Com. v. Gibson, E.

J-S67018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMERY GIBSON
Appellant No. 379 WDA 2014
Appeal from the Judgment of Sentence December 6, 2011
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000966-2010
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JANUARY 07, 2015
Appellant, Emery Gibson, appeals from the December 6, 2011
aggregate judgment of sentence of four to eight years’ incarceration
imposed after Appellant entered a negotiated guilty plea to charges in
connection with the abuse of a 19-month-old victim. Because the trial court
sentenced Appellant on charges to which he did not enter guilty pleas, we
vacate the judgment of sentence and remand for further proceedings.
From our review of the certified record, we recount the procedural
history of this case as follows. On May 16, 2010, Appellant was arrested
and charged with numerous offenses in connection with his abuse of a 19-
month-old child in his care. Based on subsequent medical information, an
amended criminal complaint was issued on May 24, 2010. Those charges
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*
Former Justice specially assigned to the Superior Court.
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were bound over for court, and an information was prepared with the
following charges: Count 1, rape of a child-serious bodily injury; Count 2,
involuntary deviate sexual intercourse (ISDI) by forcible compulsion; Count
3, ISDI with a child; Count 4, ISDI with a child with serious bodily injury;
Count 5, aggravated indecent assault of a child; Count 6, aggravated
indecent assault without consent; Count 7, aggravated indecent assault by
forcible compulsion; Count 8, aggravated indecent assault of a complainant
less than 13 years old; Count 9, endangering the welfare of children by
guardian; and Count 10, simple assault.1
On September 6, 2011, Appellant and the Commonwealth entered into
a negotiated plea agreement. At the plea hearing, the Commonwealth
explained the agreement was for Appellant to plead nolo contendere to
certain charges. N.T., 9/6/11, at 3. The trial court rejected any nolo
contendere plea unless Appellant professed a lack of memory. Id. The
parties subsequently agreed Appellant would enter a guilty plea. Id. The
Commonwealth then advised the trial court that, per the agreement,
Appellant was entering a plea of guilty to Counts 5 through 10, and the
Commonwealth would nolle prosse Counts 1 through 4. Id. at 5-6. In the
plea agreement, the parties also agreed to the imposition of an aggregate
sentence of four to eight years’ incarceration. After performing a colloquy
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1
18 Pa.C.S.A. §§ 3121(d), 3121(a)(1), 3123(b), 3123(c), 3125(b),
3125(a)(1), 3125(a)(2), 3125(a)(7). 4304(a)(1), and 2701(a)(1),
respectively.
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with Appellant and hearing a recitation of the facts, the trial court accepted
the pleas. Id. at 11.
At the December 6, 2011 sentencing hearing, the trial court indicated
it had accepted pleas to Counts 2, 3, 4, 9, and 10, and that Counts 1, 5, 6, 7
and 8 were to be nolle prossed. N.T., 12/6/11, at 3. The trial court then
imposed the negotiated sentence of four to eight years’ incarceration for
Count 2 and imposed no further penalty for the remaining counts. The
Commonwealth then filed a motion to nolle prosse Counts 1, 5, 6, 7, and 8,
which the trial court granted. Neither Appellant nor his counsel raised any
objection at sentencing.
On December 15, 2011, new counsel entered her appearance and filed
timely post-sentence motions on behalf of Appellant to withdraw his guilty
plea. This Court further summarized the procedural events following the
filing of the post-sentence motion as follows.
[T]he motion went unaddressed for approximately
ten months. On or about October 11, 2012,
Appellant submitted a petition for special relief to
this Court, which requested this Court to direct the
Fayette County Clerk of Courts to deny his post-
sentence motion by operation of law. On October
18, 2012, this Court ordered the Fayette County
Clerk of Courts to proceed according to Rules
720(B)(3)(a) and 720(B)(3)(c) of the Pennsylvania
Rules of Criminal Procedure, unless the Clerk of
Courts believed there was a valid reason for not
doing so, and it informed Appellant of that reason.
