Com. v. Shaw, L. ( 2023 )

J-S33019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY SHAW, JR. :
:
Appellant : No. 260 WDA 2023
Appeal from the PCRA Order Entered February 1, 2023
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000591-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY SHAW, JR. :
:
Appellant : No. 261 WDA 2023
Appeal from the PCRA Order Entered February 1, 2023
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000300-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY SHAW, JR. :
Appellant :
: No. 262 WDA 2023
Appeal from the PCRA Order Entered February 1, 2023
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000288-2020
J-S33019-23
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY SHAW, JR. :
:
Appellant : No. 263 WDA 2023
Appeal from the PCRA Order Entered February 1, 2023
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000575-2019
BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: October 24, 2023
Larry Shaw, Jr. (Appellant),1 appeals from the orders entered on
February 1, 2023, in the Fayette County Court of Common Pleas, dismissing
his petitions for collateral relief filed under the Post Conviction Relief Act
(PCRA)2 in the above-captioned cases.3 Appellant seeks relief from an
aggregate sentence of 5 to 11 years’ incarceration, imposed on July 8, 2020,
after he entered a global guilty plea in four separate criminal matters.
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* Former Justice specially assigned to the Superior Court.
1 In the notices of appeal and records, various forms of Appellant’s name were
used, i.e., “Larry Shaw Jr.,” “Larry Shaw,” and “Larry Franklin Jr. Shaw.” We
have amended the caption for consistency and will use one version of
Appellant’s name.
2 42 Pa.C.S. § 9541-9546.
3 The Commonwealth did not file an appellee’s brief in this matter.
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Appellant’s court-appointed counsel, James V. Natale, Esquire (Attorney
Natale), has filed a petition to withdraw from representation and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).4 At Docket Nos.
260 WDA 2023,5 262 WDA 2023,6 and 263 WDA 2023,7 we grant Attorney
Natale’s petitions to withdraw, and affirm the orders dismissing Appellant’s
petitions. At Docket No. 261 WDA 2023,8 we deny Attorney Natale’s motion
to withdraw, and direct counsel to file an advocate’s brief or a new
Turner/Finley no merit letter and motion to withdraw within 45 days of the
date of this memorandum.
I. Facts and Procedural History
A recitation of the underlying facts is not necessary to our disposition.
Briefly, at a July 8, 2020, proceeding, Appellant pled guilty to the following
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4 Preliminarily, we note that Attorney Natale erroneously seeks to withdraw
under Anders, supra, instead of the proper procedure espoused in
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Generally, we accept
an Anders brief in lieu of a Turner/Finley letter because an Anders brief
provides greater protection to the defendant. See Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
5 See Trial Docket CP-26-CR-0000591-2020 (Trial Docket 591-2020).
6 See Trial Docket CP-26-CR-0000288-2020 (Trial Docket 288-2020).
7 See Trial Docket CP-26-CR-0000575-2019 (Trial Docket 575-2019).
8 See Trial Docket CP-26-CR-0000300-2020 (Trial Docket 300-2020).
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offenses: (1) at Trial Docket 591-2020, simple assault and harassment;9 (2)
at Trial Docket 300-2020, aggravated assault, persons not to possess
firearms, terroristic threats, simple assault, and recklessly endangering
another person;10 (3) at Trial Docket 288-2020, persons not to possess
firearms, firearms not to be carried without a license, possession with intent
to deliver controlled substances, possession of controlled substances, and
possession of drug paraphernalia;11 and (4) at Trial Docket 575-2019, theft
by deception.12
At the hearing, the trial court accepted the global plea agreement and
then proceeded to sentence Appellant on each of the dockets. The court
imposed a sentence of 5 to 10 years’ imprisonment for persons not to possess
firearms at Trial Docket 300-2020, and a concurrent term of 4 to 10 years’
imprisonment for the same crime at Trial Docket 288-2020. See N.T., 7/8/20,
at 11, 13. At Trial Docket 591-2020, the court imposed a term of 6 to 12
months’ imprisonment for simple assault, to run consecutive to the sentence
at Trial Docket 288-2020, and at Trial Docket 575-2019, the court imposed a
concurrent sentence of 2½ to 5 years’ imprisonment. See id. at 12. As will
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9 18 Pa.C.S. §§ 2701(a)(3), 2709(a)(1).
10 18 Pa.C.S. §§ 2702(a)(4), 6105(a)(1), 2706(a)(1), and 2705.
