Com. v. Ring, M.

J-S29042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK M. RING :
:
Appellant : No. 1324 MDA 2022
Appeal from the Order Entered August 19, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004097-2006
BEFORE: MURRAY, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 01, 2023
Appellant, Mark M. Ring, appeals from the denial of a motion alleging
that the Commonwealth breached his 2007 plea agreement by making
negative parole recommendations in 2018, 2019, and 2021. Upon review, we
agree that the plea enforcement motion could be reviewed in part as a motion
seeking specific performance that was cognizable beyond the ambit of the
statutory limitations applicable to petitions for collateral review under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq. We affirm the
denial of Appellant’s motion on the basis that the plea agreement was silent
as to Appellant’s parole eligibility and thus the Commonwealth’s negative
parole recommendations could not provide Appellant any basis for relief as a
matter of contract law.
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* Retired Senior Judge assigned to the Superior Court.
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On July 6, 2006, fifty-three-year-old Joseph Tarreto was exiting his
backyard in the unit block of West Charles Street in Plains Township,
Pennsylvania, to take his dog for a walk when Appellant confronted him. N.T.
3/15/07, 12-13. A fight ensued during which Mr. Tarreto’s fiancée, Elizabeth
Powell, tried to get between the two men. Id. at 13. Ms. Powell retreated
into her home to call 9-1-1 when she heard Mr. Tarreto yell before several
gun shots were fired. Responding police officers found Mr. Tarreto, then dead,
in a grassy area about twenty feet from his backyard. Id. Ms. Powell
identified Appellant as the “person who was involved in the attack” on her
fiancé and directed the police to his residence. Id. Appellant returned to his
own home after the shooting and admitted to his girlfriend that he had shot
Mr. Tarreto. Id. at 14. Police recovered a 38-caliber gun from Appellant’s
basement that was later determined to have been used in the shooting. Id.
On March 15, 2007, Appellant entered a negotiated guilty plea to murder
of the third degree.1 N.T. 3/15/07, 2-18. In exchange for the plea, the
Commonwealth agreed to recommend a sentence of twelve to twenty-four
years’ imprisonment and stipulated that Appellant was entitled to credit for
time served, starting on July 4, 2006. Id. at 2-4; Plea Agreement, 3/15/07,
1-2. After sentencing was deferred for the preparation of a pre-sentence
investigation report, the trial court imposed the agreed-upon term of
imprisonment. Plea Agreement, 3/15/07, 1; N.T. 3/15/07, 4, 18-19;
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1 18 Pa.C.S. § 2502(c).
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Sentencing Order, 4/26/07, 1; N.T. 4/26/07, 22. Appellant did not file post-
sentence motions or an appeal.
Appellant timely filed a pro se first PCRA petition alleging that ineffective
assistance of his prior counsel caused him to enter a guilty plea that was not
knowingly, voluntarily, and intelligently made. Pro Se PCRA Petition, 4/9/08,
§ 5(A). Counsel was appointed. No amended petition was filed. The PCRA
court dismissed the pro se petition after a hearing, during which the court
heard testimony from Appellant and both of his trial attorneys, and the court
found no merit to his ineffective assistance claim. N.T. 5/28/08, 49-50; Order,
5/28/08, 1. This Court affirmed the dismissal, and our Supreme Court denied
a subsequent petition for allowance of appeal. Commonwealth v. Ring, 996
A.2d 554 (Pa. Super. 2010) (table) (1118 MDA 2008), allocatur denied, 5
A.3d 819 (Pa. 2010) (table) (305 MAL 3010).
While Appellant’s appeal from the dismissal of his first PCRA petition was
pending with this Court, he filed a pro se second PCRA petition. Because of
Appellant’s pending appeal, the PCRA court did not rule on the new petition.
