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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
REBECCA JO KELLY
Appellant No. 835 WDA 2015
Appeal from the Judgment of Sentence April 27, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-SA-0000089-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 23, 2016
Appellant, Rebecca Jo Kelly, appeals from the judgment of sentence
entered in the Cambria County Court of Common Pleas, following her
summary conviction for driving while operating privilege is suspended or
revoked (sixth or subsequent offense).1 We affirm.
The relevant facts and procedural history of this case are as follows.
On November 13, 2013, a magistrate convicted Appellant of driving while
operating privilege is suspended or revoked. Appellant timely filed a
summary appeal on December 4, 2013, for a trial de novo. The parties
appeared for the de novo trial on February 25, 2014, at which time defense
counsel stated Appellant was not appealing the substantive merits of her
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1
75 Pa.C.S.A. § 1543(a).
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conviction but was simply requesting a sentence of intermediate punishment
instead of county confinement. Defense counsel acknowledged Appellant
was subject to a mandatory sentence pursuant to 75 Pa.C.S.A. § 6503(a.1)
(providing that person convicted of sixth or subsequent offense under 75
Pa.C.S.A. § 1543(a) shall be sentenced to pay fine of not less than
$1,000.00 and to imprisonment for not less than 30 days but not more than
6 months). Defense counsel urged the court to allow Appellant to serve the
mandatory 30-day period on house arrest with electronic monitoring and
requested a continuance so Appellant could acquire funds to pay for
electronic monitoring. The court warned Appellant that if she appeared
again before the court for another Section 1543 offense, the court would
definitely impose a sentence of imprisonment. With respect to the current
offense, the court continued the hearing to consider Appellant’s request for
intermediate punishment. The court told Appellant to obtain funds for
electronic monitoring by the next hearing, in the event the court decided to
grant Appellant’s intermediate punishment request. At the conclusion of the
hearing, the court voiced its inclination to deny Appellant’s request, stating:
If it sounds like I am trying to scare you, I am. Because I
can’t for the life of me figure out why someone would just
continue to break the law like that. And I am not going to
make it any easier for you to do so by letting you serve
your sentence at home, because that doesn’t teach you a
lesson. Then it is like real life. It doesn’t feel like you are
being punished.
(N.T. Summary Appeal Hearing, 2/25/14, at 5; R.R. at 21a).
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On April 7, 2014, the parties appeared before a different jurist for
sentencing. Defense counsel again asked the court to permit Appellant to
serve the mandatory 30-day sentence on house arrest. Defense counsel
conceded Appellant still did not have sufficient funds to pay for electronic
monitoring. Appellant testified at the hearing that she has three children
and wanted to serve her sentence on house arrest to take care of her
children. Appellant also explained she was pregnant and considered a “high
risk” pregnancy. As well, Appellant said she was a college student. After
listening to Appellant’s testimony, the court denied her request for
intermediate punishment. The court stated:
Seven times is enough. You will serve your time as
required by law.
* * *
I am not sympathetic to your cause. This is the seventh
time you are driving without a license, no insurance, and
let’s just assume that you run a light or you are playing on
your cell phone and you hit somebody. They are dead.
What do we tell those people? Well, oh, I am pregnant,
oh, I am going to school, and oh, I am out of money.
What do we tell those people?
Tell me, that person that is standing in a court of law that
says here, Judge, here is a person that is driving without a
license for the seventh time, ran me over, killed my kid,
whatever the facts might be, what do I tell them? What do
I tell them?
(N.T. Sentencing Hearing, 4/7/14, at 6-7; R.R. at 28a-29a). The court
sentenced Appellant to 30 days’ imprisonment in county jail, plus the costs
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of prosecution and a $1,000.00 fine.
