Com. v. Saleem, M.

J-S28033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MOHAMMAD SOHAIL SALEEM :
:
Appellant : No. 198 MDA 2022
Appeal from the Order Dated September 21, 2021
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001112-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MOHAMMAD SOHAIL SALEEM :
:
Appellant : No. 345 MDA 2022
Appeal from the Order Entered September 21, 2021
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000565-2014
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: OCTOBER 4, 2022
Appellant, Mohammad Sohail Saleem, appeals pro se from the order
entered in the Lebanon County Court of Common Pleas, denying his motion to
enforce a plea agreement. We affirm.
The relevant facts and procedural history of this case are as follows. On
April 21, 2015, Appellant entered a guilty plea at docket No. CP-38-CR-
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0000565-2014 to two counts of indecent assault. That same day, Appellant
also pled guilty to one count each of indecent assault and harassment at
docket No. CP-38-CR-0001112-2014. Relevant to this appeal, the terms of
Appellant’s plea bargain were that the Commonwealth would dismiss the
remaining charges, the plea would be open as to sentencing, and the
Commonwealth would have no objection to Appellant’s immediate
deportation. On June 3, 2015, the court sentenced Appellant to an aggregate
21 months to 10 years’ imprisonment. There was a discussion at sentencing
that Immigration and Customs Enforcement (“ICE”) had planned to deport
Appellant to Pakistan within a week of sentencing based on 2009 convictions
not at issue here. Nevertheless, Appellant was not deported following
sentencing.
Appellant did not file a direct appeal from his judgment of sentence.
Instead, on August 31, 2015, Appellant filed a timely, counseled petition under
the Post Conviction Relief Act (“PCRA”), alleging plea counsel was ineffective
in misleading him to believe that, in exchange for pleading guilty, he would
be deported to Pakistan without serving any sentence of imprisonment in the
United States in connection with his guilty plea. After a hearing, the PCRA
court denied relief. This Court affirmed the denial of PCRA relief. See
Commonwealth v. Saleem, No. 645 MDA 2016 (Pa.Super. filed Mar. 28,
2017) (unpublished memorandum) (“Saleem I”) (affirming on basis of PCRA
court’s opinion stating there was no promise of immediate deportation in
exchange for Appellant’s plea, and counsel did not render ineffective
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assistance in this regard).
On August 17, 2020, Appellant filed a pro se petition for writ of habeas
corpus.1 In it, Appellant claimed he entered a negotiated guilty plea in which
immediate deportation was a bargained-for term of his plea agreement.
Appellant sought specific enforcement of the agreement. The court treated
the claim under the auspices of the PCRA and denied relief.
On appeal, this Court agreed with Appellant that the claim fell outside
the parameters of the PCRA. Nevertheless, this Court held:
[W]e find no merit to Appellant’s claim that his plea
agreement contained a bargained-for term in which he
would be immediately deported to Pakistan without serving
a prison sentence in the United States in connection with
the instant crimes. While the Commonwealth indicated it
would not object to Appellant’s immediate deportation, the
record reflects that Appellant was informed deportation was
a “potential” consequence of his guilty plea. Moreover,
during Appellant’s sentencing hearing, the Commonwealth
acknowledged that deportation was within the purview of
the federal government.
Further, the fact [that] ICE had commenced deportation
proceedings against Appellant in connection with his prior
[2009] convictions does not alter our conclusion. As the
PCRA court indicated in denying Appellant’s first PCRA
petition, while the ADA and Appellant believed Appellant
would be deported due to his prior convictions, deportation
was not a condition of Appellant’s instant guilty plea.
In fact, as the PCRA court noted, deportation decisions are
beyond the control of the District Attorney’s Office, and
Appellant’s trial counsel admitted he informed Appellant of
this fact prior to the entry of the guilty plea.
____________________________________________
1 Prior to this filing, Appellant filed other claims for relief which are not relevant
to the current appeal.
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Commonwealth v. Saleem, Nos. 1553 MDA 2020 and 1554 MDA 2020,
unpublished memorandum at 9-10 (Pa.Super. filed Aug. 6, 2021) (“Saleem
II”) (internal citations omitted) (emphasis added). Thus, this Court affirmed
the denial of habeas corpus relief.
