J-S10028-26 2026 PA Super 148
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
FRANKLIN JAMES WARFEL : No. 1118 MDA 2025
:
Appeal from the PCRA Order Entered July 15, 2025
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004510-2019
BEFORE: DUBOW, J., BECK, J., and BENDER, P.J.E.
OPINION BY BECK, J.: FILED: JULY 13, 2026
The Commonwealth of Pennsylvania appeals from the July 15, 2025
order entered by the York County Court of Common Pleas granting the petition
filed by Franklin James Warfel (“Warfel”) pursuant to the Post Conviction Relief
Act (“PCRA”).1 The PCRA court granted relief based upon its finding that trial
counsel’s ineffectiveness caused Warfel to not accept a plea offer and go to
trial where, after a guilty verdict, he received a harsher sentence than that
offered in the plea he rejected. After careful review, we affirm but remand
with instructions.
1 42 Pa.C.S. §§ 9541-9546.
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A full recitation of the facts is unnecessary to our review. 2 Briefly, in
2019, Warfel touched the breasts, vagina, and buttocks of his ex-fiancé’s
then-ten-year-old daughter as she awoke from a nap. The Commonwealth
charged him with aggravated indecent assault of a child, aggravated indecent
assault (complainant less than 13 years old), indecent assault (complainant
less than 13 years old), and corruption of minors.3
Of relevance here, Warfel and trial counsel4 attended a pretrial call of
the list hearing on November 5, 2020, at which the Commonwealth placed on
the record an offer for Warfel to plead guilty to indecent assault (complainant
less than 13 years old), with a recommended sentence of three and one-half
to seven years of imprisonment (“Plea Offer”). N.T., 11/5/2020, at 2. The
Commonwealth also noted on the record that if Warfel proceeded to trial and
was found guilty, he faced a mandatory sentence of ten to twenty years of
imprisonment (the “Mandatory Minimum”) for aggravated indecent assault of
a child. Id. Trial counsel confirmed the Commonwealth’s statements,
2 This Court set forth the trial court’s recitation of the facts in our memorandum decision affirming Warfel’s judgment of sentence.
Commonwealth v. Warfel, 273 A.3d 1058, **1-2 (Pa. Super. 2022) (nonprecedential decision) (quoting Trial Court Opinion, 5/11/2021, at 1-4).
3 18 Pa.C.S. §§ 3125(b), 3125(a)(7), 3126(a)(7), 6301(a)(1)(i).
4 Warfel was first represented by Attorney Elizabeth Pasqualini (“first trial counsel”) until Attorney Michael Marinaro (“trial counsel”) entered his appearance on September 11, 2020, approximately two months before trial. Trial counsel represented Warfel through sentencing.
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indicated that he and Warfel discussed the offer, that Warfel rejected it, and
that he elected to proceed to trial. Id. at 3.
On November 12, 2020, a jury convicted Warfel of all charges. The trial
court ordered a presentence investigation (“PSI”) report and held a sentencing
hearing on February 24, 2021. Of relevance here, at the sentencing hearing,
trial counsel provided background on Warfel and confirmed that he reviewed
the sentencing guidelines with Warfel, but mistakenly stated that the
aggravated indecent assault of a child “would call for five and a half years;
and the mitigated, it would bring it down to four and a half years of
incarceration.” N.T., 2/24/2021, at 5. The trial court corrected him, stating
that it wanted “to make sure before we proceed that [Warfel] understands
that the mandatory sentence I have to impose today is 10 to 20 years. Does
he understand that?” Id. at 6. Trial counsel answered:
[TRIAL COUNSEL]: I explained to him – he did ask about
whether or not there was any type of exception, and in the federal
system there are exceptions; if you are going to be cooperating
and things like that, to take off the mandatory minimum, but –
judges can vary from the sentencing guidelines, which was told to
him, but they can’t sentence below the mandatory minimums
except in very limited circumstances.
Id. The trial court sentenced him to the mandatory minimum sentence for
aggravated indecent assault of a child of ten to twenty years of imprisonment
followed by three years of probation.5 The remaining convictions merged for
5 See 42 Pa.C.S. §§ 9718(a)(3), 9718.5(a).
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sentencing purposes. Warfel timely appealed and this Court affirmed his
judgment of sentence on February 22, 2022. Warfel, 273 A.3d at **1-2.
Warfel did not seek further review by our Supreme Court.
On November 30, 2022, Warfel filed a timely pro se PCRA petition. The
PCRA court appointed counsel who, after multiple extensions of time, filed an
amended petition on June 6, 2024. The amended petition raised a claim of
ineffective assistance of trial counsel. Specifically, Warfel claimed that trial
counsel failed to advise or erroneously advised him as to the applicable
sentencing guidelines, the Mandatory Minimum sentence he faced if convicted,
and that his minimum sentence would not be more than five years of
imprisonment. Amended PCRA Petition, 6/6/2024, ¶¶ 19-51. He asserted
that he relied on such advice when he rejected the Commonwealth’s Plea Offer
and chose to proceed to trial. Id. Warfel sought an order directing the
Commonwealth to reoffer him the Plea Offer or, in the alternative, a new trial.
Id. at 12 (unpaginated).6
On October 24, 2024, the PCRA court permitted PCRA counsel to
withdraw and appointed new PCRA counsel. The PCRA court held an
evidentiary hearing on November 22, 2024, at which Warfel and trial counsel
testified. When asked about his goals for resolving his case, Warfel testified:
6 PCRA counsel investigated the remaining claims Warfel raised in his pro se
petition and determined they did not have merit. Amended PCRA Petition, 6/6/2024, ¶ 52.
