Com. v. Anderson

• Decision Date: 21 April 2010
• Docket Number: No. 506 WDA 2009.,506 WDA 2009.
• Citation: 995 A.2d 1184
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Thomas Ray ANDERSON, Appellant.
• Court: Pennsylvania Superior Court

995 A.2d 1184

COMMONWEALTH of Pennsylvania, Appellee v. Thomas Ray ANDERSON, Appellant.

No. 506 WDA 2009.

Superior Court of Pennsylvania.

Submitted October 19, 2009.

Filed April 21, 2010.

Michael B. Bogush, Clarion, for appellant.

Mark T. Aaron, Assistant District Attorney and Jarah L. Heeter, Assistant District Attorney, Clarion, for Commonwealth, appellee.

BEFORE: MUSMANNO, GANTMAN, and COLVILLE^*, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Thomas Ray Anderson, appeals from the order entered after remand in the Clarion County Court of Common Pleas, which denied after remand his petition filed pursuant to the Post Conviction Relief Act ("PCRA").¹ We hold Appellant failed to establish the Commonwealth breached the plea agreement. We also hold Pa.R.Crim.P. 600(D)(1)-(2) does not apply in the context of a remand for a PCRA evidentiary hearing. Accordingly, we affirm.

¶ 2 The relevant facts and procedural history of this case are as follows. On March 22, 2005, Appellant led the Pennsylvania State Police on a high speed chase eastbound on Interstate I-80 and then northbound on State Route 60, reaching speeds in excess of one hundred (100) miles per hour. At some point Appellant lost control of his vehicle, after driving over a spike strip deployed by police officers. Appellant fled the scene on foot; however, police eventually apprehended him. On June 10, 2005, the Commonwealth charged Appellant with aggravated assault, simple assault, recklessly endangering another person ("REAP"), fleeing or attempting to elude a police officer, two counts of possession of drug paraphernalia, possession of marijuana, and thirty (30) summary offenses.

¶ 3 As the case progressed, the Commonwealth and the defense attempted to negotiate a plea agreement. On June 15, 2005, the Commonwealth offered Appellant a plea agreement, whereby Appellant would plead guilty to aggravated assault, REAP, fleeing or attempting to elude a police officer, reckless driving, and driving under suspension, open as to sentencing, and the Commonwealth would ask the court to enter nolle prosequi on the remaining charges. Appellant did not accept the Commonwealth's offer.

¶ 4 On July 27, 2005, the Commonwealth offered a second plea agreement, whereby Appellant would plead guilty to the same charges listed in the first plea offer; the Commonwealth would recommend a sentence within the standard sentencing guideline range, leaving the court to decide whether to run Appellant's sentences consecutively or concurrently; and the Commonwealth would ask the court to enter nolle prosequi on the remaining charges. Appellant rejected this offer as well.

¶ 5 On August 31, 2005, Appellant appeared before the court and stated that he did not accept the Commonwealth's plea offers and wanted to proceed to trial. Thereafter, the court entered an order scheduling a pre-trial conference for September 9, 2005, and jury selection for September 19, 2005.

¶ 6 On September 8, 2005, Appellant's plea counsel informed the court that Appellant had changed his mind and wanted to accept the Commonwealth's second plea offer. The next day, plea counsel and counsel for the Commonwealth met with the court in chambers to discuss Appellant's request. The parties presented the court with an updated Conference Report form, signed by the attorneys on that date, explaining that Appellant would accept the Commonwealth's July 27, 2005 offer—Appellant would plead guilty to aggravated assault, REAP, fleeing or attempting to elude a police officer, reckless driving, and driving under suspension; and the Commonwealth would recommend a sentence within the standard sentencing guideline range, leaving the court to decide whether to run Appellant's sentences consecutively or concurrently. The Commonwealth would ask the court to enter nolle prosequi on the remaining charges. Plea counsel explained that Appellant had decided to accept the Commonwealth's second plea offer because he had been charged with statutory sexual assault in an unrelated case and wanted to dispose of all charges against him in both cases at the same time. The court agreed to accept the plea only if the plea were completely open as to sentencing, not necessarily in the standard sentencing guideline range.

¶ 7 Immediately following the in-chambers conference, the parties proceeded to Appellant's plea hearing. Prior to accepting Appellant's plea, the court conducted an on-the-record colloquy to confirm Appellant's plea was knowingly, voluntarily, and intelligently entered. Additionally, the court explained: "... I'm only accepting this as what we call an open plea, so there's no agreement as to what sentence you'll receive. Do you understand?" (N.T. Plea Hearing, 9/9/05, at 14). Appellant responded affirmatively and entered his plea. Appellant also completed and signed a written plea colloquy. The court accepted the plea and ordered a pre-sentence investigation ("PSI") report.