Appellant filed a pro se amended second PCRA petition with a brief on
November 14, 2011.2 No action was taken on the second petition until
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2 The claim raised in the second petition was based on “corruption” in the
Luzerne County Court System and alluded to the scandal called “Kids-for-
Cash,” that involved former Judges Mark Ciavarella and Michael Conahan, and
which first came to light in 2008. Pro Se Second PCRA Petition, 3/30/09, §
5(A); Pro Se Amended Second PCRA Petition, 11/14/11, 3; Commonwealth
v. Ring, 2015 WL 7721930, *2 & n.2 (Pa. Super., filed Jan. 15, 2015)
(Footnote Continued Next Page)
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Appellant filed a pro se “Motion for Disposition” on October 8, 2013, in which
he requested a ruling on the second petition. Counsel was appointed and later
filed a Finley “no-merit” letter along with a petition to withdraw as counsel.3
The PCRA court issued a dismissal notice pursuant to Pa.R.Crim.P. 907, in
which the court found that the second petition was untimely and
jurisdictionally time-barred and Appellant’s new claims of ineffective
assistance of counsel and an unlawfully induced plea were previously litigated.
Rule 907 Notice, 1/24/14, 1-2. Appellant filed a pro se objection and a
supplement to his petition, following the grant of his counsel’s withdrawal
motion. The PCRA court dismissed the second PCRA petition on March 18,
2014. This Court affirmed. Commonwealth v. Ring, 118 A.3d 444 (Pa.
Super. 2015) (table) (718 MDA 2014).
While the second PCRA appeal was pending, Appellant filed a motion for
post-conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1. In the motion,
Appellant sought “touch DNA” testing of a wooden spindle to advance a self-
defense claim. Motion for DNA Testing, 4/14/14, ¶¶ 9-10. After the second
PCRA appeal concluded, the PCRA court issued a Rule 907 dismissal notice
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(memorandum opinion). In that scheme Judges Ciavarella and Conahan
accepted money from the builders of for-profit juvenile detention centers in
exchange for imposing overly harsh adjudications on offenders who would be
housed in those facilities. Appellant’s only allegation of the former judges’
involvement in his case was that, in June 2008, Judge Ciavarella appointed
counsel to represent him in connection with his appeal from the dismissal of
his first PCRA petition. Pro Se Amended Second PCRA Petition, 11/14/11, 6;
Ring, 2015 WL 7721930, *3 n.6.
3 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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with respect to the motion requesting DNA testing. Rule 907 Notice, 3/12/15,
1-2. After Appellant filed objections and an amended motion for DNA testing,
the Commonwealth filed an ordered response and the PCRA court denied the
motion. Dismissal Order, 6/17/15, 1. This Court affirmed. Commonwealth
v. Ring, 145 A.3d 796 (Pa. Super. 2016) (table) (1238 MDA 2015).
On February 7, 2022, Appellant filed a petition that is the subject of this
appeal and which Appellant styled as a “motion to vacate and resentence.” In
the motion, Appellant asserted that the Commonwealth failed to honor “the
exact terms” of his plea agreement. Plea Enforcement Motion, 2/7/22, 1. In
particular, he claimed that the Commonwealth was not complying with his
plea agreement because it submitted negative parole recommendations for
him in 2018, 2019, and 2021. Id. at ¶ 7; Memorandum in Support of Plea
Enforcement Motion, 3/9/22, 2. Appellant characterized the Commonwealth’s
actions as a breach of his plea agreement while admitting that the agreement
was silent on the subject of parole decisions: “Although there were no
[e]ssential terms in the [p]lea [a]greement precluding the [District Attorney’s]
office from taking a negative position on [Appellant’s] parole decisions, there
was no [e]ssential term in the [p]lea [a]greement allowing the [District
Attorney’s] office to do so, under [c]ontract law.” Memorandum in Support of
Plea Enforcement Motion, 3/9/22, 1-2. As a result of a supposed breach in
those respects, Appellant requested resentencing to “time served” or any
remedy deemed necessary by the plea court. Id. at 5.
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The Commonwealth filed a response in which it argued that Appellant’s
motion should be treated as an untimely PCRA petition and, in any event,
Appellant’s breach claim was meritless because the plea agreement did not
guarantee parole or that the Commonwealth would refrain from making any
negative parole recommendations. Commonwealth’s Response, 5/25/22, 3-
4. Appellant subsequently responded that his motion was not a PCRA petition
and alleged that the Commonwealth committed intentional misrepresentation,
and thus unlawfully induced his plea, by not revealing at his plea hearing a
supposed plan to later recommend against his parole. Appellant’s Answer,
6/22/22, 1-3. On August 18, 2022, the lower court denied Appellant’s
motion.4 Order, 8/18/22, 1. Appellant timely filed a notice of appeal and a
court-ordered concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).5 Notice of Appeal, 9/16/22, 1; Rule 1925(b) Order,
9/19/22, 1; Rule 1925(b) Statement, 10/11/22, 1-2.
