Com. v. Kroh
| Decision Date | 22 February 1995 |
| Citation | 440 Pa.Super. 1,654 A.2d 1168 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Douglas N. KROH, Appellant. |
| Court | Pennsylvania Superior Court |
Douglas N. Kroh, pro se.
Ronald T. Williamson, Deputy Atty. Gen., Norristown, for Com., appellee.
Before POPOVICH, FORD ELLIOTT and MONTGOMERY, JJ.
This appeal from the order of the Court of Common Pleas of Perry County denying appellant's petition for specific performance of his plea agreement, provides us with an opportunity to review an action which is quite different from most attempts by defendants to enforce the terms of a plea agreement. Herein, the lower court actually accepted the bargain and properly sentenced appellant in compliance with the terms of the agreement. Nevertheless, appellant is convinced that the Commonwealth has breached the terms of his plea bargain by seeking to compel him to testify in a civil forfeiture action against the property of one of his co-conspirators. Upon review, we agree with appellant and reverse the order of the court below.
Appellant was charged with four counts of possession of marijuana with the intent to deliver, 35 Pa.S.A. § 780-113(a)(30), two counts of corrupt organizations, 18 Pa.C.S.A. § 911, and one count of criminal conspiracy, 18 Pa.C.S.A. § 903. The charges stemmed from appellant's involvement in an organization which shipped large quantities of marijuana from Texas to Perry County for repackaging and distribution in central Pennsylvania.
Police intelligence indicated that appellant's residence was the source of several controlled purchases of one-ounce packages of marijuana. Subsequently, on January 2, 1992, a controlled purchase of a quarter-pound of marijuana from appellant's residence was made. A search warrant was then obtained, and, on January 3, 1994, police executed the warrant. Appellant and his cousin, Lewis Kroh, were present during the search, and a quarter-pound of marijuana and $721.00 were seized from the person of Lewis Kroh. Later, after being advised of his constitutional rights, appellant gave a detailed confession implicating himself and others, including Victor McCoy, Roberto Mendez and Robert Rose, in an extensive marijuana trafficking enterprise. In addition to confessing, appellant turned over to the authorities eight pounds of marijuana and approximately $13,000.00 in proceeds from the sale of marijuana which he was storing for Victor McCoy.
Appellant agreed to cooperate with the police in their investigation of the involvement of Roberto Mendez, Victor McCoy and Robert Rose in the marijuana distribution scheme. In exchange for his cooperation, appellant was offered the following plea bargain by the Drug Prosecution and Forfeiture Section of the Attorney General's Office, as set forth in the letter of September 28, 1992, from Deputy Attorney General Ronald T. Williamson:
The purpose of this letter is to notify you directly of the terms and conditions of your guilty plea to and sentence on various criminal offenses with which you have been charged by the Commonwealth of Pennsylvania; these terms and conditions were negotiated on your behalf by your attorney, Mr. Walz. These offenses concern your guilt with respect to marijuana trafficking in violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act and the Crimes Code.
It is hereby agreed that you will enter a plea of guilty to three counts of possession with intent to deliver marijuana [35 P.S. Sec. 780-113(a)(30) ]; one count of criminal conspiracy to deliver marijuana [18 Pa.C.S. Sec. 903]; and one count of corrupt organizations conspiracy [18 Pa.C.S. Sec. 911(b)(4) ]. The two remaining counts, one count of corrupt organizations and a count of possession with intent to deliver marijuana will be withdrawn by the Commonwealth. In addition, the Commonwealth will agree to the modification of your bail to one hundred thousand dollars ($100,000.00) ROR conditioned upon your agreement by signing this letter to cooperate in connection with this matter referred to later on in this letter.
In addition to agreeing to plead guilty to the above mentioned offenses in the preceding paragraph you hereby promise and agree, if requested by the Commonwealth, to testify truthfully, whenever so requested, about your complete knowledge concerning the involvement of Roberto Mendez, James Victor McCoy, Robert C. Rose, and any other individuals involved in marijuana trafficking of which you were a part and a conspirator. In addition to testifying truthfully on behalf of the Commonwealth at any proceeding relating to this matter, you will cooperate and do all things deemed necessary by Pennsylvania law enforcement authorities, including but not limited to being present for any interviews that may be necessary to take of you regarding your knowledge surrounding this marijuana trafficking conspiracy or anything else in connection with any additional investigation that may be required relating to these offenses to which you are pleading guilty. Your sentencing on your guilty plea to your offenses enumerated in this letter will be deferred until such time as your cooperation with the Commonwealth of Pennsylvania is no longer required.
