The Superior Court has decided the case of Commonwealth v. Kelley, No. 1245 MDA 2014 (March 15, 2016), holding that plea counsel was ineffective when they failed to advise the defendant, a state parolee, that he would have to serve his back-time first before commencement of the new state sentence.


On June 12, 2013, Kelley was arrested and charged with (1) forgery; (2) flight to avoid apprehension; (3) corruption of minors; and (4) resisting arrest or other law enforcement. On September 23, 2013, he pled guilty by agreement to forgery, corruption of minors, and resisting arrest or other law enforcement. Pursuant to the terms of the plea agreement, Kelley received a sentence of 21 to 60 months imprisonment on the forgery and corruption of minors charges and 12 to 24 months on the count of resisting arrest. All sentences were to run concurrently to one another. As agreed, the trial court designated the effective date of the sentence as June 12, 2013.

Kelley claimed all parties and the court knew that, at the time of his offense, plea and sentencing, he was on state parole. He also argued that the agreement was clear as to the effective date of the new sentence. Kelley stated he did not file any motion to withdraw his plea or a direct appeal, because the court imposed the sentence as expected; and, he was in total agreement with it. While incarcerated, he subsequently learned that the effective date of his new sentence was not June 12, 2013, but April 28, 2015.

At the time of the plea bargain, the state had already decided to recommit Kelley to serve the back-time he owed on his original state parole sentence. Nevertheless, counsel negotiated the plea bargain on Kelley’s behalf with an effective start date of June 12, 2013, the date he was arrested for his new offenses.

Nothing in the record indicated counsel advised Kelley of the statutory sequence for serving his old and new sentences. Moreover, neither the Commonwealth nor the court advised Kelley that his negotiated sentence could not be honored as stated or imposed.

Kelley filed a Petition under the Post Conviction Relief Act (“PCRA”) that was denied by the Adams County Court of Common Pleas. This appeal to the Superior Court followed.


Whether the PCRA Court properly denied Kelley’s request for relief?


The Superior Court held that the PCRA court erred in failing to comprehend the nature of Kelley’s illegal sentence in failing to grant him some opportunity for relief. The order denying PCRA relief was reversed, judgment of sentence vacated because it was illegal as imposed, and, the matter remanded for further proceedings.


The Superior Court reasoned that Kelley entered his plea on the advice of plea counsel whose knowledge of the Parole Act was deficient and fell below the range of competence demanded of attorneys in criminal cases. Where a state parolee gets a new state sentence, he must serve his back-time first before commencement of the new state sentence. Imposition of a new state sentence concurrent with parolee’s back-time on the original state sentence is therefore an illegal sentence under the Parole Act.

Based on the above reasoning, the Superior Court concluded that Kelley’s decision to plead guilty was not knowing, voluntary and intelligent and the sentence that was imposed was illegal because it violated the Parole Act. Thus, plea counsel was ineffective for advising Kelley to accept a plea bargain that called for an illegal sentence.

Kelley was therefore entitled to relief under the PCRA.

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