Com. v. Kelly, M. ( 2017 )

J-S54031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MICHAEL J. KELLY
Appellant No. 231 WDA 2017
Appeal from the Judgment of Sentence December 29, 2016
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000460-2016
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED: SEPTEMBER 29, 2017
Appellant, Michael J. Kelly, appeals from the judgment of sentence
entered in the McKean County Court of Common Pleas. Appellant contends
the court abused its discretion in determining that he was not eligible for the
state motivational boot camp program. We affirm.
The facts are unnecessary for our disposition. On December 8, 2016,
docketed December 13, 2016, Appellant entered into a negotiated guilty plea
to robbery,1 simple assault,2 and theft by unlawful taking.3
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 3701(a)(1)(iv).
2 18 Pa.C.S. § 2701(a)(1).
3 18 Pa.C.S. § 3921(a).
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The guilty plea agreement provided:
SENTENCE RECOMMENDATION: [Appellant] is to pay the
costs of prosecution and:
Aggregate sentence of 22 months to 48 months plus two
years consecutive probation;
On Robbery: Incarceration of 22 months to 48 months
plus two years consecutive probation;
On Simple Assault: Incarceration of 6 month[s] to 18
months concurrent to sentence on Robbery; and
On Theft: Incarceration of 6 months to 18 months
concurrent to sentences at Count 2 and Count 5.
Guilty Plea Agreement, 12/13/16, at 1.4 The agreement stated that “[t]his
sentencing agreement is entered into voluntarily with full knowledge of the
maximum and/or mandatory penalties which could be assessed for the crimes
charged and with full understanding that the [c]ourt is not bound to accept
the terms of the Agreement.” Id.
At sentencing, counsel requested that Appellant be made boot camp
eligible. N.T. Sentencing Hr’g, 12/29/16, at 6. The Commonwealth opposed
the request. Id. at 7. The court denied the request for boot camp. Id. at 8,
11. On December 29, 2016, Appellant was sentenced to twenty-two to forty-
4Appellant was also charged with the following crimes: robbery, 18 Pa.C.S. §
3701(a)(1)(ii), two counts of criminal conspiracy/robbery, 18 Pa.C.S. §
903(a)(1), and receiving stolen property, 18 Pa.C.S. § 3925(a). These
charges were dismissed.
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eight months’ incarceration5 plus two years of consecutive probation with
credit for time served of eighty-one days. This appeal followed. Appellant
filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, and the trial court filed a responsive opinion.
Appellant raises the following issue for our review: “Did the sentencing
[c]ourt abuse it’s discretion in determining that Appellant was not eligible for
the state motivational boot camp program, when he was otherwise statutorily
eligible?” Appellant’s Brief at 6.
Initially, we consider whether Appellant has waived any challenge to the
discretionary aspect of his sentence. In Commonwealth v. Lincoln, 72 A.3d
606 (Pa. Super. 2013), this Court opined: “Settled Pennsylvania law makes
clear that by entering a guilty plea, the defendant waives his right to challenge
on direct appeal all nonjurisdictional defects except the legality of the sentence
and the validity of the plea.” Id. at 609 (citation omitted). ”Where the plea
agreement contains a negotiated sentence which is accepted and imposed by
the sentencing court, there is no authority to permit a challenge to the
discretionary aspects of that sentence.” Commonwealth v. Reichle, 589
A.2d 1140, 1141 (Pa. Super. 1991); see also Commonwealth v. Baney,
5 We note that at sentencing, in response to the court’s inquiry as to its
position on boot camp eligibility, the Commonwealth misstated the sentence
recommendation for robbery in the Guilty Plea Agreement. “When we wrote
the guideline range we were considering that the range was 18 to 24 and the
Plea Agreement was written accordingly. So, if he were to get boot camp it
would be a large reduction in the sentence that was not envisioned in the Plea
Agreement.” N.T. Sentencing Hr’g, 12/29/16, at 7.
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860 A.2d 127, 131 (Pa. Super. 2004) (holding a defendant “having entered a
valid negotiated guilty plea, . . . cannot challenge the discretionary aspects of
his sentence”) (citation omitted)). We have long recognized
[i]f either party to a negotiated plea agreement believed the
other side could, at any time following entry of sentence,
approach the judge and have the sentence unilaterally
altered, neither the Commonwealth nor any defendant
would be willing to enter into such an agreement.
Permitting a discretionary appeal following the entry of a
negotiated plea would undermine the designs and goals of
plea bargaining, and would make a sham of the negotiated
plea process.
Reichle, 589 A.2d at 1141 (citations, quotation marks, and footnote omitted).
Appellant entered a negotiated guilty plea that included a negotiated
sentence. The court accepted the plea and Appellant received the negotiated
sentence. See Baney, 860 A.2d at 131; Reichle, 589 A.2d at 1141.
Therefore, he waived any challenge to the discretionary aspect of his
sentence. See Lincoln, 72 A.3d at 609. Accordingly, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2017
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