J-S78036-17
2018 PA Super 23
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRIAN KEITH ROOT, :
:
Appellant : No. 951 WDA 2017
Appeal from the PCRA Order May 30, 2017
in the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0001146-2014
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED FEBRUARY 6, 2018
Brian Keith Root (Appellant) appeals from the May 30, 2017 order that
dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We reverse and remand for proceedings
consistent with this opinion.
Appellant was charged with numerous crimes related to a sexually-
violent incident1 with his then-paramour in November 2014. On May 13,
2015, Appellant and the Commonwealth presented the trial court with a
negotiated plea agreement: Appellant agreed to plead guilty to four counts
with the remaining counts nol prossed. N.T., 5/13/2015, at 2. Further, the
Commonwealth expressly represented to the trial court that the negotiated
plea included “a specific agreement on sentencing,” namely, an aggregate
1
The Sexual Offenders Assessment Board ultimately concluded that
Appellant is not a sexually violent predator. N.T., 8/24/2015, at 22.
* Retired Senior Judge assigned to the Superior Court
J-S78036-17
sentence of two to four years of imprisonment followed by twelve years of
probation. Id.
The trial court informed Appellant that it understood that it was “a
heavily negotiated plea,” and it was willing to consider the recommendation,
but, although it was likely it would go along with it, it could not “commit to
that right now.” Id. at 7-8. The trial court also advised Appellant that if it
decided to give Appellant “more time… than what was agreed upon,” it
nonetheless would not allow Appellant to withdraw his plea. Id. at 8. The
trial court ultimately accepted the plea and scheduled a sentencing hearing.
Id. at 16, 19.
At the sentencing hearing, the Commonwealth reiterated that the
parties had agreed upon an aggregate sentence of two to four years of
imprisonment, followed by 12 years of probation. N.T., 8/24/2015, at 18.
The Commonwealth noted that the victim was aware of the agreement, and
that both the Commonwealth and the victim hoped the court would follow
the “very appropriate plea agreement.” Id. Counsel for Appellant also
reiterated that there was “an agreed-upon sentence,” and therefore declined
to dispute allegations made in the victim impact statement. Id. at 21.
The trial court proceeded to “follow the agreement, but with kind of a
twist.” Id. at 25. The trial court stated that it would order the same
aggregate period of supervision, but that it preferred to impose greater
maximum prison sentences with no probation tail. Accordingly, it sentenced
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Appellant to two to fourteen years of imprisonment, with credit for 292 days
served. Id. Counsel for Appellant pointed out that, under the trial court’s
sentencing scheme, there was “no guarantee that they would let him out,”
before his maximum sentence. Id. at 26. The trial court responded that it
did not believe that would be the case, but if the parole board believes it “is
necessary and appropriate” for Appellant to serve more than his minimum,
then that is “what should happen.” Id.
Appellant timely filed a post-sentence motion asking the trial court to
reconsider the sentence, citing the fact that the plea agreement included a
specific sentence that was different than the one he received. Motion for
Reconsideration of Sentence, 9/3/2015, at ¶ 3. The trial court denied the
motion, reiterating that the court at the plea colloquy informed Appellant
that it would not be bound by his agreement with the Commonwealth, but
would consider all relevant sentencing information in deciding the
appropriate sentence. Order, 9/9/2015, at 1 (unnumbered). Appellant did
not file a direct appeal. However, counsel did file a motion to withdraw
appearance on October 8, 2015, which the trial court granted the same
day.2
On August 25, 2016, Appellant pro se timely filed a PCRA petition,
claiming therein, inter alia, that the “negotiated plea was not honored!”
2
Counsel represented in the motion that the time for filing an appeal had
expired. However, the motion actually was filed and granted on the last day
an appeal could have been filed timely.
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PCRA Petition, 8/24/2016, at 4 (unnecessary capitalization omitted). The
PCRA court promptly appointed counsel and granted time for the filing of a
counseled petition. Order, 8/26/2016.
Counsel filed an amended petition on October 7, 2016. Therein,
Appellant alleged, that he was entitled to, inter alia, (1) be sentenced in
accordance with the plea agreement pursuant to Commonwealth v.
