Commonwealth v. Herbert

• Citation: 2014 PA Super 18,85 A.3d 558
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Rico Mandrell HERBERT, Appellant.
• Decision Date: 05 February 2014
• Court: Pennsylvania Superior Court

85 A.3d 558

2014 PA Super 18

COMMONWEALTH of Pennsylvania, Appellee

v.Rico Mandrell HERBERT, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 12, 2013.

Filed Feb. 5, 2014.

Chandra V. Bleice, Stroudsburg, for appellant.

Elmer D. Christine, Jr., District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: GANTMAN, OLSON and WECHT, JJ.

OPINION BY OLSON, J.:

Appellant, Rico Mandrell Herbert, appeals from the judgment of sentence entered on March 21, 2013. We affirm.

The trial court summarized the factual and procedural background of this case as follows:

Appellant was charged with three offenses[, burglary,¹ receiving stolen property,² and theft by unlawful taking,³ ] arising out of the theft of $1,500.00 from a local tavern in the early morning hours of August 3, 2011. In exchange for a promise to cooperate with the police investigation of his co-defendant, Appellant entered a plea of guilty to the third count of the criminal information[, theft by unlawful taking,] on December 20, 2011.

Trial Court Opinion, 6/21/13, at 1. “[Appellant] was subsequently arrested in North Carolina and charged with additional crimes including, but not limited to, [c]riminal [h]omicide, [b]urglary, and [a]buse of a [c]orpse stemming from incidents which are alleged to have occurred [in Pennsylvania] on or around February 25, 2012, after his plea and scheduled sentencing.” Trial Court Opinion, 7/19/12, at 2.

Additionally:

On March 16, 2012, the Commonwealth filed a [m]otion to [r]evoke [Appellant's] [g]uilty [p]lea. This [m]otion was based on Appellant's failure to provide any cooperation per the plea agreement, failure to appear for his pre-sentence interviewand for a rescheduled pre-sentence interview, and failure to appear for his sentencing hearing scheduled for February 16, 2012. After a May 7, 2012 hearing and subsequent briefings, [the trial c]ourt granted the Commonwealth's [m]otion on July 19, 2012 pursuant to the discretionary authority granted in Pa.R.Crim.P. 591 and Commonwealth v. [ Nancy ] Rosario , 679 A.2d 756 (Pa.1996) to withdraw, sua sponte, a defendant's guilty plea.

Following [the trial c]ourt's [o]rder dated July 19, 2012, Appellant [sought leave to file an interlocutory appeal] which was denied by [this Court] in an [o]rder dated September 13, 2012. [Appellant also filed a notice of appeal, which this Court quashed on November 30, 2012.] Thereafter, Appellant proceeded to a bench trial and was found guilty of all three counts in the [original] criminal information on February 13, 2013 by Senior Judge Ronald E. Vican. At the trial, Appellant again raised the issue of [the trial c]ourt's authority to sua sponte withdraw Appellant's guilty plea. Senior Judge Vican upheld Judge Worthington's decision to withdraw Appellant's plea. Appellant was sentenced by [the trial c]ourt on March 21, 2013 [to an aggregate term of 21 to 42 months' imprisonment].

Trial Court Opinion, 6/21/13, at 1–2. This timely appeal followed.⁴

Appellant presents one issue for our review:

Did the [trial court] abuse [its] discretion when [it] withdrew sua sponte [Appellant's] plea at the time of sentencing based on his arrest for a capital offense while he was out on bail?

Appellant's Brief at 5.

Pennsylvania Rule of Criminal Procedure 591(A) provides that, “At any time before the imposition of sentence, the court may, in its discretion, permit, upon motion of the defendant, or direct, sua sponte, the withdrawal of a plea of guilty or nolo contendere and the substitution of a plea of not guilty.” Pa.R.Crim.P. 591(A).⁵ We will not disturb the trial court's decision to sua sponte withdraw a defendant's plea of guilty absent an abuse of discretion. Nancy Rosario, 679 A.2d at 759. “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by ... the record, discretion is abused.” Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super.2013) (citation omitted).

Appellant argues that the trial court abused its discretion in two respects. First, he contends that the trial court abused its discretion by finding that Appellant failed to cooperate with police pursuant to his plea agreement. Second, Appellantargues that the trial court abused its discretion by considering inappropriate factors when determining whether to withdraw his guilty plea.

