Com. v. Hoke, J.

J-A34030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JACK ALAN HOKE, :
:
Appellant : No. 307 MDA 2014
Appeal from the Judgment of Sentence Entered January 23, 2014,
In the Court of Common Pleas of Cumberland County,
Criminal Division, at No. CP-21-CR-0003069-2011.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2015
Appellant, Jack Alan Hoke, appeals from the judgment of sentence
entered after he was expelled from the state intermediate punishment
program (a/k/a “SIP”), which had been imposed on his conviction of criminal
attempt to obtain drugs by fraud in relation to Appellant altering a valid
prescription for thirty-six tablets of oxycodone to 360 tablets of oxycodone.1
We affirm.
1
“The legislature enacted [the state intermediate punishment program] in
November 2004. [It] is a two-year program designed to benefit persons
with drug and alcohol problems. 61 Pa.C.S. §§ 4102-4109.”
Commonwealth v. Kuykendall, 2 A.3d 559, 560 (Pa. Super. 2010). The
state intermediate punishment program was created to “punish persons who
commit crimes, but also provides treatment that offers the opportunity for
those persons to address their drug or alcohol addiction or abuse and
thereby reduce the incidents of recidivism and enhance public safety.” 61
Pa.C.S. § 4102. In addition, the program was “designed to address the
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The trial court summarized the procedural history of this case as
follows:
On October 7, 2011, [Appellant] was charged with
Obtaining Drugs by Fraud (Oxycodone), 35 P.S. § 780-
113(a)(12), an ungraded felony. On January 17, 2012, an
Information was filed by the District Attorney charging
[Appellant] with the above charge as well as with Criminal
Attempt to Obtaining Drugs by Fraud (Oxycodone), 18 Pa.C.S.A.
§ 901 and 35 P.S. § 780-113(a)(12), also an ungraded felony.
On the Information, both Count 1 and Count 2 were listed as
having a maximum term of imprisonment of 5 years. On
October 4, 2012, [Appellant] pled guilty to Count 2, Criminal
Attempt to Obtaining Drugs by Fraud. At [Appellant’s] guilty
plea colloquy, the Commonwealth advised this Court and
[Appellant], in accord with the Information, that the maximum
possible term of imprisonment for Count 2 was five years.
[Appellant] then entered his plea in anticipation of entering the
State Intermediate Punishment Program (SIP) if accepted, which
would result in a flat 24 month sentence. [Appellant] was
ordered to appear at the Cumberland County Prison on
December 26, 2012, at 9:00 a.m., and the Sheriff was directed
to transport [Appellant] to SCI Camp Hill for screening for entry
into the SIP at that time.
On December 26, 2012, [Appellant] filed a motion to defer
commitment, which was granted, and [Appellant] was ordered to
appear before this Court on January 8, 2013. On January 8,
individually assessed drug and alcohol abuse and addiction needs of a
participant and shall address other issues essential to the participant’s
successful reintegration into the community, including, but not limited to,
educational and employment issues.” 61 Pa.C.S. § 4105(a). In addition, we
have explained that “expulsion and revocation [from the program] are
separate and distinct by statute. The [Department of Corrections] may
expel a defendant from the program, but upon expulsion, must promptly
notify the court so that it can conduct a revocation hearing. If the court
revokes the defendant, it then must re-sentence him.” Kuykendall, 2 A.3d
at 562. Here, Appellant challenges only the sentence imposed after the
revocation of his state intermediate punishment sentence, not the actual
revocation of the state intermediate punishment sentence.
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2013, pursuant to an order of this Court, [Appellant] was taken
by the Sheriff to SCI Camp Hill for screening for entry into SIP.
After [Appellant] had completed the screening process, and upon
receipt by this Court of a report from SCI Camp Hill that
[Appellant] would benefit from SIP, [Appellant] was sentenced
on June 10, 2013, to a period of state intermediate punishment
of 24 months.
By letter dated November 4, 2013, this Court was
informed that [Appellant] had been expelled from SIP. That
letter stated that [Appellant] had been “expelled from the
Program as a result of his lack of meaningful participation,
demonstrated by ongoing behavioral problems and program
violations.” We therefore scheduled a hearing for December 6,
2013. At [Appellant’s] request, that hearing was continued. In
requesting a continuance, defense counsel stated that he was
“hopeful that we can . . . resolve something as to what the
sentence will be. . . .” In response, we informed defense
counsel that “when someone gets kicked out of something and
there is a revocation, the sentence is entirely up to this Court.”