11 18 Pa.C.S. § 6106(a)(1); 35 P.S. § 780-113(a)(16), (30), (32).
12 18 Pa.C.S. § 3922(a)(1).
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be discussed below, these sentences were to run concurrent to an unrelated
matter at trial docket CP-26-CR-0000287-2020 (Trial Docket 287-2020).
Appellant did not file a post-sentence motion to withdraw his plea or a
direct appeal. Instead, on March 11, 2021, at Trial Docket 300-2020,
Appellant filed a pro se document titled “Motion to Modify and Reduce
Sentence Nunc Pro Tunc.” No action was taken. Thereafter, on May 24th, he
filed a timely pro se PCRA petition. Attorney Natale was appointed to
represent Appellant and filed an amended PCRA petition on October 20, 2021,
arguing trial counsel was ineffective for failing to object when the court
sentenced Appellant at Trial Docket 300-2020, and for failing to file a direct
appeal. See Appellant’s Amended Post Conviction Relief Act Petition,
10/20/21, at 1-2 (unpaginated). Appellant did not request permission to file
a post-sentence motion nunc pro tunc. One week later, on October 27, 2021,
the PCRA court entered an order granting Appellant’s request to file a direct
appeal nunc pro tunc. On June 22, 2022, a panel of this Court affirmed13
Appellant’s judgment of sentence nunc pro tunc, and the Pennsylvania
Supreme Court subsequently denied his petition for allowance of appeal. See
Commonwealth v. Shaw, 1321 WDA 2021 (unpub. memo.) (Pa. Super. June
22, 2022), appeal denied, 200 WAL 2022 (Pa. Oct. 25, 2022).
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13 The unpublished memorandum was prepared by this same author.
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Relevant to this appeal, the panel sua sponte pointed out a discrepancy
in the record:
The written guilty plea form indicates that Appellant was pleading
guilty to various counts in the aforementioned cases, and would
receive an aggregate sentence of 4 1/2 to 11 years’
incarceration, consecutive to another sentence he had recently
received. See Guilty Plea, 7/8/20. The Commonwealth reiterated
this agreement at the commencement of the plea hearing. See
N.T., 7/8/20, at 2 (Commonwealth stating the plea “calls for a
term of four and a half to eleven years consecutive to the sentence
he just received on all four cases”). The court and its staff refer
to the prior offense as “287 of 2020, which was [a] trial.” See id.
at 11, 13. Upon our independent review of Appellant’s Fayette
County Court Summary, we confirmed that on July 6, 2020,
Appellant was sentenced to a term of 6 to 12 years for persons
not to possess firearms at [Docket 287-2020].
As noted above, the court imposed a sentence of five to
ten years’ imprisonment for the firearms offense in the present
case. Initially, the court stated the sentence would run
concurrently to the sentences for the other three pleas entered
that day, as well as to [Docket 287-2020]. N.T., 7/8/20, at 13.
Inexplicably, the court also stated: “I[f] our calculations are
correct that should total four and a half to eleven years which
was the plea bargain consecutive to 300 of 2020.” Id. (emphasis
added). However, the court then corrected itself and indicated
the sentence sub judice would run “consecutive to 287 of 2020.”
Id. To further complicate matters, the sentencing order in the
certified record states “this sentence shall run concurrent with the
sentencing imposed at Nos. 287 of 2020; 288 of 2020; 591 of
2020 and 575 of 2020.” Order, 7/8/20 (emphasis added). Thus,
despite the agreement that Appellant would serve an aggregate
term of 4 1/2 to 11 years’ imprisonment, it appears he was
sentenced to an aggregate term of 5 to 11 years’ imprisonment.
Nevertheless, Appellant has not raised any challenge to his
sentence on appeal.
Shaw, 1321 WDA 2021 (unpub. memo. at 5 n.7) (emphasis in original).
On October 27, 2022, Appellant filed a pro se PCRA petition at Trial
Dockets 591-2020, 288-2020, and 575-2019, raising ineffective assistance of
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counsel and legality of sentence claims based on the discrepancy pointed out
by the prior panel.14 Attorney Natale was ultimately appointed to these
dockets (in addition to Trial Docket 300-2020), and he filed an amended PCRA
petition for each docket on December 19, 2022. That same day, Attorney
Natale filed a PCRA petition at Trial Docket 300-2020 that was a duplicate of
the other three petitions. In the petitions, he noted the discrepancy raised by
this Court and stated:
15. The Superior Court stated that although the plea bargain was
for a sentence of [4.5] months to [11] years’ consecutive to the
sentence at Case No. 287 of 2020, the [trial c]ourt’s sentence at
Case No. 300 of 2020 violated the terms of this plea bargain and
results in an aggregate sentence of five . . . to [11] years[’]
incarceration.
