Com. v. Slebodnick, M. ( 2018 )

J-S13019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARY GALE SLEBODNICK :
:
Appellant : No. 933 WDA 2017
:
Appeal from the Judgment of Sentence April 19, 2017
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0001008-2016
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 18, 2018
Mary Gale Slebodnick (“Appellant”) appeals from the judgment of
sentence entered on April 19, 2017, following her guilty plea to Driving Under
the Influence–General Impairment–Second Offense (“DUI”), Endangering the
Welfare of Children, and Use or Possession of Drug Paraphernalia.1 After
careful review, we affirm.
The relevant facts pursuant to the affidavit of probable cause are as
follows: Police were called to a store parking lot on March 17, 2016, after
store employees found Appellant asleep behind the wheel of her vehicle and
were unable to wake her. Appellant’s minor grandchild was in the vehicle with
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1 75 Pa.C.S. § 3802(d)(2), 18 Pa.C.S. § 4304(a)(1), and 35 P.S. § 780-
113(a)(32), respectively.
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her. Upon the police officer’s arrival, Appellant was awake but incoherent and
slurring her words. Police found multiple pill bottles in Appellant’s vehicle as
well as drug paraphernalia. Appellant was given a field sobriety test, which
she failed, and was placed under arrest for DUI and other charges. Following
her arrest, Appellant consented to a blood draw and her blood results showed
four different drugs in her system, all of which were well over the reporting
limit. Affidavit of Probable Cause, 4/4/16, at 1–2.
Appellant entered into a plea agreement and ultimately pled guilty to
one count of DUI General Impairment, Second offense, Tier I, graded as a
first-degree misdemeanor due to the presence of a minor child; one count of
Endangering the Welfare of Children, a first-degree misdemeanor; and one
count of Use/Possession of Drug Paraphernalia, an ungraded misdemeanor.
On April 20, 2017, the trial court sentenced Appellant to a term of confinement
of fifteen to thirty-six months, with twenty months of probation on the DUI
count; a term of incarceration of fifteen to thirty months on the Endangering-
the-Welfare-of-Children count, to run concurrently with the DUI sentence; and
a sentence of twelve months of probation for the paraphernalia count, to run
concurrently with the DUI count.
On April 26, 2017, Appellant filed a post-sentence motion seeking to
modify her sentence or withdraw her guilty plea. The trial court held a hearing
on April 27, 2017, and denied Appellant’s motion by order dated May 2, 2017.
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Appellant filed a timely notice of appeal. Both the trial court and Appellant
have complied with Pa.R.A.P. 1925.
Appellant presents the following questions for review:
[1.] Where [Appellant] entered into a plea deal whereby her
charges were reduced from a Misdemeanor of the First
Degree DUI to an Ungraded Misdemeanor DUI, and that plea
deal is accepted by the Court, is it an illegal sentence if
[Appellant] is still sentenced under the guidelines of a
Misdemeanor of the First Degree?
[2.] Where [Appellant] is advised by her counsel, via written
colloquy, that she is pleading to an Ungraded Misdemeanor,
with a legal maximum of twelve (12) months incarceration,
but is then sentenced under the guidelines of a
Misdemeanor of the First Degree, was her plea unlawfully,
unknowingly or involuntarily induced?
Appellant’s Brief at 4.
Preliminarily, we note that our ability to engage in meaningful appellate
review is hampered by the absence of two transcripts in the certified record.
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (“This Court
cannot meaningfully review claims raised on appeal unless we are provided
with a full and complete certified record.”). “It is well established in this
Commonwealth that it is the appellant’s responsibility to order the transcript
required and ascertain its presence in the record prior to certification for
appeal.” Commonwealth v. O’Black, 897 A.2d 1234, 1238 (Pa. Super.
2006).
In the instant case, the trial court held three hearings that are relevant
to this appeal: Appellant’s guilty plea hearing on March 21, 2017; Appellant’s
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sentencing hearing on April 20, 2017; and Appellant’s emergency post-
sentence motion hearing on April 27, 2017, wherein she argued, inter alia,
that the trial court erred when it sentenced her on the DUI charge. Although
there were three relevant hearings, Appellant ordered a single, unspecified
transcript. Notice of Appeal, Order for Transcript, 5/3/17. Pursuant to those
instructions, the official reporter included a single transcript, namely
Appellant’s April 20, 2017 sentencing hearing, in the certified record.2
Although this Court was under no obligation to do so, we contacted the
Superior Court Prothonotary in an attempt to locate the missing transcripts
and ensure that they were not excluded from the record due to an error in
transmission. We were able to locate the transcript of Appellant’s March 21,
2017 plea hearing; it is now included in the certified record as a supplemental
record. However, the April 27, 2017 hearing regarding Appellant’s post-
sentence motion was not transcribed and our review is thus limited in that
respect.
