Com. v. Anderson

• Decision Date: 26 May 1994
• Citation: 434 Pa.Super. 309,643 A.2d 109
• Parties: COMMONWEALTH of Pennsylvania v. Pamela ANDERSON, Appellant.
• Court: Pennsylvania Superior Court

Page 109

643 A.2d 109

434 Pa.Super. 309

COMMONWEALTH of Pennsylvania v. Pamela ANDERSON, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 20, 1993.

Filed May 26, 1994.

Shelley Stark, Public Defender, Pittsburgh, for appellant.

Michael Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before BECK, KELLY and JOHNSON, JJ.

KELLY, Judge:

In this appeal we must determine whether an enforced plea agreement to impose a sentence on a new conviction to run concurrently with a sentence previously imposed on a prior conviction is binding on the sentencing court when imposing sentence following probation revocation. 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. Accordingly, we vacate the September 10, 1992 order of the Allegheny County Court of Common Pleas entering judgment of sentence and remand for the imposition of concurrent sentences.

We set forth the relevant facts and procedural history of this case as follows. On December 10, 1987, appellant pled guilty to two counts of burglary. ¹ After accepting the plea, the court sentenced appellant to eleven and one-half (11 1/2) to twenty-three (23) months incarceration to be followed by a five-year probation period. Two months later, on February 12, 1988, appellant entered a negotiated guilty plea to one count of theft by unlawful taking or disposition ² and one count of receiving stolen property. ³ The court accepted appellant's guilty plea and sentenced her to five years probation. Pursuant to the terms of the negotiated plea bargain, this second sentence for the theft convictions was ordered to run concurrently with appellant's sentence for the burglary convictions.

Appellant subsequently violated probation by committing additional criminal offenses. ⁴ After a hearing on September 10, 1992, the trial court revoked appellant's probation. At resentencing, following probation revocation, the trial court sentenced appellant to two to five years incarceration on the burglary convictions and two to four years incarceration on the theft convictions. The trial court ordered these sentences to be served consecutively, for an aggregate four to nine year term of total confinement. This timely appeal followed.

On appeal, appellant raises one issue for our consideration:

I. WAS COUNSEL INEFFECTIVE FOR NOT OBJECTING TO THE COURT'S FAILURE TO COMPLY WITH A PLEA AGREEMENT AT ONE INFORMATION IN IMPOSING A TERM OF IMPRISONMENT TO RUN CONSECUTIVE TO A TERM OF IMPRISONMENT IMPOSED AT ANOTHER INFORMATION UPON THE REVOCATION OF PROBATION AT BOTH INFORMATIONS?

A. WAS THIS ISSUE WAIVED BY APPELLATE COUNSEL'S FAILURE TO RAISE IT IN THE CONCISE STATEMENT OF REASONS COMPLAINED OF ON APPEAL?

Appellant's Brief at 4.

The scope of review in an appeal from the judgment of sentence imposed following probation revocation "is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence." Commonwealth v. Gilmore, 465 Pa. 202, 205, 348 A.2d 425, 427 (1975); Commonwealth v. Beasley, 391 Pa.Super. 287, 570 A.2d 1336 (1990); Commonwealth v. Czapla, 287 Pa.Super. 335, 430 A.2d 313 (1981); Commonwealth v. Sylvanus, 246 Pa.Super. 93, 369 A.2d 826 (1976). A challenge to the validity of a sentence is a question as to the legality of the sentence, a non-waivable matter. ⁵ Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235 (1994); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281, 1289 (1983). Appellate courts of this Commonwealth may consider sua sponte the issue of the legality of a sentence. Commonwealth v. Murphy, 405 Pa.Super. 452, 592 A.2d 750 (1991); Commonwealth v. Blassingale, 391 Pa.Super. 395, 571 A.2d 426 (1990), appeal denied, 526 Pa. 627, 584 A.2d 311 (1990).

