Commonwealth v. Andrews

• Decision Date: 18 December 2020
• Docket Number: No. 3452 EDA 2019,3452 EDA 2019
• Citation: 245 A.3d 1084 (Table)
• Parties: COMMONWEALTH of Pennsylvania v. David ANDREWS, Appellant
• Court: Pennsylvania Superior Court

245 A.3d 1084 (Table)

COMMONWEALTH of Pennsylvania v. David ANDREWS, Appellant

No. 3452 EDA 2019

Superior Court of Pennsylvania.

Filed December 18, 2020

MEMORANDUM BY STEVENS, P.J.E.:

Appellant, David Andrews, appeals from the order entered in the Court of Common Pleas of Philadelphia County dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. §§ 9541-9546, as untimely.

Herein, Appellant contends the court erred in failing to grant his petition seeking specific performance of his negotiated guilty plea, which called for his sentence on one count of robbery to run concurrently to a sentence of back time he was serving for violating parole in his prior cases. The Commonwealth agrees Appellant is entitled to receive the benefits of his negotiated sentence notwithstanding the fact it was one which the law did not permit. After careful review and consideration of controlling precedent, we vacate and remand.

On March 6, 2015, while on parole, Appellant entered a Philadelphia clothing store keeping his hand in his coat pocket as if he held a gun and demanded all the money from the register and in the employees’ possession. Appellant secured $572 cash and fled from the store, only to be arrested moments later by police.

Charged with robbery, receiving stolen property, terroristic threats with intent to terrorize another, simple assault, and recklessly endangering another person, Appellant entered a negotiated guilty plea whereby, in exchange for his plea to robbery, his remaining charges would be nolle prossed and he would receive a two and one-half to five-year prison sentence, followed by three years’ probation, to run concurrently with any back time sentence imposed in his upcoming parole violation hearing. On June 10, 2015, the court accepted the plea and imposed the agreed-upon sentence:

THE COURT : It's 2 and a half to 5 years state time and 3 years reporting probation is concurrent.

THE COMMONWEALTH: Yes, Your Honor. By agreement, it is to run concurrent with back time. That's what we placed.

THE COURT: That's right, I saw that. Does your client understand that?

APPELLANT: Yes, Your Honor, running concurrent with my back time.

N.T., 6/10/15, at 7. The sentencing order provides, "Sentence to Run Concurrent to Back Time." Sentencing Order, 6/10/15. Appellant filed no post-sentence motion or direct appeal.

On November 2, 2015, the court presided over Appellant's revocation hearing, found him in violation of his parole in his prior cases, and sentenced him to serve back time. On November 13, 2015, the Department of Corrections ("DOC") recalculated Appellant's sentence on those cases, arriving at a new maximum date of October 3, 2020. After crediting Appellant's back time sentence with pre-trial incarceration time served from time March 31, 2015 to June 10, 2015, the DOC calculated Appellant's new earliest re-parole date as July 18, 2017. It was on this date that Appellant was re-paroled.

Despite the trial court's order calling for the present robbery sentence to run concurrently with the back time sentence, the DOC calculated it to run consecutively in conformance with the 61 Pa.C.S. § 6138(a)(5)(i) (state parolee convicted of new crime and deemed parole violator shall serve back time of state parole sentence before serving new state sentence imposed). Therefore, the DOC commenced the running of Appellant's present sentence on July 19, 2017. After giving Appellant time credits from his arrest date of March 7, 2015 to March 30, 2015, and June 11, 2015 to September 27, 2015, the DOC set Appellant's minimum sentence date at September 7, 2019 and maximum sentence date of March 7, 2022.

On November 13, 2017, Appellant filed the present PCRA petition asserting that it was not until August of 2017 that he first learned his present sentence was run consecutively to his back time, in contravention of his negotiated guilty plea. Seeking enforcement of the negotiated plea terms, he asked the court to vacate the present sentence and impose a new sentence reflecting the intent of all parties agreeing to and accepting his guilty plea.

The Court appointed counsel, who filed an amended petition claiming Appellant's patently untimely petition for relief nevertheless qualified for review under both the governmental interference and newly discovered fact exceptions to the PCRA time-bar. In response, the Commonwealth filed a brief positing that Appellant was entitled to an evidentiary hearing to determine the cognizabilty of his claim, which appeared to be outside the aegis of the PCRA and, thus, not subject to its time restrictions.