Parsons, 969 A.2d 1259, 1268 (Pa. Super. 2009) (en banc); (2) an
evidentiary hearing to elicit the testimony of Appellant and plea counsel
regarding, inter alia, his failure to file an appeal challenging the trial court’s
failure to sentence Appellant according to the plea agreement as required by
Parsons; and/or (3) withdraw his plea. Amended PCRA Petition,
10/7/2016, at 3-4. On October 13, 2016, Appellant filed an exhibit to
supplement the amended petition with a copy of Appellant’s written plea
agreement.3 The form reiterates what was represented at the oral plea
colloquy: that there was an agreement as to the sentence, and that the
agreed-upon sentence was a “special condition” of the plea agreement.
Exhibit to Supplement Amended PCRA Petition, 10/13/2016, at Exhibit A.
On November 16, 2016, the PCRA court filed a memorandum and
order addressing the amended petition. Therein, the PCRA court indicated
3
The document previously had not been part of the record; the fine print at
the bottom of the form states: “NOTICE TO THE CLERK OF COURTS: This
form is not to be filed among the official papers for this case in your office.
If you have received a copy in error, PLEASE DO NOT FILE IT IN YOUR
OFFICE. Return the copy to the Court Administrator’s Office immediately.”
Id.
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that Appellant’s challenge to his sentence was waived by his failure to raise
it in a direct appeal. Memorandum and Order, 11/16/2016, at 3. Further,
the PCRA court opined that, even if the issue were not waived, it is
meritless, because, while Parsons holds that a court is bound by an
approved plea agreement, the plea agreement in the instant case “was
never approved by the [c]ourt.” Id. Finally, the PCRA court determined
that no hearing was necessary because there were no issues of fact. Id. at
4. Therefore, the PCRA court issued notice of its intent to dismiss the
amended petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant timely filed a response to the notice. Therein, Appellant (1)
maintained that he is entitled to relief under Parsons, noting that the trial
court in Parsons also indicated during the colloquy that it was not bound by
the sentencing agreement; (2) expressed a belief that the PCRA court
misconstrued his claim, clarifying that he is alleging that, under Parsons,
plea counsel was ineffective in not filing a direct appeal; and (3) reiterated
his claim that a hearing was necessary to develop the factual issues.
Response, 12/2/2016, at 2-4. As a result, the PCRA court scheduled an
evidentiary hearing, limited to the question of whether Appellant timely
asked plea counsel to file a direct appeal. Order, 1/25/2017, at 1.
At the hearing, Appellant and plea counsel testified, offering fairly
consistent testimony. Appellant indicated that, after sentencing, he asked
counsel if there was anything that they could do to correct the trial court’s
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deviation from the plea agreement, and counsel filed a motion for
reconsideration. N.T., 5/19/2017, at 13. After the motion was denied,
counsel informed him that an appeal would be a waste of time “because it
would be placed back down into the sentencing judge’s discretion.” Id. at
14. Appellant also produced letters sent to him from plea counsel. The first,
dated two days after the sentencing hearing, noted “[f]rankly, this is the
first time that I can remember that a judge has not followed the plea
agreement that was reached with the District Attorney’s office.” Id. at
Exhibit B (unnumbered page 1). Nonetheless, counsel advised Appellant as
follows:
With regard to the sentence that was imposed,
unfortunately there is nothing that can be done to have that
sentence changed even though neither you nor I was satisfied
with the sentence that you received. An appeal to a higher court
would not be successful since they would defer to the sentencing
discretion of the county judge.
Id. (unnumbered page 2). The second letter, dated one week after the
post-sentence motion was denied, included the following.
Unfortunately there is nothing further that our office is going to
be able to do on your behalf. The Pennsylvania Superior Court
would certainly never overrule or overturn his sentence. While I
am glad that I was able to obtain a favorable plea agreement on
your behalf, I was disappointed that the judge decided not to
abide by all the terms of that agreement. I cannot think of any
other case that I have handled where the agreement was not
followed.
Id. at Exhibit C.
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Plea counsel also testified that, after the post-sentence motion was
denied, he informed Appellant that “there wasn’t anything further I felt we
could effectively do.” N.T., 5/19/2017, at 38. When asked if he had any
further discussions with Appellant about filing an appeal, plea counsel
responded as follows.
I don’t know whether we talked in person about that or whether
I said anything in writing. I made the decision that because he
had, basically, half of his minimum sentence served, and in my
experience with many, many Superior Court cases, it takes
about 12 months, 9 to 15 months to get a decision, I figured
that he would have served his minimum sentence before we
would get a decision from the Superior Court.
Id.
