Commonwealth v. Gillins

302 A.3d 154

COMMONWEALTH of Pennsylvania v. Robert Bruce GILLINS, Appellant

No. 2412 EDA 2021

Superior Court of Pennsylvania.

Submitted February 9, 2023

Filed August 18, 2023

Robert Bruce Gillins, appellant, pro se.

Michael J. Conway, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Lawrence J. Goode, Supervisor Appeals Unit,Philadelphia, for Commonwealth, appellee.

Carolyn E. Temin, First Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Lawrence S. Krasner, District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E. ^*

OPINION BY STEVENS, P.J.E.:

Appellant, Robert Bruce Gillins, appeals from the Order entered in the Court of Common Pleas of Philadelphia County dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 - 9545, in which he challenged the validity of his guilty plea through an ineffective assistance of counsel claim and a claim of breach of contract falling outside the ambit of the PCRA. For reasons that follow, we vacate the order and remand to the trial court, which shall vacate Appellant's sentence, but not his underlying convictions, with the aim of conferring on him the benefit of the bargain he entered when agreeing to plead guilty in exchange for the promise of concurrently run federal and state sentences.

On March 26, 1994, Appellant was arrested and charged with Murder and related state offenses. While his state case was pending, he was sentenced in federal court to a life sentence on one count of Continuing Criminal Enterprise and to a concurrent sentence of 240 months' incarceration for money laundering. ¹

On October 3, 1996, Appellant appeared before the trial court and entered a counseled negotiated guilty plea to third-degree murder in exchange for a 10 to 20-year state sentence of incarceration, with no further penalty on the possession of an instrument of crime ("PIC") charge. The trial court's sentencing order indicated that Appellant's sentence would run consecutively with any state sentence Appellant was then serving and, pursuant to the plea negotiation and central to the present issue, concurrently with his federal sentences. There is consensus in the record that Appellant indicated he would not have accepted the plea deal without the promise that his existing federal sentences would run concurrently with his state sentence while he was housed in state prison. Appellant filed no direct appeal.

However, neither defense counsel, the Commonwealth, nor the trial court recognized that relevant federal jurisprudence holds that neither the federal courts nor the federal Bureau of Prisons ("BOP") are bound by a state court sentencing order directing that an existing federal sentence shall run concurrently to the newly imposed state sentence. See, e.g. , Barden v. Keohane , 921 F.2d 476, 478 n.4 (3d Cir. 1990). Therefore, the trial court lacked the authority to order that Appellant's state sentence run concurrently with his federal sentences.

It was not until Appellant applied for a Presidential commutation of his federal sentence in 2012 that he was informed for the first time, by the federal Office of the Pardon Attorney, that his federal sentences were considered held in abeyance until he completed his 10 to 20-year state sentence and reported to a federal correctional facility, only at which time his federal sentences would commence. After consulting with counsel, Appellant filed a petition with the federal BOP asking it to recognize he had been incarcerated nearly 17 years on his state sentence pursuant to his plea agreement in which he was promised that his state sentence would run concurrently with his federal sentences.

The BOP denied his request, citing, inter alia , that his federal judgment of sentence was silent on the issue of concurrent sentences. The BOP explained further that it contacted the federal sentencing court on the question of retroactive designation of concurrent sentences in Appellant's case, and the federal sentencing court replied that it intended Appellant's federal sentence to run consecutively to any other sentence. (See 2/12/19 Rule 907 response, Exhibit E).

As noted in this Court's prior memorandum decision, Commonwealth v. Gillins , 245 A.3d 1100 (Pa. Super. 2020) Appellant filed his first PCRA petition on June 6, 2017, alleging ineffective assistance of plea counsel, breach of his plea agreement, and an invalid guilty plea. Specifically, the pro se petition claimed that although the Commonwealth and the trial court had agreed that his third-degree murder sentence would run concurrently with his federal sentence, he learned 17 years later that the state court lacked authority to impose concurrent sentences in this case.