On September 13, 2021, Appellant filed the current motion to enforce
the plea agreement, arguing that the Commonwealth’s agreement not to
object to Appellant’s immediate deportation was a bargained-for term of his
plea agreement. Appellant alleged the Commonwealth violated the terms of
this agreement by filing a writ of habeas corpus ad prosequendum (a writ to
appear for prosecution) on June 16, 2015, to transport Appellant for purposes
of a hearing, which ultimately halted all deportation proceedings. Appellant
insisted the Commonwealth filed the writ in “bad faith” because no hearing
ever occurred in connection with the writ. Essentially, Appellant contended
that by filing the writ, the Commonwealth “objected” to Appellant’s immediate
deportation, in derogation of the plea agreement.
On September 20, 2021, the court denied relief. Appellant timely filed
notices of appeal at each underlying docket on October 4, 2021.2 The court
subsequently ordered Appellant to file a Pa.R.A.P. 1925(b) statement;
Appellant complied.
Appellant raises two issues for our review:
____________________________________________
2 This Court consolidated the appeals sua sponte on March 15, 2022.
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Did the [trial] court err in [its] September 20, 2021 order
by not addressing [Appellant’s] motion to enforce plea
agreement. The claim of enforcement of plea agreement
was never understood and addressed. [The trial] court
always has misconstrued this very issue, either by treating
the motion as “PCRA” or simply not addressing it.
Did the [judge] err in denying [Appellant’s] motion to
enforce plea agreement, when such abuse of discretion
caused prejudice, since matter of Commonwealth’s
interference by filing writ of habeas corpus ad
prosequendum, with fake/faulty information, and matter of
primary custody not addressed.
(Appellant’s Brief at 4).
In his issues combined, Appellant argues that a negotiated term of his
plea agreement was that the Commonwealth would not object to his
immediate deportation. Appellant asserts that the Commonwealth reneged
on its end of the bargain by actively taking steps to prevent Appellant’s
deportation by filing a writ of habeas corpus ad prosequendum shortly after
sentencing. Appellant claims this writ prevented his immediate deportation
to Pakistan. Had the writ not been filed, Appellant maintains he would have
been deported in June 2015. Appellant emphasizes that he was already in the
primary custody of ICE when the Commonwealth filed the writ.
Appellant insists the current claim has not been previously litigated
because his prior filings involved whether immediate deportation was a term
of his plea bargain. By contrast, Appellant now acknowledges that “immediate
deportation” was not part of the plea deal, but he stresses that the
Commonwealth not objecting to his immediate deportation was a bargained-
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for term of the agreement. Appellant avers the courts have never addressed
whether the Commonwealth’s filing of the writ after sentencing constituted a
violation of the plea agreement. Appellant submits the Commonwealth filed
the writ in bad faith, as evidenced by the fact that no hearing ever took place
in June 2015 as contemplated by the writ.
Further, Appellant argues the Commonwealth lacked authority to
imprison Appellant where ICE retained “primary jurisdiction” over him in June
2015. Appellant claims the Commonwealth “borrowed” Appellant for purposes
of the sentencing hearing but was required to return Appellant to ICE’s
primary custody thereafter. Likewise, Appellant suggests the Commonwealth
“borrowed” Appellant for purposes of the post-sentencing writ and was
required to return Appellant to ICE’s primary custody when no hearing took
place as contemplated by the writ. Appellant concludes the Commonwealth
breached the plea agreement, and this Court must reverse the order denying
his motion to enforce and expunge his conviction. We disagree.
Our review of this appeal implicates the following principles:
[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.
See, e.g., Commonwealth v. Martinez, 637 Pa. 208, 147
A.3d 517 (2016); Commonwealth v. Fernandez, 195
A.3d 299 (Pa.Super. 2018) (en banc); Commonwealth v.
Hainesworth, 82 A.3d 444 (Pa.Super. 2013) (en banc),
appeal denied, 626 Pa. 683, 95 A.3d 276 (2014);
Commonwealth v. Farabaugh, 136 A.3d 995 (Pa.Super.
2016), appeal denied, 643 Pa. 140, 172 A.3d 1115 (2017);
Commonwealth v. Nase, 104 A.3d 528 (Pa.Super. 2014),
appeal denied, 640 Pa. 389, 163 A.3d 405 (2016).
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Compare Commonwealth v. James Johnson, 200 A.3d
964 (Pa.Super. 2018) (stating generally that plea
enforcement theory is unavailable as ground for collateral
relief if there is no plea bargain to enforce). The designation
of the petition “does not preclude a court from deducing the
proper nature of a pleading.” See Commonwealth v.
