PA Superior Court: Advising Client to Accept Plea Deal Based on Wrong Guidelines Is Ineffective

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Brown, holding that an attorney is ineffective if he or she advises his client to plead guilty based on an incorrect calculation of the sentencing guidelines. Because the sentencing guidelines are extremely relevant to both plea negotiations and a judge’s decision at sentencing, a criminal defense attorney has an obligation to correctly determine the applicable sentencing guidelines for a conviction prior to advising the client whether or not to plead guilty. 

Commonwealth v. Brown

In 2015, Limerick Township Police officers responded to a call in Royersford, Pennsylvania. The homeowner had invited some friends to watch a boxing match on pay-per-view television. A female acquittance arrived at the complainant’s home and was accompanied by her boyfriend, the defendant. At one point during the evening, the defendant pointed a small black revolver at the victim, demanding money. The defendant then took an Xbox game console and a wristwatch owned by the complainant and then left his home with his girlfriend and another male. 

Limerick Police investigated the case and decided to file criminal charges. The Commonwealth charged the defendant with robbery, conspiracy, persons not to possess firearms, firearms not to be carried without a license, possession of weapon, theft by unlawful taking, receiving stolen property, terroristic threats, and recklessly endangering another person.  

The defendant hired a private attorney to represent him in criminal court. Believing the evidence against the defendant to be strong, the attorney began to discuss a possible plea deal with the assigned assistant district attorney (“ADA”). During their negotiations, both the defendant’s attorney and the ADA believed that the defendant had a prior record score (“PRS”) of 4. However, as PCRA counsel would later discover, this was not accurate. The defendant’s actual PRS was 2. 

After some negotiating, the Commonwealth extended an offer at the high end of these miscalculated guidelines. The defendant refused this offer. The Commonwealth then offered the defendant an offer of 5 ½ to 11 years’ incarceration on the charges of Robbery (F1) and Conspiracy to Commit Robbery (F1). This offer was based on the bottom of the erroneously-calculated standard range guidelines. The defendant accepted this offer. The defendant appeared before the trial court where he was colloquied about the offer. The defendant then admitted that he, in the presence of his two co-conspirators, pointed a firearm at the victim and took the property from his home. The trial court accepted the negotiations and sentenced the defendant to the above sentence. 

Unhappy with this long state sentence, the defendant filed a PCRA petition. The defendant argued that he received ineffective assistance of counsel because the attorney mistakenly negotiated the defendant’s plea based upon an erroneous prior record score. The defendant’s PCRA attorney then spoke with the ADA who was handling the defendant’s PCRA petition and asked if she would be willing to sentence the defendant to a guideline sentence based on his correct PRS. The new ADA refused to discuss renegotiation. The PCRA court agreed to hold an evidentiary hearing, and the defendant’s original attorney testified and admitted that he made a mistake in calculating the defendant’s prior record score. The attorney also testified that he believed if he had gone to the ADA handling the defendant’s case with the correct guidelines at the time, he would have been able to get a better deal for his client. 

The defendant also testified at his hearing and stated that he would not have accepted an offer that was above his actual guidelines. The PCRA court found both the defendant and his trial attorney credible. Further, the PCRA court found that the defendant had made a sufficient showing of prejudice to satisfy his burden. Consequently, the PCRA court permitted the defendant to withdraw his guilty plea and to proceed to trial. The Commonwealth then filed a timely appeal. 

Are the Sentencing Guidelines Mandatory? And How are They Calculated?

For a more detailed analysis on this issue, please see our blog (“PA Sentencing Guidelines. I Got Arrested Am I Going to Jail?) https://goldsteinmehta.com/blog/pa-sentencing-guidelines). As a preliminary matter, the sentencing guidelines are not mandatory. As such, if you are convicted of a crime, it is not required that you be sentenced to your respective guidelines. The judge is required to consider the guidelines when he imposes a sentence, but he or she does not have to follow them. Although judges must impose any applicable mandatory minimums, they may sentence a defendant outside of the guidelines in both PA and federal court. 

To calculate one’s sentence, you must first determine what the defendant’s PRS is. This is based on prior convictions. Obviously, some crimes are more serious than others and so if you have a prior conviction for a serious offense it is likely your PRS will be quite high. For example, if you were previously convicted of Aggravated Assault (F1) (and this was your only conviction) then you will have a PRS of a 4. However, if you only have one prior Possession with the Intent to Deliver (“PWID”) conviction, then your PRS will be a 2. A defendant’s PRS can range from a “0” to “REVOC.”  

Next, the attorney must determine the Offense Gravity Score (“OGS”) of the offenses the with which the defendant is charged. The OGS of crimes range from 1-14, with 14 being the most serious. Usually, when calculating the sentencing guidelines, the OGS is only considered for the most serious charge. However, a defendant should remember that judges are allowed to impose sentences on the other crimes a defendant is convicted of so long as they are not lesser-included offense. This makes it important to calculate the sentencing guidelines for all of the crimes with which you are charged because a judge could impose consecutive sentences on each offense following a conviction.

Once the attorney has determined what the defendant’s PRS is and the OGS of the crimes he or she is charged with, then the attorney should consult the sentencing matrix. This matrix is a chart that will tell you what the guidelines are for the defendant. Again, these guidelines are not mandatory, but they are very relevant, and often the judge will sentence a defendant within these guidelines after a trial or even following a plea. Although they are not binding, they are very important.

The Pennsylvania Superior Court’s Decision

The Superior Court affirmed the PCRA court’s decision. In its analysis, the Superior Court found that the PCRA did not abuse its discretion in granting PCRA relief when it granted the defendant a right to a new trial. The Superior Court found that the defendant was prejudiced by his trial attorney’s failure to inform him of the proper sentencing guidelines and that there was a “reasonable probability” that he would have gone rejected the plea offer and gone to trial or obtained a better deal had he known his actual guidelines. In support of this position, the Superior Court found it very persuasive that the defendant previously rejected a high-end guideline offer. As such, this fact convinced the Superior Court that if he had known his actual sentencing guidelines, he would have been willing to go to trial. Therefore, the defendant’s sentence will remain vacated, and he will be given a new trial date. 

Facing Criminal Charges? We Can Help. 

Philadelphia Criminal Defense Lawyers

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