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“I wanted to avoid going through a trial. I wanted to make a deal, plea deal,
to avoid extra time and money spent on the case and to avoid having the
victim testify and put family and friends through all that.” N.T., 11/22/2024,
at 6. He confirmed that he knew of the Commonwealth’s Plea Offer and
rejected it because first trial counsel advised him that it was “a ridiculous offer
and [he] would get a much better offer, so she wasn’t entertaining that.” Id.
at 7.
When Warfel changed counsel, trial counsel similarly advised him not to
take the plea offer and that he would get a better offer, “there was no
substance to the case,” the case “would be easily won,” and it would probably
result in a mistrial. Id. at 7, 15-16. Warfel testified that he “did not know
what a good offer was” and “was just going by what [his] attorneys’
recommendations were.” Id. at 7.
Regarding the Mandatory Minimum sentence for aggravated indecent
assault of a child, Warfel testified that he discussed sentencing with trial
counsel before trial:
I was told that there was sentencing guidelines and it was
anywhere from 3-1/2 to 10. Because they were saying there was
a mandatory 3-1/2 to 7 and mandatory of 5 to 10, and they were
saying that the 5 years would have been – I would be out in 5
years. That would be if I would actually be convicted if I went
through a trial, which that was not the plan to ever, ever go
through a trial.
Id. at 8. Warfel further explained that trial counsel told him that “judges can
vary – will vary from those guidelines depending on your history and
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background and all that and the circumstance.” Id. at 8. Warfel testified that
he elected to go to trial because trial counsel advised him that “there was no
substance to the case,” “it would actually end up being dropped and not
followed through with,” it would result in a mistrial, and incriminating text
messages would not come into evidence. Id. at 8-9. Warfel further testified
that when the trial court admitted the text messages into evidence at trial,
trial counsel told him that it was “against the law” and was “automatic grounds
for appeal,” which Warfel understood to mean he “wouldn’t even go into prison
right away” and that “even if this trial would be lost somehow, [he] would just
say [he’s] appealing it and it would go back to restart.” Id. at 10. He also
testified to being “in major shock” when he learned at trial, through one of
the jury instructions, that he could be convicted based solely on the victim’s
testimony. Id.
Had he realized these misunderstandings, he testified that he would
have accepted the plea offer “in a heartbeat” and “wouldn’t have even thought
twice.” Id. at 10-11.
Warfel confirmed that trial counsel reviewed his PSI report with him the
night before sentencing and testified that trial counsel was “shocked that they
recommended ten years” and had expected a recommendation of five years.
Id. at 12. Warfel had the same expectation as trial counsel: “That’s what I
was expecting them to recommend as well, being the fact that I lost a trial
and was convicted and not taken the plea deal. So [trial counsel] said it was
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a 10-year sentence instead of 5.” Id. Warfel said trial counsel advised him:
“[M]aybe you’ll still get the 5, the judge can deter from the recommendation
because it is only just a recommendation. The judge has the ultimate choice
in that sentencing.” Id. Warfel also testified that trial counsel said he would
bring up “exceptional circumstances” at the sentencing hearing. Id. at 13.
Warfel testified to misunderstanding his sentence as follows:
I thought the 10 years – when I was sentenced to 10 years, even
coming into incarceration, I thought 10 years meant 10 years and
it’s over, not actually 20-year sentence. Realistically, it’s a 20-year sentence, you’re just eligible to leave after 10 years. It’s still
a long 20-year sentence. I was told that those guideline[s] range,
you would be sentenced to a low based on your history or you can
be sentenced to a higher. So when I heard a mandatory minimum
5 to 10, I heard, okay, you might get a sentence of 5, might get
a sentence of 6 or 7. If you’re sentenced to 7 of it, you might get
out on parole in 5, I mean get out at 5 for good behavior and be
done at 7. I didn’t understand that that was – the end number is
the actual true sentence, not just a guideline range of what you
could get sentenced at, which is what it was being explained to
me by [trial counsel].
Id. at 13-14.
On cross-examination, Warfel reiterated that trial counsel told him “not
to worry about the sentencing guideline ranges” and to reject the Plea Offer
because it was “not acceptable” and “there would be a better offer” made by
the Commonwealth. Id. at 15-16. Although Warfel agreed that the
Commonwealth “formed the words” of giving him notice of the Mandatory
Minimum sentence, he maintained that he “was not educated on what that
actually really meant.” Id. at 16. He testified to his belief that ten to twenty
years meant the Commonwealth could ask for a sentence with that “high
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number” but it would not be what he “would actually end up getting.” Id.
When asked why he did not ask questions of the prosecutor or trial court at
the call of the list hearing, he explained that he “was just listening to [trial
counsel] and what he was saying to do at the moment.” Id. at 17.
