Com. v. Mudge, R.

J-S32040-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD WESLEY MUDGE :
:
Appellant : No. 1083 WDA 2020
Appeal from the Order Entered September 14, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004022-2012
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: December 7, 2021
Richard Wesley Mudge (“Mudge”), pro se, appeals from the Order
denying his Petition to enforce a plea agreement, which resulted in his nolo
contendere plea to two counts of simple assault, and one count each of
indecent assault, resisting arrest, defiant trespass, disorderly conduct,
harassment, criminal mischief, and public drunkenness.1, 2 We affirm.
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1 See 18 Pa.C.S.A. §§ 2701(a)(1), 3126(a)(2), 5104, 3503(B)(1),
5503(A)(4), 2709(A)(1), 3304(A)(5), and 5505.
2 A petition to enforce a plea agreement is to be considered outside of the
confines of the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014),
abrogated on other grounds by Commonwealth v. Muniz, 164 A.3d 1189(Pa. 2017).
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In its Opinion, the trial court set forth the history underlying the instant
appeal as follows:
On June 21, 2012, … [Mudge] pled nolo contendere [, after
which Mudge] was sentenced to three months [of] intermediate
punishment with a two[-]year consecutive period of probation,
and a ten[-]year registration as a sex offender. [Mudge] did not
file a post-sentence motion or direct appeal.
Instead, [Mudge] filed a PCRA [P]etition on March 3, 2014.
Appointed counsel filed[,] on July 2, 2014[,] a Petition seeking
[e]nforcement of the [p]lea [a]greement. On August 25, 2014,
[the trial court] denied the Petition [s]eeking [e]nforcement of the
[p]lea [a]greement and put [Mudge] on notice of its intent to
dismiss the PCRA [P]etition without a hearing[,] pursuant to
Pennsylvania Rule of Criminal Procedure 907. [Mudge] did not
appeal this Order. Instead, [Mudge] filed Amended [PCRA]
Petitions on November 5, 2014[,] and December 1, 2014. On
January 12, 2015, [the PCRA court] dismissed as untimely the
PCRA [P]etition. [Mudge] filed a Notice of Appeal on February 11,
2015…. On September 14, 2015, [Mudge] discontinued the
appeal.
On May 7, 2018, [the trial court] found [Mudge] to have
violated the terms of his probation[]. [The trial court] revoked
probation and resentenced [Mudge] to an aggregate sentence of
three years[,] six months[,] to seven years of incarceration, and
[an] [additional] period of two years of probation. [Mudge] filed
a Notice of Appeal on May 21, 2018, [and the trial court] issued
its Opinion on September 21, 2018. On March 29, 2019, the
Superior Court of Pennsylvania affirmed. [See Commonwealth
v. Mudge, 215 A.3d 679 (Pa. Super. 2019) (unpublished
memorandum).]
On August 14, 2020, [Mudge] filed another Petition to
Enforce Plea Agreement [(the “Petition”)]. The Commonwealth
responded on September 8, 2020. [The trial court] denied the
Petition on September 14, 2020. [Mudge] filed a Notice of Appeal
… and ultimately filed a [Pa.R.A.P. 1925(b)] Concise Statement of
Matters Complained of on Appeal[.]
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Trial Court Opinion, 3/2/21, at 2-3 (some capitalization changed, one footnote
omitted).
Mudge presents the following claims for our review:
1. Whether the [trial] court failed to consider the effects of a nolo
contendere plea?
2. Whether the [trial court] erred when it accepted [Mudge’s] nolo
contendere plea and then implemented a [s]pecial [c]ondition
of [s]ex [o]ffender [t]reatment[]?
3. Whether the [trial] court erred when it undermined the rules
pursuant to 42 Pa.C.S.[A.] § 9754 Order of Probation[,] section
(b) and section (c) subsection (13)?
4. Whether the [trial] court erred when it failed to consider the
similarities of a nolo contendere plea and a guilty plea?
5. Whether the [trial] court erred when it failed to abide by
[Mudge’s] nolo contendere plea?
Brief for Appellant at 4.
Plea agreements are “contractual in nature and [are] to be analyzed
under contract law standards.” Commonwealth v. Hainesworth, 82 A.3d
444, 449 (Pa. Super. 2013) (citation omitted). Contract interpretation is a
question of law, so “[o]ur standard of review over questions of law is de
novo and to the extent necessary, the scope of our review is plenary.” Gillard
v. Martin, 13 A.3d 482, 487 (Pa. Super. 2010).
We address Mudge’s first two claims together, as they are related.
Mudge first claims that, by pleading nolo contendere he was not required to
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admit that he had committed the sex offense.3 Id. at 16. Therefore, Mudge
asserts, the trial court erred when it required him to complete sex offender
treatment. Id. at 17. According to Mudge, such treatment would require him
to admit that he had committed the underlying sexual offense, when his plea
of nolo contendere did not require such an admission. Id.
