Com. v. Gibson, E. ( 2015 )

J-S67018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMERY GIBSON
Appellant No. 379 WDA 2014
Appeal from the Judgment of Sentence December 6, 2011
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000966-2010
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 25, 2015
Appellant, Emery Gibson, appeals from the judgment of sentence
entered in the Fayette County Court of Common Pleas after he pleaded
guilty to, inter alia, aggravated indecent assault,1 but was sentenced on a
count of involuntary sexual deviate sexual intercourse (“IDSI”).2 This Panel
granted reconsideration to determine whether Appellant was entitled to
enforcement of a plea bargain notwithstanding his statements during the
plea colloquy. Commonwealth v. Gibson, 379 WDA 2014 (Pa. Super. Feb.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3125.
2
18 Pa.C.S. § 3123.
J-S67018-14
25, 2015) (order). We vacate the judgment of sentence and remand for
proceedings consistent with this memorandum.
The procedural history of this case is as follows. Appellant was
charged on May 16, 2010, with physically assaulting a nineteen-month-old
child (“Victim”) in his care, after Victim was taken to an emergency room.
Following a further evaluation at Children’s Hospital, the treating physician
opined Victim’s injuries–which included “perianal lacerations,” multiple “anal
fissures,” and extensive bruising of the buttocks and inner thigh—were
“highly concerning for a sexual assault.” Report of Monique Higginbotham,
M.D., 5/18/10, at 4. An amended criminal complaint filed May 24, 2010,
charged Appellant with numerous sexual offenses.
The Commonwealth subsequently filed an information listing the
following charges:
Count 1: Rape of Child – Serious Bodily Injury.3
Counts 2-4: IDSI, involving forcible compulsion, a child
under 13 years old, and serious bodily injury to a child.4
Counts 5-8: Aggravated Indecent Assault, involving a
child,5 without consent, and forcible compulsion.6
3
18 Pa.C.S. § 3121(d).
4
18 Pa.C.S. § 3123(a)(1), (b), (c).
5
18 Pa.C.S. § 3125(b).
6
18 Pa.C.S. § 3125(a)(1)-(2).
-2-
J-S67018-14
Count 9: Endangering the Welfare of Children.7
Count 10: Simple Assault.8
Information, 7/14/10.
On September 6, 2011, the parties reached an agreement under which
Appellant would plead nolo contendere to Counts 5 through 10 and be
sentenced to four to eight years’ imprisonment. After completing written
forms memorializing the agreement on the charges and the sentence, the
parties appeared before the trial court, at which time the following exchange
occurred:
[Commonwealth]: . . . The offer by the Commonwealth
is that [Appellant] may enter a no contest plea to the
charges.
THE COURT: Why? Was he drunk?
* * *
[W]hy can’t he admit that he committed these offenses? I
will take a plea of guilty or consider it.
[Commonwealth]: Your Honor, and I believe that it has
to do with the nature of the charges.
THE COURT: Well I won’t accept a nolo contendere for
that reason. I only accept it if he can’t remember what he
was doing.
Okay, who is next? Do we have something next? Call
your next case.
7
18 Pa.C.S. § 4303(a)(1).
8
18 Pa.C.S. § 2701(a)(1).
-3-
J-S67018-14
[Commonwealth]: Your Honor, I have been informed by
defense counsel that [Appellant] will enter a guilty plea.
* * *
. . . And the offer of the Commonwealth is four to eight
years.
N.T., 9/6/11, at 3-4.
The trial court conducted a colloquy of Appellant. With respect to the
charge of aggravated indecent assault listed at Count 5, the following
exchange occurred:
THE COURT: And the allegation is that by forcible
compulsion he penetrated [Victim] anally resulting in anal
and rectal tears with significant bruising with part of the
actor’s body for the purpose other than good faith medical,
hygienic, or law enforcement procedures. Is that correct?
[Commonwealth]: That’s correct. And of course, Your
Honor, that statute includes that [Appellant] did engage in
penetration, however slight, of the genitals or anus.
THE COURT: What was it that he used to penetrate this
child?
[Commonwealth]: Your Honor, the Commonwealth can’t
show specifically what was used but the medical testimony
supports anal penetration in this case.