Trial counsel testified that he had been practicing criminal law for thirtyone years in Pennsylvania, represented Warfel before trial and through
sentencing, and “remember[ed] the case very well.” Id. at 18, 28. He
testified that he relayed the Plea Offer to Warfel and that if Warfel went to
trial and was convicted, he would receive “a mandatory minimum of 10 years,
and that it would be non-discretionary.” Id. at 19, 31; see also Ex. C-1
(email from prosecutor to trial counsel stating Warfel is subject to a Mandatory
Minimum ten-to-twenty-year sentence and offering to discuss a plea bargain
on count two, aggravated indecent assault (complainant less than 13 years
old)). When asked to confirm whether he had a conversation with Warfel
regarding the non-discretionary nature of the Mandatory Minimum sentence,
trial counsel responded as follows:
Warfel did not want to take a plea at all. This particular case, as
you know, involved a 10-year-old child that was living in his home.
He admitted that he cuddled the child. He denied absolutely that
he digitally penetrated the child. Where the digital penetration is
where the 10-year mandatory sentence is going to kick in. He
claim[ed] that he just cuddled the child. And therefore, the only
thing that he would be guilty of would be the corruption of a minor.
And that was his – he was steadfast with that particular way on
going with this trial.
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Id. at 20. Trial counsel recalled reviewing the PSI report with Warfel and in
particular, the ten-to-twenty-year sentence recommended by the PSI officer.
Id. at 20-21. Trial counsel acknowledged the report included guideline ranges
and minimum and maximum sentences for Warfel’s convictions. Id. at 21-23. He confirmed the report showed Warfel told the PSI officer that he was
“begging for mercy on sentencing” and “hope[d] that some rehabilitation can
be a part of his sentence and he [was] willing to be on house arrest forever
because he has nothing to hide.” Id. at 23-24, Ex. D-1 (PSI Report) at 11
(pagination supplied). Trial counsel agreed at the PCRA hearing that this
sentence was not possible. Id. at 24.
The PCRA court admitted the notes of testimony from the sentencing
hearing; trial counsel conceded that his argument at the sentencing hearing
about the sentencing guidelines and exceptions to mandatory federal
sentences had “[n]o relevancy at all.” Id. at 27-28; see also Ex. D-4 (N.T.,
2/24/2021 (Sentencing)).
On cross-examination, trial counsel testified that he told Warfel that “a
mandatory sentence is a sentence in which it’s pretty much out of the
discretion of the judge. She has to follow through with what the mandatory
minimum sentence is, except in those certain circumstances where a witness
is cooperating. And I did cite federal law, things to that effect, they can
deviate.” Id. at 31-32. Trial counsel reiterated that Warfel did not have
questions about the mandatory sentence. Id. at 32. Trial counsel recounted
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that Warfel said that “he cuddled the 10[]year old, he shouldn’t have done
that, he’s guilty of corruption of a minor but not any of the other offenses
whatsoever,” and “he was adamant about going to trial.” Id. Finally, trial
counsel noted that Warfel was “quite bright.” Id.
The PCRA court found Warfel testified credibly that he did not want to
go to trial. PCRA Court Opinion, 7/15/2025, at 15. It further found credible
Warfel’s testimony that “he followed the advice of trial counsel” and that “the
record demonstrated to [the PCRA court] that trial counsel was incapable of
providing sound advice based upon his clear misapprehension of the law.”
Pa.R.A.P. 1925(a) Opinion, 10/9/2025, at 6. It granted the amended petition
on July 15, 2025, finding trial counsel “ineffective for failing to provide
accurate information to [Warfel] about the mandatory sentence, which [he]
relied upon to his detriment. PCRA Court Opinion, 7/15/2025, at 8. It ordered
the Commonwealth to reoffer to Warfel the Plea Offer. The Commonwealth
timely appealed. The Commonwealth filed a concise statement of errors
pursuant to Rule 1925(b) of our Rules of Appellate Procedure, and the PCRA
court issued a Rule 1925(a) opinion, which expounded on and attached its
July 15, 2025 opinion.7
7 On September 10, 2025, the PCRA court granted Warfel bail pending appeal.
That same date, the Commonwealth filed in this Court an application for relief, which this Court treated as a petition for specialized review pursuant to Rule 1610 of our Rules of Appellate Procedure (relating to review of bail orders) and transferred the petition to this Court’s miscellaneous docket at (Footnote Continued Next Page)
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The Commonwealth presents two issues for our review:
I. Whether [t]he PCRA [c]ourt erred in finding that [trial]
counsel was ineffective specifically as to the prejudice prong
of the ineffective assistance test as a matter of law[,] where
[Warfel] was informed at the 11/5/2020 [pretrial call of the
list] hearing of both the offer that had been made, the
mandatory sentence [Warfel] was facing, and [trial] counsel
expressly confirmed the Commonwealth’s recitation and
[Warfel’s] rejection.
II. Whether [t]he PCRA [c]ourt erred in finding that [trial]
counsel was ineffective as to all three prongs of
Pennsylvania’s ineffective assistance test regarding
[Warfel’s] being not informed of the mandatory sentence he
faced if he took the case to trial.
Commonwealth’s Brief at 8 (footnote and suggested answers omitted).
The following legal standards are applicable to this appeal. “When
reviewing a court’s decision regarding PCRA relief, we are limited to
determining whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal error.”
Commonwealth v. Pacheco, 340 A.3d 1038, 1041 (Pa. Super. 2025)
(quotation marks and citation omitted). “Further, we view the findings of the
PCRA court and the evidence of record in a light most favorable to the
58 MDM 2025. On September 17, 2025, the Commonwealth filed in this Court an amended petition for stay of bail pending the instant appeal. On October 3, 2025, this Court granted that petition pending resolution of the Commonwealth’s petition for specialized review. On October 7, 2025, this Court vacated the PCRA Court’s September 10, 2025 bail order without prejudice to Warfel’s right to reapply to the PCRA court for bail pending appeal and present information regarding his adjustment since incarceration and his treatment status and needs implicating his eligibility for parole.