Appellant presents the following questions for our review:
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4 We note that the jurist who denied the instant motion was not the judge who
presided over Appellant’s plea hearing. See Lower Court Opinion, 12/14/22,
1 n.2.
5 Even without consideration of the prisoner mailbox rule, the 21-day deadline
for the filing the Rule 1925(b) statement would have been extended to 22-
days in this instance where the 21st day of the filing period fell on an observed
court holiday. See 1 Pa.C.S. § 1908 (“Whenever the last day of any such
period shall fall … on any day made a legal holiday by the laws of this
Commonwealth or of the United States, such day shall be omitted from the
computation.”); see also In re Schedule of Holidays, No. 544 Judicial
Administration Docket (Pa., filed Aug. 30, 2021) (identifying October 10, 2022
as an observed holiday).
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I. Under contract law and [Pa.R.Crim.P.] 590(B)(2), did the
negotiated plea agreement’s min[imum]/max[imum] years
and exact terms create an objectively reasonable
expectation to [Appellant], that as long as he was in
compliance with the terms, he would be considered for
parole by the parole board at his minimum sentence
completion without negative recommendations or
objections by any of the parties to the agreement or to any
future or subsequent parole decisions?
II. Under contract law and negotiated plea agreements, did the
[District Attorney’s] Office, by remaining silent about their
intentions to submit negative recommendations to the
parole board, intentionally misrepresent and secure a
fraudulently induced plea agreement?
III. Did the lower court commit error by representing
[Appellant]’s motion to vacate and resentence as a PCRA
petition?
IV. Did the lower court err by not issuing a ruling of estoppel to
enjoin the [District Attorney’s] Office from submitting
further negative recommendations to the Parole Board?
Appellant’s Brief at 3 (original in all caps; suggested answers and lower court
determinations omitted).
I.
In his first issue, Appellant asserts that he entered his plea agreement
with the “understanding that, as long as he was in compliance with the exact
terms set forth in the agreement, he would be considered for parole by the
parole board upon reaching his minimum term of 12 years WITHOUT
objections or negative recommendations by the parties to the plea agreement
and those represented by the [District Attorney’s] office.” Appellant’s Brief at
8 (emphasis in original). He implies that the Commonwealth needed to
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bargain for the power to later make negative parole recommendations and, in
the absence of such a bargain, the Commonwealth breached the plea
agreement by making the parole recommendations. Id. (“The court did not
include any terms that the [C]ommonwealth would have the power to issue
negative recommendations to the parole board.”). Appellant characterizes his
underlying substantive claim as one seeking specific performance as a matter
of contract law: “Ring is challenging the [C]ommonwealth’s actions for going
outside the plea agreement and submitting negative recommendations to the
parole board as a breach of contract action.” Id. at 15.
The lower court advises us that it found no basis for a contractual breach
of the plea agreement because the agreement was silent on issues concerning
parole and parole-related recommendations:
The [plea] agreement here is silent regarding the
Commonwealth’s ability to file negative recommendations with the
Parole Board, a fact that [Appellant] concedes. Nor does the
agreement indicate that [Appellant] would be guaranteed parole.
Further, [Appellant] does not argue that the Commonwealth made
any oral representations to him or to the court regarding
recommendations to the Parole Board or otherwise. Accordingly,
[Appellant’s] guilty plea here clearly does not rest on the promise
or agreement of the [District Attorney] not to make a negative
recommendation regarding parole. As a result, there was no
breach of the plea agreement.
Lower Court Opinion, 12/14/22, 10 (record citation omitted). As the record
supports the lower court’s interpretation of the plea agreement, we agree that
Appellant has failed to demonstrate a breach entitling him to a remedy as a
matter of contract law.
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“[E]ven though a plea agreement arises in a criminal context, it remains
contractual in nature and is to be analyzed under contract law standards.”
Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013) (en
banc) (citation and internal quotation marks omitted). “Contract
interpretation is a question of law, so [o]ur standard of review over questions
is de novo and to the extent necessary, the scope of our review is plenary.”