THE COURT: [to Appellant] Did you penetrate her
anally?
[Appellant]: Yes.
THE COURT: What was it that you used to penetrate
her, your penis?
[Appellant]: No. A spoon.
THE COURT: What? I can’t hear you.
-4-
J-S67018-14
[Appellant]: A spoon.
THE COURT: A spoon. You penetrated her anus with a
spoon?
[Appellant]: Yes.
Id. at 7-8. The trial court asked whether the spoon caused the “rectal
tears,” and Appellant answered in the affirmative. Id. at 8.
The court continued its colloquy on the remaining offenses listed at
Counts 6 through 10 and at the conclusion of the hearing, stated it would
“accept his pleas.” Id. at 11. That same day, the court entered an order for
a sexual offender assessment indicating it accepted Appellant’s plea to, inter
alia, aggravated indecent assault. Order, 2/6/11.
On December 6, 2011, the trial court convened a sentencing hearing.
The court initially noted Appellant was found not to be a sexually violent
predator. N.T., 12/6/11, at 2. The court stated, “I want to make it clear
that the pleas I took were for [IDSI], . . . endangering the welfare of a child,
and simple assault. It’s my understanding that he didn’t admit to
penetrating the child with a body part.” Id. at 3. The court proceeded to
sentence on Counts 2, 3, 4, 9 and 10, but imposed the agreed-upon term of
four to eight years’ imprisonment for IDSI involving forcible compulsion
(Count 2).9
9
The trial court imposed no further penalty on the remaining counts on
which it purported to sentence.
-5-
J-S67018-14
On December 15, 2011, Appellant filed a timely post-sentence motion
alleging ineffective assistance of plea counsel, but did not serve the motion
on the trial court. The clerk of the court took no action on the motion due to
the lack of service on the trial court. Appellant, on January 15, 2013, filed a
notice of appeal in this Court. This Court quashed the appeal due to the
absence of an order disposing of Appellant’s timely filed post-sentence
motion, and remanded for the trial court to consider the motion.
Commonwealth v. Gibson, 296 WDA 2013 (unpublished memorandum at
6) (Pa. Super. Nov. 12, 2013).
On January 15, 2014, the trial court convened a hearing on Appellant’s
post-sentence motion. Appellant orally amended his post-sentence motion
to defer his claims of plea counsel’s ineffectiveness and requested the court
vacate the sentence as to Counts 2 through 4 and impose the agreed-upon
four-to-eight-year sentence on Counts 5 through 10. N.T., 1/15/14, at 5, 8,
16. The Commonwealth did not object to the amendment of the motion or
the relief requested. Id. at 23, 27. Although the trial court suggested
withdrawing Appellant’s guilty pleas and restarting the plea proceedings,
Appellant rejected that suggestion. Id. at 7. The trial court, on February 3,
2014, denied Appellant’s amended post-sentence motion asserting that
“relief would be tantamount to the imposition of sentences to charges that
were not admitted by [Appellant].” Trial Ct. Order & Op., 2/3/14, at 2.
-6-
J-S67018-14
Appellant, on March 5, 2014, timely appealed and subsequently
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement.
This Panel previously issued a memorandum decision concluding the trial
court erred in sentencing on Counts 2 through 4 because Appellant did not
plead guilty to those Counts. Commonwealth v. Gibson, 379 WDA 2014
(unpublished memorandum at 10) (Pa. Super. Jan. 7, 2015), reconsideration
granted, 379 WDA 2014 (Pa. Super. Feb. 15, 2015) (order). We thus
vacated the judgment of sentence and remanded the matter for
resentencing. Id. at 12. However, our prior memorandum suggested that
the trial court would have the discretion to withdraw Appellant’s plea sua
sponte before resentencing. Id. at 11-12. As noted above, we granted
Appellant’s motion for reconsideration to address the enforceability of the
parties’ original plea bargain.
Appellant presents three questions on reconsideration, 10 which we
have rephrased as follows:
Was the sentencing proceeding invalid since [Appellant]
was sentenced to counts that were not the counts in the
plea agreement the court had accepted?