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prevailing party.” Id. (quotation marks and citation omitted). “We employ a
de novo review of the PCRA court’s legal conclusions.” Id. (citation omitted).
“Its credibility determinations and factual findings that are supported by the
record, however, are binding upon us on appeal.” Id. (quotation marks and
citation omitted). As we have recognized, “[t]he credibility determinations
are to be provided great deference, and indeed, they are one of the primary
reasons PCRA hearings are held in the first place.” Commonwealth v. Rizor,
304 A.3d 1034, 1058 (Pa. 2023) (quotation marks, brackets omitted, and
citations omitted). “Given that the PCRA court, as fact-finder, has the
opportunity to listen to witnesses, to observe their demeanor and attitude, we
have stated that there is no justification for an appellate court, relying solely
upon a cold record, to review the fact-finder’s first-hand credibility
determinations.” Id. (quotation marks and citation omitted).
The Commonwealth’s claims on appeal challenge the PCRA court’s
finding that trial counsel was ineffective. In conducting our review, we are
mindful of the well-settled law:
[T]o obtain relief based on an ineffective assistance of counsel
claim, a petitioner must establish: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s
actions or failure to act; and (3) petitioner suffered prejudice as a
result of counsel’s error such that there is a reasonable probability
that the result of the proceeding would have been different absent
such error.
Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015)
(citations, quotation marks, and some brackets omitted). “Trial counsel is
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presumed to be effective, and a PCRA petitioner bears the burden of pleading
and proving each of the three factors by a preponderance of the evidence.”
Id.
With respect to the first prong, “a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief. Whether the
facts rise to the level of arguable merit is a legal determination.”
Commonwealth v. King, 259 A.3d 511, 520 (Pa. Super. 2021) (citation and
quotation marks omitted).
To satisfy the second prong of the ineffectiveness test, a petitioner must
establish that “no competent counsel would have chosen that action or
inaction, or, the alternative, not chosen, offered a significantly greater
potential chance of success.” Id. (citation and quotation marks omitted).
“Counsel’s decisions will be considered reasonable if they effectuated his
client’s interests. We do not employ a hindsight analysis in comparing trial
counsel’s actions with other efforts he may have taken.” Id. (citation and
quotation marks omitted).
To establish prejudice, the petitioner must show “a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 521 (citation and quotation
marks omitted). “In the context of a plea offer rejected by a defendant, the
defendant ‘must show the outcome of the plea process would have been
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different with competent advice.’” Rizor, 304 A.3d at 1054 (quoting Lafler
v. Cooper, 566 U.S.156, 163 (2012)).
In addition, when a post-conviction petitioner seeks relief based on a
claim that ineffective assistance of counsel caused him to reject a plea
bargain, the petitioner must show the following to satisfy the prejudice prong:
But for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
Steckley, 128 A.3d at 832 (brackets omitted) (quoting Lafler, 566 U.S.at
164). A petitioner may satisfy his burden of showing he would have accepted
the plea offer but for his counsel’s ineffectiveness with his own self-serving
statement as long as the PCRA court finds the petitioner’s testimony to be
credible. Steckley, 128 A.3d at 832 (quotation marks omitted). “[W]here a
petitioner’s testimony is credible and uncontradicted, it may suffice to
establish a reasonable probability that the petitioner would have accepted the
prosecution's plea offer.” Id. at 832-33.
We address the Commonwealth’s issues together as they both relate to
trial counsel’s effectiveness regarding advising Warfel about the Mandatory
Minimum sentence he faced if convicted after trial. See Commonwealth’s Brief
at 11-29. The Commonwealth maintains that Warfel failed to demonstrate all
three prongs of the ineffectiveness test. Id. The crux of the Commonwealth’s
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argument is that Warfel’s notice at the pretrial call of the list hearing of the
Plea Offer and the Mandatory Minimum precludes any relief. Id. We review
its argument as to each prong individually.
Beginning with the question of arguable merit, the Commonwealth
points to the pretrial call of the list transcript8 showing Warfel had notice of
the Plea Offer and Mandatory Minimum, as well as trial counsel’s testimony at
8 The pretrial call of the list hearing transcript provided as follows:
[PROSECUTOR]: Your Honor, [the] next matter is Commonwealth
v. Franklin Warfel, Case No. 4510 of 2019. [Warfel] is present,
represented by counsel. Here for Call of the List. This case is set
for a date certain trial, beginning Monday morning.
Commonwealth is prepared to move forward.
I would just note for the record that the Commonwealth
extended an offer on Count 2[, aggravated indecent assault
(complainant less than 13 years old),] bottom of the standard
range, which is three and a half to seven years. Should [Warfel]
be found guilty, he has a mandatory sentence in this case, which
is 10 to 20 years [for an aggravated indecent assault of a child
conviction]. The Commonwealth would be seeking that
mandatory should [Warfel] be found guilty.
* * *
THE COURT: Okay. Well, you heard the offer. I assume you’re
telling me that because your client rejected it?
[TRIAL COUNSEL]: Yes, Your Honor. Everything that was said by
the [prosecutor] is actually correct. My client is here. We sat
down and we talked about the offer, three and a half to seven
years of incarceration, plus lifetime Megan’s Law. He rejected that
and he would like to proceed to trial.
