of 

parole revocation in an unrelated matter would not, without more, constitute 

a basis for allowing the defendant to withdraw his guilty plea.” Barndt, 74 

A.3d at 196 (citation and emphasis omitted). However, we noted a distinction 

in the claim raised by Barndt in his appeal:

[Barndt’s] ineffectiveness claim in this matter is not 

couched in terms of counsel’s omission. Rather, [Barndt] 

argues that plea counsel affirmatively misled [him] to 

believe that he would receive a parole setback of no more 

than eleven months. As clear as our case law is that 

counsel’s omission to mention a collateral consequence of a 

guilty plea does not constitute ineffective assistance of 

counsel, it is equally that counsel’s assistance is 

constitutionally ineffective when counsel misapprehends the 

consequences of a given plea and misleads his client 

accordingly about the consequences, without regard to 

whether the consequences in question are “direct” or 

“collateral.”

Id. (footnote omitted).

 This Court in Barndt then discussed several cases wherein plea counsel 

gave incorrect advice and concluded:
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In light of this case law, we find that [Barndt] has 

pleaded and proved that his challenge to plea counsel’s 

ineffectiveness has arguable merit. As set forth above, we 

repeatedly have held that erroneous legal advice by counsel 

regarding the consequences of a plea, whether the 

consequence is classified as collateral or direct, may 

constitute a basis for PCRA relief. [Barndt] alleges that he 

was given such advice.

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[O]ur holding hinges upon the precept that the direct 

versus collateral consequence distinction does not alleviate 

counsel’s obligation to render only accurate advice to his 

client about whatever collateral consequences of a guilty 

plea he chooses to address. In short, when it comes to 

collateral consequences of a guilty plea, counsel’s sins of 

omission must be treated differently than his sins of 

commission.

Barndt, 74 A.3d at 198, 201 (emphasis in the original). We then reviewed 

the testimony from the evidentiary hearing and determined that Barndt had 

establish that plea counsel had no reasonable basis for providing the 

misinformation, and that counsel’s advice prejudiced him. We therefore 

reversed the order denying post-conviction relief, and we remanded the case 

to permit Barndt to withdraw his guilty plea.3

Here, like Barndt, Walker has pled and proven that his challenge to plea

counsel’s ineffectiveness has arguable merit. Our review of the record reveals 

that, although there was no mention of possible parole consequences at 

Walker’s oral plea colloquy, in his written colloquy Walker averred that he was 

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3

In his dissent, Judge Colville noted that plea counsel did not testify at the 

evidentiary hearing, and that Barndt was bound by the statements made 

during the plea colloquy. Barndt, 74 A.3d at 201-02.
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not on parole. See Written Plea Colloquy, 2/23/18, at ¶ 4. Additionally, plea 

counsel signed this written colloquy, noting that he had explained Walker’s 

rights to him. Id. at 4. However, unlike Barndt, the PCRA court in this case 

dismissed Walker’s PCRA petition without first holding an evidentiary hearing. 

We conclude that Walker has “raised a genuine issue of material fact which, if 

resolved in his favor, would have entitled him to relief[.]” Blakeney, supra. 

Thus, we reverse the order denying Walker’s PCRA petition and remand for an 

evidentiary hearing at which plea counsel can testify and, in light of the 

testimony, the PCRA court could consider the remaining two prongs of the 

ineffectiveness test, and rule accordingly.4

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4 The PCRA court cites no authority for its belief that plea counsel’s “erroneous 

advice would have been cured when [Walker] affirmatively acknowledged and 

understood the potential collateral consequences of the guilty plea[.]” Rule 

907 Notice, 4/2/19, at 2. As noted above, Walker contends that plea counsel 

misinformed him he was no longer on parole. Additionally, while the PCRA 

court speculates that this erroneous information may not have been of 

significance to Walker given the lenient sentence offered by the 

Commonwealth, this fact may be explored at the evidentiary hearing following 

our remand.
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Order reversed. Case remanded for an evidentiary hearing. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/22/2020