Com. v. Perry, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH E. PERRY :
:
Appellant : No. 302 EDA 2020
Appeal from the Judgment of Sentence Entered December 17, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008775-2017
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 16, 2021
Appellant, Kenneth E. Perry, appeals from the judgment of sentence of
1 to 2 years’ incarceration, imposed after his term of probation was revoked
based on a technical violation that stemmed from Appellant’s refusing to admit
his guilt of the sexual offenses to which he pled nolo contendere. Appellant
argues that his negotiated plea included an agreement that he would not have
to admit his guilt (hereinafter “non-admission condition”) and, thus, the trial
court erred by revoking his probation rather than granting specific
performance of the non-admission condition. After careful review, we vacate
Appellant’s judgment of sentence and remand for further proceedings.
The facts of Appellant’s case are not pertinent to the issues he raises on
appeal. The complicated procedural history of his case was summarized by
the trial court, as follows:
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On December 7, 2018[, Appellant] entered into a negotiated,
[nolo contendere] plea … to the charges of Endangering [the]
Welfare of Children[,] as a Felony in the Third Degree[,] and
Corruption of Minors[,] as a Misdemeanor in the First Degree. The
negotiated sentence was a total of ten years of reporting
probation[,] to be supervised by the Sex Offender’s Unit.
[Appellant’s] probationary sentence included a provision that
“Admitting Guilt[] During Supervision is Not a Condition of
Probation[,]” and that [Appellant] would be taking a polygraph
test[,] in lieu of that admission. Notes of Testimony [(N.T.)],
12/7/18[,] at 23. If [Appellant] passed the polygraph test he
would not have to enter treatment. [N.T.], 12/19/18[,] at 23.
On December 19, 2018[,] a hearing was held before this [c]ourt
to clarify the conditions of [Appellant’s] probation should he fail
the polygraph test. Defense counsel articulated that it was never
[Appellant’s] understanding of the plea negotiations that he would
need to admit guilt, despite the results of the polygraph. Id. at
9. Defense counsel argued that treatment would have to make
accommodations for [Appellant] to receive treatment without
admitting guilt. Id. Probation Officer Johnson testified to clarify
that[,] should an individual fail the polygraph test and enter
treatment sex offender treatment, such treatment would not be
possible without continued accountability by the participant. [Id.]
at 10. At this time, this [c]ourt offered [Appellant] the opportunity
to withdraw the negotiated plea due to the apparent confusion
around its conditions. Id. at 13. [Appellant] declined this
opportunity and elected to move forward with the polygraph under
the original conditions of his sentence. Id. at 29.
On December 31, 2018, [Appellant] failed his polygraph. On
January 7, 2019, [Appellant] appeared before this [c]ourt for a
violation of probation hearing[,] at which time next steps for
[Appellant’s] sentence were discussed. This [c]ourt again offered
[Appellant] the opportunity to withdraw his plea, acknowledging
the facial contradictions in the agreed-upon sentence. [N.T.],
1/7/19[,] at 9. [Appellant] did not wish to withdraw his plea, and
indicated an understanding that he had to go to treatment due to
the failed polygraph test. Id. (“As far as going to treatment is
concerned, that’s absolutely what was bargained. If he didn’t pass
the polygraph, he has to go to treatment. Agreed. He’s ready to
go.”). At this time, again, [Appellant’s] probation officer made
clear in his testimony that treatment would be impossible if
[Appellant] refused to disclose his offense in a rehabilitative
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setting, resulting in a probation violation. Id. at 11. [Appellant]
indicated an understanding of this risk. Id.
Following this hearing, [Appellant] was subsequently placed into
sex offender treatment and was given until April 15, 2019[,] to
provide a disclosure about his offense in accordance with
treatment protocol.
On April 23, 2019, [Appellant] appeared before this [c]ourt for a
violation of probation [h]earing. [Appellant] had been
unsuccessfully discharged from treatment due to his failures to
disclose his offense and his continued blaming of the victim for his
actions. It was rearticulated at this hearing that this [c]ourt had
previously offered [Appellant] an opportunity to withdraw his plea,
which he had declined. [N.T.], 4/23/19[,] at 6, 10. This [c]ourt
found [Appellant] in technical violation and ordered that he enroll
in another sex[-]offender treatment program within 30 days. Id.
at 17.
On May 23, 2019, [Appellant] appeared before this [c]ourt again
for a violation of probation. [Appellant] had continued to be
noncompliant with treatment, failing to disclose his offense.
[N.T.], 5/23/19[,] at 5. It was the request of his probation officer
at this time that [Appellant] be given a sentence of state
incarceration due to his incompatibility with treatment. Id.
Again, it was rearticulated at this hearing that this [c]ourt had
previously offered [Appellant] an opportunity to withdraw his plea,
which he had declined. Id. at 6. This [c]ourt did not find
[Appellant] in technical violation at this time, but instructed the
probation officer to relist the matter immediately should
[Appellant] be unsuccessfully discharged from treatment for a
second time. Id. at 8.