As to his first argument, Appellant concedes his plea agreement, which included a provision obligating Appellant to cooperate with authorities, was a binding contract which he entered into with the Commonwealth. See Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.Super.2009) ( en banc ), appeal denied,603 Pa. 685, 982 A.2d 1228 (2009) (both parties are bound by the terms of a plea agreement). However, Appellant contends that he did not have an opportunity to assist police pursuant to the plea agreement because Nancy Little (“Little”), the individual referred to as Appellant's codefendant, was never charged with a crime. Appellant explains that the plea agreement only obligated him to testify against Little and since she was never charged with an offense, the chance to offer testimony against Little never arose. Appellant's Brief at 10–11.

When interpreting the terms of a plea agreement, we apply general contract principles. See Commonwealth v. Wallace, 45 A.3d 446, 452 (Pa.Super.2012), appeal granted on other grounds,––– Pa. ––––, 64 A.3d 620 (2013) (citation omitted). “It is well-established that the paramount goal of contract interpretation is to ascertain and give effect to the parties' intent. When the trier of fact has determined the intent of the parties to a contract, [we] will defer to that determination if it is supported by the evidence.” Habjan v. Habjan, 73 A.3d 630, 640 (Pa.Super.2013) (internal citations omitted), quoting Lang v. Meske, 850 A.2d 737, 739–740 (Pa.Super.2004).

As we have explained:

When interpreting agreements containing clear and unambiguous terms, we need only examine the writing itself to give effect to the parties' intent. The language of a contract is unambiguous if we can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends. When terms in a contract are not defined, we must construe the words in accordance with their natural, plain, and ordinary meaning. As the parties have the right to make their own contract, we will not modify the plain meaning of the words under the guise of interpretation or give the language a construction in conflict with the accepted meaning of the language used.

In re Jerome Markowitz Trust, 71 A.3d 289, 301 (Pa.Super.2013), quoting State Farm Fire & Cas. Co. v. PECO, 54 A.3d 921, 928 (Pa.Super.2012).

In the case at bar, the plea agreement term at issue provides that the Appellant “must cooperate against [his] co-defendant.” Guilty Plea Colloquy, 12/20/11. Appellant interprets this provision to only require that he cooperate against Little if she were charged with a crime. The Commonwealth interprets this provision to require Appellant to cooperate prior to Little being charged.

According to the trial court, the language of the plea agreement was clear and unambiguous that Appellant was required to assist law enforcement prior to Little being charged with a crime. See Trial Court Opinion, 7/19/12, at 6 (“Upon review of the plea, the terms of the bargain are clear.”). Furthermore, the trial court made the following factual findings regarding the agreement entered into between the Commonwealth and Appellant:

[T]he Commonwealth presented the credible testimony of Officer Charles Brown from the Stroud Area Regional Police Department (“SARPD”). Officer Brown testified that [Appellant] agreed to appear at the SARPD facility to cooperate in the criminal investigation of his co-defendant. Officer Brown further testified that he attempted to contact the [Appellant] and that [Appellant] failed to appear at the SARPD facility or provide any cooperation whatsoever....

Although [Appellant] did plead guilty to theft per the plea agreement, he failed to provide any cooperation in the investigation involving his co-defendant. Through his noncompliance with police, [Appellant] failed to fulfill his contractual obligation under the plea agreement.... Thus [the trial court found] that [Appellant] breached the plea agreement when he failed to appear at the SARPD facility and cooperate with Officer Brown in the criminal investigation of his co-defendant.

Trial Court Opinion, 7/19/12, at 6–7 (emphasis in original).

We agree with the trial court's determination that the plea agreement's language is clear and that Appellant was required to assist law enforcement prior to Little being charged with an offense. There is no qualifying language within the plea agreement regarding the timeframe during which Appellant would be required to assist law enforcement. Although the plea agreement used the word “co-defendant” both the Commonwealth and Appellant were aware that Little had yet to be charged with a crime. Appellant was also aware that information he provided was the only reason that police were pursuing Little. N.T., 5/7/12, at 8. Given these circumstances, a reasonable individual would interpret the plea agreement as requiring Appellant to provide information to the police prior to Little being charged with a crime. Therefore, Appellant's argument that he did not breach the plea agreement by failing to assist law enforcement's investigation of Little is without merit.

Appellant next contends that the trial court considered improper factors in deciding to withdraw his guilty plea. In particular, Appellant argues that his failure to appear for a pre-sentence interview, his failure to appear for the re-scheduled pre-sentence interview, his failure to appear for...