16. If the Superior Court is correct, then [Appellant]’s sentence
as currently structured violates the plea bargain, and therefore
constitutes an illegal sentence.
Appellant’s Amended Post-Conviction Relief Act Petition, 12/19/22, at 3
(unpaginated).
The PCRA court scheduled a hearing which took place on January 13,
2023. The court then issued an order and opinion on February 1, 2023, which
addressed all four dockets and denied Appellant’s PCRA petitions. Appellant
____________________________________________
14 One month earlier, at each docket, Appellant filed identical, pro se motions
to modify his sentence. The filings were accepted by the Fayette County Clerk
of Courts but forwarded to his counsel and the Commonwealth. See
Pa.R.Crim.P. 576(A)(4). In the motions, he raised the discrepancy identified
by this Court in the prior decision. See Motion to Modify Sentence, 9/30/22,
at 2 (unpaginated).
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filed four timely, separate notices of appeal and on May 24, 2023, this Court
consolidated the appeals.15 See Order, 5/24/23.16
II. Counsel’s Petition to Withdraw
Before we may conduct any substantive analysis, we must examine
whether Attorney Natale has met the procedural requirements for withdrawing
as counsel.
Counsel petitioning to withdraw from PCRA representation . . .
must review the case zealously. [PCRA] counsel must then submit
a “no-merit” letter to the trial court, or brief on appeal to this
Court, detailing the nature and extent of counsel’s diligent review
of the case, listing the issues which petitioner wants to have
reviewed, explaining why and how those issues lack merit, and
requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
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15 We note that when Appellant filed the notices of appeal, he listed all four
dockets on each notice. Separate notices of appeal are required when a single
order resolves issues arising on more than one trial court docket.
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018), overruled in part,
Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021) (reaffirming
Walker, but holding Pa.R.A.P. 902 permits appellate court in its discretion, to
allow correction of the error where appropriate); see also Pa.R.A.P. 902
(amended May 18, 2023). Nevertheless, in Commonwealth v. Johnson,
236 A.3d 1141 (Pa. Super. 2020) (en banc), this Court held that quashal is
not necessary when an appellant files multiple notices of appeal listing more
than one docket number so long as an appropriate number of notices of appeal
were filed. Id. at 1148. Thus, under Johnson, Appellant has substantially
complied with the requirements of Walker. See Johnson, 236 A.3d at 1148.
16 Appellant timely complied with the PCRA court’s directive to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The PCRA court
issued a Pa.R.A.P. 1925(a) opinion on May 9, 2023.
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Where counsel submits a petition and no-merit letter that . . .
satisfy the technical demands of Turner/Finley, the court — trial
court or this Court — must then conduct its own review of the
merits of the case. If the court agrees with counsel that the claims
are without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
Instantly, we conclude that Attorney Natale has substantially complied
with the technical requirements of Turner/Finley. Specifically, Attorney
Natale’s Anders brief and petition to withdraw detail the nature and extent of
his review, address the issues raised at the PCRA hearing, and determine that
the claim is frivolous and without merit. In his petition, counsel indicated that
he reviewed all issues for appeal, researched the law and reviewed the facts
to find any issue of merit, and concluded that Appellant is barred from relief.
See Petition to Withdrawal [sic] as Counsel, 6/15/23, at 3-4 (unpaginated).
In his letter to Appellant, Attorney Natale indicated he sent Appellant his
petition to withdraw, as well as his Anders brief, and notified him that he had
the right to retain private counsel or proceed pro se. See Letter from Attorney
Natale to Appellant, 6/14/23, at 1 (unpaginated). Appellant has not filed a
response to counsel’s request to withdraw. As counsel has complied with the
technical requirements to withdraw his representation pursuant to
Turner/Finley, we must now conduct our independent review of the issues
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raised by counsel and determine whether the issues lack merit. See Walters,
135 A.3d at 591.
III. Statement of Questions Presented and Standard of Review
Attorney Natale raises the following issues:
1. Whether the trial court imposed a sentence that violates
[Appellant]’s plea bargain?