10
The Commonwealth filed a motion to deem its appellee’s brief on
reconsideration as timely filed and provided proof of mailing on the extended
deadline of April 29, 2015. See Pa.R.A.P. 2185(a)(1) (“Briefs shall be
deemed filed on the date of mailing if first class, express, or priority United
States Postal Service mail is utilized.”).
-7-
J-S67018-14
Did the trial court abuse its discretion by compelling
[Appellant] to make a statement of guilt in violation of his
Fifth Amendment right against self-incrimination?
Will defining the proper administration of an Alford[11]
plea: 1.) protect the integrity of the justice system by
reaffirming the factually innocent defendant’s ability to
take legal responsibility for a crime without committing
perjury; 2.) reduce the number of post-conviction relief act
claims . . . ; and 3.) protect defense attorneys from
suborning perjury?
Appellant’s Brief on Reconsideration at 5.
It is helpful to reiterate that the issues in this appeal arise from
Appellant’s admission, upon examination by the trial court, that he
penetrated Victim’s anus using a spoon. Appellant’s admission was
inconsistent with the agreed-upon charges of aggravated indecent assault
(Counts 5-8), because those offenses required, inter alia, his use of a body
part to penetrate another. See 18 Pa.C.S. § 3125(a)(1)-(2), (b). Further,
Appellant’s admission provided sufficient evidence for a conviction upon the
charges of IDSI (Counts 2-4), see 18 Pa.C.S. § 3123(a)(1), (b), (c), which
the parties originally agreed to have withdrawn by nolle prosequi.
We also summarize the issues not in dispute in this appeal. The
parties agree that the charge of rape (Count 1) was properly withdrawn.
Second, there is no dispute that Appellant’s convictions for endangering the
welfare of children (Count 9) and simple assault (Count 10). Third, no party
11
North Carolina v. Alford, 400 U.S. 25 (1970).
-8-
J-S67018-14
challenges the agreed-upon sentence of four to eight years’ imprisonment.
Lastly, Appellant does not contest the knowing, intelligent, and voluntary
nature of his plea and asserts it should be deemed valid as a “best-interest
plea.” Thus, the narrow issue, as developed by the parties, is whether
Appellant should be sentenced for IDSI (Counts 2-4) or aggravated indecent
assault (Counts 5-8).
As to Appellant’s first claim, challenging the sentence on Count 2, we
reaffirm our previous conclusion that the trial court improperly sentenced
Appellant.
At the hearing on Appellant’s post-sentence motion, the
parties speculated that there had been communication
between the Commonwealth and Appellant’s plea counsel
after the entry of the guilty plea and before sentencing to
adjust the charges that were pled to pursuant to the plea
bargain.[ ] N.T., 1/15/14, at 21-22. The apparent purpose
was to have the charges better coincide with Appellant’s
factual admission made during his guilty plea colloquy.[ ]
Id. at 5-6, 21-22. However, none of the purported
communications between the Commonwealth, defense
counsel, and the trial court is in the certified record.
Neither is there any indication in the record that Appellant
was aware of or agreed to modify his plea. This Court may
not consider items or circumstances that are not contained
in the certified record. Commonwealth v. Ross, 57 A.3d
85, 96-97 (Pa. Super. 2012), appeal denied, 72 A.3d 602(Pa. 2013), citing Commonwealth v. Rush, 959 A.2d
945, 949 (Pa. Super. 2008).
We conclude, based on the foregoing, that because no
guilty plea or adjudication of guilt was entered against
Appellant with respect to the IDSI charges at Counts 2, 3,
and 4, the sentences imposed on those counts are illegal.
See [Commonwealth v. Paige, 429 A.2d 1135, 1140,
n.3 (Pa. Super. 1981)]. Accordingly, we are constrained to
vacate the December 6, 2011 judgment of sentence in this
-9-
J-S67018-14
case and remand for further proceedings.[ ] “An illegal
sentence must be vacated.” [Commonwealth v. Tanner,
61 A.3d 1043, 1046 (Pa. Super. 2003)] (citation omitted).
Gibson, 379 WDA 2014 (unpublished memorandum at 9-10).12 Thus, the
trial court’s attempts to enforce the purported modifications to the original
plea agreement resulted in an illegal sentence that must be vacated.