Porter, 613 Pa. 510, 524, 35 A.3d 4, 12 (2012) (citing
Commonwealth v. Abdul–Salaam, 606 Pa. 214, 996 A.2d
482 (2010) (involving deceptive labeling of PCRA
pleading)).
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). Plea
bargains play a critical role in the criminal justice system of
this Commonwealth:
With respect to plea bargains, [t]he reality of the
criminal justice system is that nearly all criminal cases
are disposed of by plea bargains: [n]inety-seven
percent of federal convictions and ninety-four percent
of state convictions are the result of guilty pleas. Plea
bargaining is not some adjunct to the criminal justice
system; it is the criminal justice system. Accordingly,
it is critical that plea agreements are enforced, to
avoid any possible perversion of the plea bargaining
system. The disposition of criminal charges by
agreement between the prosecutor and the accused,
…is an essential component of the administration of
justice. Properly administered, it is to be encouraged.
In this Commonwealth, the practice of plea bargaining
is generally regarded favorably, and is legitimized and
governed by court rule…. A “mutuality of advantage”
to defendants and prosecutors flows from the
ratification of the bargain.
Assuming the plea agreement is legally possible to
fulfill, when the parties enter the plea agreement and
the court accepts and approves the plea, then the
parties and the court must abide by the terms of the
agreement. Specific enforcement of valid plea
bargains is a matter of fundamental fairness. The
terms of plea agreements are not limited to the
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withdrawal of charges, or the length of a sentence.
Parties may agree to—and seek enforcement of—
terms that fall outside these areas.
Although a plea agreement occurs in a criminal
context, it remains contractual in nature and is to be
analyzed under contract-law standards. Furthermore,
disputes 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 circumstances and involves a case-by-
case adjudication.
Any ambiguities in the terms of the plea agreement
will be construed against the Government.
Nevertheless, the agreement itself controls where its
language sets out the terms of the bargain with
specificity. Regarding the Commonwealth’s duty to
honor plea agreements, well-settled Pennsylvania law
states:
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.
Whether a particular plea agreement has been
breached depends on what the parties to the
agreement reasonably understood to be the terms of
the agreement.
Farabaugh, supra at 1001-02 (internal citations and
quotation marks omitted).
We acknowledge that the analogy of a plea agreement
as a contract is not a perfect one. For instance, unlike
a typical contract, 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
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trial court….
Nonetheless, as the Hainesworth [C]ourt
recognized, plea agreements clearly are contractual in
nature. See Puckett v. United States, 556 U.S.
129, 137, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)
(stating[:] “Although the analogy may not hold in all
respects, plea bargains are essentially contracts”).
Martinez, supra at 231, 147 A.3d at 531 (one internal
citation omitted). “[T]he convicted criminal is entitled to the
benefit of his bargain through specific performance of the
terms of the plea agreement. Thus, a court must determine
whether an alleged term is part of the parties’ plea
agreement. If the answer to that inquiry is affirmative, then
the convicted criminal is entitled to specific performance of
the term.” Id. at 233, 147 A.3d at 532-33.
Commonwealth v. Kerns, 220 A.3d 607, 611-13 (Pa.Super. 2019).
Instantly, in prior filings and appeals, Appellant argued that his
immediate deportation was a bargained-for term of his plea agreement. This
Court has already considered and rejected that argument twice. See Saleem
I, supra; Saleem II, supra. Thus, the law of the case doctrine precludes
Appellant from raising that claim again. See Commonwealth v.
McCandless, 880 A.2d 1262, 1267 (Pa.Super. 2005) (en banc), appeal
dismissed as improvidently granted, 593 Pa. 657, 933 A.2d 650 (2007)
(explaining that “law of the case doctrine” refers to family of rules which
embody concept that court involved in later phases of litigated matter should
not reopen questions decided by another judge of that same court or by higher
court in earlier phases of matter).
Nevertheless, the record indicates that as part of Appellant’s plea deal,
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the Commonwealth would not object to Appellant’s immediate deportation.
(See N.T. Guilty Plea Hearing, 4/21/15, at 2); (Written Guilty Plea, 4/21/15,
at 6). In an effort to distinguish the current filing from his prior claims for
relief, Appellant insists that he is advancing for the first time his averment
that the Commonwealth acted in bad faith to intentionally delay his
deportation and violate the plea agreement by filing a writ of habeas corpus
ad prosequendum. In other words, Appellant complains that the
Commonwealth’s filing of the writ constituted an “objection” to his immediate
deportation in contravention of the plea deal.
