J-S12005-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GEORGE M. KING : : Appellant : No. 2052 EDA 2023 Appeal from the PCRA Order Entered July 17, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007863-2018

BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED JUNE 06, 2024 Appellant, George M. King, appeals from the July 17, 2023 order entered in the Montgomery County Court of Common Pleas denying his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541- 46, as meritless. After careful review, we vacate and remand for further proceedings.

The relevant facts and procedural history are as follows. On July 23, 2019, Appellant, while represented by Thomas C. Egan, III, Esquire, entered an open guilty plea to numerous charges arising from his role as principal in a drug dealing enterprise that distributed heroin, fentanyl, cocaine, and methamphetamine in the Norristown, Montgomery County area.1 These ____________________________________________

charges included Count 39: Possession with Intent to Deliver (“PWID”) a Controlled Substance (Heroin and Fentanyl)2 and Count 40: Conspiracy to Commit PWID.3 At the plea hearing, plea counsel conducted a thorough plea colloquy in which he, inter alia, notified Appellant that he had “significant [sentencing] exposure because your prior record makes you an R-fel.”4 N.T.

Plea Hr’g, 7/23/19, at 7.

On June 16, 2020, the trial court held a sentencing hearing. At the commencement of the hearing, the court stated that it had conferred with counsel regarding the applicable sentencing guidelines and all parties agreed that the guidelines set forth in the Commonwealth’s sentencing memorandum were accurate. The Commonwealth then read the guidelines into the record, including, without objection, that the offense gravity score (“OGS”) for Count was 10 and for Count 40 was 11, Appellant’s prior record score (“PRS”) for ____________________________________________

Conspiracy to Commit Corrupt Organizations, 35 counts of Possession with Intent to Deliver, Dealing in Unlawful Proceeds, and Possession of a Firearm Prohibited.

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each of these convictions was “REVOC,”5 and the standard range sentence for each of these convictions was 120 months plus or minus 12. After noting that it had considered the presentence investigation (“PSI”) report, the arguments of the parties,6 and the sentencing guidelines, the court stated that it’s “intention would be 12½ to 25 years[,]” and subsequently imposed an aggregate sentence of 12½ to 25 years of incarceration. N.T. Sentencing Hr’g, 6/16/20, at 22-23. With respect to Counts 39 and 40, the court imposed two concurrent terms of 10 to 20 years of incarceration. 7 Appellant did not file a post-sentence motion or direct appeal from his judgment of sentence.

On July 15, 2021, Appellant pro se filed a timely first PCRA petition alleging that he was serving an illegal sentence and that his plea counsel had been ineffective. The PCRA court appointed counsel who, on July 14, 2022, filed an amended PCRA petition.

In the amended petition, Appellant asserted that his plea counsel was ineffective for failing to object to the classification of Appellant’s PRS for Counts 39 and 40 as REVOC when Appellant’s prior Burglary convictions listed ____________________________________________

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in the PSI report were not 4-point offenses or crimes of violence and the 1987 Robbery listed in the PSI report had been nolle prossed.

On January 24, 2023, the Commonwealth filed an answer and motion to dismiss the amended petition. The Commonwealth conceded that Appellant’s claim had arguable merit but alleged that Appellant could not prove that counsel’s failure to object had not prejudiced him because the court expressed its intent to sentence Appellant to a 12½- to 25-year term of incarceration and could have done so “by applying all consecutive sentences or various combinations of consecutive and concurrent sentences.” Answer, 1/24/23, at 10. The Commonwealth, thus, concluded that it was not substantially likely that any objection would have caused the court to impose a shorter sentence.8 On July 6, 2023, the PCRA court heard argument on Appellant’s petition.

The Commonwealth again conceded that the parties misrepresented the applicable PRS for Counts 39 and 40 at the sentencing hearing and reiterated its position that counsel’s failure to object to this error did not prejudice Appellant because the court would have imposed the same sentence even if the PRS for those counts had been correct. Counsel for Appellant represented that the correct guideline sentence range for Count 39 was 72 to 84 months’ ____________________________________________

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plus or minus 12 and for Count 40 was 84 to 102 months’ plus or minus 12.

