Com. v. Adebaike

• Decision Date: 31 March 2004
• Citation: 846 A.2d 759
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Emmanuel ADEBAIKE, Appellant.

846 A.2d 759

COMMONWEALTH of Pennsylvania, Appellee, v. Emmanuel ADEBAIKE, Appellant.

Superior Court of Pennsylvania.

Submitted January 13, 2004.

Filed March 31, 2004.

Burton A. Rose, Philadelphia, for appellant.

Hugh J. Burns, Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: BENDER, BECK and KELLY, JJ.

OPINION BY BENDER, J.:

¶ 1 This is an appeal from judgment of sentence imposed upon Appellant after probation was revoked. Appellant contends that the court erred in sentencing him to consecutive sentences after probation was revoked where his plea agreement called for concurrent sentences. We agree and vacate the judgment of sentence.

¶ 2 On March 8, 2000, Appellant entered a negotiated plea of guilty to attempted theft. The charge stemmed from an attempt on September 17, 1999, to cash a check on Temple University's account at First Union Bank. A bank cashier suspected the check was not genuine and a call to the police was made. No payment was made on the check and it was later determined to be counterfeit.

¶ 3 On March 17, 2000, Appellant again pled guilty pursuant to a negotiated plea agreement to a charge of theft. That charge related to the cashing, on September 16, 1999, of a counterfeit Temple University check in the amount of $1,624.61. Appellant waived a pre-sentence investigation and proceeded directly to sentencing on both charges. Appellant was given three years reporting probation on the charge he pled guilty to on March 8th. Appellant received an additional sentence of three years reporting probation on the charge he pled guilty to that day, concurrent with the sentence imposed on the first charge.

¶ 4 On July 25, 2001, while on probation on the instant charges, Appellant pled guilty to a charge of criminal conspiracy relating to an attempt to cash a forged check through an accomplice in Delaware County. The date of that offense was January 26, 2001, approximately ten months after entering the guilty pleas of the present case.

¶ 5 Precipitated by the entry of the plea in Delaware County, a violation of probation hearing was held on November 14, 2001, at which time Appellant's probation was revoked and a sentence of six to twenty-three months' imprisonment was imposed on each charge, to run concurrently. The court also allowed Appellant to surrender thirty days later to assist Appellant in setting up work release.

¶ 6 When Appellant reported on December 13, 2001, to begin serving his sentence, the Assistant District Attorney assigned to the case, M.K. Feeney, Esquire, asked the court to reconsider the sentence imposed a month earlier asserting that Appellant had "lied" to the court on at least five occasions. After argument on the matter, the court imposed a new sentence of eighteen to thirty-six months' imprisonment on each charge, to be served consecutively. On December 20, 2001, Appellant filed a motion for reconsideration of sentence asserting that the imposition of consecutive sentences violated the rule enunciated in Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994). After conducting two hearings/arguments on the matter, Appellant's motion for reconsideration was denied at the conclusion of the second hearing on March 6, 2002.

¶ 7 Appellant filed an appeal on April 2, 2002, within thirty days of the denial of his motion to reconsider. However, the appeal was quashed as untimely pursuant to the decision in Commonwealth v. Coleman, 721 A.2d 798 (Pa.Super.1998), which holds that Pa.R.Crim.P. 720, relating to the time for taking an appeal when post-sentence motions are filed, does not apply to sentences imposed upon revocation of probation. Thus, appeals from a sentence imposed upon probation revocation must be taken within thirty days of imposition. Appellant filed a PCRA petition on December 13, 2002, seeking reinstatement of his direct appeal rights. Appellant's PCRA petition was granted, leading to the taking of the present appeal on April 23, 2003.