2. Whether [Appellant]’s plea was knowing, voluntary, and
intelligent, specifically whether [Appellant] was aware that the
plea would increase the length of his aggregate sentence?
Anders Brief at 2.
Based on the nature of Appellant’s claims, we are guided by the
following. Our standard of review regarding the denial of PCRA relief calls for
us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error. See Commonwealth v. Busanet, 54 A.3d 35,
45 (Pa. 2012). “Our scope of review is limited to the findings of the PCRA
court and the evidence of record, viewed in the light most favorable to the
party who prevailed in the PCRA court proceeding.” Id.IV. Timeliness of PCRA Petitions
Before we can review the merits of Appellant’s claims, we must sua
sponte determine as an initial matter whether Appellant’s PCRA petitions were
timely, as a petition’s timeliness implicates our jurisdiction. See
Commonwealth v. James, 69 A.3d 180, 184 (Pa. 2013) (noting appellate
court “may raise the issue of jurisdiction sua sponte”) (citation omitted).
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The timeliness of a PCRA petition is a jurisdictional requisite. [T]he
PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of the
petition. In other words, Pennsylvania law makes clear no court
has jurisdiction to hear an untimely PCRA petition. The PCRA
requires a petition, including a second or subsequent petition, to
be filed within one year of the date the underlying judgment
becomes final. A judgment of sentence is final at the conclusion
of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking review.
Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019)
(citations, quotation marks, & emphasis omitted); see also 42 Pa.C.S. §
9545(b)(1), (3).
Here, Appellant was sentenced on July 8, 2020. Therefore, his
judgments of sentence became final on August 7, 2020 — 30 days after the
trial court imposed the sentence and Appellant declined to file a direct appeal.
See 42 Pa.C.S. § 9545(b)(3). Generally, Appellant then had one year from
that date — August 10, 202117 — to file a PCRA petition. See 42 Pa.C.S. §
9545(b)(1).
A. Docket Nos. 260 WDA 2023, 262 WDA 2023, and 263 WDA 2023
At Docket Nos. 260 WDA 2023 (Trial Docket 591-2020), 262 WDA 2023
(Trial Docket 288-2020), and 263 WDA 2023 (Trial Docket 575-2019),
Appellant did not file the petitions at issue until October 27, 2022 — more
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17The one-year time period following August 7, 2020, fell on a Saturday.
Appellant therefore had until that Monday, August 10th, to file a PCRA petition.
See 1 Pa.C.S. § 1908.
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than a year later — and as such, they were facially untimely. We recognize
this Court has jurisdiction to review a petition filed beyond the one-year time
limit if the petitioner alleges and proves any one of the three statutory
exceptions to the time-bar. See 42 Pa. C.S. § 9545(b)(1)(i)-(iii).
A review of Appellant’s amended PCRA petitions reveal he did not invoke
any of the three timeliness exceptions. Rather, Appellant alleged that his
sentence “as currently structured violates the plea bargain, and therefore[,]
constitutes an illegal sentence.” Appellant’s Amended Post Conviction Relief
Act Petition, 12/19/22, at 3 (unpaginated). It is well-established that “a
legality of sentencing issue must be raised in a timely filed PCRA [p]etition
over which we have jurisdiction.” Commonwealth v. Olson, 179 A.3d 1134,
1137 (Pa. Super. 2018) (citation omitted). See also Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999) (stating that “[a]lthough legality of
sentence is always subject to review within the PCRA, claims must still first
satisfy the PCRA’s time limits or one of the exceptions thereto”). Because
Appellant failed to plead and prove any of the three timeliness exceptions, we
lack jurisdiction to address the merits of his claims on appeal at Docket Nos.
260 WDA 2023, 262 WDA 2023, and 263 WDA 2023. See Ballance, 203 A.3d
at 1031. Therefore, we affirm the PCRA court’s orders at these dockets,
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dismissing Appellant’s petition.18 We also grant Attorney Natale’s petition to
withdraw as counsel at these dockets.
B. Docket No. 261 WDA 2023 (Trial Docket 300-2020)
As noted above, at Trial Docket 300-2020, the PCRA court granted
Appellant’s request to file a direct appeal nunc pro tunc. See Order of Court,
10/27/21. It is “well[-]established that a PCRA petition brought after an
appeal nunc pro tunc is considered [a defendant’s] first PCRA petition, and the
one-year time clock will not begin to run until this appeal nunc pro tunc
renders his judgment of sentence final.” Commonwealth v. O’Bidos, 849
A.2d 243, 252 n.3 (Pa. Super. 2004) (citations omitted).