Appellant, in his remaining claims, asserts the trial court erred in
rejecting his request to enforce the original plea agreement between the
parties. He contends the attempt to modify the initial plea agreement “goes
against the spirit and justification behind guilty plea proceedings.”
Appellant’s Brief at 15-16. He also argues that the trial court’s colloquy
exceeded that necessary to accept the terms of the plea agreement and
violated his constitutional privilege against self-incrimination. Id. at 15, 27.
Under the unique circumstances of this case, we conclude he is entitled to
enforcement of the terms of his original plea agreement.
In Commonwealth v. Fluharty, 632 A.2d 312 (Pa. Super. 1993),
this Court summarized the principles relevant to an “Alford plea.”
It is a long established principle of constitutional due
process that the decision to plead guilty must be
personally and voluntarily made by the accused.
* * *
In order for a guilty plea to be constitutionally valid, the
guilty plea colloquy must affirmatively show that the
defendant understood what the plea connoted and its
12
As noted above, we withdrew this decision after granting reconsideration.
- 10 -
J-S67018-14
consequences. This determination is to be made by
examining the totality of the circumstances surrounding
the entry of the plea. Thus, even though there is an
omission or defect in the guilty plea colloquy, a plea of
guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the
defendant had a full understanding of the nature and
consequences of his plea and that he knowingly and
voluntarily decided to enter the plea.
It is clear that before accepting a plea of guilty, the trial
court must satisfy itself that there is a factual basis for the
plea. However, the factual basis requirement does not
mean that the defendant must admit every element of the
crime. In this respect, the United States Supreme Court[,
in Alford, 400 U.S. at 37,] has held:
[W]hile most pleas of guilty consist of both a waiver
of trial and an express admission of guilt, the latter
element is not a constitutional requisite to the
imposition of criminal penalty. An individual accused
of crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit
his participation in the acts constituting the crime.
Nor can we perceive any material difference between
a plea that refuses to admit commission of the
criminal act and a plea containing a protestation of
innocence when, as in the instant case, a defendant
intelligently concludes that his interests require entry
of a guilty plea and the record before the judge
contains strong evidence of actual guilt.
It would appear, therefore, that a defendant may
knowingly and voluntarily enter a guilty plea as a matter of
strategy or expedience even though he or she is unable or
unwilling to admit guilt.
Fluharty, 632 A.2d 312, 314-315 (citations and quotation marks omitted).
Plea bargaining “is not some adjunct to the criminal justice system; it
is the criminal justice system.” Missouri v. Frye, 132 S. Ct. 1399, 1407
- 11 -
J-S67018-14
(2012) (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as
Contract, 101 Yale L.J. 1909, 1912 (1992)). As this Court has observed:
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.
“Assuming the plea agreement is legally possible to
fulfill, when the parties enter the plea agreement on the
record, and the court accepts and approves the plea, then
the parties and the court must abide by the terms of the
agreement.” Likewise,
[T]here is an affirmative duty on the part of the
prosecutor to honor any and all promises made in
exchange for a defendant’s plea. Our courts have
demanded strict compliance with that duty in order
to avoid any possible perversion of the plea
bargaining system, evidencing the concern that a
defendant might be coerced into a bargain or
fraudulently induced to give up the very valued
constitutional guarantees attendant the right to trial
by jury.
Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2009)
(citations omitted).
In Commonwealth v. Parsons, 969 A.2d 1259 (Pa. Super. 2009) (en
banc), and Commonwealth v. Mebane, 58 A.3d 1243 (Pa. Super. 2012),
this Court discussed the trial court’s enforcement of plea agreements. In
Parsons, the defendant and the Commonwealth reached a plea agreement
as to charges of statutory sexual assault and corruption of minors and a
specific sentence of six to twenty-three months’ imprisonment and five
- 12 -
J-S67018-14
years’ probation. Parsons, 969 A.2d at 1263, 1265. The court accepted
the agreement at a plea hearing, but deferred sentencing for the completion
of the presentence report. Id. at 1263. At sentencing, the defendant
criticized the negotiated sentence, arguing that it was unduly harsh. Id. at
1264.