Appellant filed a motion for reconsideration the next day. The court
held a hearing on the motion on April 11, 2014. Defense counsel 2 argued
the prior jurist’s intention at the February 25, 2014 hearing was to impose a
sentence of house arrest once Appellant obtained funds to pay for electronic
monitoring. The court responded that since the last hearing, the court had
the opportunity to review Appellant’s lengthy criminal history and had the
court known of Appellant’s criminal history before the most recent hearing,
the court would have imposed an even greater term of imprisonment. The
court stated:
This sentence is about having responsibility for your
conduct. And it’s even more important to me today since I
found out her criminal history that she has had a multitude
of years, over ten years of probation terms. And maybe
it’s time that a month in jail gets her attention, because
clearly periods less restrictive have had no effect. So I
respect your opinion, I respect your advocacy for your
client, but your motion is denied.
(N.T Motion for Reconsideration Hearing, 4/11/14, at 8-9; R.R. at 47a-48a).
The court also denied Appellant’s request to transfer the case to the jurist
who had presided over the February 25, 2014 proceeding.
Appellant timely filed a notice of appeal on April 11, 2014, following
the hearing. On March 17, 2015, this Court vacated the judgment of
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2
The Public Defender’s Office represented Appellant at the February 25,
2014 and April 7, 2014 proceedings. Appellant retained private counsel for
the April 11, 2014 hearing and future proceedings.
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sentence and remanded for resentencing, concluding the trial court had
imposed an illegal 30-day flat sentence, where Section 6503(a.1) does not
permit the imposition of a flat sentence, and the court failed to dictate a
minimum and maximum term of imprisonment. See Commonwealth v.
Kelly, 120 A.3d 1057 (Pa.Super. 2015). Based on this Court’s disposition, it
declined to reach the merits of Appellant’s claim on appeal that the trial
court erred by declining to impose a sentence of house arrest. See id.
On April 27, 2015, the parties appeared for resentencing. Defense
counsel initially asked the court to transfer the case to the jurist who had
presided over the February 25, 2014 proceeding; the court denied that
request. Defense counsel also asked the court once again to impose a
sentence of house arrest, where Appellant committed no crimes since 2013,
made payment on the fines owed, performed community service, needs to
care for her children, was recently diagnosed with multiple sclerosis,
refrained from using drugs, and obtained employment. Appellant testified at
the hearing about her good behavior and reasons for seeking house arrest,
consistent with defense counsel’s remarks.
Defense counsel also suggested Appellant had withdrawn her summary
appeal for a trial de novo at the February 25, 2014 proceeding, and “pled
guilty” to the offense charged in reliance on the court’s statements that it
would impose a sentence of house arrest. The Commonwealth responded
that no guilty plea or plea bargain took place in this case. The
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Commonwealth stated the docket entries show a magistrate convicted
Appellant following a trial; and Appellant’s summary appeal was a request
for the court to impose a sentence of intermediate punishment. The
Commonwealth continued:
So I just want to make that clear that there was no plea
agreement between the Defense and the Prosecution
saying this young lady would get house arrest. That is
something that has never been discussed on the record.
There is no record of that in our file; anything of that
effect. And I just want to make that clear for the [c]ourt
at this time.
(N.T. Resentencing Hearing, 4/27/15, at 8; R.R. at 59a). Defense counsel
replied that the docket entries are unclear regarding whether the magistrate
convicted Appellant following a trial. Defense counsel insisted Appellant was
entitled to a summary appeal on the merits, and Appellant chose not to
proceed with the summary appeal based upon the court’s remarks at the
February 25, 2014 proceeding, indicating the court would impose a sentence
of house arrest. At the conclusion of the hearing, the court denied
Appellant’s request for house arrest and resentenced Appellant to 30 days’
to 6 months’ imprisonment in county jail (automatic parole after completion
of the 30 days) with work release approval.
Appellant filed a motion to rescind and to modify the sentence on May
7, 2015, which the court denied on May 12, 2015. On May 21, 2015,
Appellant timely filed a notice of appeal. That day, the court ordered
Appellant to file a concise statement of errors complained of on appeal
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pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on June 9, 2015.
Appellant raises one issue for our review:
WHETHER THE COMMON PLEAS COURT IN A SUMMARY
APPEAL FROM A CONVICTION FOR VIOLATING 75 PA.C.S.
