Com. v. Tanner, B. ( 2019 )

J-S54025-18
2019 PA Super 62COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN D. TANNER :
:
Appellant : No. 211 WDA 2018
Appeal from the PCRA Order January 23, 2018
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000060-2015
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
CONCURRING AND DISSENTING STATEMENT BY LAZARUS, J.:
FILED: February 27, 2019
I fully join in the majority’s considered analysis of the claims raised on
appeal by Tanner. I write separately, however, because I diverge from the
majority’s ultimate disposition in the instant case.
The majority equates the plea negotiations in this matter with the
situation in Melendez-Negron, and believes that Tanner’s entire guilty plea
should be vacated on appeal due to a “shared misapprehension.” 123 A.3d at
1093-94. In my opinion, I find that this result “jumps the gun” and usurps
the trial judge’s role upon remand. In Melendez-Negron, the
Commonwealth specifically stated that in agreeing to the mandatory minimum
sentence, later determined illegal under Alleyne, it “gave up the opportunity
to seek sentences on the drug paraphernalia and small amount of marijuana
charges.” Id. at 1092.
J-S54025-18
Here, the trial judge should be given the first opportunity to determine
whether and to what extent the restitution portion of Tanner’s plea, based
upon the now-invalid premise that both the Township and Selective were
victims under section 1106, played a role in the ultimate negotiated sentence.
We have no way of knowing what factors the trial court took into consideration
before accepting the plea agreement. The change in the law pursuant to
Veon, which was decided more than seven months after the Commonwealth
negotiated Tanner’s plea, may very well have affected the plea agreement
both in terms of what the Commonwealth offered to Tanner and what may
have been accepted by the trial court.
The majority is correct that both the Commonwealth and the defendant
are entitled to the benefit of their bargain. However, the determination of
exactly what was the extent of that bargain must first be made before we
sweepingly vacate the plea. Once that critical question is answered, then the
trial court can either re-impose the same sentence or the parties can be
permitted to renegotiate or proceed to trial.
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