Appellant first asserts that her sentence is illegal. Our scope and
standard of review for an illegal sentence challenge is as follows:
The scope and standard of review applied to determine the legality
of a sentence are well established. If no statutory authorization
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2 Although the certified record contained only a single transcript, Appellant
included a copy of the transcript of her March 21, 2017 guilty plea proceeding
in the reproduced record. The inclusion of that transcript in the reproduced
record does not cure the defect. Commonwealth v. Bracalielly, 658 A.2d
755, 763 (Pa. 1995) (“An item does not become part of the certified record
simply by copying it and including it in the reproduced record.”).
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exists for a particular sentence, that sentence is illegal and subject
to correction. An illegal sentence must be vacated. In evaluating
a trial court’s application of a statute, our standard of review is
plenary and is limited to determining whether the trial court
committed an error of law.
Commonwealth v. Dixon, 161 A.3d 949, 952 (Pa. Super. 2017) (quoting
Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa. Super. 2006).
In support of her appeal, Appellant argues that her sentence is illegal
because she plead guilty to an ungraded misdemeanor, which carries a
maximum sentence of twelve months, but she received a sentence of fifteen
to thirty-six months of incarceration and an additional twenty months of
probation. Appellant’s Brief at 9. Appellant avers that she was aware of the
terms of the plea, “as illustrated in her written colloquy, [and those terms
were] central to her accepting the plea.” Id. Appellant does not aver that
the sentencing court acted without statutory authority when it handed down
her sentence; rather, she argues that her sentence is illegal because she did
not receive the benefit of her plea bargain.3 Id.
Appellant’s sentence is not illegal. In Commonwealth v. Berry, 877
A.2d 479 (Pa. Super. 2005) (en banc), this Court noted that,
our case law draws a careful distinction between truly “illegal,”
and sentences which may have been the product of some type of
legal error. [Commonwealth v. Archer, 722 A.2d 203, 209–210
(Pa. Super. 1998) (en banc)] and its progeny have established
that the term “illegal sentence” is a term of art that our courts
apply narrowly, to a relatively small class of cases.
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3 We address Appellant’s assertion that she did not receive the benefit of
her plea bargain in the context of her second issue.
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Id. at 483. We have further noted, “Legality of sentence issues occur
generally either: (1) where a trial court’s traditional authority to use discretion
in the act of sentencing is somehow affected and/or (2) when the sentence is
patently inconsistent with the sentencing parameter set forth by the General
Assembly.” Commonwealth v. Succi, 173 A.3d 269, 285 (Pa. Super. 2017).
“Most other challenges implicate the discretionary aspect of a sentence, even
though the claim may involve a legal question, a patently obvious
mathematical error, or an issue of constitutional dimension.” Id; see also
Commonwealth v. Heaster, 171 A.3d 268, 272 (Pa. Super. 2017)
(challenge to application of deadly weapon enhancement as violative of plea
agreement implicated the discretionary aspect of a sentence); Berry, 877
A.2d 479 (finding that claim that trial court violated plea agreement by
imposing consecutive sentences and not allowing defendant to withdraw plea
implicated discretionary aspect of sentencing).
In this case, Appellant ultimately pled guilty to a charge of DUI.
Standing alone, a conviction under Section 3802(a)(1) constitutes an
ungraded misdemeanor. 75 Pa.C.S. § 3803(a)(1). However, “[a]n individual
who violates section 3802 where a minor under 18 years of age was an
occupant in the vehicle when the violation occurred commits a misdemeanor
of the first degree.” 75 Pa.C.S. § 3803(b)(5). It is undisputed that Appellant
had a minor child in her vehicle when she was arrested for DUI; thus, the
minor child’s presence in the vehicle classifies the crime as a first-degree
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misdemeanor, with a maximum sentence of sixty months. 18 Pa.C.S. § 106
(b)(6). The sentencing court sentenced Appellant to a term of incarceration
of fifteen to thirty-six months and a consecutive period of probation of twenty
months, for a total of fifty-six months of supervision. Given that Appellant’s
sentence for a first-degree misdemeanor is less than the statutory maximum
for said misdemeanor, the sentencing court had statutory authority for the
sentence it imposed; thus, Appellant’s sentence was not illegal.
In her second issue, Appellant avers that her plea was “not knowingly,
voluntarily, and lawfully induced” because she was sentenced to a period in
excess of the “guaranteed sentence” of a maximum period of incarceration of
twelve months on the DUI charge. Appellant’s Brief at 10.4 It is well
established that when the parties enter into a negotiated plea, the parties are
“entitled to receive the benefit of their bargains.” Commonwealth v.