“Despite the clarity of the plea agreement both as to the charges and
the specific sentence, and notwithstanding [the defendant’s]
acknowledgement of the expected sentence at the plea hearing, the court
allowed [him] to lodge an untimely challenge to the sentencing term of the
plea agreement . . . .” Id. at 1265. The trial court then “refused to impose
the agreed-upon fixed sentence,” and it sentenced him to three months’
supervision by the County Probation Office for statutory sexual assault, and
a consecutive five years’ probation for corruption of minors. Id. at 1264.
The Commonwealth appealed, asserting the trial court erred because it
“unilaterally modified a non-severable term of the parties’ agreement.” Id.
at 1266. As remedies, the Commonwealth suggested, “If the [trial] court
were dissatisfied with the sentencing aspect of the agreement, then the
proper recourse would have been to reject the plea agreement and return
the parties to parity.” Id. Alternatively, “[b]ecause the court accepted the
plea but later altered the negotiated sentence provision of the plea
agreement without the Commonwealth’s consent, . . . the case [could be]
remanded for imposition of the sentence pursuant to the plea bargain.” Id.- 13 -
J-S67018-14
The Parsons Court concluded that the trial court erred in setting aside
the sentencing term without the Commonwealth’s consent. Id. at 1272. In
terms of the appropriate remedy, the Court determined it was appropriate to
vacate the trial court’s sentence “and remand for imposition of the sentence
pursuant to the plea bargain” that the trial court originally accepted. Id. at
1271. We further observed no injustice would occur because the defendant
accepted the terms of the plea bargain and had no reasonable expectation of
the finality of a sentence below the negotiated term. Id.In Mebane, the defendant was arrested for drug related offenses
following a traffic stop. Mebane, 58 A.3d at 1244. Appellant filed a motion
to suppress, which was litigated in February 2010. Id. In March 2010, the
Commonwealth negotiated an agreement under which the defendant would
plead guilty to drug related offenses in exchange for a county sentence and
the Commonwealth’s waiver of a mandatory sentence. Id. After the parties
agreed to the bargain, the Commonwealth learned that the trial court
intended to deny defendant’s suppression motion in part. Id. The
Commonwealth did not apprise the defendant of the ruling, but rather
appeared at a later hearing and withdrew its offer. The trial court
determined “fundamental fairness” required enforcement of the terms of the
agreement and sentenced the defendant accordingly. Id.The Commonwealth appealed, arguing that the trial court erred in
enforcing a promise to waive application of the mandatory minimum statute.
- 14 -
J-S67018-14
The Commonwealth claimed it was under no obligation to abide by its
promise because it was withdrawn before presentation to and acceptance by
the trial court. Id. at 1244-45.
The Mebane Court rejected the Commonwealth’s arguments,
reasoning:
Here, we are presented with a unique set of
circumstances wherein the trial court determined that
enforcement of a plea agreement was warranted in the
interest of justice, as a matter of judicial discretion, and
not as a matter of right to specific performance—a
distinction that has not been addressed in prior decisions .
...
Id. at 1248. This Court found no basis to disturb the trial court’s findings
that the Commonwealth, despite learning of the suppression ruling, led the
defendant to proceed under the impression he would be pleading guilty on
the scheduled trial date. Id. at 1249. Under those circumstances, we
concluded that “the trial court acted in conformity with the general policy of
maintaining the integrity of the plea bargain process when it determined that
enforcement of the plea agreement was warranted in the unique
circumstances of this case.” Id.Instantly, the parties negotiated clear terms as to the charges and the
sentence. The agreement was mutually beneficial to parties. The
Commonwealth knew it possessed evidence suggesting Appellant anally
penetrated Victim, but could not show what he used. Appellant knew he
used a spoon to penetrate Victim, which was sufficient for an IDSI
- 15 -
J-S67018-14
conviction, and he sought to limit his exposure to punishment.13 Both
parties waived their constitutional rights to avoid the expense and risk of
trial. They proceeded to the plea hearing at which they presented all facts
and circumstances surrounding the agreement.