At sentencing, the parties were under the impression that ICE had
planned to deport Appellant to Pakistan within the week based on prior 2009
convictions. (See N.T. Sentencing, 6/3/15, at 4-7). Nevertheless, the
prosecutor noted that deportation determinations were solely within the
purview of the federal government. (See id. at 7-8).
Appellant, however, was not deported. Appellant insists deportation did
not occur based on the filing of the writ at issue. The writ, signed by the trial
court on June 10, 2015, states:
WRIT OF HABEAS CORPUS AD PROSEQUENDUM
TO: York County Prison—ICE
AND NOW, THIS 10th day of June 2015, upon motion of
the District Attorney, WE COMMAND YOU that the body of
[Appellant] in your prison under custody be brought before
the Court of Common Pleas of Lebanon County, by
delivering the said body to the Sheriff of Lebanon County
Pennsylvania, on June 16, 2015 at 8:30 A.M. for [a]
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Scheduled Court appearance on … IDSI and related charges
in certain proceedings which are now pending in said County
of Lebanon and at the conclusion of the said hearing, the
said [Appellant] is to be returned to the custody of the
Sheriff of Lebanon County, or his designated representative,
to be returned to your custody.
(Writ of Habeas Corpus Ad Prosequendum, filed 6/11/15, at 1). The parties
agree that no hearing was held in connection with this writ.3 The record also
indicates that Appellant did not have IDSI or related pending charges at this
time, as he had already been sentenced on those charges.
Significantly, however, Appellant cannot demonstrate that this writ
constitutes an “objection” by the Commonwealth to Appellant’s immediate
deportation such that the Commonwealth violated the plea deal.
Notwithstanding the language in the writ, there is no motion by the
Commonwealth preceding the writ. (See Response to Appellant’s Right to
Know Inquiry, 7/30/20) (indicating there is no separate motion that preceded
the writ or document filed “motion”). The record suggests the writ may have
been signed and filed by the court mistakenly, without any request from the
____________________________________________
3 On July 18, 2022, Appellant filed an application for relief in this Court seeking
to introduce “new evidence” to support his claim of bad faith by the
Commonwealth in the form of a letter from the Court Administrator dated July
5, 2022. The letter responds to an inquiry from Appellant and states, in
relevant part, that no court hearing was scheduled in Appellant’s case on June
16, 2015, following the filing of the writ of habeas corpus. While we grant
Appellant’s request to consider this “new evidence,” we deny Appellant’s
request to grant his motion to enforce the plea agreement based on this “new
evidence.”
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Commonwealth.4
Even if the writ had been filed at the request of the Commonwealth,
such action is a far cry from “objecting” to Appellant’s deportation. As the
record demonstrated following the hearing on Appellant’s first PCRA petition,
the plea deal was that the Commonwealth would not take steps to actively
prevent Appellant’s deportation. (See PCRA Court Order, 3/24/16, at Finding
of Fact B; N.T. PCRA Hearing, 3/24/16, at 35). Rather, the PCRA court noted
that had the Commonwealth gone to the federal government and said not to
deport Appellant, that action would have been a breach. (See id. at 39).
Notably, no action by the Commonwealth prevented ICE from deporting
Appellant after the referenced June 16, 2015 hearing did not take place.
Appellant certainly cannot show that the filing of the writ in June 2015
prevented the federal government from deporting Appellant for the following
seven years. The Commonwealth simply had no control over whether the
federal government chose to deport Appellant. (See Commonwealth’s Brief
at 15) (stating: “[T]he Commonwealth cannot speak as to why [deportation]
did not occur because, as stated, deportation is well beyond the control of the
Commonwealth”). On this record, we cannot say that the Commonwealth
____________________________________________
4The Commonwealth also suggests that the writ might have been filed
mistakenly. (See Commonwealth’s Brief at 13).
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breached the plea agreement.5 See Kerns, supra. Accordingly, we affirm
the order denying Appellant’s motion to enforce the plea agreement.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2022
____________________________________________
5 Further, Appellant’s argument that the Commonwealth lacked authority to
imprison Appellant where he was in the “primary custody” of ICE merits no
relief. The case on which Appellant primarily relies, Taccetta v. Federal
Bureau of Prisons, 606 Fed.Appx. 661, 663 (3d Cir. 2015), discusses the
“primary custody doctrine,” which applies where a defendant faces
prosecution by both state and federal authorities, and determines where and
how the defendant will serve any resulting sentence. Those circumstances
are simply not present here.
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