On September 30, 2019, [Appellant] appeared before this [c]ourt
again for a violation of probation. [Appellant] had been
unsuccessfully discharged from treatment again due to his
continued failure to consistently disclose his offenses. [N.T.],
9/30/19[,] at 5. This [c]ourt was satisfied at that time that
[Appellant] had made some progress in treatment in the form of
partial disclosures, and thus elected to wait to see whether
[Appellant] would be allowed to re-enter treatment. Id. at 20
(“Right now let’s see if [the treatment provider] will take
[Appellant] back.”).
On December 11, 2019, [Appellant] appeared before this [c]ourt
yet again for a violation of probation. At this time, this [c]ourt
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learned that [the treatment provider] had not accepted
[Appellant] back into treatment as of his [December 6, 2019]
reassessment appointment. [N.T.], 12/11/19[,] at 5. Probation
had requested that [Appellant’s] probation be revoked and that
[Appellant] serve a term of incarceration due to his continued
unwillingness to participate in treatment per the conditions of his
probation. At this time, this [c]ourt held the issue of revocation
under advisement to address at a [December 17, 2019] hearing.
[Id.] at 10.
On December 17, 2019, [Appellant] appeared before this [c]ourt
for its decision as to his probation revocation. [Appellant’s]
probation was revoked and he was sentenced to one to two years
of state incarceration with no probation tail. [N.T., 12/17/19], at
20. This [c]ourt further specified that [Appellant] must complete
sex offender treatment to be eligible for parole. Id.
[Appellant] filed a motion for reconsideration of sentence on
December 20, 2019[,] which was denied by operation of law after
thirty days. [Appellant] filed a Notice of Appeal on January 15,
2020[,] and a [Pa.R.A.P. 1925(b)] Statement of Matter[s]
Complained of on Appeal on February 5, 2020.
Trial Court Opinion (TCO), 5/21/20, at 1-5 (unpaginated; footnotes omitted).
The trial court filed its Rule 1925(a) opinion on May 21, 2020.
Herein, Appellant states two issues for our review:
A. Where Appellant entered a [nolo contendere] plea and
bargained for a specific condition of supervision - to wit, that
[Appellant] would not have to admit guilt of criminal sexual
conduct as a condition of probation - and where the court accepted
the plea and its attendant negotiated provisions, did not the court
err when it refused to grant specific performance of the non-
admission provision of the plea agreement and, instead, obliged
Appellant to complete sex offender treatment in which admission
of criminal sexual conduct was a requirement for successful
completion of the treatment program?
B. Did not the court err in finding Appellant in violation of the
conditions of his supervision[,] where Appellant was terminated
from sex offender treatment programs due to his refusal to admit
criminal sexual conduct, contrary to the negotiated provision of
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his plea agreement that Appellant would not have to admit guilt
of criminal sexual conduct as a condition of probation?
Appellant’s Brief at 4.
Appellant’s issues are related and, thus, we will address them together.
Preliminarily, we observe:
In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed on
appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.
Super. 2000). Our standard of review is limited to determining
the validity of the probation revocation proceedings and the
authority of the sentencing court to consider the same sentencing
alternatives that it had at the time of the initial sentencing. 42
Pa.C.S.[] § 9771(b); Commonwealth v. Gheen, … 688 A.2d
1206, 1207–08 ([Pa. Super.] 1997) (the scope of review in an
appeal following a sentence imposed after probation revocation is
limited to the validity of the revocation proceedings and the
legality of the judgment of sentence). Once probation has been
revoked, a sentence of total confinement may be imposed if any
of the following conditions exist: (1) the defendant has been
convicted of another crime; or (2) the conduct of the defendant
indicates that it is likely that he will commit another crime if he is
not imprisoned; or, (3) such a sentence is essential to vindicate
the authority of court. 42 Pa.C.S.[] § 9771(c); Commonwealth
v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001).
Commonwealth v. Hoover, 909 A.2d 321, 322–23 (Pa. Super. 2006).
In this case, Appellant argues that the trial court erred by revoking his
probation based on the technical violation of his failing to complete sex-
offender treatment. He argues that he failed treatment because he refused
to admit his guilt of the offenses to which he pled nolo contendere, but his
plea agreement included the non-admission condition. Appellant stresses
that, “[d]uring [his] plea colloquy, the court specifically stated, ‘Admitting guilt
during your treatment is not a requirement.’” Appellant’s Brief at 21
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(emphasis added) (quoting N.T., 12/7/18, at 6). The written plea colloquy
forms, and the court’s original sentencing order, also contained the non-
admission condition. Id. at 21-22; see also No Contest Plea Order, 12/7/18,
at 1 (“Admitting guilty during supervision not a condition of probation.”)
(unnecessary capitalization omitted). Thus, Appellant insists that “it was clear
from the start that it was agreed between the parties that [he] need not admit
guilt during supervision.” Appellant’s Brief at 22. Moreover, he contends that
the condition that he would complete sex offender treatment if he failed a
polygraph test did not “nullify the non-admission provision of the plea
agreement.” Id. at 24. Instead, Appellant reasonably believed he would not
have to admit guilt, even if he had to attend treatment. See id. at 29-30.
