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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD A. PRICE

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 495 EDA 2022 Appeal from the PCRA Order Entered February 3, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0008805

- 2018

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E. * MEMORANDUM BY DUBOW, J.: FILED JUNE 30, 2023 Appellant, Richard A. Price, appeals from the February 3, 2022 Order dismissing his first P etition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541

- 46, as meritless. Appellant claims that his plea counsel provided ineffective assistance and, as a result, Appellant entered his guilty plea involuntarily and unknowingly. After careful review, we reverse and remand for further proceedings. The relevant facts and procedural history are as follows. On December 4, 2018 , the Commonwealth filed a Criminal Complaint against Appellant charging him with 17 counts related to his sexual assault of a minor

. Due to several factors, including delays in processing DNA evidence and the victim’s

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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failure to appear in court , the re were numerous continuances granted for the trial. Once the DNA evidence was processed, there was insufficient data to determine if DNA material found in the victim’s underwear originated from Appellant, but he was not excluded as a contributor.
On October 21, 2019, Appellant entered a guilty plea to one count of Indecent Assault o f a Person Le ss than 1 6 Years Old and one count of Unlawful
Contact with a Minor 1 in exchange for which the Commonwealth nolle prossed the other charges. On the same day, t he trial court sentenced Appellant to an aggregate term of 111⁄2 to 23 months of imprisonment, followed by 3 years of probation. Appellant was immediate ly paroled , having already served 111⁄2 months. Appellant did not file a p ost
- s entence m otion or an appeal from his Judgment of Sentence. On March 5, 2020, the Commonwealth arrested Appellant for a probation violation . On March 13, 2020, the court (“VOP court”) held a hearin g after which it found that Appellant had violated the term of his probation requiring that he attend drug treatment

. The VOP court imposed a sentence of 111⁄2 to 23 months of imprisonment, followed by 5 years of probation.
On Jun e 23, 2020, Appellant timely filed the instant PCRA petition pro

se , claiming that his guilty plea was unlawfully induced because he was not informed of DNA evidence results that may have exonerated him

. Petition,

_________________ __________ ______ ____ _______ 1 18 Pa.C.S. § § 3126(a)(8) , 6318(a)(1), respectively.J

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6/23/20, at 2

- 3. The PCRA court appointed counsel who filed an Amended PCRA Petition developing Appellant’s argument that plea counsel had provided ineffective assistance that caused Appellant to enter an involuntary and unknowing plea. Amended Petition, 4/6/21, at 6. In particular, Appellant asserted that plea counsel failed to disclose the results of the DNA analysis and erroneousl y advised Appellant to opt for the plea and resulting immediate release rather than risk fac ing a “hanging judge.” Id. at 10. O n November 1, 2021, t he PCRA court provided notice of its intent to dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907

. 2 Appellant did not respond. On January 12, 2022 , the PCRA court dismissed Appellant’s petition without a hearing

. This appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925. Appellant raises the following issues on appeal:
1. Whether the [PCRA] court erred in not grant ing relief on the PCRA petiti on alleging counsel was ineffective[?]
2. Whether [t] rial [c] ounsel’s assistance was ineffective for causing the Appellant to enter an involuntary or unknowing plea[?] Appellant’s Br. a t 7.

_________________ __________ ______ ____ _______ 2 The lower court opined that the PCRA P etition w as untimely filed before addressing the merits of the claims raised

. See Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907, 1/12/2020, at 2. Our review indicates , however, t hat Appellant’s PCRA petition was timely filed on June 23, 2020, within one year of the date the judgment became final. 42 Pa.C.S

. § 9545(b)(1 ).J

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We review a PCRA court’s decision to deny a request for an evidentiary hearing for an abuse of discretion. Commonwealth v. Mason , 130 A.3d 601, 617 (Pa. 2015). Where a PCRA Petition raises “material disputes regarding the reasonableness of counsel’s action s, a hearing is required.” Commonwealth v. Reid , 99 A.3d 470, 501 n.26 (Pa. 2014) ; see also Pa.R.Crim.P. 9 08(A)(2) (requiring a PCRA hearing “when the petition for post

- conviction relief . . . raises material issues of fact”). Additionally, our Supreme Cou rt has expressed a preference for a n evidentiary hearing on counsel’s action or inaction where a petitioner has raised “a colorable claim” of ineffectiveness. Commonwealth v. Cousar

, 154 A.3d 287, 299 (Pa. 2017). To succeed on a claim of ineffective assis tance of counsel, Appellant must demonstrate that (1) the underlying claim is of arguable merit; (2) counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the appellant prejudice. Commonwealth v. Wah , 42 A.3d 335, 338 (Pa. Super. 2012)

. “[A]llegations 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 an involuntary or unknowing plea.” Id. (citation omitted ). “Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” Id. (citation omitted). Appellant argues that p lea c ounse l was ineffective because plea counsel failed to disclose DNA reports which could have exonerated Appellant

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Ap pellant’s Br

. at 13. Appellant claims that “had he been aware of the [DNA] reports, he never would have pled guilty.” Id. at 14. Additionally, Appellant

as serts that plea counsel urged A ppellant to take the plea so that Appellant could be immediately released, rather than face a “hangi ng judge,” further jail time , and additional continuances of the tria l

. Id. at 13

- 14. The PCRA court reasoned that Appellant ’s ineffective assistance of counsel claim lacked merit because Appellant “stated at his guilty plea that he was very satisfied with his counsel” a nd indicated no deficiencies in either his written guilty plea colloquy or the oral colloquy. PCRA Ct. Op., 8 /4/22, at 5

- 6. Further, t he court reiterated that in exchange for Appellant’s guilty plea, the Commonwealth nolle prossed all remaining charges and Appellant was immediately paroled, indicating that plea counsel’s advice had a reasonable basis. Id. at 6. The PCRA court concluded that Appellant had not shown that “counsel’s advice was unreasonable or that he entered the plea unk nowingly.” Id. After reviewing the record and case law, we conclude th at Appellant present s a colorable claim of ineffectiveness and a material dispute regarding plea counsel’s actions. While it may be true that the actions of plea counsel resulted in immediate release from custody, Appellant indicate s that he only opted for immediate release d ue to the uncertainty caused by the multiple continuances granted due to victim’s failure to appear in court and the delays in DNA processing. Id. at 13. Appellant “had been in jail for eleven months [,] . . . was sick due to his diabetes,” and took the ple a on the advice of pleaJ

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counsel to avoid further continuances. Id. Additionally, Appellant cl aims that while trial counsel informed Appellant that DNA reports were not available at the time of the guilty plea , the reports had in fact been completed months earlier

. Id. at 14. Under these circumstances, the certified record and Appellant’s petition indicate a n outstanding question of fact as to when Appellant and plea counsel learned of the DNA evidence and wh e ther ineffective assistance of counsel prejudiced Appellant . To resolve these questions, the PCRA c ourt must make a credibility determination weighing the evidence set forth in Appellant’s petition and related testimony , as well as plea counsel’s recollect ion of events. Since neither this Court nor the PCRA court could resolve these factual questions based on the information in the certified record alone , a hearing is
necessary . We, therefore, reverse the PCRA court’s order dismissing Appellant’s claim of i neffective assistance of plea counsel, and remand to the PCRA court to hold an evidentiary hearing

. Order reversed

. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/30/2023