§ 1543(A), AS A SIXTH OR SUBSEQUENT CONVICTION
PURSUANT TO 75 PA.C.S. § 6503(A.1), MANDATING A 30-
DAY MINIMUM TERM, ERRED OR ABUSED ITS DISCRETION
BY FAILING TO IMPOSE THE NEGOTIATED SENTENCE,
CALLING FOR THE 30-DAY MANDATORY MINIMUM TERM
TO BE SERVED BY INTERMEDIATE PUNISHMENT ON HOME
CONFINEMENT WITH ELECTRONIC MONITORING,
NOTWITHSTANDING THAT THE SUMMARY APPELLANT HAD
THE AGREED SUM FOR SUCH CONFINEMENT AND
OTHERWISE COMPLIED ON THE CONTINUED SENTENCING
DATE, BUT RATHER ORDERED THAT THE MANDATED
MINIMUM TERM BE SERVED IN THE COUNTY PRISON
CONTRARY TO THE AGREEMENT?
(Appellant’s Brief at 4).
Appellant argues the transcript from the February 25, 2014 proceeding
shows the parties entered into a plea bargain. Appellant asserts the court
asked the parties at the outset of the proceeding: “Do we have any kind of
plea bargain on this one?” Appellant claims defense counsel responded
affirmatively, and the Commonwealth did not respond to the court’s inquiry.
Appellant insists the Commonwealth’s silence signified acquiescence to the
“plea bargain.” Appellant maintains the transcript of the February 25, 2014
proceeding, read in its entirety, demonstrates the parties entered into a plea
bargain, pursuant to which the court would impose a sentence of house
arrest. Appellant suggests the court’s language at the February 25, 2014
hearing made clear the court intended to impose a sentence of house arrest
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as soon as Appellant acquired funds to pay for electronic monitoring.
Appellant concedes the court warned her that it would sentence her to
imprisonment for any subsequent offense, but the court would impose house
arrest for the current offense. Appellant submits the court erred by refusing
to impose the negotiated sentence of house arrest, on which Appellant relied
when she pled guilty. Even in the absence of a plea bargain, Appellant
contends the court abused its discretion by failing to sentence her to house
arrest, where Appellant has children who require her care, Appellant
performed community service, paid off her fines, was recently diagnosed
with multiple sclerosis, works full-time, and has not committed any criminal
acts since 2013. Appellant concludes the court abused its discretion and
committed legal error by failing to impose the negotiated sentence of house
arrest and disregarding other equitable considerations supporting a sentence
of house arrest; and this Court must vacate and remand for the court to
resentence Appellant to a minimum term of 30 days’ house arrest with
electronic monitoring. We disagree.
Pennsylvania Rule of Criminal Procedure 590 governs guilty pleas and
plea agreements, and states in relevant part:
Rule 590. Pleas and Plea Agreements
(A) Generally
(1) Pleas shall be taken in open court.
(2) A defendant may plead not guilty, guilty, or, with
the consent of the judge, nolo contendere. If the
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defendant refuses to plead, the judge shall enter a plea of
not guilty on the defendant’s behalf.
(3) The judge may refuse to accept a plea of guilty or
nolo contendere, and shall not accept it unless the judge
determines after inquiry of the defendant that the plea is
voluntarily and understandingly tendered. Such inquiry
shall appear on the record.
(B) Plea Agreements
(1) When counsel for both sides have arrived at a
plea agreement, they shall state on the record in open
court, in the presence of the defendant, the terms of the
agreement….
(2) The judge shall conduct a separate inquiry of the
defendant on the record to determine whether the
defendant understands and voluntarily accepts the terms
of the plea agreement on which the guilty plea or plea of
nolo contendere is based.
Pa.R.Crim.P. 590(A)-(B).
The guilty plea and the frequently concomitant plea
bargain are valuable implements in our criminal
justice 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.