The Fayette County Clerk of Courts responded on
October 24, 2012, and informed Appellant that the
Fayette County Clerk of Courts declined to deny his
post-sentence motion by operation of law because
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Appellant did not properly serve the motion on the
trial judge and comply with the Fayette County Local
Rules. Appellant filed a petition with this Court for
leave to file an appeal nunc pro tunc, in the absence
of a trial court order. On December 7, 2012, this
Court denied Appellant’s petition, informing
Appellant that if he filed a notice of appeal despite
the absence of a Court of Common Pleas order, this
Court would determine the jurisdictional propriety of
the appeal at that time.
Commonwealth v. Gibson, 91 A.3d 1281 (Pa. Super. 2013) (unpublished
memorandum at 2-3). Appellant filed a notice of appeal on January 15,
2013. This Court quashed the appeal for want of a final appealable order
and remanded the case, directing the trial court “to consider and rule on
Appellant’s post-sentence motion.” Id. at 6.
On remand, the trial court held a hearing on Appellant’s post-sentence
motions on January 15, 2014. At the hearing, Appellant’s counsel, with the
concurrence of the Commonwealth, sought to modify the relief sought in his
post-sentence motion. N.T., 1/15/14, at 3, 8, 23. Appellant no longer
wished to withdraw his plea. Instead, he asked the trial court to correct his
sentence to be in conformity with his guilty plea. Id. at 7-8. Appellant
argued it was improper for the trial court to sentence Appellant for IDSI at
Counts 2, 3, and 4 when he never entered a plea to those charges. Id. at
26-27. Thus, the relief sought was for “the sentence [to] be modified and
reissued in accordance with the plea that was offered and accepted on
September 6, 2011.” Id. at 26. The length of the sentence would remain
the same but the charges to which it applied would be corrected. Id. At the
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hearing, the Commonwealth stated it had no objection to the relief sought
by Appellant.2 Id. at 27.
On February 3, 2014, the trial court denied Appellant’s amended nunc
pro tunc post-sentence motion. Appellant filed a timely notice of appeal on
March 5, 2014.3 On appeal, Appellant raises the following issues for our
review.
1. Was the sentencing proceeding invalid since
[Appellant] was sentenced to counts that were
not the counts in the plea agreement the court
had accepted?
a. When a plea agreement is accepted, is a
court permitted to sentence [Appellant]
on counts to which he did not enter a
plea?
b. Are [Appellant’s] due process rights
violated when he is sentenced in a
manner that is inconsistent with a plea
agreement that has been accepted by
the court?
Appellant’s Brief at 5.
As phrased, Appellant’s issue implicates the enforceability of his plea
agreement.
In determining whether a particular plea agreement
has been breached, we look to what the parties to
this plea agreement reasonably understood to be the
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2
In its appellate brief, the Commonwealth now opposes Appellant’s claim for
relief.
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate procedure 1925.
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terms of the agreement. Such a determination is
made based on the totality of the surrounding
circumstances, and any 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) (en
banc) (internal quotation marks, brackets, and citations omitted), appeal
denied, 95 A.3d 276 (Pa. 2014).
Instantly, the terms of Appellant’s plea agreement are undisputed and
were communicated to the trial court at the plea hearing. N.T., 9/6/11, at
4-6; see Written Plea Bargain, 9/6/11, at 1. In accordance with those
terms, Appellant entered a guilty plea to indecent assault at counts 5, 6, 7,
and 8, endangering the welfare of a child at count 9, and simple assault at
count 10. Id. at 6. In exchange, the Commonwealth agreed to nolle prosse
the charge of rape at count 1, and the IDSI charges at counts 2, 3, and 4.
Id. The plea agreement further provided for a negotiated aggregate
sentence of four to eight years’ incarceration. Id. at 5. The trial court
accepted the plea. Id. at 11.
At the subsequent sentencing hearing, the trial court stated the
following.