Therefore, because Appellant received nunc pro tunc relief, his judgment
of sentence did not become final until January 23, 2023 — 90 days after the
Pennsylvania Supreme Court denied his petition for allowance of appeal and
the time for filing a writ of certiorari with the United States Supreme Court
expired. See U.S. Sup. Ct. R. 13. He generally had one year from that date
to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Thus, Appellant satisfied
the one-year time bar when he filed the instant petition on October 27, 2022.
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18 As will be discussed below, the PCRA court denied the petitions based on
the merits. Nevertheless, this Court may affirm on any basis. See
Commonwealth v. Rowe, 293 A.3d 733, 739 (Pa. Super. 2023) (“We can
affirm the court’s decision if there is any basis to support it, even if we rely on
different grounds to affirm.”) (citation omitted).
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Accordingly, we have jurisdiction to review the substantive claims raised on
appeal at this docket.
V. Plea and Legality of Sentence
Attorney Natale first argues that Appellant’s sentence is illegal because
the trial court imposed a sentence that violated his plea bargain agreement.
See Anders Brief at 9. Counsel states:
In the present case, in [footnote] 7 of [this] Court[’s
Memorandum] at [Docket] 1312 WDA [2021], [we] stated that
although the plea bargain was for a sentence of [4.5] to [11]
years’ consecutive to the sentence at Case No. 287 of 2020, the
[trial c]ourt’s sentence at Case No. 300 of 2020 violated the terms
of th[e] plea bargain and result[ed] in an aggregate sentence of
five . . . to [11] years[’] incarceration.
Upon subsequent review, although the [trial c]ourt’s various
statements during the [p]lea and [s]entenc[ing p]roceedings on
July 8, 2020 were confusing, the text of the [July 8, 2020
sentencing o]rders for the cases at issue, when taken together,
result in correct aggregate sentence of [4.5] to [11] years’
consecutive to the sentence at [Docket 287-2020]. Since the text
of the sentencing order, and not the statements a trial court
makes about a defendant’s sentence, is determinative of the
court’s sentencing intentions and the sentence imposed, the [trial
c]ourt made no reversible error, and therefore Appellant’s claim
is without merit.
Id. at 11-12.
In his second argument, Attorney Natale asserts that Appellant’s “plea
was not knowing, voluntary, and intelligent. . . . In particular, he claims that
he was not aware that the plea would increase the length of his aggregate
sentence.” Anders Brief at 13. Moreover, he alleges:
Appellant’s claim that he was not aware that the plea would
increase the length of his aggregate sentence, is directly
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contradicted by the testimony of [Plea Counsel] when he stated
that he did explain to the Appellant that “this sentence was going
to be served after the first one.” In addition, during the Plea and
Sentence Proceedings, Appellant specifically stated: “I
understand. They’re running consecutive though. I know.” Based
on [Plea Counsel]’s testimony and Appellant’s own statements at
the Plea and Sentence Proceedings, Appellant clearly understood
that the plea would increase the length of his aggregate sentence
prior to entering his plea of guilty on the record. Therefore,
Appellant’s claim is without merit.
Id. at 14-15 (record citations omitted).
To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from an enumerated error or defect, and that the issues he raises
have not been previously litigated or waived. See 42 Pa.C.S. § 9543(a)(2),
(3). “One of those circumstances is that the conviction or sentence resulted
from ‘[a] plea of guilty unlawfully induced where the circumstances make it
likely that the inducement caused an individual to plead guilty.’”
Commonwealth v. Stark, 658 A.2d 816, 819 (Pa. Super. 1995), citing 42
Pa.C.S. § 9543(a)(2)(iii). See Commonwealth ex rel. Dadario v.
Goldberg, 773 A.2d 126, 129-30 (Pa. 2001) (holding all constitutionally
cognizable claims may be reviewed under the PCRA, including those related
to the plea bargaining process). Another enumerated situation is when the
court imposes a sentence “greater than the lawful maximum.” 42 Pa.C.S. §
9543(a)(2)(vii).