Commonwealth v. Kerns, 220 A.3d 607, 612 (Pa. Super. 2019) (citation
and internal quotations omitted).
This Court has explained:
Assuming the plea agreement is legally possible to fulfill, when the
parties enter the 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. …
Kerns, 220 A.3d at 612 (citation omitted). “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.” Id. at 613 (citation
omitted). Additionally, the terms of a negotiated plea agreement shall
generally be stated on the record, in open court.6 Pa.R.Crim.P. 590(B)(1).
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6 Rule 590(B)(1) also permits the trial court to order, for good cause and with
both parties’ consent, “that specific conditions in the agreement be placed on
the record in camera and the record sealed.” Pa.R.Crim.P. 590(B)(1). Neither
the record, nor the arguments of the parties suggest that additional terms for
the plea agreement in this case needed to be reserved for an in camera
conference.
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With regard to plea agreements, “it is critical that [they] are enforced
to avoid any possible perversion of the plea bargaining system.”
Hainesworth, 82 A.3d at 449 (citation and internal quotations marks
omitted).
Plea bargains which are entered knowingly and voluntarily are
viewed with favor in this Commonwealth. If a trial court accepts
a plea bargain, the defendant who has given up his constitutional
right to trial by jury must be afforded the benefit of all promises
made by the district attorney. Specific enforcement of valid plea
bargains is a matter of fundamental fairness.
Id. (citations and internal quotation marks omitted). Further, “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.” Kerns, 220 A.3d at 612 (citation
omitted). “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.”
Id. (citation omitted).
In this case, the lower court is correct that the plea agreement makes
no reference to any promises concerning the Commonwealth’s ability to later
make negative parole recommendations. The terms of the plea agreement,
which were reduced to a written agreement and accepted by the parties at
the plea hearing, included the following terms:
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1. The Defendant, Mark M. Ring, knowingly, intelligently, and
voluntarily agrees to plead guilty to Murder of the Third
Degree, 18 Pa.C.S.A. §[ ]2502(c), a felony of the first
degree (F1).
2. There is an agreement between the parties as to sentencing.
The Commonwealth and Defense agree on a sentence of a
minimum of twelve (12) years to a maximum of twenty-four
(24) years[’] incarceration.
3. The Commonwealth and Defense agree that a pre-sentence
investigation shall be ordered by the Court prior to
sentencing.
4. The Defendant shall pay restitution to be determined by the
Luzerne County Adult Probation & Parole Department.
5. The Defendant shall pay the normal and customary costs of
prosecution.
6. The Defendant shall submit a DNA sample.
7. The Defendant will have no contact, either directly or
indirectly, with the victim’s family, including the victim’s
former fiancée, Elizabeth Powell.
8. The Defendant is legally entitled to credit for time served
from July 4, 2006[,] until the date of sentencing.
Plea Agreement, 3/15/07, 1-2; N.T. 3/15/07, 2-6.
The terms favorable to Appellant – and enforceable through specific
performance – were “an agreement … as to sentencing” and an agreement
that Appellant was entitled to a credit for time served starting on the date of
his arrest. A simple review of the stated terms, under an objective review,
does not support the conclusion that Appellant reasonably understood that the
Commonwealth would be hindered from making any recommendations
concerning subsequent parole decisions. Eligibility for parole consideration is
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a function of an imprisonment term, but a parole recommendation made years
after sentencing is not part of an agreed-upon state sentence imposed by a
trial court. See, e.g., Commonwealth v. Lee, 876 A.2d 408, 412 (Pa. Super.
2005) (“Inasmuch as the decision to grant parole rests exclusively with the
[Pennsylvania Board of Probation and Parole], the issue of parole is not a
fundamental norm underling the sentencing process.”). Accordingly, the
“agreement … as to sentencing” in this case had no bearing on the
Commonwealth’s ability to make a negative parole recommendation when
Appellant satisfied his minimum imprisonment term.7
The Commonwealth committed no breach of the plea agreement in this
case by making negative parole recommendations. The fact that the
Commonwealth later made negative parole recommendations did not
constitute an addition to the imprisonment term that Appellant was promised.