N.T., 11/5/2020, at 2-3. The PCRA court took judicial notice of this portion of the transcript at the PCRA hearing. N.T., 11/22/2024, at 15.
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the PCRA hearing that Warfel wanted to proceed to trial. Id. at 18-19.
Although it concedes trial counsel was “ill-prepared” at Warfel’s sentencing
hearing, it contends this was irrelevant to Warfel’s decision to go to trial
because trial counsel “did discuss the case with [Warfel] at the time of trial
preparations.” Id. at 20.
The PCRA court found that Warfel’s ineffective assistance of counsel
claim had arguable merit, citing this Court’s decision in Steckley. PCRA Court
Opinion, 7/15/2025, at 9-13. In Steckley, the Commonwealth presented the
defendant with two plea offers—a recommendation of three to six years of
imprisonment and then a recommendation of two to six years—but he declined
both because they “didn’t make sense to him” in light of a sentencing guideline
worksheet provided by the Commonwealth indicating a standard range
sentence was nine to sixteen months. Steckley, 128 A.3d at 830. After a
guilty verdict and before sentencing, the Commonwealth provided notice of its
intent to seek imposition of a mandatory minimum sentence of twenty-five
years of imprisonment, which the trial court ultimately imposed. Id. at 829-30. At a PCRA hearing, Steckley’s trial counsel testified that she was unaware
of the mandatory minimum sentence and would have advised him differently
had she known. Id. at 830. Steckley testified that if he had known about the
mandatory sentence, he would have accepted the plea offer. Id. The PCRA
court granted his petition. Id.
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On appeal, this Court focused on the prejudice to Steckley as the
Commonwealth only challenged that prong. Id. at 831. Applying the test set
forth in Lafler, delineated above, we discerned no error in the PCRA court’s
conclusion that Steckley showed a reasonable probability that, had he
accepted the plea offer, he would have received a less severe sentence than
what he received following trial. Id. at 835. This Court affirmed and
remanded with instructions for the lower court to resentence Steckley
according to the plea bargain he had rejected. Id. at 837.
In granting Warfel relief, the PCRA court recognized the conflict between
Warfel’s testimony that he wanted to avoid trial and trial counsel’s testimony
that Warfel was adamant about going to trial, but observed that the conflict
was not dispositive as Warfel could have elected to go to trial based on a
misunderstanding of his maximum exposure. PCRA Court Opinion,
7/15/2025, at 10-11. As noted above, it specifically found Warfel testified
credibly that he did not want to go to trial. Id. at 15. The PCRA court also
questioned trial counsel’s testimony that he remembered the case very well,
noting he repeatedly misgendered the trial prosecutor. Id. at 10.
Examining what it called “the critical question” of why Warfel elected to
proceed to trial, the PCRA court was “unconvinced [Warfel] understood the
ramifications of the mandatory sentence at issue.” Id. at 10-11. It pointed
to his statements in his PSI report where he begged for mercy as to sentencing
and was amenable to lifetime house arrest; trial counsel’s “repeated reference
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to federal judges and their supposed ability to deviate from mandatory
sentencing” despite his admission at the PCRA hearing that it was irrelevant
to Warfel’s sentencing; the “substantial disparity” between the Plea Offer and
the Mandatory Minimum; and Warfel’s uncontested testimony that he relied
upon the advice of counsel to reject the plea offer as “stingy,” which the PCRA
court found “was buttressed by trial counsel’s confusing and repeated appeals
to his understanding of federal sentencing authority vis-à-vis the mandatory
sentence.” Id. at 11-12.
The PCRA court acknowledged that Warfel received notice of the
Mandatory Minimum at the call of the list hearing, but observed that the
hearing did not have any “direct address, by the defense or the presiding
judge, of the mandatory sought by the Commonwealth.” Id. at 12. Further,
the PCRA court found that trial counsel’s “statements during sentencing
evidenced that perhaps he thought that he could argue for something less
than mandatory.” Id. (citation omitted). It also noted trial counsel’s failure
to directly respond at the PCRA hearing about whether he discussed with
Warfel the non-discretionary nature of the Mandatory Minimum. Id. at 13.
The PCRA court recognized that, unlike Steckley, trial counsel did not testify
that he was unaware of the Mandatory Minimum sentence, but concluded,
based on the foregoing evidence, that trial counsel failed to “accurately
apprise [Warfel] of the import of the Commonwealth’s invocation of the
sentencing mandatory,” and that his claim thus had arguable merit. Id.
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The certified record supports the PCRA court’s factual findings and
credibility determinations, and we are therefore bound by them and cannot
disturb them on appeal. See Pacheco, 340 A.3d at 1041; Rizor, 304 A.3d
at 1058. In conducting our review in the light most favorable to Warfel as the
prevailing party, the record supports the PCRA court’s finding that Warfel’s
claim—that he rejected the Plea Offer because of trial counsel’s deficient and
misleading advice regarding the Mandatory Minimum sentence and later
received a harsher sentence—can establish a cause for relief. See Pacheco,
340 A.3d at 1041; King, 259 A.3d at 520; Steckley, 128 A.3d at 831, 837.
Turning to whether Warfel’s counsel had a reasonable basis for his
actions, the Commonwealth contends that trial counsel’s actions were
reasonable, once again relying on the fact that Warfel received notice of the
Plea Offer and Mandatory Minimum at the call of the list hearing.