In his second claim, Mudge concedes that, as part of his plea, he signed
a “Specific Special Conditions” (the “Special Conditions”) form, in which he
agreed to attend and participate in a mental health treatment program and to
abide by the rules and conditions of the program. Id. at 18. Mudge
acknowledges that, at the plea colloquy, the trial court informed him that
treatment would require him “to make admissions[,] and if you do not make
admissions, you will not be deemed to have successfully completed your
treatment.” Id. (citation omitted). Mudge further concedes that the trial
court inquired whether Mudge understood that if, during treatment, he
continued to make denials and fail a polygraph, Mudge “would be deemed a
failure and violate your probation[,] in which case [the court] will be able to
re-sentence you.” Id. at 19 (citation omitted). Nevertheless, Mudge claims
that, had he known he would have to attend sex offender treatment and admit
____________________________________________
3 Although the trial court concluded that Mudge’s claims are barred by res
judicata, we affirm the trial court’s denial of relief on other grounds. See
Commonwealth v. Roberts, 771 A.2d 23, 29 (Pa. Super. 2001) (stating that
“[t]his Court may affirm the decision of the trial court if there is any basis on
the record to support the trial court’s action; this is so even if we rely on a
different basis in our decision to affirm.”).
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to his sex offenses, he would not have tendered his nolo contendere plea. Id.
at 20.
Further, Mudge argues that he “did not even think he would have to do
a [s]ex [o]ffender [p]rogram.” Id. In support, Mudge directs our attention
to a portion of the colloquy in which the trial court explained that the Special
Conditions will require Mudge to have “a [m]ental [h]ealth [e]valuation and
follow through with [s]ex [o]ffender [t]reatment.” Id. at 19 (citation
omitted). According to Mudge, “since [he] has relinquished his right to a jury
trial in order to enter the plea agreement, [] the [s]ex [o]ffender [p]rogram
undercuts the agreement because it subjects [him] to admit guilt, a condition
[he] sought to avoid by entering into the [n]olo [c]ontendere agreement.” Id.
at 20.
As our Supreme Court has explained,
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. Cosby, 252 A.3d 1092, 1032 (Pa. 2021) (citation
omitted). “[D]isputes over any particular term of a plea agreement must be
resolved by objective standards. A determination of exactly what promises
constitute the plea bargain must be based upon the totality of the surrounding
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circumstances and involves a case-by-case adjudication.” Commonwealth
v. Kerns, 220 A.3d 607, 612 (Pa. Super. 2019).
Contrary to his assertions, Mudge’s first two claims do not seek
enforcement of the terms of his plea agreement. Rather, Mudge seeks to
avoid an express term of that agreement. Our review discloses that, at the
plea colloquy, the trial court inquired as to Mudge’s understanding of the terms
of his plea agreement:
THE COURT: … [Y]ou understand that any probation period
imposed by the [c]ourt would be subject to the general rules and
conditions of probation as well as the charge[-]specific
[S]pecial [C]onditions?
[Mudge]: Yes, ma’am.
THE COURT: Those conditions are contained in this pink colloquy
that I am holding in my hand.
[Mudge]: I read it.
….
THE COURT: Well, what I generally do is explain to the
[d]efendants who are subject to these [S]pecial [C]onditions or
probation that one of those conditions will require the victim [sic]
to have a mental health evaluation and follow through with sex
offender treatment.
Do you understand that?
[Mudge]: Yes, Your Honor.
THE COURT: And another is that you will [be] subject to reviews
with me. Do you understand that?
[Mudge]: Yes, Ma’am.
….
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THE COURT: … [Y]ou have read all three pages of these [S]pecial
[C]onditions, had the opportunity to discuss them with [your
counsel], and you have indicated by adding your signature on the
third page that you have read the entire document, that you do
understand everything contained in here and agree to abide by
it; is that correct?
[Mudge]: Yes, Your Honor.
THE COURT: Is that your signature on the third page?
[Mudge]: Yes, Your Honor.
THE COURT: So[,] I will sign these [S]pecial [C]onditions as well
and incorporate those into the record in these proceedings.
[MUDGE]: Thank you.
N.T., 6/21/12, at 6-9 (emphasis added).
The matter proceeded immediately to sentencing, at which time the trial
court again inquired as to whether Mudge understood the terms of his plea
agreement:
THE COURT: You do understand that your treatment is
going to require you to make admissions[,] and if you do
not make admission, you will not be deemed to have
successfully completed your treatment.
[Mudge]: Absolutely.
THE COURT: And if you do not make admissions or if you make
denials, then you have to pay for the polygraph. You could still
complete treatment without making admissions. However, if
you fail the polygraph and continue to make denials and
treatment[,] eventually you would be deemed a failure and
violate your probation[,] in which case I will be able to
resentence you.
[Mudge]: There will be no violations.
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N.T., 6/21/12, at 25-26 (emphasis added).
Nothing in the record indicates that Mudge was confused by the terms
of the Special Conditions, or the trial court’s explanation. Mudge agreed to
the express terms of the plea agreement, which required Mudge to comply
with all treatment requirements, including those that required him to admit to
the underlying sexual offense during treatment. See contra, Hainesworth,
82 A.3d at 450 (holding that a bargained for plea condition—that the
defendant did not have to register as a sex offender—was specifically
enforceable). To the extent that Mudge now claims that he was confused by
the terms of his agreement, or confused by the trial court’s explanation, such
a claim must be brought in a timely filed petition for relief under the PCRA.