Here, the PCRA court found the following:
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After receiving [this] Court’s opinion [regarding Docket 300-
2020], the [PCRA c]ourt reviewed the signed orders and
determined that the sentence was in accord with the plea bargain
between the Commonwealth and [Appellant]. Th[is] Court’s
review of [our] statements when imposing the sentence appear to
be the basis for their belief that there was a discrepancy.
However, the text of the sentencing order, not the statements a
trial court makes about a defendant’s sentence, is determinative
of the court’s sentencing intentions and the sentence impose[d].
As the sentencing orders are in compliance with the plea
agreement, [Appellant]’s issue is denied.
PCRA Ct. Opinion and Order, 2/1/23, at 3 (unpaginated; citation omitted).
To the extent Appellant’s argument touches upon the legality of his
sentence, we conclude Attorney Natale was correct that his claim has no merit.
There is no indication that the length of his sentence at Trial Docket 300-2020
was illegal. However, we disagree with counsel’s assessment that there was
no violation regarding the plea bargain agreement.
Our review of the matter has led us to consider that “a collateral petition
to enforce a plea agreement is regularly treated as outside the ambit of the
PCRA and under the contractual enforcement theory of specific performance.”
Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa. Super. 2019)
(citations omitted). Even though a plea agreement concerns a criminal
matter, they “clearly are contractual in nature.” Commonwealth v.
Martinez, 147 A.3d 517, 531 (Pa. 2016). “[U]nlike a typical contract,
[however,] a plea agreement does not become binding on the parties upon
their consent to terms; rather, a plea agreement is not valid and binding until
it is evaluated and accepted by a third party, i.e., a trial court.” Id. (citation
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omitted); see also Pa.R.Crim.P. 590(A)(3) (stating, the trial court “may
refuse to accept a plea of guilty or nolo contendere, and shall not accept it
unless the [trial court] determines after inquiry of the defendant that the plea
is voluntarily and understandingly tendered”).
Where the plea bargain calls for a specific sentence that is
beyond the prosecutor’s narrowly limited authority in sentencing
matters, the plea bargain implicates the court’s substantive
sentencing power, as well as its guardianship role, and must have
court approval. Thus, the trial court has broad discretion in
approving or rejecting plea agreements. The court may reject the
plea bargain if the court thinks it does not serve the interests of
justice. If the court is dissatisfied with any of the terms of the
plea bargain, it should not accept the plea; instead, it should give
the parties the option of proceeding to trial before a jury.
Assuming the plea agreement is legally possible to fulfill, when the
parties enter the plea agreement on the record, and the court
accepts and approves the plea, then the parties and the court
must abide by the terms of the agreement.
Commonwealth v. Root, 179 A.3d 511, 517 (Pa. Super. 2018) (citation &
emphases omitted). Lastly, “[i]n Pennsylvania, the text of the sentencing
order, and not the statements a trial court makes about a defendant’s
sentence, is determinative of the court’s sentencing intentions and the
sentence imposed.” Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa.
2013).
Both Attorney Natale and the PCRA court misconstrue the error that we
pointed out in the prior decision. See Shaw, 1321 WDA 2021 (unpub. memo.
at 5 n.7). As mentioned above, the written plea bargain agreement
provided that Appellant was to receiving a total sentence of “4 1/2 - 11 years
consecutive to sentence plus restitution[.]” Guilty Plea, 7/8/20 at 1
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(unpaginated; emphasis added). At the July 8, 2020, plea and sentencing
proceedings, the Commonwealth stated: “This is the time and place scheduled
for [Appellant]’s plea. . . . It calls for a term of four and a half to [11]
years consecutive to the sentence he just received [at Docket 287-2020.]”
N.T., 7/8/20, at 2 (emphases added).
After accepting the plea, the court then imposed the following
sentences: (1) at Trial Docket 288-2020, a term of 4 to 10 years’
imprisonment; (2) at Docket 591-2020, a term of 6 to 12 months’
incarceration to run consecutive to the sentence at Docket 288-2020; (3) at
Trial Docket 575-2019, a sentence of 2 1/2 to 5 years’ imprisonment, to be
served concurrently to Trial Dockets 288-2020 and 591-2020; and (4) at Trial
Docket 300-2020, a term of 5 to 10 years’ incarceration, to be served
concurrently to other three dockets and consecutive to Trial Docket 287-2020.