On October 2, 2019, the PCRA court issued its notice of intent to dismiss Appellant's petition pursuant to Pa.R.A.P. 907. Appellant filed a response asserting his claim should not be dismissed because it was not cognizable under the PCRA. On October 31, 2019, the PCRA court dismissed the petition as untimely. This timely appeal followed.

Appellant raises the following issue on appeal:

If the Appellant entered into a negotiated plea with the district attorney, which included the important provision that his sentence would run concurrently with his "back time," and this was clearly stated at sentencing and agreed to by the sentencing judge and district attorney, when in fact, under Pennsylvania law, the sentence had to run consecutively with his "back time," would this run afoul of the Appellant's constitutional rights and deprive him of the sentence he had negotiated in good faith?

Appellant's brief, at 5 (emphasis omitted).

Though Appellant delineated his petition for specific enforcement of the negotiated plea agreement as a PCRA petition, precedent holds that such a claim is contractual in nature and, thus, lies beyond the ambit of the PCRA. As this Court recently explained:

A petition for collateral relief will generally be considered a PCRA petition if it raises issues cognizable under the PCRA. See Commonwealth v. Peterkin , 554 Pa. 547, 553, 722 A.2d 638, 640 (1998) ; 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for same purpose). The plain language of the PCRA mandates that claims which could be brought under the PCRA, must be brought under the PCRA. Commonwealth v. Hall , 565 Pa. 92, 96-97, 771 A.2d 1232, 1235 (2001). The timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Zeigler , 148 A.3d 849, 853 (Pa.Super. 2016). A PCRA petition must be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is "final" at the conclusion of direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). The exceptions to the PCRA time-bar allow for very limited circumstances under which the late filing of a petition will be excused; a petitioner asserting an exception must file a petition within 60 days of the date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).

On the other hand, a collateral petition to enforce a plea agreement is regularly treated as outside the ambit of the PCRA and under the contractual enforcement theory of specific performance. See , e.g. , Commonwealth v. Martinez , 637 Pa. 208, 147 A.3d 517 (2016) ; Commonwealth v. Fernandez , 195 A.3d 299 (Pa.Super. 2018) ( en banc ); Commonwealth v. Hainesworth , 82 A.3d 444 (Pa.Super. 2013) ( en banc ), appeal denied , 626 Pa. 683, 95 A.3d 276 (2014) ; Commonwealth v. Farabaugh , 136 A.3d 995 (Pa.Super. 2016), appeal denied , 643 Pa. 140, 172 A.3d 1115 (2017) ; Commonwealth v. Nase , 104 A.3d 528 (Pa.Super. 2014), appeal denied , 640 Pa. 389, 163 A.3d 405 (2016). Compare Commonwealth v. James Johnson , 200 A.3d 964 (Pa.Super. 2018) (stating generally that plea enforcement theory is unavailable as ground for collateral relief if there is no plea bargain to enforce). The designation of the petition "does not preclude a court from deducing the proper nature of a pleading." See Commonwealth v. Porter , 613 Pa. 510, 524, 35 A.3d 4, 12 (2012) (citing Commonwealth v.Abdul–Salaam , 606 Pa. 214, 996 A.2d 482 (2010) (involving deceptive labeling of PCRA pleading)).

Commonwealth v. Kerns , 220 A.3d 607, 611–12 (Pa.Super. 2019).

Thus, we must find the lower court erred in reviewing and dismissing Appellant's petition as one governed by the PCRA, and we are constrained to address the merits of Appellant's claim for specific enforcement of his negotiated plea terms. In this regard, we observe the following:

Contract interpretation is a question of law, so "[o]ur standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary." Gillard v. Martin , 13 A.3d 482, 487 (Pa.Super. 2010). Plea bargains play a critical role in the criminal justice system of this Commonwealth:

With respect to plea bargains, [t]he reality of the criminal justice system is that nearly all criminal cases are disposed of by plea bargains: [n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. Plea bargaining is not some adjunct to the criminal justice system; it is the criminal justice system. Accordingly, it is critical that plea agreements are enforced, to avoid any possible perversion of the plea bargaining system. The disposition of criminal charges by agreement between the prosecutor and the accused ... is an essential component of the administration of justice. Properly administered, it is to be encouraged. In this Commonwealth, the practice of plea bargaining is generally regarded favorably, and is legitimized and governed by court rule.... A "mutuality of advantage" to defendants and prosecutors flows from the ratification of the bargain.

Kerns , 220 A.3d at 611-12.

"When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said...