Martinez, 147 A.3d 517, 532 (Pa. 2016). “Thus, a court must determine
whether an alleged term is part of the parties’ plea agreement. If the answer
to that inquiry is affirmative, then the convicted criminal is entitled to specific
performance of the term.” Id. Moreover:
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4 As discussed supra, Appellant plead guilty to a first-degree misdemeanor,
which carries a maximum sentence of sixty months of incarceration. It is
unclear from Appellant’s brief whether she is arguing that her plea is invalid
because she was informed that she would be subject to a maximum sentence
of twelve months of incarceration despite pleading guilty to a first-degree
misdemeanor or she was informed that she was pleading to an ungraded
misdemeanor, subject to the twelve-month maximum sentence.
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Although a plea agreement occurs in a criminal context, it remains
contractual in nature and is to be analyzed under contract-law
standards. Further, disputes over any particular term of a plea
agreement must be resolved by objective standards. A
determination of exactly what promises constitute the plea
bargain must be based upon the totality of the surrounding
circumstances and involves a case-by-case adjudication.
Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2010).
A review of the circumstances surrounding Appellant’s plea belies her
claim that her plea was not knowingly, voluntarily, or lawfully induced. First,
the plea agreement, which was signed by Appellant, her attorney, and the
Commonwealth, sets forth the terms of the plea as requiring Appellant to
plead guilty to DUI, “a misdemeanor of the first degree.” Plea Agreement,
3/21/17, at 1. Moreover, a review of the March 21, 2017 plea transcript fails
to provide any additional support for Appellant’s contention that her plea was
not made knowingly and voluntarily. Indeed, the following colloquy took
place:
The Court: [Appellant], you’re entering a plea to general
impairment, second offense, DUI, tier 1,
misdemeanor of the first degree . . . is that your
understanding?
Appellant: Yes, your honor.
The Court: I’ve been given a Pleader’s Memorandum with various
blanks filled in. Did you go over that document?
Appellant: Yes, I did.
The Court: Any questions?
Appellant: No, sir.
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* * *
The Court: [Do you] know what rights you’re giving up?
Appellant: Yes, sir.
The Court: Entering your plea voluntarily and of your own free
will?
Appellant: Yes.
The Court: No questions?
Appellant: No, your honor.
N.T. (Guilty Plea), 3/21/17, at 2–3.
A review of Appellant’s April 20, 2017 sentencing hearing similarly
provides no support for Appellant’s contention that she believed she had pled
to an ungraded misdemeanor. N.T. (Sentencing), 4/20/17, at 4–5. Indeed,
at that hearing, the trial court specifically asked Appellant’s counsel if he had
reviewed the presentence report, in which Appellant’s DUI charge was graded
as a first-degree misdemeanor, subject to up to five years of imprisonment.
Id. at 2. Counsel responded that he had reviewed the document, and no
changes or corrections were needed. Id. Moreover, we note that Appellant
did not object to the alleged error in the gradation of the DUI misdemeanor
or length of her sentence at either hearing for which this Court could access
the transcript.5
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5 Appellant’s failure to have the April 26, 2017 post-sentence motion
transcribed and included as part of the certified record has impeded our
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In contrast to the overwhelming evidence that Appellant was aware of
the terms of the plea, she cites only a single entry in the record in support of
her claim that her plea was not knowingly, voluntarily or lawfully entered.
Appellant’s Brief at 10. Appellant cites to the undated Guilty Plea, Explanation
of Defendant’s Rights, in which Appellant’s counsel filled out the charges and
grades of Appellant’s offenses and listed the “DUI General Impairment” charge
as an ungraded misdemeanor, subject to a term of imprisonment of up to
twelve months. Guilty Plea, Explanation of Defendant’s Rights, undated, at 1.
This document was signed by Appellant and her counsel, but not by the
Commonwealth.
While it is undisputed that this document lists Appellant’s DUI
misdemeanor as ungraded, the totality of the circumstances surrounding the
plea, which include, inter alia, the plea agreement between the parties,
Appellant’s guilty plea colloquy in open court, and the pre-sentence
investigation report compels this Court to find that Appellant has failed to
establish that she was offered and accepted a plea which classified her DUI
charge as an ungraded misdemeanor, subject to a maximum twelve-month
term of confinement. Appellant has failed to show that she did not enter her
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review. As the trial court noted, absent that transcript, “there is no record of
what [Appellant] was or was not told by counsel or the court, what she was
aware of at the time she entered her plea, or what she thought the terms of
her plea agreement were.” Trial Court Opinion, 7/10/17, at 4.
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plea knowingly, and we discern no error or abuse of discretion. Based on the
foregoing, Appellant is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2018
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