Com. v. Gillins, R.

J-A03014-23
2023 PA Super 157COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT BRUCE GILLINS :
:
Appellant : No. 2412 EDA 2021
Appeal from the PCRA Order Entered October 27, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0513171-1994
BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 18, 2023
Appellant, Robert Bruce Gillins, appeals from the Order entered in the
Court of Common Pleas of Philadelphia County dismissing his petition filed
pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541-
9545, in which he challenged the validity of his guilty plea through an
ineffective assistance of counsel claim and a claim of breach of contract falling
outside the ambit of the PCRA. For reasons that follow, we vacate the order
and remand to the trial court, which shall vacate Appellant’s sentence, but not
his underlying convictions, with the aim of conferring on him the benefit of the
bargain he entered when agreeing to plead guilty in exchange for the promise
of concurrently run federal and state sentences.
On March 26, 1994, Appellant was arrested and charged with Murder
and related state offenses. While his state case was pending, he was
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* Former Justice specially assigned to the Superior Court.
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sentenced in federal court to a life sentence on one count of Continuing
Criminal Enterprise and to a concurrent sentence of 240 months' incarceration
for money laundering.1
On October 3, 1996, Appellant appeared before the trial court and
entered a counseled negotiated guilty plea to third-degree murder in exchange
for a 10 to 20-year state sentence of incarceration, with no further penalty on
the possession of an instrument of crime (“PIC”) charge. The trial court's
sentencing order indicated that Appellant's sentence would run consecutively
with any state sentence Appellant was then serving and, pursuant to the plea
negotiation and central to the present issue, concurrently with his federal
sentences. There is consensus in the record that Appellant indicated he would
not have accepted the plea deal without the promise that his existing federal
sentences would run concurrently with his state sentence while he was housed
in state prison. Appellant filed no direct appeal.
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1 In 1994, a federal grand jury indicted Appellant as the head of a twenty-
member organization that conspired to distribute cocaine and commit related
offenses in a drug distribution ring that obtained and distributed
approximately 20 kilograms of cocaine per week across the Mid-Atlantic from
Philadelphia to South Carolina. See United States v. Kelly, No. 95-5632,
1997 WL 79942, at *1 (4th Cir. Feb. 26, 1997) (per curiam) (summarizing
facts relating to co-conspirators). On his Federal Continuing Criminal
Enterprise charge, Appellant ultimately pleaded guilty and agreed to cooperate
with the government, while on his federal Money Laundering charge, he was
sentenced to 240 months’ imprisonment to run concurrent with his life
sentence.
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However, neither defense counsel, the Commonwealth, nor the trial
court recognized that relevant federal jurisprudence holds that neither the
federal courts nor the federal Bureau of Prisons ("BOP") are bound by a state
court sentencing order directing that an existing federal sentence shall run
concurrently to the newly imposed state sentence. See, e.g., Barden v
Keohane, 921 F.2d 476, 478 n.4 (3d Cir. 1990). Therefore, the trial court
lacked the authority to order that Appellant's state sentence run concurrently
with his federal sentences.
It was not until Appellant applied for a Presidential commutation of his
federal sentence in 2012 that he was informed for the first time, by the federal
Office of the Pardon Attorney, that his federal sentences were considered held
in abeyance until he completed his 10 to 20-year state sentence and reported
to a federal correctional facility, only at which time his federal sentences would
commence. After consulting with counsel, Appellant filed a petition with the
federal BOP asking it to recognize he had been incarcerated nearly 17 years
on his state sentence pursuant to his plea agreement in which he was
promised that his state sentence would run concurrently with his federal
sentences.
The BOP denied his request, citing, inter alia, that his federal judgment
of sentence was silent on the issue of concurrent sentences. The BOP
explained further that it contacted the federal sentencing court on the question
of retroactive designation of concurrent sentences in Appellant's case, and the
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federal sentencing court replied that it intended Appellant's federal sentence
to run consecutively to any other sentence. (See 2/12/19 Rule 907 response,
Exhibit E).