Although the trial court initially demanded that Appellant plead guilty
rather than nolo contendere, it accepted the agreement as stated by the
parties, despite the gaps in the Commonwealth’s evidence and Appellant’s
admission regarding the penetration. Appellant, in reliance on the apparent
acceptance of the agreement, proceeded to a presentence investigation and
a sexual offender assessment. There is no indication that he refused to
comply, asserted he was factually innocent, or claimed his plea was coerced.
The Commonwealth, at some time before sentencing, initiated the effort to
modify the charging aspects of the agreement to conform with his
admission.
As noted above, the purported modification of the original plea
agreement was improper and resulted in a sentence on a charge to which
Appellant did not plead. A consideration of an appropriate remedy, however,
involves multiple considerations.
13
Aggravated indecent assault is generally a second-degree felony.
However, aggravated indecent assault of a child is graded as a first-degree
felony. 18 Pa.C.S. § 3125(b), (c)(1)-(2). IDSI is generally graded as a
first-degree felony. A charge of IDSI with a child less than thirteen years of
age carries an enhanced maximum sentence of forty years. 18 Pa.C.S. §
3123(a), (b), (d).
- 16 -
J-S67018-14
Withdrawal of the plea before sentencing falls within the discretion of
the trial court. Pa.R.Crim.P. 591(A); Commonwealth v. Herbert, 85 A.3d
558, 561 (Pa. Super. 2014) (noting “[w]e will not disturb the trial court’s
decision to sua sponte withdraw a defendant’s plea of guilty absent an abuse
of discretion.”). Although withdrawal of the plea is conceivable following
remand, several circumstances weigh upon that option as a remedy.
We reiterate that there are few reported cases guiding a trial court’s
discretion when withdrawing a plea before sentencing. See Herbert, 85
A.3d at 563. None are on point with the concerns raised in this appeal.
As the Herbert Court summarized:
The first case in which we discussed sua sponte
withdrawal of a guilty plea was in Commonwealth v.
Kotz, . . . 601 A.2d 811 ([Pa. Super.] 1992). In Kotz, a
defendant pled guilty and was sentenced on two related
informations. After sentencing, the defendant moved to
withdraw his guilty plea as to one of the informations, but
not the other. The trial court granted Kotz’s motion to
withdraw his guilty plea as to the one information and sua
sponte withdrew Kotz’s guilty plea as to the other
information. We held that “the withdrawal of a guilty plea
is initiated by application of the defendant.” Thus, we
concluded that the trial court lacked jurisdiction to sua
sponte withdraw the defendant's plea of guilty.
. . . Kotz addressed sua sponte withdrawal of a
defendant’s guilty plea after imposition of sentence. Thus,
it fell outside of Rule 591 (then Rule 320), which permits
the trial court to sua sponte withdraw a defendant’s plea of
guilty prior to imposition of sentence, which is what
occurred in the case sub judice. Furthermore, . . . our en
banc Court later rejected most of the dicta in Kotz.
In [Commonwealth v. ]Nancy Rosario, [613 A.2d
1244, 1246 (Pa. Super. 1992),] the trial court chose to sua
- 17 -
J-S67018-14
sponte withdraw the defendant’s guilty plea because there
was an inadequate factual basis for the plea. Specifically,
the trial court found that the information provided in the
pre-sentence investigation report differed significantly
from what was relayed at the plea hearing. We held that
“[a] trial [court] is justified in ordering that a plea be
vacated if [it] discovers that there is [an] insufficient
factual basis to support the plea.” Thus, we concluded
that the trial court acted appropriately under former Rule
320. Our Supreme Court[, in Nancy Rosario, 679 A.2d
756, 760 (Pa. 1996),] affirmed, finding that the trial court
did not abuse its discretion in choosing to withdraw Nancy
Rosario’s guilty plea because of the incomplete information
afforded the trial court at the plea hearing.
In Commonwealth v. Agustin Rosario[, 652 A.2d
354, 356 (Pa. Super. 1994) (en banc)], the trial court sua
sponte withdrew the defendant’s guilty plea because it
found that there was no factual basis for the plea. We
held that the trial court did not abuse its discretion in
withdrawing the defendant’s plea of guilty because “the
disparity between the factual basis of the plea presented to
the court at the plea hearing and the factual statement set
forth in the pre-sentence report provide[d] a valid reason
for the trial court's withdrawal of the plea.”