Commonwealth’s Brief at 20-26. It also argues that Warfel did not preserve
in his amended PCRA petition a claim that trial counsel was ineffective for
failing to advise him that he could be convicted based solely on the victim’s
testimony, though it recognizes the PCRA court admitted evidence of Warfel’s
lack of this knowledge for the limited purpose of understanding his decisionmaking process of whether to go to trial. Id. at 21-23. The Commonwealth
contends that Warfel failed to meet his burden because he did not question
trial counsel at the hearing as to whether he informed Warfel of the possible
jury instruction relating to a conviction based on the victim’s testimony alone.
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Id. at 25-26. Finally, the Commonwealth concedes trial counsel’s negligence
at the sentencing hearing but accuses the PCRA court of being distracted by
this “red herring.” Id. It maintains that despite trial counsel’s negligence at
sentencing, Warfel did not meet his burden for the second prong. Id. at 26.
The PCRA court found the alternative not pursued here, i.e., accepting
the Plea Offer, “unquestionably offered a substantially greater chance of
success,” as it would have “drastically limited his exposure.” PCRA Court
Opinion, 7/15/2025, at 13-14. The PCRA court recounted its findings relating
to trial counsel’s misapprehension of the law at the sentencing hearing and
found it was not clear that trial counsel “fully appreciated the lack of discretion
[the trial court] had at sentencing.” Id. As a result, it found trial counsel’s
actions lacked a reasonable basis. Id.
We are again bound by the PCRA court’s factual findings and credibility
determinations as they are supported by the certified record. See Pacheco,
340 A.3d at 1041; Rizor, 304 A.3d at 1058. Further, we reject the
Commonwealth’s “red herring” argument, as the record plainly demonstrates
that trial counsel misadvised Warfel regarding the mandatory nature of the
Mandatory Minimum before trial. N.T., 11/22/2024, at 31-32. At the PCRA
hearing, trial counsel remembered receiving an email from the prosecutor in
September 2020, about two months before the call of the list hearing and trial.
Id. at 31. The email indicated that the Commonwealth was open to discussing
a plea on count two (aggravated indecent assault (complainant less than 13
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years old)) and noted that Warfel was subject to the Mandatory Minimum
sentence, which trial counsel understood to mean the charge subject to the
Mandatory Minimum (aggravated indecent assault of a child) would be
dismissed. Id. at 31, Ex. C-1. Trial counsel testified that he shared the email
with Warfel and explained to him what a mandatory sentence is. Id. at 31.
When asked what he explained to his client, trial counsel responded:
I indicated a mandatory sentence is a sentence in which it’s pretty
much out of the discretion of the judge. She has to follow through
with what the mandatory minimum sentence is, except those
certain circumstances where a witness is cooperating. And I did
cite federal law, things to that effect, they can deviate.
Id. at 31-32.
This provides ample support for the PCRA court’s finding that “trial
counsel had not fully understood or appreciated the mandator[y sentence] at
issue when tendering advice to [Warfel] about the plea offer[.]” Pa.R.A.P.
1925(a) Opinion, 10/9/2025, at 5. As trial counsel recognized at the PCRA
hearing, a trial court has no discretion to deviate from a mandatory minimum
sentence under Pennsylvania law, which means the advice he gave to Warfel
(based on federal law) was wrong. N.T., 11/22/2024, at 27-28, 31-32; 42
Pa.C.S. § 9718(d) (“There shall be no authority in any court to impose on an
offender to which this section is applicable any lesser sentence than provided
for in subsection (a) or to place the offender on probation or to suspend
sentence.”); Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(observing that the “sentence for aggravated indecent assault of a child
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represents a mandatory minimum sentence in which the sentencing court had
no discretion”) (citation omitted). Thus, reviewing this matter in the light
most favorable to Warfel, we find no abuse of discretion in the PCRA court’s
determination that trial counsel’s deficient advice lacked a reasonable basis
designed to effectuate Warfel’s interests and Warfel would have received a
less severe sentence had counsel advised him to accept the Commonwealth’s
plea offer. See Pacheco, 340 A.3d at 1041; King, 259 A.3d at 520;
Steckley, 128 A.3d at 831.
With respect to the prejudice prong, the Commonwealth continues to
argue that Warfel’s notice of the Plea Offer and Mandatory Minimum at the
call of the list hearing precludes a finding of prejudice. Commonwealth’s Brief
at 26-29. It further contends that “notice by the prosecutor in open court
prior to trial is a valid prophylactic against collateral claims where a defendant
argues that he was not advised of a possible plea or mandatory sentence.”
Id. at 11 (citing Missouri v. Frye, 566 U.S. 134, 146 (2012)). Because the
pretrial hearing transcript shows Warfel received notice of the Plea Offer and
Mandatory Minimum, it maintains Warfel cannot claim prejudice.
Commonwealth’s Brief at 11-13.
We first address the Commonwealth’s Frye argument. Generally,
counsel has a duty to communicate a plea bargain to his client and explain
the advantages and disadvantages of the offer. Commonwealth v. Marinez,
777 A.2d 1121, 1124 (Pa. Super. 2001); see also Frye, 566 U.S. at 146
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(“This Court now holds that, as a general rule, defense counsel has the duty
to communicate formal offers from the prosecution to accept a plea on terms
and conditions that may be favorable to the accused.”). “Failure to do so may
be considered ineffective assistance of counsel if the defendant is sentenced
to a longer prison term than the term he would have accepted under the plea
bargain.” Marinez, 777 A.2d at 1124 (citation omitted).