As noted in this Court’s prior memorandum decision, Commonwealth
v. Gillins, 245 A.3d 1100 (Pa. Super. 2020) Appellant filed his first PCRA
petition on June 6, 2017, alleging ineffective assistance of plea counsel,
breach of his plea agreement, and an invalid guilty plea. Specifically, the pro
se petition claimed that although the Commonwealth and the trial court had
agreed that his third-degree murder sentence would run concurrently with his
federal sentence, he learned 17 years later that the state court lacked
authority to impose concurrent sentences in this case.
The PCRA court appointed counsel, but less than one week later, and
without contacting Appellant, appointed counsel filed a petition to withdraw
and a Turner/Finley 2 letter indicating that Appellant's PCRA claims were
time-barred. PCRA counsel conceded that the trial court and both parties had
agreed during the guilty plea hearing that Appellant's state sentence would
run concurrently with his federal sentence, but counsel concluded Appellant
had failed to exercise due diligence by waiting 20 years to turn to the court to
seek clarification of his sentence. The PCRA court agreed, granted counsel's
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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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petition to withdraw, and dismissed Appellant's petition pursuant to
Pa.R.Crim.P. 907. Gillins, 245 A.3d 1100 at **1.
Appellant filed a pro se appeal. In this Court's memorandum decision
of December 24, 2020, we determined that PCRA counsel improperly had
failed to consult with Appellant in what was Appellant's first PCRA petition,
and we recognized that "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 [such that] the designation of the
petition does not preclude a court from deducing the proper nature of a
pleading.” Gillins, 245 A.3d 1100 at **2 (citing Commonwealth v. Kerns,
220 A.3d 607, 611-12 (Pa. Super. 2019) (internal citations and quotation
marks omitted)). We concluded, therefore, that the PCRA court had "fail[ed]
to confront Appellant's allegations of PCRA counsel's ineffectiveness and the
possibility that Appellant's claims fall outside of the PCRA[.]" Gillins, 245
A.3d 1100, at **5.
Accordingly, we vacated the PCRA court's order and remanded for the
appointment of new PCRA counsel, who was to review Appellant's claims of
PCRA counsel's ineffectiveness, discern in the alternative whether Appellant's
contract-based claim falls outside of the PCRA and its timeliness provisions,
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file supplemental briefing on these issues, and continue to represent Appellant
for the duration of the PCRA proceedings.3
On remand, the PCRA court again issued Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing, and it subsequently denied
Appellant's counseled PCRA petition for jurisdictional reasons expressed in
newly appointed PCRA counsel's Turner/Finley letter. This timely appeal
followed.
According to the PCRA court's Pa.R.A.P. 1925(a) opinion, PCRA counsel
reviewed and analyzed each of Appellant's issues as directed, and it
concluded, in relevant part, that the PCRA court lacked jurisdiction under the
PCRA to provide relief because Appellant was no longer serving a state
sentence. See 42 Pa.C.S.A. § 9543(a)(1)(i) (to be eligible for relief under the
PCRA, the petitioner must plead and prove, "the petitioner has been convicted
of a crime under the laws of this Commonwealth and is at the time relief is
granted currently serving a sentence of imprisonment, probation or parole for
the crime."). The PCRA court agreed, as it is undisputed that Appellant's state
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3 We also relinquished jurisdiction. Furthermore, our decision acknowledged
that "[t]o the extent Appellant's claims are cognizable under the PCRA, we
recognize that Appellant might not even be eligible for PCRA relief if he has
finished serving his state sentence, timeliness considerations aside." Gillins,
245 A.3d 1100, at *5, n.3. As we note infra, the record establishes that
Appellant completed his state sentence on March 26, 2019, prior to this
Court’s decision on December 24, 2020.
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sentence for third-degree murder expired on March 26, 2019, at which time
he was transferred to federal custody.
