Com. v. Strauss, R.
559 EDA 2017
Pa. Super. Ct.Jan 8, 2018Background
- Raymond Strauss pled guilty on July 14, 2016 to retail theft (graded as a second-degree misdemeanor) under a plea agreement capping the minimum at the midpoint of the guidelines (5 months). He was sentenced to 4–12 months in county jail plus one year probation.
- At the time of the plea Strauss was on parole/probation for unrelated matters; his new retail-theft conviction led to a revocation hearing before a different judge who revoked parole/probation and imposed revocation sentences consecutive to the retail-theft sentence.
- Strauss filed pro se PCRA petitions in both dockets asserting (1) ineffective assistance of counsel (promises that sentences would run concurrently), (2) improper grading of the retail-theft charge (should have been a summary offense), and (3) that the revocation judge unlawfully imposed consecutive revocation time contrary to the plea agreement.
- PCRA counsel were appointed, filed amended petitions and Turner/Finley no-merit letters, and withdrew; Strauss proceeded pro se. Judge Dantos held an evidentiary hearing and denied relief; Judge Banach issued Pa.R.Crim.P. 907 notice and then denied relief on revocation claims.
- Strauss appealed pro se; the Superior Court reviewed the record, concluded Strauss was bound by plea colloquy and record evidence of prior retail-theft convictions, and affirmed denial of PCRA relief in both dockets.
Issues
| Issue | Plaintiff's Argument (Strauss) | Defendant's Argument (Commonwealth / Trial Courts) | Held |
|---|---|---|---|
| 1. Ineffective assistance of PCRA counsel | PCRA counsel was ineffective during collateral proceedings | Claim waived because appellant did not raise PCRA-counsel ineffectiveness before the PCRA court prior to appeal | Not considered on appeal (waived) |
| 2. Improper grading of retail theft (summary vs. 2d-degree misdemeanor) | Strauss argued no prior retail-theft convictions existed, so offense should be summary (value <$150) | Record (criminal complaint, affidavit, plea colloquy, sentencing remarks) showed prior retail-theft history; Strauss did not object or submit records to contradict | Held properly graded as 2d-degree misdemeanor; claim denied |
| 3. Plea induced/involuntary because court did not state sentence could be consecutive to later sentences | Plea court failed to inform Strauss sentence might run consecutive to future sentences, so plea was involuntary | Pa.R.Crim.P. 705(B) requires notice only when multiple sentences are imposed at same time; Dantos imposed a single sentence and lacked authority to preemptively order concurrency with future revocation sentence | Plea not involuntary; no obligation to address concurrency at plea; claim waived under PCRA |
| 4. Revocation judge unlawfully imposed consecutive revocation sentence / failed to apply guidelines or state reasons | Judge Banach aggregated sentences contrary to plea agreement and failed to follow sentencing guidelines or place reasons on record | Revocation court may order revocation-time up to previously available sentencing options; guidelines do not apply to revocation sentences; consecutive sentencing on revocation is discretionary and lawful; plea agreement does not bind revocation court | Revocation sentencing lawful; PCRA relief denied |
Key Cases Cited
- Commonwealth v. Smith, 121 A.3d 1049 (Pa. Super. 2015) (PCRA-counsel ineffectiveness claims must be raised before the PCRA court)
- Commonwealth v. Orlando, 156 A.3d 1274 (Pa. Super. 2017) (standards for plea voluntariness and ineffective-assistance review)
- Commonwealth v. Graeff, 13 A.3d 516 (Pa. Super. 2011) (improper grading implicates legality of sentence)
- Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014) (illegal sentence is subject to correction)
- Commonwealth v. Wallace, 870 A.2d 838 (Pa. 2005) (upon revocation, sentencing alternatives available are those at original sentencing)
- Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (consecutive sentences are a discretionary aspect of sentencing)
- Commonwealth v. Holz, 397 A.2d 407 (Pa. 1979) (trial court cannot preemptively bind a later sentencing court regarding concurrency)
- Commonwealth v. Hardcastle, 701 A.2d 541 (Pa. 1997) (no absolute right to evidentiary hearing on PCRA where no genuine issue of material fact)