Defense counsel responded, “Yes ma’am.”
On December 9, 2013, this Court received a pre-sentence
investigation memo which listed the sentencing guidelines for
Count 2 as follows: a mitigated range of 36 months, a standard
range of between 48 and 60 months, and an aggravated range
of also between 48 and 60 months. That memo also advised
this Court that [Appellant] had been “expelled from the Program
[SIP] as a result of his lack of meaningful participation,
demonstrated by ongoing behavioral problems and program
violations.” On January 23, 2014, [Appellant] was brought
before us via teleconference to be resentenced. We informed
[Appellant] that the standard range pursuant to sentencing
guidelines was between 48 and 60 months. Defense counsel
acknowledged this range as correct. We then sentenced
[Appellant] at Count 2, Criminal Attempt to Obtain Drugs by
Fraud, an ungraded felony, to undergo imprisonment in a state
correctional facility for not less than 36 months nor more than
72 months, a mitigated range sentence. As our sentencing order
states, we sentenced [Appellant] in the mitigated range out of
“consideration that [Appellant] has indicated that he has been
clean since he has been in prison, and in consideration that his
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addictions stem out of multiple medical surgeries that he has
had for injuries.”
Trial Court Opinion, 5/28/14, at 2-4 (footnotes omitted).
Appellant then filed this timely appeal. Both Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents the following single issue for our review:
Whether the Commonwealth breached a material term of the
parties[’] plea agreement, by permitting Appellant to be re-
sentenced in excess of the maximum agreed upon term of
incarceration?
Appellant’s Brief at 4 (full capitalization omitted).
Appellant argues that his plea agreement had been breached when, at
the time of resentencing, the trial court imposed a maximum sentence of six
years of incarceration. Appellant asserts that he entered a guilty plea to one
criminal charge in exchange for the Commonwealth’s promise to withdraw
one charge and to set a maximum punishment of five years of incarceration
for the remaining charge. Appellant claims that, after he was expelled from
the state intermediate punishment program, he was resentenced to a term
of incarceration in excess of the maximum punishment of five years, as
agreed upon by the parties and approved by the trial court. Appellant
contends that fundamental fairness requires that the bargained-for sentence
be enforced, Appellant’s judgment of sentence be reversed, and the case
remanded to permit specific enforcement of the Commonwealth’s promise to
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cap the maximum sentence to be imposed at five years of incarceration.
Upon thorough review, we conclude that Appellant is not entitled to specific
enforcement of the five-year maximum punishment, as mentioned at the
time of his negotiated plea. Appellant’s subsequent revocation and
expulsion from the state intermediate punishment program abrogated the
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 terms of the agreement.’” Commonwealth v.
Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en banc) (quoting
Commonwealth v. Fruehan, 557 A.2d 1093, 1095 (Pa. Super. 1989).
Such a determination is made “based on the totality of the surrounding
circumstances,” and “[a]ny ambiguities in the terms of the plea agreement
will be construed against the [Commonwealth].” Hainesworth, 82 A.3d at
447 (quoting Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super.
1995)).
In addressing Appellant’s claim, we find our decision in
Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014), appeal denied,
97 A.3d 744 (Pa. 2014), to be instructive and controlling. In Partee, the
appellant entered a negotiated nolo contendere plea to several sexual
offenses, including indecent assault of a minor less than thirteen years of
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age. Id. at 246. The trial court sentenced the appellant to six months of
intermediate punishment, followed by four years of probation. Id. At the
time of the plea, a conviction of indecent assault of a minor less than
thirteen years of age carried a ten-year sexual offender registration period.
Id. at 248-249.
Subsequently, the appellant violated his probation and was
resentenced. Id. at 246. Following the enactment of SORNA,2 the appellant
received notification that pursuant to the statute, he was required to register
as a sexual offender for life, instead of the ten-year period imposed in
connection with his plea agreement. Id. The appellant filed a “petition for
habeas corpus and/or seeking enforcement of a plea agreement,” attempting
to avoid the retroactive application of the SORNA registration requirements.
Id. The trial court treated the appellant’s filing as a PCRA petition and
dismissed it, after which the appellant filed an appeal to this Court. Id.