In Frye, the defendant claimed ineffective assistance of counsel
resulting from a lapsed plea bargain that offered more lenient terms than the
guilty plea he later entered. Frye, 566 U.S. at 138. In this context, the United
States Supreme Court considered “what a defendant must demonstrate in
order to show that prejudice resulted from counsel’s deficient performance.”
Id. In discussing the standard for counsel’s performance in communicating
formal plea offers, the Court first found important guidance in the codified
standards of professional practice requiring prompt communication to the
defendant of all plea offers. Id. at 145. The Court then continued:
The prosecution and the trial courts may adopt some measures to
help ensure against late, frivolous, or fabricated claims after a
later, less advantageous plea offer has been accepted or after a
trial leading to conviction with resulting harsh consequences.
First, the fact of a formal offer means that its terms and its
processing can be documented so that what took place in the
negotiation process becomes more clear if some later inquiry turns
on the conduct of earlier pretrial negotiations. Second, States
may elect to follow rules that all offers must be in writing, again
to ensure against later misunderstandings or fabricated charges.
Third, formal offers can be made part of the record at any
subsequent plea proceeding or before a trial on the merits, all to
ensure that a defendant has been fully advised before those
further proceedings commence.
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Id. at 146-47 (citations omitted).
Instantly, the Commonwealth argues that the third measure
recommended in Frye, placing formal offers on the record, serves as a
“prophylactic” against Warfel’s collateral claim of counsel’s failure to advise
him of the Plea Offer or Mandatory Minimum sentence. Commonwealth’s Brief
at 11, 13-14.
In its Rule 1925(a) opinion, the PCRA court rejected the
Commonwealth’s claim that placing the plea offer on the record precluded
relief under Frye. Pa.R.A.P. 1925(a) Opinion, 10/9/2025, at 5-6. It found
that trial counsel’s failure to properly advise Warfel as to the correct nature of
the Mandatory Minimum (i.e., that the trial court had no discretion in its
implementation) prejudiced Warfel as it induced him to reject the Plea Offer
and proceed to trial, where he received a much higher sentence than he would
have if he had accepted the Plea Offer. Id. at 6; PCRA Court Opinion,
7/15/2025, at 14-15.
We discern no error. Nothing in the Frye decision stands for the
proposition that making a formal plea offer a part of the record before trial
inoculates against claims of deficient performance by counsel in
communicating such offers. The Frye Court described what a defendant must
show to establish prejudice in this context:
To show prejudice from ineffective assistance of counsel where a
plea offer has lapsed or been rejected because of counsel’s
deficient performance, defendants must demonstrate a
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reasonable probability they would have accepted the earlier plea
offer had they been afforded effective assistance of counsel.
Defendants must also demonstrate a reasonable probability the
plea would have been entered without the prosecution canceling
it or the trial court refusing to accept it, if they had the authority
to exercise that discretion under state law. To establish prejudice
in this instance, it is necessary to show a reasonable probability
that the end result of the criminal process would have been more
favorable by reason of a plea to a lesser charge or a sentence of
less prison time.
Frye, 566 U.S. at 147 (citation omitted).
As set forth above, this standard for prejudice is substantively the same
as what the High Court pronounced in Lafler9 and adopted in our
Commonwealth. Rizor, 304 A.3d at 1054 (quoting Lafler, 566 U.S.at 163-64); Steckley, 128 A.3d at 832 (quoting Lafler, 566 U.S.at 164).10
9 Frye and Lafler were decided on the same date.
10 In support of its “valid prophylactic” argument, the Commonwealth also relies on two non-precedential decisions of this Court: Commonwealth v. McQueen, 283 EDA 2024, 2024 WL 5154818 (Pa. Super. Dec. 18, 2024)
(non-precedential decision), and Commonwealth v. Jones, 3492 EDA 2018, 2019 WL 2929059 (Pa. Super. Jul. 8, 2019) (non-precedential decision). Commonwealth’s Brief at 14-15, 29. In addition to their non-precedential status, there is nothing in these decisions to suggest that simply informing a defendant of a plea offer on the record results in the wholesale preclusion of ineffectiveness claims. See McQueen, 2024 WL 5154818, at **9-13; Jones, 2019 WL 2929059, at **1-2.
Moreover, the cases are factually inopposite from the instant case. McQueen involved, in part, a collateral claim of ineffective assistance of counsel based on a failure to communicate a post-trial plea offer to a defendant. McQueen, 2024 WL 5154818, at **9-13. The defendant claimed he was not informed of the offer, whereas trial counsel testified that he communicated it to the defendant, who rejected it based on his assertion of innocence. Id. at *12. The PCRA court made no credibility determination as (Footnote Continued Next Page)
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We thus turn our analysis to the additional factors set forth in Steckley
required to satisfy the prejudice prong for a claim that ineffective assistance
of counsel caused a petitioner to reject a plea bargain. Neither the PCRA court
nor the parties addressed these factors; nonetheless, the PCRA court’s
findings of fact and credibility determinations allow us to conduct the requisite
legal analysis.