After plea counsel retrieved Appellant’s case file, the Commonwealth
offered therefrom a letter from Appellant to plea counsel dated August 27,
2015 (three days after sentencing), in which Appellant stated: “I thought the
judge was going to go with the plea agreement of 2 to 4 years. I would like
to talk to you about [an] appeal + motion to modify sentence.” Id. at
Exhibit 1. Plea counsel indicated that, as a result of the letter, he met with
Appellant and told him that he would file a motion to modify sentence. Id.
at 25. At no time after the denial of the post-sentence motion did Appellant
renew his request that counsel file an appeal. Id.
By memorandum and order of May 30, 2017, the PCRA court
dismissed Appellant’s amended PCRA petition. The court determined that
plea counsel testified credibly that Appellant did not request an appeal after
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the post-sentence motion was denied. Memorandum and Order, 5/30/2017,
at 2. The PCRA court found that Appellant offered no credible evidence to
the contrary, as the August 27, 2015 letter from Appellant to counsel “was
merely a request to discuss post-sentence options, and counsel responded
by filing the motion to modify sentence.” Id. at 2-3.
Further, the PCRA court rejected Appellant’s argument that plea
counsel should have known that Appellant would have wanted to appeal his
sentence based upon Parsons, as the court found Parsons inapplicable to
Appellant’s case. Id. at 3 (contrasting Commonwealth v. Rivera, 154
A.3d 370, 379 (Pa. Super. 2017) (en banc) (“[C]ounsel failed to provide
Rivera with all the relevant information he needed to determine whether to
file a direct appeal. … Counsel’s belief that an appeal would likely be
unsuccessful is not the determinative factor.”)).
Appellant timely filed a notice of appeal. The trial court did not order
Appellant to file a statement of errors complained of on appeal, and none
was filed. In his brief, Appellant asks this Court to determine whether the
PCRA court erred in determining that Parsons does not apply to Appellant’s
case, and whether the PCRA court erred in dismissing without a hearing his
claims that plea counsel was ineffective in failing to file a motion to enforce
the plea agreement or to withdraw his plea. Appellant’s Brief at 9.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
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by the record evidence and free of legal error.” Commonwealth v.
Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016).
We begin with an examination of the Parsons decision. In that case,
Parsons was charged with numerous sex offenses ranging from corruption of
minors to rape, and he ultimately reached a negotiated plea agreement with
the Commonwealth. Parsons, 969 A.2d at 1261. “Under the agreement,
the Commonwealth agreed to pursue only one count of statutory sexual
assault and one count of corruption of minors.” Id. “In exchange [Parsons]
agreed to plead guilty to these two counts and to accept imposition of a
negotiated sentence of six to twenty-three months of county incarceration,
followed by five years of probation.” Id. at 1261-62 (repetition of amounts
in numerical form omitted).
At the plea colloquy, the Commonwealth responded as follows when
asked by the trial court to place the agreement on the record.
In the plea agreement, there’s an agreed upon sentence by the
defense and the Commonwealth for a sentence of 6 to 23
months on the statutory sexual assault followed by 5 years’
probation on the corruption of minors. This is a charge
agreement as the [c]ourt can see from the [i]nformation as well
as the sentencing agreement if the [c]ourt should choose to
accept [the agreement]. I have spoken with the victim, the
victim’s family, as well as the prosecutor in this case and they
have no objections to this resolution.
Id. at 1262. Parsons acknowledged that that was his understanding of the
agreement, that the trial court was not bound by the agreement, and if the
trial court chose not to follow the agreement, Parsons would have the right
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to withdraw his guilty plea and proceed to trial. Id. The trial court accepted
the plea and ordered a presentence investigation. At the sentencing
hearing, the Commonwealth reiterated the agreed-upon sentence, and asked
the trial court to sentence Parsons according to the agreement. Parsons, on
the other hand, argued that it was not “a great plea agreement” because he
never should have faced most of the charges in the first place, complained
that the victim was a liar who tricked Parsons, and requested a lighter
sentence than that to which he had agreed. Id. at 1264. The trial court
then “simply refused to impose the agreed-upon fixed sentence” and instead
ordered electronic monitoring. Id. at 1265.
The Commonwealth presented a motion to withdraw the plea, and
appealed its denial. This Court, sitting en banc, considering the
Commonwealth’s arguments, reviewed the different types of plea agreement
options available in any given case.