The PCRA court appointed counsel, but less than one week later, and without contacting Appellant, appointed counsel filed a petition to withdraw and a Turner / Finley² letter indicating that Appellant's PCRA claims were time-barred. PCRA counsel conceded that the trial court and both parties had agreed during the guilty plea hearing that Appellant's state sentence would run concurrently with his federal sentence, but counsel concluded Appellant had failed to exercise due diligence by waiting 20 years to turn to the court to seek clarification of his sentence. The PCRA court agreed, granted counsel's petition to withdraw, and dismissed Appellant's petition pursuant to Pa.R.Crim.P. 907. Gillins , 245 A.3d 1100 at **1.

Appellant filed a pro se appeal. In this Court's memorandum decision of December 24, 2020, we determined that PCRA counsel improperly had failed to consult with Appellant in what was Appellant's first PCRA petition, and we recognized that "a collateral petition to enforce a plea agreement is regularly treated as outside the ambit of the PCRA and under the contractual enforcement theory of specific performance [such that] the designation of the petition does not preclude a court from deducing the proper nature of a pleading." Gillins , 245 A.3d 1100 at **2 (citing Commonwealth v. Kerns , 220 A.3d 607, 611-12 (Pa. Super. 2019) (internal citations and quotation marks omitted)). We concluded, therefore, that the PCRA court had "fail[ed] to confront Appellant's allegations of PCRA counsel's ineffectiveness and the possibility that Appellant's claims fall outside of the PCRA[.]" Gillins , 245 A.3d 1100, at **5.

Accordingly, we vacated the PCRA court's order and remanded for the appointment of new PCRA counsel, who was to review Appellant's claims of PCRA counsel's ineffectiveness, discern in the alternative whether Appellant's contract-based claim falls outside of the PCRA and its timeliness provisions, file supplemental briefing on these issues, and continue to represent Appellant for the duration of the PCRA proceedings. ³

On remand, the PCRA court again issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing, and it subsequently denied Appellant's counseled PCRA petition for jurisdictional reasons expressed in newly appointed PCRA counsel's Turner / Finley letter. This timely appeal followed.

According to the PCRA court's Pa.R.A.P. 1925(a) opinion, PCRA counsel reviewed and analyzed each of Appellant's issues as directed, and it concluded, in relevant part, that the PCRA court lacked jurisdiction under the PCRA to provide relief because Appellant was no longer serving a state sentence. See 42 Pa.C.S.A. § 9543(a)(1)(i) (to be eligible for relief under the PCRA, the petitioner must plead and prove, "the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted currently serving a sentence of imprisonment, probation or parole for the crime."). The PCRA court agreed, as it is undisputed that Appellant's state sentence for third-degree murder expired on March 26, 2019, at which time he was transferred to federal custody.

Appointed counsel also determined that Appellant had no recourse to challenge his guilty plea under principles of contract law, a position that was also adopted by the PCRA court. According to the PCRA court, because Appellant's only agreement regarding his sentence was with the Commonwealth, which "did not have the authority to force the BOP or federal court to run [Appellant's] federal and state sentences concurrently," the Commonwealth cannot be held in breach of any agreement. ⁴ Instead, the PCRA court opined, "it was [Appellant's] own lengthy criminal history that prevented the BOP from running the sentences concurrently. Had Appellant been eligible for concurrent sentences under 18 U.S.C.A. § 3621(b), the BOP could have imposed concurrent sentences." PCRA Court Opinion at 11. Accordingly, the PCRA court granted counsel's petition to withdraw pursuant to Turner / Finley and dismissed Appellant's PCRA petition as meritless.

This pro se appeal followed. In Appellant's pro se brief, he raises the following issues for this Court's review:

I. Was the PCRA Court's dismissal of Appellant's PCRA Petition err [sic] when the court failed to address Appellant's request for relief under breach of contract law?

II. Was the PCRA Court's dismissal of Appellant's PCRA Petition err [sic] when the court failed to address Appellant's request for relief under a writ of error coram nobis .

III. Was the PCRA Court's dismissal of the Appellant's PCRA Petition unsupported by the record and based on legal err [sic] because Appellant's second PCRA appointed counsel was ineffective for failing to raise the Pennsylvania Supreme Court['s] and this Court's controlling caselaw, Appellant's due process violations, trial ineffectiveness, breach of contract and writ of error coram nobis relevant precedent and controlling case law.

IV. Was the PCRA Court's dismissal of the Appellant's Petition err [sic] when the PCRA Court failed to address the petition in almost two years -- causing a

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