First, Warfel must show that there is a reasonable probability that he
would have accepted the plea offer and the Commonwealth would not have
withdrawn it in light of intervening circumstances. See Steckley, 128 A.3d
at 832. Warfel testified that he would have accepted the plea offer. N.T.,
11/22/2024, at 6, 8, 10-11. This is sufficient to satisfy his burden because
the PCRA court found his testimony to be credible. See Steckley, 128 A.3d
at 832-33; see also PCRA Court Opinion, 7/15/2025, at 10-12, 15. Moreover,
Warfel’s claimed innocence on some of the charges does not automatically
defeat a later claim that he would have accepted a guilty plea offer. See
to whether trial counsel communicated the offer. Id. In addition, there was no evidence the defendant would have accepted the offer and he testified at the PCRA hearing that he did not know what he would have done if he had known about the offer. Id. at *13.
Jones involved an untimely PCRA petition with an underlying claim of trial counsel’s failure to properly convey a plea offer. Jones, 2019 WL 2929059, at *2. Finding the claim could not satisfy the newly-discovered fact exception to the PCRA’s time bar, this Court noted that the petitioner could not claim the plea offer was unknown to him because a pretrial hearing transcript showed he knew of the offer. Id.
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Steckley, 128 A.3d at 834 (Recognizing that “[a] defendant’s assertion of
innocence does not necessarily belie his later claim that he would have
accepted a guilty plea offer,” as his claim of innocence prior to entering a
guilty plea may be “to strengthen his bargaining position. Indeed, a defendant
may enter a guilty plea while continuing to maintain that he is factually
innocent.”).
Further, the Commonwealth maintained its Plea Offer as of Thursday,
November 5, 2020, at the call of the list hearing and trial began the following
week. There is no indication in the record that any intervening circumstance
would have caused the Commonwealth to withdraw its offer in the days
between the call of the list and trial. We thus conclude that a reasonable
probability exists that the Commonwealth would not have withdrawn the offer
prior to the trial court’s acceptance of it. See id. at 832; see also id. at 834
(stating that “the test set forth in Lafler necessarily requires courts to
speculate as to what would have transpired absent trial counsel’s
effectiveness”) (citation omitted).
Next, Warfel must demonstrate that there is a reasonable probability
the trial court would have accepted the terms of the plea offer. See id. at
832. Unfortunately, the terms of the Commonwealth’s proposal were never
fully elucidated in the certified record. At the call of the list hearing, the
Commonwealth merely indicated that it extended an offer on count two
(aggravated indecent assault (complainant less than 13 years old)) with a
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recommended sentence at the bottom of the standard range of three and onehalf to seven years of imprisonment. N.T., 11/5/2020, at 2. Trial counsel
testified that he understood the offer to be Warfel’s guilty plea on count two,
with a recommended sentence of three and one-half years of imprisonment,
was in exchange for the dismissal of count one (aggravated indecent assault
of a child), which was the only charge subject to the Mandatory Minimum.11
N.T., 11/22/2024, at 31. The trial court gave no indication of its view on the
Commonwealth’s offer or that it would have accepted or rejected the
negotiated sentence. As this Court stated in Steckley, however, “[i]t defies
common sense to believe that the trial court, for no apparent reason, would
have rejected the plea bargain and ordered the parties to endure a lengthy
and expensive trial.” Steckley, 128 A.3d at 835. We therefore conclude that
a reasonable probability exists that the trial court would have accepted the
terms of the Plea Offer. See id. at 832, 834-35.
For the same reason, we conclude that Warfel established that a
reasonable probability exists that if he accepted the Commonwealth’s plea
offer, the trial court would have imposed a sentence less severe sentence than
the one he received following trial. See id. at 832. The three and one-half
11 Although it is unclear whether the offer would result in the dismissal of the remaining charges of indecent assault (complainant less than 13 years old) and corruption of minors, this is irrelevant as they would merge for sentencing purposes. See N.T., 2/24/2021, at 11; 42 Pa.C.S. § 9765 (merger of
sentences).
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years of imprisonment that was included in the Plea Offer was far less than
the ten-to-twenty-year sentence he ultimately received. Compare N.T.,
11/22/2024, Ex. C-1; N.T., 11/5/2020, at 2 with 42 Pa.C.S. § 9718(a)(3).
Therefore, viewing the record in the light most favorable to Warfel as
the prevailing party, we find no abuse of discretion in the PCRA court’s
determination that Warfel suffered prejudice as a result of trial counsel’s
ineffectiveness. See Pacheco, 340 A.3d at 1041; King, 259 A.3d at 520;
Steckley, 128 A.3d at 831, 836. In the context of the Plea Offer Warfel
rejected, “the outcome of the plea process would have been different with
competent advice.” Rizor, 304 A.3d at 1054 (citation omitted).
Accordingly, we affirm the PCRA court’s decision granting Warfel’s PCRA
petition and ordering the Commonwealth to reoffer Warfel a proposed plea of
three and one-half to seven years of imprisonment. See Steckley, 128 A.3d
at 837 (“Because the court’s sentencing discretion is confined by a mandatory
minimum sentence, the only logical remedy to neutralize Steckley’s
constitutional injury is to require the prosecution to reoffer the plea
proposal.”) (quotation marks omitted). We remand this case to the PCRA
court with instructions to resentence Warfel according to the plea bargain that
he previously rejected because of trial counsel’s deficient performance. See
id. at 838 (remanding the matter for the PCRA court “to resentence Steckley
according to the plea bargain that he previously rejected due to his attorney’s
deficient performance”).
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Order affirmed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 7/13/2026
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