Appointed counsel also determined that Appellant had no recourse to
challenge his guilty plea under principles of contract law, a position that was
also adopted by the PCRA court. According to the PCRA court, because
Appellant's only agreement regarding his sentence was with the
Commonwealth, which "did not have the authority to force the BOP or federal
court to run [Appellant's] federal and state sentences concurrently," the
Commonwealth cannot be held in breach of any agreement.4 Instead, the
PCRA court opined, "it was [Appellant's] own lengthy criminal history that
prevented the BOP from running the sentences concurrently. Had Appellant
been eligible for concurrent sentences under 18 U.S.C.A. § 3621(b), the BOP
could have imposed concurrent sentences." PCRA Court Opinion at
11. Accordingly, the PCRA court granted counsel's petition to withdraw
pursuant to Turner/Finley and dismissed Appellant's PCRA petition as
meritless.
This pro se appeal followed. In Appellant’s pro se brief, he raises the
following issues for this Court’s review:
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4 As discussed infra, we disagree with the trial court’s legal conclusion in this
regard, as the inability of both the Commonwealth and a trial court to perform
on a promise forming the basis of a plea agreement with Appellant constituted
a breach of the agreement.
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I. Was the PCRA Court's dismissal of Appellant's PCRA Petition
err [sic] when the court failed to address Appellant's request for
relief under breach of contract law?
II. Was the PCRA Court's dismissal of Appellant's PCRA Petition
err [sic] when the court failed to address Appellant's request for
relief under a writ of error coram nobis.
III. Was the PCRA Court's dismissal of the Appellant's PCRA
Petition unsupported by the record and based on legal err [sic]
because Appellant's second PCRA appointed counsel was
ineffective for failing to raise the Pennsylvania Supreme Court['s]
and this Court's controlling caselaw, Appellant's due process
violations, trial ineffectiveness, breach of contract and writ of error
coram nobis relevant precedent and controlling case law.
IV. Was the PCRA Court's dismissal of the Appellant's Petition
err [sic] when the PCRA Court failed to address the petition in
almost two years -- causing a potential statute of limitations bar.
Appellant’s Pro Se Brief, at 6.
Initially, we conclude that Appellant is ineligible for relief on the several
PCRA claims he raises, as he has completed his state sentence. “Eligibility for
relief under the PCRA is dependent upon the petitioner [pleading and proving
by a preponderance of the evidence that he is] currently serving a sentence
of imprisonment, probation, or parole for a crime.” Commonwealth v.
Turner, 80 A.3d 754, 761–62 (Pa. 2013). See 42 Pa.C.S.A. § 9543(a)(1)(i).
As our Supreme Court has explained, as soon as his sentence is completed, a
PCRA petitioner becomes ineligible for relief. Commonwealth v. Ahlborn,
699 A.2d 718, 720 (Pa. 1997).
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Furthermore, to the extent Appellant seeks coram nobis relief for
ineffective assistance of counsel claims cognizable under the PCRA, this claim
likewise fails. Of significance here, section 9542 of the PCRA provides:
This subchapter provides for an action by which persons convicted
of crimes they did not commit and persons serving illegal
sentences may obtain collateral relief. The action established in
this subchapter shall be the sole means of obtaining collateral
relief and encompasses all other common law and statutory
remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis. This
subchapter is not intended to limit the availability of remedies in
the trial court or on direct appeal from the judgment of sentence,
to provide a means for raising issues waived in prior proceedings
or to provide relief from collateral consequences of a criminal
conviction. Except as specifically provided otherwise, all provisions
of this subchapter shall apply to capital and noncapital cases.
42 Pa.C.S.A. § 9542 (emphasis added).
Our Supreme Court has construed the language of section 9542
to:
demonstrate[ ] quite clearly that the General Assembly intended
that claims that could be brought under the PCRA must be brought
under that Act. No other statutory or common law remedy “for the
same purpose” is intended to be available; instead, such remedies
are explicitly “encompassed” within the PCRA.
Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (emphasis in
original).
Remaining for our consideration, therefore, is Appellant’s first issue, in
which he contends that the PCRA court erred when it failed to construe his
claim applying contract-based principles as a collateral petition existing
independently of the PCRA eligibility and timeliness provisions. Through this
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separate claim, Appellant asserted that the Commonwealth breached its plea
agreement with him when it promised concurrent sentences that the trial court
lacked authority to impose unilaterally.