Secondly, I want to make it clear that the
pleas I took were for [IDSI], [IDSI] with a child
causing serious bodily injury, endangering the
welfare of a child, and simple assault. It’s my
understanding that because he didn’t admit to
penetrating the child with a body part, the remaining
charges[, Counts 1, 5, 6, 7, and 8,] are to be nol
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prossed, and we are going to proceed on Counts 2,
3, 4, 9 and 10….
N.T., 12/6/11, at 3. When asked by the trial court, “Is that your
understanding…?” the Assistant District Attorney and defense counsel each
responded, “Yes, Your Honor.” Id. at 3-4. The trial court proceeded to
sentence Appellant to the aggregate four to eight years’ incarceration agreed
to in the plea agreement, albeit on the revised counts. Id. at 5-9.
Subsequently the Commonwealth filed a motion to nolle prosse Counts 1, 5,
6, 7, and 8, which the trial court granted. See Motion and Order for Leave
to Enter Nol. Pros., 12/6/11, at 1-2.
Appellant claims this was error on the part of the trial court, arguing
the following. “This situation violates [Appellant’s] rights in two ways: 1.)
the Commonwealth breached the plea agreement by changing the charges
to which [Appellant] was going to plead; and 2.) the Commonwealth violated
Pa.R.E. 410 by using information obtained during plea proceedings to justify
modifying the plea.” Appellant’s Brief at 14.4
We agree with Appellant’s first proposition that the Commonwealth
failed to honor its plea agreement with Appellant by acquiescing in the trial
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4
Appellant’s second proposition is inapt to the posture of this case. Rule
410 addresses the admissibility of evidence. See Pa.R.E. 410 (declaring
statements made during plea proceedings are not admissible in civil or
criminal cases). Appellant’s statements during his guilty plea have not been
offered as evidence in any proceeding in this case.
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court’s sentence and failing to nolle prosse the charges in accordance with
its agreement.
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.
Likewise, there is an affirmative duty on the part of
the prosecutor to honor any and all promises made
in exchange for a defendant’s plea. Our courts have
demanded strict compliance with that duty in order
to avoid any possible perversion of the plea
bargaining system, evidencing the concern that a
defendant might be coerced into a bargain or
fraudulently induced to give up the very valued
constitutional guarantees attendant the right to trial
by jury.
Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2010)
(internal quotation marks, bracket, and citations omitted), appeal denied, 9
A.3d 626 (Pa. 2010).
However, although not argued in such context by Appellant, we
conclude Appellant’s issue implicates the legality of his sentence. “It is
axiomatic that a court cannot impose a sentence without an adjudication of
guilt.” Commonwealth v. C.L., 963 A.2d 489, 494 (Pa. Super. 2008); see
also Commonwealth v. Paige, 429 A.2d 1135, 1140 n.3 (Pa. Super.
1981) (stating, “[s]ince a court has no power to impose a sentence that is
not based on a determination of guilt, any sentence imposed without such a
determination is illegal[]”). “A general definition of an illegal sentence is one
that exceeds the jurisdiction or power of the sentencing court to impose.”
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Commonwealth v. Tobin, 89 A.3d 663, 668 (Pa. Super. 2014). “Issues
relating to the legality of a sentence are questions of law…. Our standard of
review over such questions is de novo and our scope of review is plenary.”
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012),
quoting Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super.
2009), appeal denied, 53 A.3d 756 (Pa. 2012). “[C]hallenges to an illegal
sentence can never be waived and may be reviewed sua sponte by this
Court.” Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super.
2013), quoting Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa.
Super. 2003) (en banc).
At the hearing on Appellant’s post-sentence motion, the parties
speculated that there had been communication between the Commonwealth
and Appellant’s plea counsel after the entry of the guilty plea and before
sentencing to adjust the charges that were pled to pursuant to the plea
bargain.5 N.T., 1/15/14, at 21-22. The apparent purpose was to have the
charges better coincide with Appellant’s factual admission made during his
guilty plea colloquy.6 Id. at 5-6, 21-22. However, none of the purported
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5
Neither of the attorneys participating in the January 15, 2014 hearing,
were personally involved in the alleged communications. N.T., 1/15/14, at
21-22.
