Parolee Should Have Been Advised He Had to Serve Back Time Before Commencing New Sentence

On March 15^th, the Pennsylvania Superior Court decided the case of Commonwealth v. Kelley, holding that plea counsel was ineffective for failing to advise the defendant that he would be required to serve back time related to his parole before commencement of the new state sentence imposed for his more recent offenses.

On June 12^th, 2013, the defendant, Kelley, out on parole stemming from prior convictions, was arrested and charged with forgery, flight to avoid apprehension, corruption of minors, and resisting arrest. The charges stemmed from an incident in which Kelley had given his son counterfeit $20 bills to use at a high-school carnival and subsequently resisted arrest once carnival workers notified police of the nature of the fake bills. On September 23, 2013, he pled guilty to forgery, corruption of minors, and resisting arrest. Pursuant to the terms of his plea agreement, Kelley agreed to serve 21 to 60 months of imprisonment. The effective date of this sentence was to be June 12^th, 2013, the date of his arrest. However, while incarcerated, Kelley learned that the effective date for his new sentence was actually April 28^th, 2015 because Pennsylvania law stipulates that if a new sentence is imposed on a parolee, the service of the balance of the term originally imposed will precede the commencement of the new term. Nothing in the record showed that Kelley’s counsel had advised him that he would have to serve back time related to his parole before he could commence serving his new sentence. Further, neither Kelley’s counsel nor the Commonwealth advised Kelley that his plea deal could not be enforced.

Upon learning this, Kelley filed a Petition under the Post Conviction Relief Act (PCRA), which was denied by the local Court of Common Pleas. He then appealed this denial to the Superior Court, which reversed the order denying PCRA relief, vacated the judgment against Kelley because it was illegal as imposed, and remanded the matter for further proceedings. The court reasoned that Kelley entered his guilty plea based on advice of plea counsel whose knowledge of the Parole Act was deficient and fell below the level of competence expected of attorneys in criminal cases. Thus, Kelley’s decision to plead guilty was not knowing, voluntary and intelligent because his counsel failed to inform him that the date of commencement of his new sentence was nearly two years later than what he had agreed to. Additionally, the plea deal negotiated by Kelley’s counsel was illegal under the Parole Act because it wrongfully imposed a new sentence concurrent with his back time. Consequently, Kelley’s counsel was ineffective, and he was therefore entitled to relief under PCRA.

Here is the Superior Court’s opinion.

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