In an open plea agreement, there is an agreement as to the
charges to be brought, but no agreement at all to restrict the
prosecution’s right to seek the maximum sentences applicable to
those charges. At the other end of the negotiated plea
agreement continuum, a plea agreement may specify not only
the charges to be brought, but also the specific penalties to be
imposed. In between these extremes there are various options,
including an agreement to make no recommendation or ... an
agreement to make a favorable but non-binding
recommendation. …
Id. at 1267 (quoting Commonwealth v. McClendon, 589 A.2d 706, 710
(Pa. Super. 1991) (en banc)) (internal quotation marks, citations, and
emphasis omitted).
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The Court went on to offer the following summary of the law applicable
to plea agreements that include specific terms regarding the sentence to be
imposed.
Where the plea bargain calls for a specific sentence that is
beyond the prosecutor’s narrowly limited authority in sentencing
matters, the plea bargain implicates the court’s substantive
sentencing power, as well as its guardianship role, and must
have court approval. Thus, the trial court has broad discretion in
approving or rejecting plea agreements. The court may reject
the plea bargain if the court thinks it does not serve the interests
of justice. If the court is dissatisfied with any of the terms
of the plea bargain, it should not accept the plea; instead,
it should give the parties the option of proceeding to trial before
a jury. 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.
Id. at 1268 (citations and footnote omitted; emphasis added). Applying this
law to the facts before it, this Court held that the trial court erred when it
“set aside the sentencing term, without the Commonwealth’s consent,
despite the clarity of the plea agreement both as to the charges and the
specific sentence, which the court had previously accepted.” Id. at 1272.
After a thorough comparison of the cases, we hold the PCRA court
erred in determining that the Parsons decision cannot establish a basis of
relief for Appellant. As detailed above, the recitation of the plea agreements
on the record to the courts in both cases included equally clear expressions
that a specific sentence was a term of the agreement, not an agreement to
make a mere non-binding sentencing recommendation. Compare N.T.,
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5/13/2015, at 2 (“This is going to be guilty pleas to Counts 5, 6, 7 and 8 at
the amended information. We’re nol prossing the remaining charges and
there is a specific agreement on sentencing, Your Honor. [Appellant] and
the Commonwealth both agree to consecutive sentences of six months to 12
months followed by a three-year probationary tag at each count. This would
essentially be a two to four-year sentence followed by [] 12 years of
probationary tag.”); with Parsons, 969 A.2d at 1263 (“In the plea
agreement, there’s an agreed upon sentence by the defense and the
Commonwealth for a sentence of 6 to 23 months on the statutory sexual
assault followed by 5 years’ probation on the corruption of minors. This is a
charge agreement as the [c]ourt can see from the [i]nformation as well as
the sentencing agreement if the [c]ourt should choose to accept [the
agreement].” (emphasis omitted)).
In opining that Parsons did not apply in the instant case, the PCRA
court offered the following distinction.
Parsons holds that when a plea agreement is entered on the
record, and approved by the trial court in accepting the plea, the
parties and the court are bound by the terms of the agreement.
The plea here was not fully approved by the [trial c]ourt, which
instead expressed its disagreement with some of the sentencing
terms. [Appellant] never asked to withdraw his plea.[4]
4
That no motion to withdraw the plea was filed in the instant case does not
reflect the inapplicability of Parsons. Rather, as we discuss infra, it is an
indication that Appellant’s counsel rendered ineffective assistance in telling
Appellant that there was nothing further that counsel could do, rather than
advising Appellant that he had the option of withdrawing his plea if the court
did not impose the agreed-upon sentence after accepting the plea.
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Memorandum and Order, 5/30/2017, at 3 n.3 (citations omitted).
The PCRA court is correct that the trial court in Parsons did not, as
did the court in the instant case, specifically question its support for the
agreed-upon sentence. However, the trial court in Parsons did, as did the
trial court in the instant case, inform the parties that it was not bound by the
plea agreement, and order a presentence investigation. Parsons, 969 A.2d
at 1262-63. Such an exercise was wholly unnecessary unless the court was
indeed considering imposition of a sentence other than the one negotiated
by the parties.
To be clear, a trial court legally may impose a harsher sentence than
the one agreed upon, even after accepting a plea with a negotiated
sentence. Commonwealth v. Tann, 79 A.3d 1130, 1133 (Pa. Super. 2013)
(“Following the acceptance of a negotiated plea, the trial court is not
required to sentence a defendant in accordance with the plea agreement.
Such a sentence is legal, so long as it does not exceed the statutory
maximum.”). However, when it does so, the trial court must give the
defendant the option to withdraw his plea and proceed to trial. Id. (“[A]
criminal defendant who is sentenced to more than was agreed upon in a
negotiated plea may withdraw his guilty plea upon being deprived of the
benefit of his bargain.”) (citing Commonwealth v. Wallace, 870 A.2d 838,
843 n.5 (Pa. 2005)).