Counsel argued that prejudice is inherent in this error because it resulted in a fundamentally flawed sentencing process, which necessitated resentencing.

At the conclusion of the hearing the PCRA court stated as follows: All right. Well, it is clear that there were - - the [c]ourt had the benefit of a [PSI] report and listened to the sentencing proceeding and arguments of counsel before I stated what my intent was for the overall sentence and then, obviously, I fit it into the guidelines that I had before me which were flawed at [C]ounts 39 and 40.

I’ll review the matter and issue an appropriate order.

N.T. PCRA Hr’g, 7/6/23, at 9.

On July 17, 2023, the PCRA court issued an order dismissing Appellant’s amended petition. The court indicated that “[t]he sentence determined to be appropriate, came after a sentencing hearing and arguments of counsel, following review of a [PSI] report. Only two of forty sentencing guidelines were wrong. The sentence could easily have been structured using the thirty- eight correct guidelines.” Order, 7/17/23.

This timely appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant raises the following two issues on appeal: 1. Did the lower court err in dismissing [Appellant’s] amended PCRA petition without first issuing a [n]otice of [i]ntent to [d]smiss pursuant to Pa.R.Crim.P. 907 which would have provided [Appellant] the opportunity to respond to the lower court’s rationale for dismissal?

2. Did the lower court err in failing to grant PCRA relief on the ground that trial counsel was ineffective for failing to object to [Appellant’s PRS] being improperly classified as a REVOC for -5- J-S12005-24

Counts 39 and 40 of the bills of information when the [B]urglary convictions listed in [Appellant’s] [PSI] report do not constitute 4-pint offenses or crimes of violence and the [R]obbery listed in the [PSI] report at CP-46-CR-0002599- 1987 was, in fact, nolle prossed?

Appellant’s Brief at 3.

In his first issue, Appellant claims the PCRA court erred in dismissing his amended petition without first issuing a Rule 907 notice thereby depriving Appellant of the opportunity to respond to the court’s rationale for dismissal. Id. at 9-12. We agree.

Our rules of criminal procedure provide that once a petitioner files a PCRA petition, the PCRA court must review the issues raised in the petition to determine whether they fall within the scope of the PCRA’s cognizable claims, have arguable merit warranting a hearing, and/or fail to present any genuine issues pertaining a material fact so that post-conviction relief is not warranted.

Pa.R.Crim.P. 907. Specifically, Rule 907 provides the following: Except as provided in Rule 909 for death penalty cases, (1) the judge shall promptly review the [PCRA] petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to postconviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.

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Pa.R.Crim.P. 907. The notice requirement of Rule 907 is mandatory.

Commonwealth v. Feighery, 661 A.2d 437, 439 (Pa. Super. 1995).

Here, although the PCRA court heard argument on Appellant’s amended petition, it did not conduct an evidentiary hearing at which Appellant could present evidence pertaining to the contested issue of whether Appellant suffered prejudice as a result of plea counsel’s omission. In light of this error, we vacate the PCRA court’s order denying Appellant’s amended petition and remand for further proceedings.9, 10 Order vacated. Case remanded. Jurisdiction relinquished.

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Commonwealth’s Brief at 11-15. In Pridgen, this Court held that “[i]f the petitioner cannot establish that he was prejudiced by the defective procedure,” the PCRA court’s failure to issue a Rule 907 Notice before dismissing a petition is “not automatically reversible error.” Id. at 102. We find Pridgen, in which this Court found “clear from the certified record that [the a]ppellant’s PCRA petition does not qualify for a timeliness exception[,]” id., distinguishable. In Pridgen, it was undisputed that the petitioner had filed his PCRA petition more than one year after his judgment of sentence became final and he failed to prove that any exception to the PCRA’s time-bar applied. Id. It was, thus, undisputed that the petitioner was not eligible for relief. In the instant case, the facts supporting Appellant’s claim of prejudice are not undisputed and, thus, the PCRA court erred in not providing Appellant with the opportunity to establish that he suffered prejudice.

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Date: 6/6/2024

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