Com. v. Nelson, C. ( 2021 )

J-S20018-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CARL ERIC NELSON :
:
Appellant : No. 1395 MDA 2020
Appeal from the Judgment of Sentence Entered September 28, 2020
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001288-2018
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED SEPTEMBER 14, 2021
Appellant, Carl Eric Nelson, appeals from the judgment of sentence
entered in the Centre County Court of Common Pleas, following his negotiated
nolo contendere plea to aggravated indecent assault.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
September 28, 2020, Appellant entered a negotiated nolo contendere plea to
aggravated indecent assault. At the plea hearing, Appellant agreed to the
facts as set forth in count 3 of the criminal information. (N.T. Plea Hearing,
9/28/20, at 30). Count 3 of the information states: “On or about 7/24/2018,
[Appellant] [d]id without consent of the complainant, [A.S.], …feloniously
engage in penetration however slight of the genitals or anus of the
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1 18 Pa.C.S.A. § 3125(a)(1).
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complainant with a part of [Appellant]’s body for any purpose other than good
faith medical, hygienic or law enforcement procedures[.]” (See Criminal
Information, 8/29/18). On that same day, the court sentenced Appellant in
accordance with the negotiated plea agreement to 11½ to 23½ months’
incarceration, with credit of 580 days, eligible for immediate parole, followed
by 3 years’ probation. Appellant did not file any post-sentence motions.
Appellant timely filed a notice of appeal on October 28, 2020. On November
5, 2020, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and Appellant timely complied.
On November 13, 2020, Appellant was paroled.
Appellant raises the following issue for our review:
Whether a sentence imposed by the [trial] court of eleven
and one-half (11½) months to twenty-three and one half
(23½) months, with credit for nineteen (19) months time-
served, constitutes a “time-served sentence” as
contemplated by the plea agreement (which was time-
served to twenty-three and one half (23½) months, followed
by three (3) years of consecutive probation).
(Appellant’s Brief at 3).
Appellant argues that the court did not honor his negotiated plea
agreement.2 Appellant acknowledges that he entered his nolo contendere plea
in exchange for the Commonwealth’s recommendation of 11½ to 23½ months’
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2 Appellant does not seek to withdraw his plea, nor does he challenge the
voluntariness of his plea. Additionally, Appellant does not allege that the court
imposed an illegal sentence.
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incarceration with 580 days of credit for time served. Nevertheless, Appellant
insists the intent of the plea agreement was to create a time-served sentence.
Appellant maintains that the sentence imposed violated this agreement
because the court did not actually impose a “time-served” sentence. Appellant
concludes that he is entitled to relief.3 We disagree.
Preliminarily, we observe that when a defendant has entered a
negotiated plea,4 his “plea ... amounts to a waiver of all defects and defenses
except those concerning the jurisdiction of the court, the legality of the
sentence, and the validity of the guilty plea.” Commonwealth v. Reichle,
589 A.2d 1140, 1141 (Pa.Super. 1991) (citations omitted). Additionally:
[When] 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. If 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[.]
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3 We note that Appellant does not specify the actual relief he seeks in violation
of the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2111(a)(9)
(requiring appellate brief to consist of “[a] short conclusion stating the precise
relief sought”).
4 “[I]n terms of its effect upon a case, a plea of nolo contendere is treated the
same as a guilty plea.” Commonwealth v. Miller, 748 A.2d 733, 735
(Pa.Super. 2000) (citing Commonwealth v. Boatwright, 590 A.2d 15, 19
(Pa.Super. 1991)).
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Id. (citations, quotation marks, and footnote omitted).
Instantly, the trial court addressed Appellant’s claim as follows:
This case involves [Appellant]’s appeal from a judgment of
sentence entered on September 28, 2020 following his plea
of nolo contendere to one count of aggravated indecent
assault, a second degree felony (Count 3). The [c]ourt
sentenced in accordance with a negotiated plea agreement;
[Appellant] was sentenced to eleven and one-half to twenty-
three and one-half months incarceration at the Centre
County Correctional Facility, followed by three years of
consecutive probation. He was given credit for 580 days
(approximately nineteen months) time served on the
charge. Counts 1, 2 and 4 were nol prossed. The sentence
imposed was a downward deviation from the sentencing
guidelines, and approved for the reasons addressed on
record at the time of sentencing.
In his Concise Statement of Matters Complained of on
Appeal filed November 25, 2020, [Appellant] complains that
the sentence imposed is not a “time-served sentence” as
was intended by the plea agreement. The plea and
sentencing proceeding took place on-record immediately
before the start of the jury trial scheduled in this case. As
shown by the transcript, the [c]ourt imposed the sentence
as recommended by the Commonwealth and agreed to by
[Appellant]. If [Appellant] had a different, subjective, intent
at the time of sentencing, that was not articulated prior to
entry of sentence. The transcript of the proceedings makes
clear that [Appellant]’s sentence was to be eleven and one-
half to twenty-three and one-half months followed by the
probation tail. As reflected by the transcript, an adjustment
to the sentence as initially discussed was made so the
recommended sentence would comport with the legal
requirement that the minimum sentence be no more than
one-half the imposed maximum. [Appellant] was given the
time credit as calculated and agreed upon by the parties,
and he was made eligible for immediate parole. A parole
order was entered of record November 13, 2020, approving
parole effective as of September 28, 2020. In sum,
[Appellant] was sentenced in accordance with the plea
agreement as presented to the [c]ourt, and the [c]ourt
submits there is no merit to [Appellant]’s appeal.
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(Trial Court Opinion filed December 11, 2020, at unnumbered 1-2) (citations
omitted). The record supports the court’s analysis.
Here, the plea hearing transcript belies Appellant’s claim that he was
not sentenced in accord with the terms of his negotiated plea. Rather, the
record makes clear that Appellant negotiated the terms of his nolo contendere
plea, including the Commonwealth’s dismissal of three charges against him
and the specific duration of the sentence with which he now takes issue. The
court conducted a thorough colloquy of Appellant to ensure his plea was
knowing, voluntary, and intelligent. (See N.T. Plea Hearing at 34-37).
Appellant did not object, or in any way alert the court that the plea was
different than what he understood it to be. (Id.) Instead, he denied having
any questions of the court or his counsel. (Id. at 51). After accepting
Appellant’s plea, the court imposed the agreed-upon sentence. Appellant
received the sentence for which he bargained, so he is precluded from
challenging it now. See Reichle, supra. See also Commonwealth v.
Morrison, 173 A.3d 286 (Pa.Super. 2017) (holding appellant waived
challenge to discretionary aspects of sentence where he entered negotiated
guilty plea and court imposed agreed-upon sentence). Accordingly, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/14/2021
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