Our review of a collateral petition to enforce a plea agreement is
governed by the following principles:
We recognize that “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. The
designation of the petition does not preclude a court
from deducing the proper nature of a pleading.” []
Kerns, 220 A.3d [at] 611-12 [] (internal citations and
quotation marks omitted). Plea bargains play a
critical role in the criminal justice system of this
Commonwealth:
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
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the agreement. Specific enforcement of
valid plea bargains is a matter of
fundamental fairness. The terms of plea
agreements are not limited to the
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. ...
Commonwealth v. Snook, 230 A.3d 438, 444 (Pa.Super. 2020)
(internal citations omitted). See also Commonwealth v. Koch,
654 A.2d 1168 (Pa.Super. 1995) (explaining that
Commonwealth's legal inability to fulfill promise made in plea
bargain resulted in breach of plea agreement such that
defendant's guilty plea was not knowing and voluntary).
[Gillins]
Moreover, the 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.” Missouri v. Frye,
––– U.S. ––––, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012)
(internal citations omitted). Plea bargaining “is not some adjunct
to the criminal justice system; it is the criminal justice system.”
Id. Accordingly, it is critical that plea agreements are enforced,
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“to avoid any possible perversion of the plea bargaining system.”
Commonwealth v. Fruehan, 384 Pa.Super. 156, 557 A.2d
1093, 1094 (1989) (internal citations omitted).
Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013)
As discussed supra, it was unbeknownst to both parties and the trial
court that concurrently run state and federal sentences are not available to a
state defendant unless the federal Bureau of Prisons (BOP) agrees to
it. Commonwealth v. Kelley, 136 A.3d 1007, 1014 (Pa. Super. 2016)
(citing Commonwealth v. Jones, 640 A.2d 1330, 1335 (Pa. Super.
1994)). Appellant asserts, nevertheless, that he may still obtain the
bargained-for benefit of receiving credit toward his federal sentence, not
through the specific performance of terms to what was a void plea agreement
at its inception, but by vacating his 20-year state sentence while keeping
intact his underlying state convictions.
Such a vacatur, he argues, would bring him within a federal statute5
that enables inmates to receive retroactive federal credit for time served in
state prison and, thus, would remedy the adverse collateral consequences he
continues to experience from the denial of his bargain. Specifically, because
the BOP held Appellant’s federal sentences in abeyance until he completed his
state sentence, his standing as a candidate in the federal sentence
commutation and reduction programs has suffered.
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5 18 U.S.C. 3585(b)(2), discussed infra.
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Appellant raises and develops this issue for the first time in his Reply
Brief,6 in which he addresses the Commonwealth’s argument that any iteration
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6 Initially, we consider whether Appellant’s reply brief, which significantly
supplements the insufficient argument for specific performance of his plea
agreement appearing in his original brief, should be prohibited.
The opportunity for, and the extent of, a reply brief is limited. . .
. [A] reply brief cannot be a vehicle to argue issues raised but
inadequately developed in appellant's original brief. 16 Standard
Pennsylvania Practice 2d § 89.5; see Leonard S. Fiore, Inc. v.
Department of Labor and Industry, Prevailing Wage
Appeals Board, 526 Pa. 282, 585 A.2d 994 (1991)(motion to
suppress portions of appellant's reply brief which reargued issues
previously raised and argued in appellant's brief granted); Park
v. Chronister, 151 Pa.Cmwlth. 562, 617 A.2d 863, 871 (1992),
alloc. denied, 534 Pa. 654, 627 A.2d 731 (1992). When an
appellant uses a reply brief to raise new issues or remedy deficient
discussions in an initial brief, the appellate court may suppress the
non-complying portions. Pa.R.A.P. 2101. If the defects in a brief
are substantial, appellate courts have the discretion to quash or
dismiss the appeal. Pa.R.A.P. 2101; see Grosskopf v. WCAB
(Kuhns Market), 657 A.2d 124 (Pa.Cmwlth.), alloc. denied,
542 Pa. 677, 668 A.2d 1139 (1995); Commonwealth v. Taylor,
306 Pa.Super. 1, 451 A.2d 1360 (1982). The onus of complying
with the rules of appellate procedure falls entirely on appellate
counsel, who may suffer consequences from committing
prejudicial errors. See Commonwealth v. Stoppie, 337
Pa.Super. 235, 486 A.2d 994 (1984)(admonishing appellate
counsels who do not comply with published rules).