Appellant still received exactly what he was promised: a prison term with a
minimum term of twelve years and a maximum term of twenty-four years
____________________________________________
7 While the parties do not point to any caselaw addressing plea agreements
that contemplate parole recommendations, and our research fails to uncover
any prior opinions addressing similar fact patterns, we find no reasons why
that could not have been a bargained-for term that could have been made
part of another hypothetical plea agreement. We note that we have previously
enforced plea bargain terms requiring a prosecutor to remain silent as to any
sentencing recommendation in cases where the parties could not reach an
agreement as to a recommended sentence. See Commonwealth v.
Martinez, 539 A.2d 399, 403-04 & n.2 (Pa. Super. 1988) (remanding for
resentencing by another judge where a prosecutor breached an agreement to
make no recommendation as to sentencing and the defendant did not raise a
challenge to the validity of his guilty plea).
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with credit for time served from the date of his arrest. There being no breach
of the plea agreement, Appellant’s first issue fails for lack of merit.
II.
In his second issue, Appellant asserts that the Commonwealth
committed an intentional misrepresentation by not informing him at the time
of his plea of its supposed intention to submit negative recommendations for
parole (after the service of his minimum twelve-year imprisonment term) and,
as a result, the Commonwealth fraudulently induced the entry of his plea.
Appellant’s Brief at 16-19. This claim is unreviewable where it could only be
pursued through a timely-filed PCRA petition or an untimely-filed PCRA
petition in which Appellant pleaded and offered to prove the applicability of an
exception to the PCRA’s one-year time-bar. Even assuming that we could
address the claim on the merits, Appellant would not be entitled to relief
because the Commonwealth had no burden to address his parole eligibility at
the plea hearing and Appellant’s lack of knowledge concerning the parole
process had no bearing on the voluntariness of his plea.
Appellant appears to base the instant claim on a contract law theory by
citing, inter alia, the second restatement of contracts for the elements of a
fraudulent misrepresentation claim. Appellant’s Brief at 19; see also
Appellant’s Answer, 6/22/22, 2-3. This claim in unreviewable for our purposes
because our Supreme Court has stated 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;
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instead, such remedies are explicitly ‘encompassed’ within the PCRA.”
Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (emphasis in
original); see also Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa.
1998) (stating the PCRA shall be the sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies for the same
purpose). A claim of unlawful inducement of Appellant’s plea could only be
raised in a PCRA petition as a claim of that nature is specifically recognized as
cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(iii) (among the
claims cognizable under the PCRA are allegations of “[a] plea of guilty
unlawfully induced where the circumstances make it likely that the
inducement caused the petitioner to plead guilty and the petitioner is
innocent”).
Appellant both argues for and against the application of the PCRA and
its jurisdictional time-bar as follows:
One possibility for the lower court’s other jurisdiction would be
through Title 42 Pa.C.S. §[ ]9545(b)[(1)](ii) where the facts were
unknown to [Appellant] and could not have been ascertained by
due diligence. The Comm[onwealth] raises 42 Pa.C.S. §[
]9543(a)(2)(iii) and suggests that [Appellant’s] issue is cognizable
but [Appellant] is not claiming innocence so [the]
Comm[onwealth’s] rationale fails.
Appellant’s Reply Brief at 3. Appellant’s attempt to assert the time-bar
exception at § 9545(b)(1)(ii) in passing is unavailing where Appellant failed
to make any time-bar exception arguments before the lower court. Appellant
waived any time-bar exception arguments by not preserving them in a PCRA
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petition filed with the lower court. See Pa.R.A.P. 302(a) (“Issues not raised
in the trial court are waived and cannot be raised for the first time on
appeal.”); see, e.g., Commonwealth v. Burton, 936 A.2d 521 (Pa. Super.
2007) (“exceptions to the time bar must be pled in the PCRA petition, and
may not be raised for the first time on appeal”).