Based on the non-admission condition of the plea agreement, Appellant
claims that the court erred by finding him in violation of his probation after he
was discharged from treatment for failing to admit his guilt. Appellant insists
that while he was entitled to specific performance of the plea agreement’s
non-admission condition, the court “unilaterally and retroactively [rewrote]
the plea agreement to impose a new condition” of Appellant’s having to admit
his guilt in order to complete sex-offender treatment. Id. at 26. Appellant
avers that the court’s finding him in violation and imposing a new sentence of
incarceration based on his failure to do so “was directly contrary to the
bargained-for[,] non-admission provision” of the negotiated plea agreement.
Thus, he asks that we vacate his judgment of sentence and remand for a new
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violation hearing, at which specific performance of non-admission condition
can be enforced. Id. at 36.
Notably, the Commonwealth agrees that Appellant is entitled to relief.
It candidly concedes that it “never should have entertained the terms of the
plea agreement that were reached because it contained contradictory material
terms.” Commonwealth’s Brief at 14. The Commonwealth then avers that,
when it notified the court of the contradictory components of the plea in its
motion for reconsideration of Appellant’s sentence, the court should have
“exercise[d] its discretionary powers that would have permitted it to
unilaterally resolve the contract dispute between the parties.” Id. at 15. More
specifically, “[t]he court should have sua sponte rescinded its sentencing order
when the Commonwealth first pointed out the problem with the plea
agreement within thirty days of its entry.” Id. (citing 42 Pa.C.S. § 5505
(“Except as otherwise proscribed by law, a court upon notice to the parties
may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.”)). The Commonwealth concludes that,
by allowing the plea agreement to remain in place, the court “lost jurisdiction
to remedy the contractual problem[] by the time of the revocation
proceedings, [and] it was required to enforce the conditions for which
[Appellant] had bargained.” Id. at 16. Therefore, the Commonwealth
recommends that we “vacate [Appellant’s] probation revocation sentence and
order the [trial] court to reinstate his prior[,] ten-year probation term (with
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credit for the time served on the revocation sentence) and rescind the
treatment component of the probation term to achieve specific performance
of the bargain that [Appellant] originally struck.” Id. at 17-18.
We appreciate the Commonwealth’s candor with this Court, and we
agree with both parties that Appellant is entitled to relief. It is clear that the
parties contemplated that the non-admission condition of Appellant’s guilty
plea would mean that he would never be required to admit his guilt, even if
he failed the polygraph test and had to undergo treatment. Indeed, the court
explicitly informed Appellant at the plea proceeding that, “[a]dmitting guilt
during your treatment is not a requirement.” See N.T., 12/7/18, at 6
(emphasis added). Nothing indicates that the parties were confused about
the nature of the agreement they were entering, or the terms thereof. In any
event, we observe that “[a]ny ambiguities in the terms of the plea agreement
will be construed against the [Commonwealth].” Commonwealth v.
Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (citation omitted).
In Hainesworth, we made clear that plea agreements are “contractual
in nature and [are] to be analyzed under contract law standards.” Id. at 449(citation omitted). We also stressed that “it is critical that plea agreements
are enforced, ‘to avoid any possible perversion of the plea bargaining
system.’” Id. (quoting Commonwealth v. Fruehan, 557 A.2d 1093, 1094
(Pa. Super. 1989) (internal citations omitted)). Thus,
when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be fulfilled.”
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[Santobello v. New York, 404 U.S. 257, 262 (1971)]. This
doctrine is also reflected in the law of this Commonwealth: “Plea
bargains which are entered knowingly and voluntarily are viewed
with favor in this Commonwealth. If a trial court accepts a plea
bargain, the defendant who has given up his constitutional right
to trial by jury must be afforded the benefit of all promises made
by the district attorney.” Fruehan, 557 A.2d at 1094. Specific
enforcement of valid plea bargains is a matter of fundamental
fairness. Commonwealth v. Mebane, 58 A.3d 1243, 1249 (Pa.
Super. 2012).
Id. at 449.
Following these legal principles, we conclude that the trial court abused
its discretion by refusing to specifically enforce the non-admission condition
of Appellant’s plea. The court reasoned that its revocation of Appellant’s
probation was appropriate because it repeatedly offered to allow him to
withdraw his plea, and he “was fully cognizant of [the] treatment condition at
the outset of his plea….” TCO at 7 (unnumbered). However, as discussed
supra, the record supports Appellant’s position — and the Commonwealth’s
concession — that the parties contemplated that Appellant would not have to
admit his guilt, even if treatment were required. Moreover, Appellant had no
obligation to move to withdraw a plea that is favorable to him. The
Commonwealth entered into the plea agreement fully understanding the terms
thereof, and the court not only accepted the plea, but failed to vacate it when
the Commonwealth notified the court that the plea contained contradictory
conditions. Thus, the court abused its discretion by revoking Appellant’s
probation based on his failure to admit guilt.
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Accordingly, we vacate Appellant’s judgment of sentence and remand
for the court to reinstate his prior sentence of probation, with credit given for
the time Appellant served on his revocation sentence. The court shall also
rescind the treatment condition of Appellant’s probationary sentence.
Judgment of sentence vacated. Case remanded for further proceedings
consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/21
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