See Commonwealth v. Rivera, 802 A.2d 629, 632 (Pa. Super. 2002)
(explaining that relief that can be granted under the PCRA must be sought
under the PCRA); see also 42 Pa.C.S.A. § 9542 (providing that the PCRA
“shall be the sole means of obtaining collateral relief”); id. § 9543(b)(iii)
(deeming cognizable a challenge to a plea as unknowing or involuntary). As
Mudge’s first two claims do not argue for the enforcement of the terms of his
plea agreement, we cannot grant him relief on those claims.
In his third claim, Mudge argues that, by imposing a term of probation
consecutive to a term of confinement, and by implementing the Special
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Conditions, the trial court violated 42 Pa.C.S.A. § 9754 (2012).4 Brief for
Appellant at 21. Specifically, Mudge directs our attention to subsection (b),
which, at the time of Mudge’s sentencing, permitted the trial court to attach
reasonable conditions to his probation, but required that such conditions be
“not unduly restrictive of his liberty or incompatible with his freedom of
conscience.” Brief for Appellant at 21 (quoting 42 Pa.C.S.A. § 9754(b)(13)
(2012)). Mudge argues that it is unjust and unreasonable for a trial court to
explain a defendant’s right to not admit guilt by means of a nolo contendere
plea, but then impose a condition that requires a defendant to admit guilt.
Brief for Appellant at 22. Mudge asserts that sex offender treatment should
be mandatory only for people who are found guilty or plead guilty. Id. at 23.
Once again, Mudge does not seek enforcement of the express terms of
his plea agreement. Rather, Mudge challenges the trial court’s sentence of
probation, and its inclusion of the Special Conditions, as violating section
____________________________________________
4At the time of Mudge’s plea in 2012, section 9754 provided, in relevant part,
as follows:
(b) Specific Conditions- The court may as a condition of its order
require the Defendant:
***
(13) To satisfy any other conditions reasonably related to the
rehabilitation of the Defendant and not unduly restrictive of his
liberty or incompatible with his freedom of conscience.
42 Pa.C.S.A. § 9754(b)(13) (2012).
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9754(b)(13). Thus, Mudge’s claim challenges the legality of his sentence
under 42 Pa.C.S.A. § 9754(b)(13) (2012).
A PCRA petitioner may challenge the legality of a negotiated sentence.
Commonwealth v. Rivera, 154 A.3d 370, 381 (Pa. Super. 2017) (en banc).
Because a challenge to the legality of a sentence is cognizable under the PCRA,
Mudge was required to raise this challenge in a timely filed PCRA Petition. See
Rivera, 802 A.2d at 632; 42 Pa.C.S.A. § 9543(b)(vii) (deeming cognizable a
challenge to the legality of a sentence). Consequently, the trial court did not
err in denying Mudge’s Petition to enforce his plea agreement.
We will address Mudge’s fourth and fifth claims together, as they are
related. In his fourth claim, Mudge claims that the trial court erred “when it
failed to consider the similarities of a nolo contendere plea and a guilty plea.”
Brief for Appellant at 24. Mudge asserts that “[t]he use of a nolo contendere
plea as tantamount to an admission of guilt would defeat one of its primary
purposes.” Id. at 25. According to Mudge, “[d]ue to [him] not having to
admit guilt under oath at the time of his plea, he should not be put in a position
of having to take a program which requires an admission of guilt, and is
punished if he does not.” Id. Mudge asserts that it was agreed that he “would
not admit guilt once the [Nolo Contendere Explanation of] Rights Form was
signed” by the court, the prosecutor and himself. Id. at 27. Mudge argues
that because his plea did not require him to admit guilt, “he should not have
to complete the sex offender program because[,] by doing so, [it] would
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violate his rights as he understood them” when he signed the Nolo Contendere
Explanation of Rights Form. Id. at 28.
In his fifth claim, Mudge argues that the trial court violated his nolo
contendere plea agreement, when it did not require him to admit guilt while
under oath, but required him to do so “to avoid further punishment.” Id.
Mudge argues that the nolo contendere plea agreement specifically stated, in
the Explanation of Rights, that he would not have to admit guilt. Id. at 29.
As set forth above, Mudge’s claim is not supported in the record.
Indeed, Mudge’s compliance with the Special Conditions, which included sex
offender treatment and admissions to be made during that treatment,
constituted an express term of his plea agreement. See N.T., 6/21/12, at 6-
9, 25-26. This requirement was explained to Mudge, and he expressly agreed
to it. See id. To the extent that Mudge challenges the imposition of the
Special Conditions as illegal, or that his plea was unknowing and involuntary,
those claims must be pursued under the rubric of the PCRA. See Rivera, 802
A.2d at 632; 42 Pa.C.S.A. § 9543(b)(vii).
For the above-stated reasons, we affirm the Order of the trial court,
which denied Mudge’s Petition to Enforce the plea agreement.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2021
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