To the extent that Appellant argues that his plea inducement claim is
not cognizable under the PCRA and thus he is not subject to the PCRA’s
timeliness requirements on account of his decision to omit a claim of innocence
for purposes of review under 42 Pa.C.S. § 9543(a)(2)(iii), he fails to account
for prior decisions of this Court and our Supreme Court which have treated
claims of plea inducement caused by breached plea bargains as cognizable
claims for collateral review under the PCRA and its pre-cursor act, the Post
Conviction Hearing Act. See Commonwealth v. Zuber, 353 A.2d 441, 443
n.1 (Pa. 1976) (post-conviction petition under the PCHA raised a cognizable
claim where defendant contended that his guilty plea was involuntary because
of a breached plea bargain); Commonwealth v. Kroh, 654 A.2d 1168, 1171
n.1 (Pa. Super. 1995) (explaining that a claim that defendant’s guilty plea was
unlawfully induced where the Commonwealth breached a plea agreement is
cognizable under the PCRA). Where similar claims have been reviewed under
our post-conviction collateral review statutory schemes – without specific
reference to adjoining claims of innocence – we will not accept Appellant’s
baldly-stated assertion that his plea inducement claim is not cognizable under
the PCRA. See 42 Pa.C.S. § 9542 (The PCRA “shall be the sole means of
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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.”).
Even if we had jurisdiction to address a claim that the Commonwealth
unlawfully induced Appellant’s plea by not apprising him of a future intention
to make negative parole recommendations (assuming that the Commonwealth
was contemplating Appellant’s parole eligibility at the time of the 2007 plea
hearing), Appellant’s theory for inducement fails due to our holding that there
was no breach in response to his first claim presented. If there was no term
of the plea agreement that was related to parole or future parole
recommendations, the Commonwealth had no burden to make any expression
to Appellant concerning his future parole eligibility. In turn, the
Commonwealth’s silence at the plea hearing concerning future parole
recommendations had no bearing on the voluntariness of the plea. See Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (there is no constitutional or statutory
requirement that a federal court advise a defendant about parole eligibility in
order for the defendant’s plea to qualify as voluntary); Commonwealth v.
Stark, 698 A.2d 1327, 1331-32 (Pa. Super. 1997) (holding that courts need
not inform defendants of parole eligibility circumstances at guilty plea
hearings, and relatedly only need to inform defendants, among other
necessary elements for a voluntary plea colloquy, of the permissible range of
sentences and the maximum punishment that might be imposed; treating a
defendant’s eligibility for parole as a “collateral consequence” of a guilty plea);
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id. at 1332 (“we hold that the court need not advise a pleading defendant of
the release rules of the Pennsylvania Board of Probation and Parole or his
chances for parole, even assuming the court could predict such an
administrative procedure.”).
As we will address infra in section III, Appellant could present a specific
performance claim based on a contract law theory outside the confines of a
proceeding controlled by the PCRA. At the same time, Appellant could not use
a plea enforcement motion as a mechanism for seeking review of a plea
inducement claim that needed to be raised consistent with the PCRA. Hall,
771 A.2d at 1235. The timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Ziegler, 148 A.3d 849, 853 (Pa. Super. 2016).
A judgment of sentence, for the PCRA’s purposes, becomes final at the
conclusion of direct review or at the expiration of time for seeking review. 42
Pa.C.S. § 9543(b)(3). A PCRA petition must be filed within one year of the
date the judgment becomed final. 42 Pa.C.S. § 9545(b)(1). The exceptions
to the PCRA time-bar allow for very limited circumstances under which the
late filing of a petition will be excused; a petitioner asserting an exception
must file a petition within one year of the date the time-bar exception claim
could have been presented. 42 Pa.C.S. § 9545(b)(1)-(2). Here, the judgment
of sentence has long since been final by more than a decade and the instant
plea inducement claim was never raised in a timely PCRA petition or a PCRA
petition in which Appellant even attempted to plead and offer to prove the
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applicability of a PCRA time-bar exception.8 In these circumstances, we have
no jurisdiction to address Appellant’s plea inducement claim based on a
contractual misrepresentation theory. See Commonwealth v. Derrickson,
923 A.2d 466, 468 (Pa. Super. 2007) (“[i]f a PCRA petition is untimely, neither
this Court nor the trial court has jurisdiction over the petition. Without
jurisdiction, we simply do not have the legal authority to address the
substantive claims.’”) (citation omitted).
III.