¶ 8 Appellant, relying upon the afore-cited Anderson decision, asserts that the court was not empowered to impose consecutive sentences upon revocation of probation since pursuant to the original plea agreement he was to receive a concurrent sentence. Although we will not capsulize the Anderson holding here in detail, as it is readily available for review, we will quote the panel's conclusion:

We conclude that where a court accepts a guilty plea made pursuant to a negotiated plea bargain for a sentence concurrent with a prior sentence and imposes a concurrent sentence in compliance with the terms of the plea bargain, the court has enforced the plea bargain; upon resentencing, following probation revocation, the court remains bound to the plea bargain and must impose concurrent sentences.

Id. at 110. As can be seen from the above quote, Anderson appears to directly control the present case. Indeed, this point could have been deduced from the attack leveled upon that decision by both the Commonwealth and the trial court; the gist of those attacks boils down to a criticism of the soundness of the Anderson decision.¹ The Commonwealth and trial court here are not the only critics of Anderson on record. Anderson was a two-to-one decision decided over a vigorous dissent authored by our colleague, Judge Johnson. Despite the misgivings of the Commonwealth, the trial court and our colleague Judge Johnson, Anderson is binding authority and must be adhered to in the present case.

¶ 9 In attempting to avoid the dictates of Anderson, the court first argues that a concurrent sentence was not part of the plea agreement's bargained for exchange. However, the court admits that the exact terms of the plea agreement are unknown due to deficiencies in the record. T.C.O. at 9. Notably, the Commonwealth does not contest the assertion that a concurrent term was a part of the bargained for exchange. Moreover, the record suggests the contrary. During the plea proceeding, the court outlines the understanding of Appellant and the Commonwealth vis-à-vis the plea agreement. The court states:

The court: And, as in that case, three years reporting probation is being recommended as a sentence for those two, and they will run concurrently. Is that your understanding?

N.T. Guilty Plea, 3/17/01, at 3, (emphasis added). Appellant replied "yes" to this question. Thus, the understanding of the parties was that Appellant, like the appellant in Anderson, would receive a concurrent sentence. Consequently, we believe that we cannot avoid Anderson on this basis.

¶ 10 The court next asserts that Anderson should not apply because the original sentence was procured through fraud. However, a review of the record clearly establishes that what the court considers fraud amounts to nothing more than a broken promise made by Appellant at sentencing that "nothing like this would ever happen again." T.C.O. at 16.

¶ 11 First, we note that the issue in the present case involves the court's power to impose consecutive sentences upon revocation as opposed to the concurrent sentences imposed initially. In this regard, the supposed fraud relates to events occurring after entry of the plea. Neither the Commonwealth, nor the trial court, point to any misrepresentations that were made in the plea negotiation process that induced the Commonwealth to enter a plea agreement of concurrent sentences that it would not have otherwise entered, or induced the court to approve a plea agreement it otherwise would not have. As such, the plea agreement, and the concurrent terms that came with it, cannot be deemed to have been fraudulently entered. To the extent the entry of a term of probation was imposed instead of incarceration, and to the extent the court was induced to impose probation upon assertions of Appellant that "nothing like this would happen again," made during allocution, this circumstance will be addressed through the revocation of probation.²

¶ 12 Nevertheless, turning to the assertions viewed by the court as misrepresentations supporting a finding of fraud, while Appellant's failure to live up to his promise to live a law abiding life upon being extended a probationary sentence might be disappointing to the court, it does not constitute fraud. Fraud is defined in Black's Law Dictionary as: "a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment." See Black's Law Dictionary 670 (7th ed.1999). If such a broken promise constituted fraud, breaches of contract would, in effect, amount to frauds. This is simply not the law.³ As the definition above bears out, fraud requires an intentional misrepresentation of fact with the intent to induce a detriment in reliance upon the misrepresentation. Here, the fact Appellant is alleged to have misrepresented related to future events.

¶ 13 Additionally, the other assertions attributed to Appellant and viewed as "lies" would not constitute fraud with respect to the entry of the initial plea or sentence. The court points out four "lies" of Appellant. The first was that Appellant had lost his job on November 30, 2001, due to trust issues, namely, that he had filled out a job application and indicated that he had...