Assuming the plea agreement is legally possible to fulfill,
when the parties enter the plea agreement on the record,
and the court accepts and approves the plea, then the
parties and the court must abide by the terms of the
agreement.
Commonwealth v. Anderson, 995 A.2d 1184, 1190-91 (Pa.Super. 2010),
appeal denied, 608 Pa. 634, 9 A.3d 626 (2010) (internal citations and
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quotation marks omitted).
Instantly, Appellant’s issue on appeal rests primarily on the premise
that she entered a negotiated guilty plea in this case, pursuant to which the
court would impose a sentence of house arrest. Nevertheless, the record
plainly belies Appellant’s contention. The certified record does not contain
any indication, aside from defense counsel’s assertions, that Appellant pled
guilty. Significantly, no written or oral guilty plea colloquy appears
anywhere in the certified record. The certified docket entries confirm a
magistrate found Appellant “Guilty by Trial” on November 13, 2013.
Appellant timely filed an appeal for a trial de novo. When the parties
appeared for the trial de novo, the court had the following exchange with
defense counsel:
THE COURT: Do we have any kind of plea
bargain on this one?
[DEFENSE COUNSEL]: Yes, Your Honor. It was filed as
a summary appeal, but it is really in the nature of an
intermediate punishment request. She was convicted at
the magistrate of driving under suspension. It is a
1543(a), non-DUI, but because it is considered a sixth or
subsequent conviction it is a mandatory 30 days. And I
believe that also bumps up the possible maximum to six
months and I think there is also a mandatory fine.
Now, in regards to [Appellant], we are asking the [c]ourt
to impose a 30-day term of imprisonment and for her to
serve that by way of intermediate punishment, house
arrest, electronic monitoring. …
(N.T., 2/25/14, at 2; R.R. at 18a). After hearing defense counsel’s
argument for Appellant to serve her sentence on house arrest, the court
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continued the hearing so it could consider the request. Notably, aside from
defense counsel’s affirmative response to the court’s inquiry concerning
whether there was a plea bargain in this case, there was no other mention
about a plea bargain or the terms of any such agreement during the
February 25, 2014 proceeding. Thus, the record shows defense counsel’s
affirmative response was an error.
Quite simply, nothing in the record supports Appellant’s bald allegation
that she “withdrew” her summary appeal and entered a negotiated guilty
plea at the February 25, 2014 proceeding in exchange for a sentence of
house arrest. Because nothing in the record shows a plea agreement ever
took place, Appellant’s complaint that the trial court failed to fulfill the terms
of that agreement lacks merit. Moreover, the transcript of the February 25,
2014 proceeding, read in its entirety, makes clear that the court agreed only
to consider Appellant’s request for intermediate punishment. Nowhere on
the record did the court “promise” to impose a sentence of house arrest. In
fact, at the conclusion of the hearing, the court expressed its intention to
deny Appellant’s request for intermediate punishment. (See id. at 5; R.R.
at 21a) (stating: “And I am not going to make it any easier for you to do so
by letting you serve your sentence at home, because that doesn’t teach you
a lesson. Then it is like real life. It doesn’t feel like you are being
punished”).
Appellant’s alternative argument (that the court ignored “equitable
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considerations” by failing to impose a sentence of house arrest) implicates
the discretionary aspects of sentencing. See Commonwealth v. Cruz-
Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676
A.2d 1195 (1996) (stating allegation court ignored mitigating factors
challenges discretionary aspects of sentencing). Nevertheless, Appellant
failed to preserve a challenge to the discretionary aspects of sentencing in a
Pa.R.A.P. 2119(f) statement; the Commonwealth objects to this error. Thus,
Appellant’s alternative argument is waived. See Commonwealth v. Bruce,
916 A.2d 657 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74
(2007) (explaining defendant challenging court’s sentencing discretion must
set forth in her brief concise statement of reasons relied upon for allowance
of appeal; failure to include Rule 2119(f) statement constitutes waiver of
sentencing claim, if Commonwealth objects to omission of statement).
Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2016
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