Commonwealth v. Fahy, 737 A.2d 214, 219 (Pa. 1999).
Because Appellant’s reply brief is responsive to the Commonwealth’s theory
that the completion of his sentence renders moot the issue that he could
achieve the benefit of his bargain by modifying or vacating his sentence, we
deem it appropriate to review the position taken in the reply brief. Cf. Fahy
(electing to review issues raised in the appellant’s reply brief, despite their
absence from the original brief, where the Commonwealth wished to respond
with a sur reply brief).
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of a contract-based issue is necessarily moot because Appellant has completed
his state sentence and may no longer obtain the benefit of the bargain through
specific performance of its terms. See Mistich v. Pa. Bd. Of Probation and
Parole, 863 A.2d 116, 120 (Pa. Cmwlth. 2004) (holding where petitioner
chooses to attack only his sentence, and not the underlying conviction, the
expiration of the sentence renders the case moot unless the petitioner can
demonstrate collateral consequences adequate to satisfy the case-or-
controversy requirement). Accord Commonwealth v. King, 786 A.2d 993,
996 (Pa. Super. 2001). See also Pub. Defender’s Office of Venango Cty.
V. Venango Cty. Ct. of Common Pleas, 893 A.2d 1275, 1279 (Pa. 2006)
(noting that under the mootness doctrine, “an actual case or controversy must
be extant at all stages of review, not merely at the time the complaint is
filed.”).
The Commonwealth concedes that Appellant’s guilty plea was invalid
and that he was unfairly deprived of the benefit of his bargain, but it insists,
nevertheless, that once Appellant’s state sentence expired, so, too, did any
further consequences flowing from the breach of contract. Yet, the
Commonwealth does admit that “[h]ad [Appellant’s] Pennsylvania sentence
been concurrent with his federal sentence, he would have finished the 240-
month federal money laundering sentence that runs concurrent with his life
sentence. The fact that he is only now beginning that sentence may affect his
efforts at obtaining federal clemency. But . . . no remedy in state law can
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force the BOP to credit his state time toward his federal sentence, even if he
was denied the benefit of his bargain with the Commonwealth.” Brief for
Appellee, at 16.
Our jurisprudence has long recognized a defendant’s right to either
vacate or modify a sentence stemming from the Commonwealth’s or trial
court’s unlawful inducement of a guilty plea or breach of a plea agreement.
In the seminal case of Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976),
the Pennsylvania Supreme Court held that the Commonwealth’s legal inability
to fulfill a promise that induced the defendant to plead guilty constituted a
breach of contract that warranted reversal and remand for the imposition of a
new sentence that would confer to the defendant the benefit of his bargain.
In so doing, it 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.
Therefore, in Pennsylvania, it is well settled that ‘where a plea
bargain has been entered into and is violated by the
Commonwealth, the defendant is entitled, at the least, to the
Benefit of the bargain.’ Commonwealth v. Zakrzewski, 460 Pa.
528, --, 333 A.2d 898, 900 (1975) (emphasis added).
Zuber, 353 A.2d at 458-59.
We also have determined that when a prosecutor is unable as a matter
of law to fulfill a promise made in a plea bargain, a breach of the plea
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agreement occurs that renders the defendant's guilty plea unknowing and
involuntary. In this circumstance, the defendant is allowed to choose the relief
awarded, that is, whether to withdraw the guilty plea or to effectuate specific
performance of the plea agreement. See, e.g., Commonwealth v. Kroh,
654 A.2d 1168, 1174 (Pa. Super. 1995) (acknowledging defendant had option
either to withdraw guilty plea or to obtain performance of the plea agreement,
and granting defendant's choice of specific performance); Zuber
(acknowledging option between withdrawal of plea and specific performance
where legally unavailable promise of concurrent sentencing induced defendant
to plead guilty; court modified sentence pursuant to defendant's request).