* * *
In Commonwealth v. Przybyla[, 722 A.2d 183, 184
(Pa.Super.1998)], the defendant pled guilty to statutory
sexual assault. However, prior to sentencing, the trial
court had concerns regarding the harshness of the charge,
and therefore sua sponte withdrew the defendant’s plea of
guilty and dismissed the statutory sexual assault charge
pursuant to 18 Pa.C.S[ ] § 312. We vacated the order and
remanded for further proceedings, finding that the offense
was not de minimis.
. . . The main issue in Przybyla was whether the trial
court erred by dismissing the two felony counts against the
defendant because it was concerned with the “scarlet
letter” associated with a felony conviction for “consensual”
sexual conduct between a 19–year–old and a 13–year–old.
Thus, the case was decided because of our interpretation
- 18 -
J-S67018-14
of the de minimis statute, and not on factors that the trial
court could consider under former Rule 320.
Our Supreme Court, in Nancy Rosario, and our en
banc Court, in Agustin Rosario, have granted trial courts
broad discretion in deciding whether to withdraw a guilty
plea sua sponte.
Id. at 563-65 (Pa. Super. 2014) (citations omitted).
In Herbert, the Commonwealth charged the defendant with burglary
and related offenses arising from an incident on August 2011. Herbert, 85
A.3d at 560. In exchange for his promise to cooperate in the police
investigation of a codefendant, Appellant pleaded guilty to a lesser charge of
theft in December 2011. Id. While awaiting sentencing, the defendant was
charged with homicide and other charges for incidents occurring in February
2012. Id. In March 2012, the Commonwealth moved to revoke the
defendant’s December 2011 plea because of his failures to cooperate with
police, comply with presentence interviews, and appear at a sentencing
hearing. Id. at 560-61. The trial court subsequently withdrew the
December 2011 plea, and the matter proceeded to a trial at which the
defendant was found guilty of, inter alia, burglary. Id. at 561. After the
imposition of sentence, the defendant appealed his conviction, alleging the
trial court abused its discretion when withdrawing the December 2011 plea.
Id.The Herbert Court rejected the defendant’s argument that he did not
breach the plea agreement by failing to assist in the investigation of his
- 19 -
J-S67018-14
codefendant. Id. at 563. The Court also considered whether the trial court
considered proper factors when withdrawing the defendant’s plea based on
his failure to cooperate with the post-plea procedures. Id. The Court
concluded:
[W]hen deciding whether to sua sponte withdraw a
defendant’s guilty plea prior to sentencing, a trial court
may properly consider whether the defendant has fulfilled
his or her obligations under the plea agreement. This
includes considering whether the defendant has
cooperated during the sentencing process, i.e. appearing
for his or her pre-sentence interview and sentencing
hearing.
Id. at 565.
Instantly, unlike other cases in which the court’s authority to withdraw
a plea sua sponte has been affirmed, the trial court was presented with a full
recitation of the possible evidence at the plea hearing and purported to
accept the plea and the terms of the plea agreement. Cf. Nancy Rosario,
679 A.2d at 760; Agustin Rosario, 652 A.2d at 356. Further, there was no
indication that Appellant failed to cooperate with the implied terms of his
agreement to cooperate with the post-plea procedures. Cf. Herbert, 85
A.3d at 565. Lastly, the instant case is distinguishable as the sole basis for
withdrawing the plea and demanding additional proceedings would be
Appellant’s statement from a prior plea colloquy.
Withdrawal of the plea could return to parties to a relative status quo if
they were to proceed to trial. Appellant’s myriad trial rights would remain
intact. As a general rule, Appellant’s factual admission during the colloquy
- 20 -
J-S67018-14
would not be admissible at a trial. See Pa.R.E. 410.14 It is unsurprising,
however, that none of the parties suggested a return to the status quo in
light of the mutual benefits of a plea agreement, the Commonwealth’s
averment that it could not prove what was used to penetrate Victim, and
Appellant’s knowledge that he anally penetrated Victim with a spoon. Thus,
compelling the parties to proceed to trial could leave them in a worse
position than before the plea proceeding.