See N.T., 7/8/20, at 11-13. Notably, after mentioning that the sentence at
Docket 300-2020 was “[n]ot less than five nor more than ten years[,]” the
court then stated: “I[f] our calculations are correct that should total four and
a half to eleven years which was the plea bargain consecutive to” Trial Docket
287-2020. Id. at 13 (emphasis added).
The PCRA court focused on the incorrect discrepancy — that at the
sentencing proceeding, it mistakenly stated the sentences were to be imposed
consecutively to Trial Docket 287-2020 rather than concurrently as reflected
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in the written sentencing orders.19 The court pointed out those sentencing
orders control as to the imposition of concurrent and consecutive sentences.
See Borrin, 80 A.3d at 1226. Attorney Natale’s argument reflects this notion.
See Anders Brief at 11-12.
While we did point out that error,20 our primary concern is with the
incongruity regarding the terms of the “bargained for” sentence. The written
plea agreement, and as explicitly mentioned by the Commonwealth at the July
8, 2020, proceeding, called for a minimum aggregate sentence of 4 1/2 years
but Appellant received a minimum of 5 years due to the inclusion of Trial
Docket 300-2020 in the plea agreement, which increased the minimum of his
aggregate sentence to 5 years. See Guilty Plea, 7/8/20 at 1; N.T., 7/8/20,
at 2, 13. Based on the record before us, it appears the terms of the agreement
were altered and Appellant did not receive the benefit of the bargain.
We recognize that “the trial court is not required to sentence a defendant
in accordance with the plea agreement.” Commonwealth v. Tann, 79 A.3d
1130, 1133 (Pa. Super. 2013). “Such a sentence is legal, so long as it does
not exceed the statutory maximum. However, a criminal defendant who is
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19 See i.e., Sentence (Trial Docket 300-2020), 7/8/2020, at 1 (unpaginated)
(“[T]his sentence shall run concurrent with the sentences imposed at Nos.
287 of 2020; 288 of 2020; 591 of 2020 and 575 of 2019[.]”) (emphasis
added).
20 See Shaw, 1321 WDA 2021 (unpub. memo. at 5 n.7).
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sentenced to more than was agreed upon in a negotiated plea may withdraw
his guilty plea upon being deprived of the benefit of his bargain.” Id. (citation
omitted). Here, the trial court accepted a plea that included a 5-year
minimum term that was not agreed upon, and did not provide Appellant with
an opportunity to withdraw his plea. Under the applicable law, it appears that
Appellant “was entitled either to receive the benefit of the bargain, including
the agreed-upon sentence, or the option to withdraw his plea.” Root, 179
A.3d at 518.
We find the question of whether there was a violation of the terms of
Appellant’s plea bargain agreement, which would fall outside the jurisdiction
of the PCRA, is entitled to a more exhaustive examination and perhaps further
advocacy. Nevertheless, we recognize that because Attorney Natale (and the
PCRA court) misinterpreted our prior statements regarding the plea bargain
agreement, the record may need to be developed further to assess this
misconception, and upon further review, an advocate’s brief may not be
necessary.
Thus, we deny Attorney Natale’s petition to withdraw at Docket 261
WDA 2023, and direct Attorney Natale either to file with this Court an
advocate’s brief analyzing the issue that we have identified during our
independent review or a proper Turner/Finley brief addressing thoroughly
why the claim identified herein has no merit. Attorney Natale has 45 days
from the date of the filing of this memorandum to file the appropriate brief.
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The Commonwealth has 45 days after the date of filing of counsel’s brief to
file an appellee’s brief, if it so chooses.
VI. Conclusion
At Docket Nos. 260 WDA 2023, 262 WDA 2023, and 263 WDA 2023, we
grant Attorney Natale’s petitions to withdraw, and affirm the orders dismissing
Appellant’s petitions. At Docket No. 261 WDA 2023, we deny Attorney
Natale’s motion to withdraw, and direct counsel to file an advocate’s brief or
new a Turner/Finley letter and motion to withdraw within 45 days of the
date of this memorandum.
At Docket Nos. 260 WDA 2023, 262 WDA 2023, and 263 WDA 2023,
February 1, 2023, orders affirmed and Attorney Natale’s petitions to withdraw
granted. Panel jurisdiction relinquished.
At Docket No. 261 WDA 2023, Attorney Natale’s petition to withdraw
denied. Panel jurisdiction retained.
President Judge Emeritus Bender joins the memorandum.
President Judge Emeritus Stevens concurs in result.
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