Opinion
J-S59035-17 No. 2040 EDA 2016
12-18-2017
COMMONWEALTH OF PENNSYLVANIA v. JOEL BURGER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 4, 2012
In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000307-2011 BEFORE: BENDER, P.J.E., OTT and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Pro se Appellant, Joel Burger, appeals nunc pro tunc from the judgment of sentence entered in the Lehigh County Court of Common Pleas following the entry of his negotiated guilty plea to twenty-two counts of burglary and twenty-one counts of criminal conspiracy. Appellant alleges the trial court breached his plea agreement, and that his plea was involuntary. We affirm.
18 Pa.C.S. § 3502(a).
18 Pa.C.S. § 903.
We adopt the facts and procedural history set forth by the trial court's opinion. See Trial Ct. Op., 7/27/16, at 2-9. Appellant raises the following questions for our review.
The trial court appointed direct appeal counsel; however, following Appellant's pro se "Petition to Withdraw Counsel And Proceed Pro Se," this Court ordered a hearing pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998). The trial court subsequently granted withdrawal of counsel and Appellant moved to proceed pro se on direct appeal.
Did the trial court err when it imposed a greater sentence than permitted under the terms of the negotiated plea which the court accepted?Appellant's Brief at 6-7.
Whether the [trial] court erred by advising [A]ppellant that the court was bound within a lower permissible range of sentence for Appellant's minimum sentence, and then, sentencing [A]ppellant to a higher term for the minimum sentence. Alternatively, is [A]ppellant's plea involuntary or unknowing due to the deficiencies in his guilty plea proceedings?
Did the trial court err in failing to advise [A]ppellant that the sentence would not be in accordance with the terms of the negotiated plea and in failing to advise [A]ppellant of his right to withdraw his plea on this basis?
Was the trial counsel ineffective per se in not raising above issue at sentencing or in the [p]ost-sentence motion, also disregarding [A]ppellant's insistence?
Is the above sentence reviewable under plain error [s]tandard of review?
We address the Appellant's first three arguments together. Appellant claims that the trial court breached the plea agreement by sentencing Appellant to a minimum sentence greater than the parties had agreed upon at the guilty plea hearing. Appellant contends the court was bound to a minimum between two to nine years' imprisonment but instead sentenced Appellant to a minimum of fourteen years' imprisonment following a correction to his prior record score. Appellant alleges the court did not advise him that the error and subsequent correction to the prior record score would alter his minimum sentence. Therefore, Appellant claims his plea was involuntary because he did not receive notice of the higher minimum sentence. Appellant also asserts the court also never advised him of his right to withdraw his plea. Appellant maintains the court's breach of the plea agreement renders his sentence illegal. Appellant concludes this Court should vacate his judgment of sentence and remand for resentencing in accordance with the plea agreement. We disagree.
"Settled Pennsylvania law makes clear that by entering a guilty plea, the defendant waives his right to challenge on direct appeal all nonjurisdictional defects except the legality of the sentence and the validity of the plea." Commonwealth v. Lincoln , 72 A.3d 606, 609 (Pa. Super. 2013) (citation omitted). "A defendant wishing to challenge the voluntariness of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing. Failure to employ either measure results in waiver." Id. (citations omitted).
However, a defendant has a right to seek specific performance of a plea agreement.
"In determining whether a particular plea agreement has been breached, we look to 'what the parties to this plea agreement reasonably understood to be the terms of the agreement.'" Such a determination is made "based on the
totality of the surrounding circumstances," and "[a]ny ambiguities in the terms of the plea agreement will be construed against the [Commonwealth]."Commonwealth v. Hainesworth , 82 A.3d 444, 447 (Pa. Super. 2013) (citations omitted).
We agree with the trial court that Appellant's sentence satisfied the literal terms of the plea agreement. The plea agreement only required the court to sentence Appellant for various groups of charges and arrive at a sentence within the standard range of the Sentencing Guidelines. See N.T., 4/18/12, at 6; Trial Ct. Op. at 12. During the plea colloquy, the trial court misstated the maximum possible minimum sentence based on the erroneous assumption that Appellant's prior record score was two instead of five. However, the court corrected this misstatement at sentencing and imposed a sentence in accordance with the correct prior record score.
To the extent that Appellant casts his enforcement of a plea agreement claim as a challenge to the legality of sentence, we disagree. See Commonwealth v. Berry , 877 A.2d 479, 482 (Pa. Super. 2005) (en banc).
Appellant also contends that his guilty plea was involuntary, because he entered his guilty plea in reliance upon the trial court's erroneous statement that his prior record score was two, and that his minimum sentence would be in accordance with this prior record score (a minimum between two to nine years' imprisonment). Appellant argues, in so many words, that he would not have entered a guilty plea had he known that his prior record score was actually five, thus increasing his minimum sentence. We are constrained to find this argument waived, because Appellant failed to raise any objection to the voluntariness of his plea at sentencing, in his post-sentence motion, or in a post-sentence motion nunc pro tunc. See Lincoln , 72 A.3d at 609-10.
Appellant has the right to file a Post Conviction Relief Act ("PCRA") petition alleging that his guilty plea was involuntary. 42 Pa.C.S. § 9543(a)(2)(iii). We express no opinion as to the merit of any such petition. --------
In his fourth argument on appeal, Appellant argues that defense counsel provided ineffective assistance during sentencing and post-sentence proceedings. This argument is premature; Appellant can only raise claims of ineffective assistance in a PCRA petition, not in this direct appeal. See 42 Pa.C.S. § 9543(a)(2)(ii).
In his fifth and final argument, Appellant claims that this Court should invoke the plain error standard. This argument fails because Pennsylvania has abolished the plain error doctrine. See Commonwealth v. Clair , 326 A.2d 272, 273-74 (Pa. 1974).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/18/2017
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