In his third issue, Appellant addresses the lower court’s response to the
claim raised in his Rule 1925(b) statement in which he alleged that lower court
erred by treating his plea enforcement motion as a PCRA petition. He
concedes that the claim is moot because the lower court agreed in its opinion
that the motion was not a PCRA petition. Appellant’s Brief at 20, citing Lower
Court Opinion, 12/14/22, 12. This claim requires no response, but we use the
occasion to note that we agree that the petition at the focus of this appeal was
a reviewable petition that intended to enforce the terms of the parties’ plea
agreement via a claim of specific performance. While we ultimately do not
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8 Appellant’s judgment of sentence became final on May 28, 2007, the first
weekday after the thirty-day deadline for filing a direct appeal expired where
Appellant chose not to file any timely post-sentence motions.
Commonwealth v. Ring, 2015 WL 7721930 at *3 (noting that Appellant’s
judgment of sentence became final in May 2007); 42 Pa.C.S. § 9545(b)(3) (“a
judgment becomes final at the conclusion of direct review … or at the
expiration of time for seeking the review”); 1 Pa.C.S. § 1908 (“Whenever the
last day of any such period shall fall on Saturday or Sunday, … such day shall
be omitted form the computation.”).
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find that any contract breach occurred necessitating the grant of relief to
ensure specific performance, we concur that the lower court properly reviewed
Appellant’s breach claim without resorting to application of the PCRA.9 See
Kerns, 220 A.3d at 611-12 (“a collateral petition to enforce a plea agreement
is regularly treated as outside the ambit of the PCRA and under the contractual
theory of specific performance”).
IV.
In his last issue, Appellant asserts that the lower court erred “by not
offering promissory estoppel as a possible remedy to enjoin the
[C]ommonwealth from continuing to submit negative recommendations to the
parole board.” Appellant’s Brief at 20-21. This claim is waived as the record
does not reflect that Appellant made any request seeking to enjoin future
parole recommendations by the Commonwealth based on a theory of
promissory estoppel in his filings before the lower court. Appellant’s argument
only refers to the claim being raised in his Rule 1925(b) statement and our
independent review fails to uncover any reference to estoppel in either
Appellant’s plea enforcement motion or his answer to the Commonwealth’s
response to his motion. Appellant is unable to raise an estoppel issue for the
first time on appeal and thus this claim is unreviewable for purposes of this
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9 As addressed supra in section II, we hold otherwise that the plea inducement
claim that was raised in the Appellant’s answer to the Commonwealth’s reply
to his plea enforcement motion was cognizable under the PCRA and could not
be reviewed where it was not presented in a PCRA petition that raised any
arguments for the application of a statutory time-bar exception.
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appeal. Pa.R.A.P. 302(a); see, e.g., Walton v. Philadelphia Nat. Bank,
545 A.2d 1383, 1385 (Pa. Super. 1988) (“We find no evidence in the record
that appellants ever raised a claim of estoppel in the court below. We
therefore find this contention waived.”).10
We affirm the denial of Appellant’s plea enforcement motion where there
was no term in the plea agreement concerning parole or parole
recommendations and thus the Commonwealth did not breach the agreement
by making negative parole recommendations. We conclude that Appellant’s
claim that the Commonwealth unlawfully induced his plea was cognizable
under the PCRA and is unreviewable where Appellant included it in a plea
enforcement motion, rather than a PCRA petition, and never advanced any
arguments for an applicable exception to the PCRA’s time-bar in his filings
____________________________________________
10 Even assuming arguendo that this claim based on promissory estoppel were
not waived, it would be meritless because the Commonwealth did not promise
to refrain from making any parole recommendations as part of the plea
agreement in this case. Where Appellant failed to broach any bargained-for
term concerning parole recommendations in his plea negotiation, there would
be no basis under estoppel to enjoin the Commonwealth from making any
future negative parole recommendations. The lower court properly
appreciated this in its Rule 1925(a) opinion:
[T]he [District Attorney] made no promise with regard to making
recommendations to the Parole Board. Because this court finds
that the [District Attorney’s O]ffice did not break their agreement
with [Appellant] – nor make any promise to [Appellant] regarding
his eventual parole consideration by the Parole Board – there was
no reason to consider promissory estoppel as a remedy.
Lower Court Opinion, 12/14/22, 12.
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before the lower court. Appellant’s promissory estoppel claim is waived for
our purposes where it is raised for the first time on appeal.
Plea enforcement motion denial affirmed. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/01/2023
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