¶ 8 On September 28, 2005, the court held Appellant's sentencing hearing in this case, plus sentencing on an unrelated parole/probation violation, and on an unrelated statutory sexual assault charge. At the hearing, sentencing counsel² argued for leniency. In response, the Commonwealth began to discuss the serious nature of Appellant's crimes. During the Commonwealth's argument, sentencing counsel stated: "I hate to interrupt but as part of the pleas you guys did agree to stand silent on sentencing." (N.T. Sentencing, 9/28/05, at 17). The Commonwealth responded that it agreed to stand silent only with respect to Appellant's statutory sexual assault charge. Sentencing counsel then referred to two notes written by plea counsel in Appellant's file which indicated that the Commonwealth agreed to stand silent at sentencing. The Commonwealth reminded sentencing counsel and the court that such an agreement was not mentioned on the Conference Report form, but that if sentencing counsel would insist the Commonwealth stand silent, then counsel should move to withdraw Appellant's plea and let the case proceed to trial. Sentencing counsel acquiesced and allowed the Commonwealth to proceed with its argument, declining to withdraw Appellant's plea. The Commonwealth recommended a sentence solely in this case; as to sentencing on all other unrelated offenses, the Commonwealth stood silent.

¶ 9 The court subsequently sentenced Appellant to eighteen (18) to thirty-six (36) months' incarceration on the aggravated assault charge, six (6) to twelve (12) months' incarceration on the REAP charge, and two (2) to four (4) months' incarceration on the fleeing or attempting to elude a police officer charge, to run concurrently, for an aggregate term of eighteen (18) to thirty-six (36) months' incarceration. On the unrelated statutory sexual assault offense, the court sentenced Appellant to eighteen (18) to thirty-six (36) months' incarceration, to run consecutive to the sentence in this plea case, for a total aggregate term of thirty-six (36) to seventy-two (72) months' incarceration.

¶ 10 On October 10, 2005, Appellant filed a post-sentence motion requesting modification of sentence, due to several mitigating factors in his case. Significantly, however, Appellant's motion did not assert that the Commonwealth had breached its plea agreement or even mention the discussion between counsel at sentencing. On October 13, 2005, the court denied Appellant's motion. Appellant did not file a direct appeal.

¶ 11 On September 21, 2006, Appellant timely filed a pro se PCRA petition. On September 26, 2006, the court appointed PCRA counsel. On September 17, 2007, PCRA counsel moved to withdraw his appearance and filed a Turner/Finley³ no-merit letter. The next day, the court served notice of its intent to dismiss without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not respond, and the court denied Appellant's petition without a hearing on October 15, 2007. On October 22, 2007, Appellant timely filed a pro se notice of appeal.

¶ 12 Appellant raised three issues on appeal: (1) "Whether the Commonwealth's failure to stand silent at the time of sentencing of Appellant in this case violated due process, because Appellant pled guilty with the understanding that the Commonwealth would stand silent at sentencing for his entering into an open guilty plea?"; (2) "Whether the trial court's sentencing of Appellant to (18) to (36) months on his sexual assault charge violated due process, because Appellant pled guilty with the understanding that he would receive a minimum sentence within the standard range of the sentencing guidelines?"; and (3) "Whether all prior counsel for Appellant rendered ineffective assistance in violation of the Sixth Amendment of the United States Constitution?"

¶ 13 On July 15, 2008, this Court remanded the case for further proceedings. Specifically, the panel unanimously decided the record needed further development to consider (1) whether Appellant's plea had been induced by his understanding that the Commonwealth would stand completely silent at sentencing; and (2) whether sentencing counsel had a reasonable basis for failing to clarify the terms of the plea agreement or to seek a withdrawal of the plea based upon the Commonwealth's position at sentencing. This Court instructed the PCRA court to (1) appoint new counsel, who shall be permitted to amend, if appropriate, Appellant's pro se PCRA petition; and (2) hold an evidentiary hearing on Appellant's claim of breach and any other claims of arguable merit raised in that amended PCRA petition. This Court also determined Appellant's second issue lacked merit and did not consider Appellant's third issue due to its disposition. See Commonwealth v. Anderson, 959 A.2d 956 (Pa.Super.2008) (unpublished memorandum).

¶ 14 On August 27, 2008, the PCRA court received the remanded record. By order dated September 2, 2008, the court appointed new PCRA counsel, gave counsel sixty (60) days to file an amended petition, and...