The Commonwealth posits, however, that neither remedy is available to
Appellant. Specific performance of the plea bargain is not possible for two
reasons. The first is that Appellant has completed his state sentence, which
the Commonwealth contends would preclude the concurrent running of his
state and federal sentences, thus rendering the issue moot. The second is
that neither our courts nor the Commonwealth has the authority to impose
upon federal prosecutors and the BOP a duty to award Appellant credit toward
his federal sentences for time served while he was housed in a state
correctional institution serving his state sentence. See Konyk v.
Pennsylvania State Police of Commonwealth of Pennsylvania, 183 A.3d
981, 990 (Pa. 2018) (holding it is the prosecutor, not the government of
another jurisdiction, who has an affirmative duty to honor promises made in
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exchange for a defendant's guilty plea) (citing State v. Barone, 147 N.J. 599,
689 A.2d 132, 139 (1997) (“Absent consent or participation by state
authorities in [a federal] plea agreement, federal prosecutors cannot bind
state prosecutors and vice versa.”). Furthermore, as noted supra, the BOP
explained in 2019 that retroactive designation of concurrent sentences in
Appellant's case would run counter to the federal sentencing court’s stated
intention that Appellant's federal sentence would run consecutively to any
other sentence.
Appellant, however, asserts in his brief that “[w]hat the Commonwealth
fails to appreciate is that vacatur of Mr. Gillins’s sentence would result in the
terms of the plea agreement being necessarily enforced under federal law.”
Reply Brief for Appellant, at 6. This is so, he maintains, because “Federal law
provides that ‘[a] defendant shall be given credit toward the service of a term
of imprisonment for any time he has spent in official detention [] that has not
been credited against another sentence.” 18 U.S.C. 3585(b)(2).
A review of Section 3585(b)(2) and relevant decisional law substantiates
the use of this statute for awarding credit in our circumstances, but it does
not support Appellant’s unqualified assertion that our vacating his sentence
would “necessarily” result in the enforcement of his plea agreement, as the
“Attorney General, through the BOP, possesses the sole authority to make
credit determinations pursuant to 18 U.S.C. § 3585(b).” United States v.
Whaley, 148 F.3d 205, 206 (2d Cir.1998).
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In Dandridge v. Schultz, No. CIV.A. 07-1531, 2007 WL 4300846 2007
(E.D. PA. Dec. 6, 2007), the defendant sought federal credit for time spent in
state prison where the state court vacated both of his state sentences but not
his underlying state convictions. Initially, the BOP awarded the defendant
federal credit for time served on the state sentences pursuant to Section 3585,
because the time ultimately had not been applied to his state sentences.
However, when the state eventually reinstated the defendant’s state
sentences, the BOP revoked the credit.
The defendant filed a federal petition for a writ of habeas corpus alleging
that the time served pursuant to his state sentences should be credited toward
his federal sentence, entitling him to immediate release. On review, the
United States District Court, Eastern District of Pennsylvania, reasoned that
the defendant would have had a colorable claim that his time in state prison
should be applied to his federal sentence if his vacated state sentences had
not later been reimposed:
The Bureau of Prisons has the authority to compute federal
sentences in accordance with 18 U.S.C. § 3585. See United
States v. Wilson, 503 U.S. 329, 335, 112 S.Ct. 1351, 117
L.Ed.2d 593 (1992) (“[T]he Attorney General must continue to
compute the credit under § 3585(b) as he did under the former §
3568.”); Allen, 236 F. App'x at 782 (“The authority to calculate a
federal prisoner's period of incarceration for the sentence imposed
and to provide credit for time served is delegated to the Attorney
General, who acts through the BOP.”). Section 3585(b) provides:
Credit for prior custody.-A defendant shall be given credit
toward the service of a term of imprisonment for any time
he has spent in official detention prior to the date the
sentence commences-
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(1) as a result of the offense for which the sentence was
imposed; or
(2) as a result of any other charge for which the defendant
was arrested after the commission of the offense for which
the sentence was imposed;
that has not been credited against another sentence.