Initially, the Partee Court held that the trial court improperly treated
the appellant’s petition to enforce the plea agreement as a PCRA petition.
Id. at 247. In addressing whether the appellant was entitled to specific
enforcement of the ten-year registration period, this Court stated that
“[w]hile [the ten-year registration period] was not an explicit term of the
negotiated plea, it is apparent that [the a]ppellant’s negotiated plea
2
Sex Offender Registration and Notification Act, 42 Pa.C.S. § 9799 et seq.
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agreement was structured so that he would only be subject to a ten-year
rather than a lifetime reporting requirement ….” Id. at 249. The Court
further commented that “[u]nder our reasoning in Hainesworth, [the
a]ppellant arguably would be entitled to the benefit of that bargain.” Id.
However, the Court held that the appellant was not entitled to specific
performance because he had abrogated his plea agreement by violating his
probation. Id. at 249-50. Specifically, the Court in Partee stated the
following:
Appellant cannot seek specific performance of the underlying
plea agreement[,] as there is no longer a plea bargain to
enforce. [The Commonwealth] cites Commonwealth v.
Parsons, 2009 PA Super 66, 969 A.2d 1259 (Pa. Super. 2009)
[(en banc)], for the proposition that “where the original sentence
evolved from a plea bargain, and a defendant later violates his
parole or probation, the defendant has effectively abrogated the
underlying plea bargain.” Id. at 1270 n.6. “[U]pon revocation
[of probation,] the sentencing alternatives available to the court
shall be the same as were available at the time of initial
sentencing[.]” 42 Pa.C.S. § 9771[(b)].
As our Supreme Court held in Commonwealth v.
Wallace, 582 Pa. 234, 870 A.2d 838, 842-43 (Pa. 2005), where
probation is violated, the trial court is free to impose any
sentence permitted under the Sentencing Code and is not
restricted by the bounds of a negotiated plea agreement
between a defendant and prosecutor.
Partee, 86 A.3d at 249-250. The Partee Court concluded that, “having
failed to abide by the terms of the plea bargain, [the appellant’s plea]
agreement is no longer in effect, and hence, [the a]ppellant is not entitled to
specific performance.” Id. at 250. As a result, the Court ruled that the
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appellant was required to register as a sexual offender for life under SORNA.
Id.We see no difference between the imposition of a sentence of a term
of probation, as in Partee, and a sentence of participation in the state
intermediate punishment program, as in the instant matter. See
Kuykendall, 2 A.3d at 563 (finding to be analogous sentences of probation
and sentences of state intermediate punishment). As we explained in
Kuykendall, a sentence to participate in the state intermediate punishment
program is conditional and “requires offenders to comply with specific
statutory requirements in order to provide rehabilitative treatment. Thus,
[state intermediate punishment], more so than probation, serves the dual
purpose of punishing a defendant and rehabilitating him or her.”
Kuykendall, 2 A.3d at 565.
Similar to the appellant in Partee, after the trial court sentenced
Appellant pursuant to the guilty plea agreement, Appellant violated the
terms of his state intermediate punishment program resulting in his ultimate
expulsion and revocation from the program. N.T., 10/4/12, at 2-7; 1/8/13,
at 2; 6/10/13, at 2-3. Hence, Appellant effectively abrogated his plea
agreement by violating the terms of, and suffering expulsion from, the state
intermediate punishment program. Therefore, Appellant is not entitled to
the benefits contemplated within the plea agreement. Thus, upon the
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revocation of Appellant’s sentence to the state intermediate punishment
program, the sentencing court had before it the same alternative as
available at the time of initial sentencing. Partee, 86 A.3d at 249-250. See
also 42 Pa.C.S. § 9774(c) (stating that “[u]pon revocation of a State
intermediate punishment sentence, the sentencing alternatives available to
the court shall be the same as the alternatives available at the time of initial
sentencing.”). Accordingly, Appellant’s claim that the terms of his plea
agreement were breached lacks merit.
Moreover, we are unpersuaded by Appellant’s attempt to avoid the
application of Partee by alleging that his application for the state
intermediate punishment program was not a condition of his plea
agreement. Appellant’s Brief at 14. Indeed, the record belies such claim.
N.T., 10/4/12, at 2-7. Therefore, we are constrained to affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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