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Here, the trial court both accepted a plea that included as a term a
specific penalty to be imposed and informed Appellant that receiving
something other than the agreed-upon sentence was not a basis for
withdrawal of the plea. N.T., 5/13/2015, at 8. Such was error. Under the
applicable law of Pennsylvania discussed above, Appellant was entitled either
to receive the benefit of the bargain, including the agreed-upon sentence, or
the option to withdraw his plea.
Having determined that Parsons does state the law applicable in the
instant case, we turn to Appellant’s remaining arguments that he was
entitled to a hearing on his claims that plea counsel was ineffective in not
filing a post-sentence motion to enforce the plea agreement or to withdraw
Appellant’s guilty plea. Appellant’s Brief at 11-20.
In reviewing these claims, we bear in mind that counsel is presumed
to be effective. Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa.
Super. 2017).
To overcome this presumption, a PCRA petitioner must plead and
prove that: (1) the underlying legal claim is of arguable merit;
(2) counsel’s action or inaction lacked any objectively reasonable
basis designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable probability of
a different outcome if not for counsel’s error.
Id. (internal quotation marks and citation omitted).
Our extensive discussion above demonstrates the merit to Appellant’s
legal claim. Further, Appellant clearly was prejudiced by counsel’s failure to
advocate for his legal rights: he gave up his constitutional right to have a
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jury determine whether he is guilty, yet he received a maximum prison
sentence more than three times greater than that for which he bargained.
The question remains whether counsel had a reasonable basis for failing to
consult with Appellant about filing post-sentence motions in the form of
enforcing the plea agreement or withdrawing the plea.
While the PCRA court limited the hearing held on May 19, 2017, to the
question of whether Appellant requested that counsel file a direct appeal, the
facts relevant to Appellant’s post-sentence-motion claims were developed at
that hearing. Specifically, counsel wrote a letter to Appellant advising him,
incorrectly, that “there is nothing that can be done to have that sentence
changed[.]” N.T., 5/19/2017, at Exhibit B (unnumbered page 2). Counsel
also offered as a basis for his failure to take additional actions his belief that
Appellant likely would be paroled before a challenge to his sentence could be
resolved. N.T., 5/19/2017, at 38. Thus, the record presently before us
establishes that counsel lacked a reasonable basis for failing to advise
Appellant that he had available remedies under the law. Cf.
Commonwealth v. Timchak, 69 A.3d 765, 776 (Pa. Super. 2013) (holding
that counsel had a reasonable basis for failing to discuss withdrawal of guilty
plea after judge did not sentence in strict conformity with plea agreement,
as the agreement was open to the trial court’s discretion on some terms,
and counsel determined that Timchak had “‘hit a homerun’ in receiving a
lenient sentence”).
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While, as Appellant acknowledges, plea counsel “did an excellent job”
in negotiating a favorable plea agreement, Appellant’s Brief at 22, the record
reveals that counsel’s post-sentence performance simply fell below what is
constitutionally required. As a result, we hold that Appellant is entitled to
PCRA relief in the form of reinstatement of his post-sentence rights.5
Upon remand, the PCRA court shall determine whether Appellant
should proceed with current counsel or whether appointment of new counsel
is appropriate. Thereafter, the court shall establish a deadline for the filing
of a post-sentence motion, and proceed thereafter under Rule 720 of the
Rules of Criminal Procedure.
Order reversed. Case remanded for further proceedings consistent
with this opinion. Jurisdiction relinquished.
5
The Commonwealth contends that if relief is due under Parsons, “the case
should be remanded for sentencing consistent with the plea agreement.”
Commonwealth’s Brief at 7. While that was the result in Parsons, we do
not deem it appropriate here. Because it was the Commonwealth, rather
than Parsons, who wished to have the plea rescinded, but jeopardy had
attached when Parsons had been sentenced, the Commonwealth would have
been barred from prosecuting Parsons a second time on those charges.
Parsons, 969 A.2d at 1270-71. Therefore, this Court avoided double-
jeopardy issues by remanding the case for imposition of the agreed-upon
sentence. Id. at 1271. Such concerns are not present in the instant case,
and we see no reason to deny the trial court its discretion to impose the
sentence it has determined is appropriate, so long as it is subject to
Appellant’s right to seek withdrawal of his plea. See, e.g., Tann, 79 A.3d at
1133.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2018
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