In the event that you fulfill your promise to cooperate and assist in the apprehension and/or conviction of Roberto Mendez, James Victor McCoy, Robert C. Rose and others involved in the marijuana trafficking conspiracy, the Commonwealth has agreed that your total sentence on these charges will not exceed a minimum of twenty nine and a half (29 1/2) months to a maximum of fifty nine and a half (59 1/2) months incarceration. Your sentence is not dependent upon the conviction of the above individuals. The only requirement is that you testify truthfully and fully without withholding any evidence of which you have knowledge. In addition, it is also agreed that you will not contest the forfeiture petition filed against you with regard to the United States currency seized from you in connection with this matter. The amount of currency seized is fourteen thousand six hundred ten ($14,610.00) dollars. By signing this letter you specifically agree to the forfeiture of that amount to the Commonwealth of Pennsylvania.
Your attorney will be free to make an argument to the Court based upon your cooperation that the Court should sentence you to less of a sentence than twenty nine and a half (29 1/2) months to fifty nine and a half (59 1/2) months. By the same token, at sentencing, the Commonwealth, if so inclined, is free to recommend that you be sentenced up to the maximum of twenty nine and a half (29 1/2) months to fifty nine and a half (59 1/2) months as a result of your guilty plea to these charges.
As to your personal safety upon sentencing, the Commonwealth of Pennsylvania also agreed that, if you should so choose, the Commonwealth will take steps to place you in any state penitentiary facility of your choosing if you request that your sentence be served in a state correctional facility as opposed to a county prison.
It is also specifically understood by you that the testimony and evidence that you may be required to give will be in accordance with the affidavit of probable cause marked "Attachment B" in which information attributed to you was provided by you to the police, when you commenced your cooperation on January 3, 1992. A copy of that attachment consisting of twenty (20) pages is made an attachment of this letter and specifically a part of this plea agreement.
If it is determined that you have been dishonest, untruthful, or have withheld information from the Commonwealth of Pennsylvania in connection with the investigation and prosecution of the individuals and criminal offenses referred to in this letter, this guilty plea and sentencing agreement shall be null and void.
After all of the other members of the marijuana distribution organization pleaded guilty and were sentenced on various charges arising out of the drug trafficking, appellant was sentenced on June 28, 1993. This delay in sentencing complied with a term of the plea bargain which expressly deferred appellant's sentencing until his "cooperation with the Commonwealth [was] no longer required."
At the sentencing hearing, the Commonwealth confirmed that appellant had "cooperated fully with the Commonwealth" as was required by the plea bargain. The Commonwealth characterized appellant's cooperation as "substantial." Further, the Commonwealth recommended a sentence of twenty-four to fifty-nine and one-half months which was lower than the maximum which the Commonwealth could have suggested under the terms of the plea agreement. The lower court then sentenced appellant to twenty-four to fifty-nine and one-half months incarceration in Perry County prison and fined appellant a sum of $1,000.00. In addition, appellant forfeited $14,610.00 in proceeds from the sale of marijuana.
Approximately one month after appellant's sentencing, the Commonwealth initiated forfeiture proceedings against the property of Victor McCoy. The Commonwealth then sought the aid of appellant in the prosecution of the civil forfeiture action. On January 25, 1994, appellant filed a pro se "Petition for Specific Performance of Plea Agreement", and an amended petition was later filed with the aid of counsel.
In his petition, appellant argued that it would be a breach of the terms of the plea bargain for the Commonwealth to subpoena him to testify in the forfeiture action against Victor McCoy. Appellant emphasized that the plea agreement required his cooperation only in the criminal prosecutions of McCoy, Mendez and Rose. As further evidence that he could not be compelled to testify in the civil action against McCoy's property, appellant cited the provision of the plea bargain which stated he would not be sentenced until after his "cooperation with the Commonwealth [was] no longer required."
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