6
When reviewing the factual allegations supporting the aggravated indecent
assault charges at Counts 5, 6, 7 and 8, all based on a single act, the trial
court asked Appellant what he used to penetrate the victim’s anus.
Appellant responded that he did not use any portion of his body, but used a
(Footnote Continued Next Page)
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communications between the Commonwealth, defense counsel, and the trial
court is in the certified record. Neither is there any indication in the record
that Appellant was aware of or agreed to modify his plea. This Court may
not consider items or circumstances that are not contained in the certified
record. Commonwealth v. Ross, 57 A.3d 85, 96-97 (Pa. Super. 2012),
appeal denied, 72 A.3d 602 (Pa. 2013), citing Commonwealth v. Rush,
959 A.2d 945, 949 (Pa. Super. 2008).
We conclude, based on the foregoing, that because no guilty plea or
adjudication of guilt was entered against Appellant with respect to the IDSI
charges at Counts 2, 3, and 4, the sentences imposed on those counts are
illegal. See Paige, supra. Accordingly, we are constrained to vacate the
December 6, 2011 judgment of sentence in this case and remand for further
proceedings.7 “An illegal sentence must be vacated.” Tanner, supra(citation omitted).
_______________________
(Footnote Continued)
spoon. N.T., 9/6/11, at 7-8. It is an element of aggravated indecent assault
that a defendant “engage[] in penetration, however slight, of the genitals or
anus of a complainant with a part of the [defendant’s] body….” 18
Pa.C.S.A. § 3125(a) (emphasis added). Deviate sexual intercourse is an
element of IDSI and is defined in pertinent part as “penetration, however
slight, of the genitals or anus of another person with a foreign object….”
18 Pa.C.S.A. § 3101 (emphasis added).
7
The parties acknowledge that the trial court’s sentences on Counts 9 and
10 do not violate the plea agreement. N.T., 1/15/14, 30-31. Nevertheless,
we include the entire judgment of sentence in our holding to vacate and
remand to avoid disturbing the trial court’s entire sentencing scheme. See
Tanner, supra, at 1048.
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Although we vacate the judgment of sentence in this case, we must
further consider the relief sought by Appellant relative to the scope of our
remand. Appellant urges this Court to remand “for further proceedings in
which the terms of the September 6, 2011 plea agreement are enforced.”
Appellant’s Brief at 20. As discussed above, once a plea that is subject to a
negotiated plea agreement is entered and accepted by the trial court,
neither the Commonwealth nor the trial court may deviate from its express
terms. See Anderson, supra. This admonition, however, does not
obligate the trial court to continue its acceptance of the plea agreement if,
upon proper grounds and prior to imposition of sentence, it determines the
plea agreement is not acceptable. See Pa.R.Crim.P. 591 (providing in part,
“any time before the imposition of sentence, the court may, in its discretion,
… direct, sua sponte, the withdrawal of a plea of guilty … and the
substitution of a plea of not guilty); Commonwealth v. Herbert, 85 A.3d
558, 565 (noting our appellate Courts, “have granted trial courts broad
discretion in deciding whether to withdraw a guilty plea sua sponte”);
Commonwealth v. Rosario, 652 A.2d 354, (Pa. Super. 1994) (en banc)
(upholding the trial court’s sua sponte withdrawal of defendant’s guilty plea
where a factual basis for the plea was lacking), appeal denied, 685 A.2d 547(Pa. 1996).
Thus in light of all the foregoing, we vacate the December 6, 2011
judgment of sentence in this case and remand for further proceedings.
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Upon remand, the trial court may impose sentence in accordance with
Appellant’s guilty plea and plea agreement. However, our decision herein
shall not be construed to restrict the trial court’s discretion under
Pennsylvania Rule of Criminal Procedure 591. See generally Pa.R.Crim.P.
591.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2015
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