Dandridge's federal sentence commenced on March 29, 2007,
when he was released by the New Jersey officials and taken into
federal custody. See 18 U.S.C. § 3585(a) (“A sentence to a term
of imprisonment commences on the date the defendant is received
in custody awaiting transportation to ... the official detention
facility at which the sentence is to be served.”). Prior to this time,
he was in “official detention” in New Jersey state prison serving
his state sentences.
Dandridge's time in state custody prior to the vacation of his state
sentences has “been credited against another sentence,”
however. The last clause of § 3585 limits “an award of credit for
time served prior to the imposition of a federal sentence under
section 3585(b) to instances where the time period was not spent
in service of a previously imposed sentence and thus had not been
credited against that earlier sentence.” Rios v. Wiley, 201 F.3d
257, 272 (3d Cir.2000). The provision prohibits “double credit.”
Id. If Dandridge's vacated state sentences had not been
reimposed, he would have a colorable claim that the time should
be applied to his federal sentence. See Kayfez v. Gasele, 993
F.2d 1288, 1290 (7th Cir.1993) (“[I]t would be unreasonable to
consider as a ‘[credit] against another sentence,’ an allowance of
credit against a vacated sentence.”). But when his state sentence
was reimposed, the state court judge gave him credit against his
state sentence for the 313 days he had previously spent in state
custody. (Camden County Judgment of Conviction, Indictment No.
310-01-06, Apr. 23, 2007.) Applying the same credit to the
federal sentence would result in double credit. The BOP did not
abuse its discretion in not crediting Dandridge's federal sentence
with the time he had served in state prison.
Dandridge at *5 (emphasis added).
As discussed, the Commonwealth persists that Appellant may not
succeed in his attempt to gain the benefit of the bargain made with the
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Commonwealth because the sentence has expired and may not now be
modified, making his claim moot. It adds, “This conclusion is bolstered by the
absence of a remedy. [Appellant] cannot obtain specific performance because
no Pennsylvania entity has the authority to order that [Appellant’s] state time
be credited toward his federal sentence. Only the BOP has that authority and
the BOP already denied request for concurrent credit.” Brief of Appellee at
16.
Nevertheless, consistent with our precedent stressing principles of
fundamental fairness inherent in honoring plea agreements and cautioning
that they are to be enforced to avoid any possible corruption of the plea-
bargaining system, we find that, on balance, the facts warrant reversal in the
present matter. It is agreed that the false promise of concurrent state and
federal sentences induced Appellant to plead guilty to the state charges, and
that he subsequently served a 20-year state sentence without receiving any
time credit toward his federal sentences. There is, furthermore, no dispute
that Appellant deals with continuing adverse consequences associated with
the denial of his bargain made in the guilty plea. The federal government held
his federal sentences in abeyance for twenty years until he completed his state
sentence, and Appellant cites authority confirming that federal time served is
an important consideration in approving candidates for the federal sentence
clemency and reduction programs. See Reply Brief for Appellant, at 8, 9.
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Finally, although it is settled that the trial court had no authority to
order Appellant’s federal sentences to run concurrently with Appellant’s state
sentences, Appellant has presented federal statutory and decisional law,
discussed supra, showing that federal inmates may receive federal credit
towards the service of a term of imprisonment for detention that has not been
credited against another sentence. Vacatur of Appellant’s 20-year sentence
while keeping intact his underlying state convictions, would serve the dual
purpose of providing Appellant an opportunity to receive federal credit for his
state time and otherwise retaining Appellant’s record of conviction. In this
way, the Commonwealth’s plea agreement with Appellant, as accepted by the
trial court, may be effectuated to provide the benefit of the bargain struck
between the parties.
For these reasons, we vacate the order below and remand to the trial
court, which shall vacate Appellant’s sentence but retain his underlying
conviction. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2023
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