Com. v. George, K. ( 2017 )

J-S64009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAREEM GEORGE :
:
Appellant : No. 202 MDA 2017
Appeal from the PCRA Order November 23, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002215-2005
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD*, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 08, 2017
Appellant, Kareem George, contends he is not receiving the benefit of
the agreement he entered into when he pled guilty to charges of third-
degree murder and associated crimes. Specifically, he argues the agreement
required his sentences for those crimes (collectively, “the third-degree
murder sentences”) run concurrent to any sentences he was serving due to
parole violations. He claims that in December 2015, he learned his parole
violation sentences were not run concurrent to the third-degree murder
sentences. He therefore filed this petition seeking to have the terms of his
plea agreement enforced. After careful review, we vacate and remand for
further proceedings.
To raise his claims, George filed a pro se Post Conviction Relief Act
(“PCRA”) petition, asking to have his sentence modified to reflect the terms
____________________________________
* Former Justice specially assigned to the Superior Court.
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of his plea agreement. In response, the court below dismissed the petition
as untimely under the PCRA’s strictures.
However, Pennsylvania courts have consistently treated petitions to
enforce plea agreements as contract enforcement actions, not as petitions
under the PCRA. A “prosecutor is duty bound to fulfill the promises made in
exchange for the defendant’s guilty plea.” Commonwealth v. Martinez,
147 A.3d 517, 532 (Pa. 2016) (citation omitted). “Our courts have
demanded strict compliance with that duty in order to avoid any possible
perversion of the plea bargaining system, evidencing the concern that a
defendant might be coerced into a bargain or fraudulently induced to give up
the very valued constitutional guarantees attendant the right to trial by
jury.” Id. (quotation marks and citation omitted). As a result, a convict is
entitled to specific performance of their plea agreement. See id.Thus, George’s petition, though self-titled as a PCRA petition, does not
fall under the ambit of the PCRA. It is not subject the PCRA’s timeliness
requirements. It is properly treated as a petition to enforce the terms of his
plea agreement.
In his petition, George alleges the prosecutor and trial court agreed to
run the third-degree murder sentences concurrent to “any [p]arole sentence
on the technical violations.” Petition, filed 2/8/16, at 4. Indeed, the
transcript of his sentencing supports his assertion:
[DEFENSE COUNSEL]: We would ask as discussed at sidebar
that you make this sentence concurrent[] with the technical
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parole violation he’s already received from his green sheet of a
one year sentence.
THE COURT: To the extent that I can.
[DEFENSE COUNSEL]: As you can by law. And then we would –
I think that’s how we covered the parole issue. Am I right,
Kareem?
[GEORGE]: Yes.
THE COURT: … Mr. George, I just want to be crystal
clear, to the extent that I can make it concurrent with your
technical violations I would do that. But I’m not even so sure I
can do that. I just want to be clear with you that that may not
happen. Do you understand that?
[GEORGE]: (Nods head.)
THE COURT: I’m recommending it. I’m stating that for
the record. But that can be ignored by the Parole Board. Do you
understand that?
[GEORGE]: Yes.
THE COURT: I just don’t want you – I want to be
crystal clear about that. You understand it?
[GEORGE]: (Nods head.)
N.T., Sentencing, 8/27/07, at 9-10. The prosecutor did not object or seek to
modify these comments in any way. See id.When it imposed sentence, the court noted, “[t]o the extent that the
[c]ourt can, this sentence can run concurrently with the sentence that the –
parole sentence on the technical violations. That’s pursuant to the plea
agreement.” Id., at 27. The court again qualified this statement by
admitting it might not have the authority to impose concurrent sentences.
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See id. In the event that the court was found to not have that authority,
“we’ll give the [George] the appropriate time credit.” Id.
Thus, it appears that running the third-degree murder sentences
concurrent to at least one parole violation sentence was part of George’s
plea agreement. He has filed a document purporting to be a summary status
of sentence sheet dated December 14, 2015. This document indicates
George began serving his third-degree murder sentences on December 9,
2015, or eight years after he pled guilty. It identifies a sentence that expired
on December 8, 2015 as the cause of the delayed start of his third-degree
murder sentences. However, it does not provide any other details about this
prior sentence.
We have been unable to locate any other evidence regarding the
nature of the prior sentence in the record. Thus, we are unable to determine
what exact parole violation sentence(s) the agreement covered. Nor are we
able to determine the nature of the prior sentence that expired on December
8, 2015.
These facts are crucial to assessing the merit of George’s claim. It may
be that George received the benefit of the bargain, and the sentence about
which he currently complains was not part of the plea agreement. For
example, the plea agreement refers only to technical parole violation
sentences. A technical violation of parole is the violation of any term of
parole other than the commission of a new crime. See 61 Pa.C.S.A. §
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6138(c). If the sentence George is complaining of now was imposed for a
technical violation, it would appear his claim has arguable merit.
On the other hand, if the parole revocation sentence that forms the
basis of George’s current complaint was imposed due to his commission of a
new crime, it would appear the plea agreement did not cover it. Indeed, it
appears that even if the plea agreement had covered such a sentence, the
court had no power to enforce the agreement. See 61 Pa.C.S.A. §
6138(a)(5); Kerak v. Pennsylvania Bd. of Prob. & Parole, 153 A.3d
1134 (Pa. Cmwlth. 2016).
Given the confusion as to the proper procedure for handling George’s
petition, and the possible merit to his claim, we vacate the order dismissing
his petition and remand for proceedings to clarify the status of the sentence
that expired on December 8, 2015. If they so desire, both parties may also
present evidence regarding the scope of the plea agreement. The court may
then determine whether George has received the benefit of his plea
agreement.
Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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