In her substantive claim, appellant maintains that the trial court erred in sentencing her to consecutive sentences because the trial court was bound, by the plea bargain existing at the time of the original sentencing, to impose concurrent sentences following probation revocation. Once the court accepted appellant's guilty plea and the terms of the plea bargain, the court's sentencing alternatives at the original sentencing hearing were circumscribed accordingly. Upon probation revocation, appellant posits the trial court remained bound by the plea agreement to reimpose concurrent sentences. Because the court sentenced appellant to serve her sentences consecutively, the court abrogated the plea bargain which the court had accepted and enforced at the original sentencing proceeding. In so doing, appellant concludes, the court imposed an invalid sentence. We agree. ⁶

Appellant's claim goes to the validity of her sentence. Therefore, her challenge has not been waived through counsel's inadvertence and is properly before us on direct appeal ⁷ from the judgment of sentence following probation revocation. See Commonwealth v. Isabell, supra; Commonwealth v. Gilmore, supra. Thus, we proceed directly to the substance of appellant's claim.

Plea bargaining is well recognized as a significant aspect in the fulfillment of the criminal justice system. Commonwealth v. Coles, 365 Pa.Super. 562, 530 A.2d 453 (1987), appeal denied, 522 Pa. 572, 559 A.2d 34 (1989); Commonwealth v. McKee, 226 Pa.Super. 196, 313 A.2d 287 (1973) (citations omitted). The disposition of criminal charges following plea discussions is mutually advantageous to the prosecution and the accused, particularly to a defendant who sees slim possibility of acquittal. Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). For example, in Brady v. United States, supra, the United States Supreme Court stated:

For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious--his exposure is reduced, the correctional process can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages--the more promptly imposed punishment after an admission of guilty may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof.

Id. 397 U.S. at 752, 90 S.Ct. at 1471, 25 L.Ed.2d at 758. Thus, the value of the plea bargaining process cannot be discounted.

In Pennsylvania, the plea process is governed by Pa.R.Crim.P. 319 which, in pertinent part, provides:

(b) Plea Agreements.

(1) The trial judge shall not participate in the plea negotiations preceding an agreement.

(2) 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. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.

(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.

Pa.R.Crim.P. 319(b). Thus, Pa.R.Crim.P. 319 allows that where the court cannot concur in the negotiated sentence, the court must permit the defendant to withdraw the plea. Id.; Commonwealth v. Fazenbaker, 248 Pa.Super. 433, 375 A.2d 175 (1977); Commonwealth v. Barrett, 223 Pa.Super. 163, 299 A.2d 30 (1972).

As a general proposition, sentencing is a matter vested in the sound discretion of the trial court and will remain undisturbed on appeal, absent an abuse of that discretion. Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992) (en banc ), appeal denied 535 Pa. 615, 629 A.2d 1377 (1993). Upon acceptance of a plea agreement, however, the trial court is bound to comply with the terms of that agreement. Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420 (1985). A sentence recommendation is among the "terms" of a plea bargain. Commonwealth v. Coles, supra, 365 Pa.Super. at 565-66, 530 A.2d at 455 (citing Commonwealth v. Sutherland, 234 Pa.Super. 520, 340 A.2d 582 (1975)). Therefore, a negotiated sentence is binding on the court where the sentence is plainly set forth on the record, understood and agreed to by the parties and approved by the trial court. Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706 (1991) (en banc ), appeal denied, 528 Pa. 622, 597 A.2d 1151 (1991).

Instantly, at the time of the original sentencing, the trial court accepted appellant's guilty plea to the charges of theft and receiving stolen property. The court acknowledged on the record the existence of a negotiated plea bargain wherein appellant agreed to plead guilty in exchange for the imposition of a sentence concurrent with the prior sentence imposed on the burglary convictions. Accordingly, the trial court imposed a five-year probation period to run concurrently with the prior burglary sentence.

Nothing in the record indicates an inability on the part of the trial court to concur in the negotiated sentence. Nor did appellant petition to withdraw her plea; the trial court provided no opportunity to appellant to withdraw her plea. Instead, the trial court accepted the plea and complied with the terms of the plea agreement because it was bound to do so upon acceptance of the...