14
Pennsylvania Rule of Evidence 410 provides, in relevant part:
(a) Prohibited Uses. In a . . . criminal case,
evidence of the following is not admissible against the
defendant who made the plea or participated in the plea
discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made in the course of any
proceedings under . . . [Rule] 590 of the Pennsylvania
Rules of Criminal Procedure, Rule 11 of the Federal
Rules of Criminal Procedure, or a comparable rule or
procedure of another state; or
(b) Exceptions. The court may admit a statement
described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement
made during the same plea or plea discussions has
been introduced, if in fairness the statements ought to
be considered together . . . .
Pa.R.E. 410(a)(1)-(3), (b)(1).
- 21 -
J-S67018-14
Withdrawal of the plea could also permit the parties to accomplish the
modification the trial court previously attempted. However, such an
outcome would have deleterious effects on the integrity of the plea
bargaining process. Appellant’s admissions in such a scenario would be
tantamount to a windfall to the Commonwealth, improving its original
bargaining position at the expense of Appellant’s position. In this regard,
Appellant’s assertion that the use of his admission in renewed plea
negotiation would violate “the spirit and justification behind guilty plea
proceedings” and has merit. Cf. Pa.R.E. 410.
An alternative remedy, suggested by Appellant, is that we enforce the
terms of the plea bargain as to charges and to sentence. This alternative is
problematic as it requires a concession that a factual basis is lacking upon
the charges of aggravated indecent assault and brings into question the
validity of the plea itself.
However, this is not a case where Appellant contests the knowing,
intelligent, and voluntary nature of his plea. Moreover, in light of his
admission during the colloquy, Appellant cannot credibly assert he is
“factually innocent,” if the original plea agreement is enforced. See
Commonwealth v. Willis, 68 A.3d 997, 1008-09 (Pa. Super. 2013)
(reiterating precept that a defendant “is bound by the statements made
during the plea colloquy,” and “may not [later] assert grounds for
- 22 -
J-S67018-14
withdrawing the plea which contradicts the statements”). Thus, the
concerns regarding the underlying validity of the plea are mitigated.
Further, the absence of a factual basis may be used to withdraw a plea
where the court discovers “a disparity between the circumstances previously
presented to [it] and the physical facts of the case.” Agustin Rosario, 652
A.2d at 360 (citation omitted); see also Nancy Rosario, 679 A.2d at 757
(noting trial court’s statement that presentence report “‘differed materially
from the information provided to the [c]ourt at the time it accepted the
guilty plea . . . .’”). Such circumstances may convince the court that it
would not have accepted a plea agreement to a lesser charge had it been
aware of the physical facts of the case.
The circumstances of this case are distinguishable from the Rosario
cases, as there was an agreement as to charges and sentences. Appellant
pleaded to a lesser charge but admitted guilt to a greater charge. However,
there was an agreement upon sentence that no party disputes. The trial
court further indicated the sentencing term to be “acceptable sentence
consistent with the protection of the public, gravity of the offense as it
impacts upon the life of the victim and [Appellant’s] rehabilitative needs.”
N.T., 12/6/11, at 5.
The court, when denying Appellant’s amended post-sentence motion,
also suggested no harm would result from the modification. Trial Ct. Order
& Op. at 2. The same, however, holds true for the Commonwealth if the
- 23 -
J-S67018-14
sentencing agreement stands. In light of the agreed-upon appropriateness
of the sentence, permitting Appellant to plead to a lesser offense would not
offend the Commonwealth’s or the public’s interest in securing justice. 15
In light of the foregoing, the principles set forth in Parsons and
Mebane illuminate the appropriate remedy in this appeal and accomplishes
the greater benefit with the lesser harm under the circumstances of this
case. Therefore, we conclude Appellant is entitled to enforcement of the
charging terms of his plea bargain.
Judgment of sentence vacated. Commonwealth’s motion to accept
brief as timely filed granted. Case remanded for resentencing consistent
with this memorandum. Jurisdiction relinquished.
Judge Donohue concurs in the result.
Judge Mundy files a concurring and dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2015
15
It merits further mention that although aggravated indecent assault is a
lesser offense, it carries similar consequences in terms of sexual offender
registration as IDSI. See 42 Pa.C.S. § 9799.14(d).
- 24 -