Com. v. Pannell, M. ( 2015 )

J-S39013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL J. PANNELL,
Appellant No. 975 EDA 2014
Appeal from the Judgment of Sentence November 15, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1104631-2005
BEFORE: BOWES, OTT AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 11, 2015
Michael J. Pannell appeals from the aggregate judgment of sentence of
fifty to 100 years incarceration after the court below granted in part and
denied in part his post-conviction relief petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”). For reasons outlined infra, and in light of the
unusual procedural posture of this case, we vacate the order of the PCRA
court denying resentencing before a new judge, vacate Appellant’s
subsequent judgment of sentence, and remand for resentencing before a
different jurist.
Appellant entered an open guilty plea to involuntary deviate sexual
intercourse (“IDSI”), aggravated assault, robbery, burglary, and attempted
J-S39013-15
rape on August 3, 2006. The facts underlying these crimes involved
Appellant’s unlawful entry into the residence of S.Z., robbing her, forcing her
to remove her shorts and then straddling, groping and fondling her while his
penis was exposed, before forcing her to perform oral sex. During the
episode, Appellant was armed with a knife. The victim resisted, and in doing
so grabbed the blade of Appellant’s knife, causing the tendons in each of her
fingers to be severed down to the bone in both hands. 1 During Appellant’s
plea hearing, the court placed on the record that the Commonwealth
promised not to make a sentencing recommendation. However, the court
also advised Appellant that, as a result of a prior conviction for a crime of
violence, Appellant was subject to a mandatory minimum sentence for each
crime. See 42 Pa.C.S. § 9714.
At sentencing, the prosecutor, despite the agreement not to make a
sentencing recommendation stated, “Your Honor, the only just result, after
today’s proceeding, is that the defendant spend the rest of his life in jail.”
N.T., 11/10/06, at 18.2 The court sentenced Appellant consecutively at each
____________________________________________
1
Appellant’s fingerprints were on both the inside and outside of the window
that he had used to gain entry into the victim’s home. Further, police
discovered at his home shorts that were soaked in blood. DNA testing
confirmed that the blood belonged to the victim.
2
The prosecutor also later argued, “Prison is the only place he can comply
with the rules. Prison is the only place where he can be trusted to do what
is expected of him.” N.T., 11/10/06, at 25. The Commonwealth also
(Footnote Continued Next Page)
-2-
J-S39013-15
count to ten to twenty years of imprisonment for an aggregate sentence of
fifty to 100 years.
Appellant did not file a direct appeal, but timely filed a pro se PCRA
petition seeking reinstatement of his appellate rights. The Commonwealth
agreed that Appellant was entitled to relief, and the court reinstated
Appellant’s direct appeal rights nunc pro tunc. Thereafter, Appellant
appealed, challenging the discretionary aspects of his sentence. This Court
affirmed. Commonwealth v. Pannell, 998 A.2d 1015 (Pa.Super. 2010).
Appellant filed a timely PCRA petition. Therein, he alleged that he was
entitled to withdraw his guilty plea because the Commonwealth agreed not
to recommend a sentence during plea negotiations, but breached that
promise during sentencing. He also argued that, if he were to be
resentenced, it should occur before a different judge.
The PCRA court ruled that the Commonwealth had agreed not to
recommend a sentence and violated that agreement. Nonetheless, the court
concluded that Appellant was not entitled to withdraw his plea based on
those facts, and instead found that he was entitled to resentencing.
_______________________
(Footnote Continued)
presented a friend of the victim who unsurprisingly requested that Appellant
be sentenced to the maximum possible sentence. Id. at 33. The prosecutor
concluded, “Your Honor, you have the discretion to impose anything
between ten to 20 years and 50 to 100 years. We ask the Court to impose a
sentence, if not the maximum sentence, then close to it, to ensure that the
defendant never hurts another human being.” Id. at 39.
-3-
J-S39013-15
Accordingly, on September 27, 2013, the court vacated his judgment of
sentence, ordered a new sentencing hearing, and denied all other PCRA
relief. The docket reflects that an order was entered on that same date
vacating the original judgment of sentence and scheduling a new sentencing
hearing. However, that order is not contained in the record and there is no
indication that Appellant was advised of his appellate rights relative to the
denial of his PCRA claims.
Appellant failed to appeal from the September order denying PCRA
relief in part. Subsequently, the court resentenced Appellant to the identical
sentence on November 15, 2013, based on the applicable mandatories.
Appellant filed a post-sentence motion. Therein, he argued that it was
improper for the court to resentence him and alleged that in doing so, it
precluded him from appealing the denial of his PCRA claims. The court
denied that motion by operation of law on March 21, 2014. Appellant now
appeals from the judgment of sentence.3 Appellant’s issues on appeal are:
Did the PCRA court commit an abuse of discretion by denying
Appellant the right to withdraw his guilty plea after ruling that
the Commonwealth failed to comply with the plea agreement
reached between the parties?
Did the PCRA court err by denying Appellant’s request that the
matter be transferred to another judge for resentencing after
ruling that Appellant was entitled to be resentenced?
____________________________________________
3
The court did not direct Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, but did file an opinion.
-4-
J-S39013-15
Appellant’s brief at 3.
Preliminarily, the Commonwealth contends that Appellant is
jurisdictionally barred from contesting the denial of PCRA relief where he is
appealing from his new judgment of sentence. The Commonwealth
maintains that any appeal from the denial of PCRA relief is untimely and that
Appellant cannot challenge the PCRA rulings by appealing from his new
judgment of sentence.
Under Pa.R.A.P. 903(a), a notice of appeal must filed within thirty days
of a court’s final order. Specifically, the rule reads in relevant part that, “the
notice of appeal required by Rule 902 (manner of taking appeal) shall be
filed within 30 days after the entry of the order from which the appeal is
taken.” Pa.R.A.P. 903(a). Pa.R.Crim.P. 910 provides, “An order, granting,
denying, dismissing, or otherwise finally disposing of a petition for post-
conviction collateral relief shall constitute a final order for purposes of
appeal.” Concomitantly, Pa.R.A.P. 341 defines a final order as one that
“disposes of all claims and of all parties[.]” Pa.R.A.P. 341(b)(1).
Thus, the September 27, 2013 order denying Appellant merits-based
relief but granting resentencing was a final order that disposed of all of
Appellant’s PCRA claims. The Commonwealth could have appealed the grant
of resentencing as a final order, though in this matter it ultimately agreed
with that resolution, and Appellant could have appealed the denial of merits-
-5-
J-S39013-15
based relief. See Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001).
No remaining issues existed to be decided. Thus, an appeal would not have
been dismissed as premature or interlocutory since each of Appellant’s
claims had been determined. Based on the plain language of the applicable
rules, Appellant’s appeal as to his PCRA claims is patently untimely.
We further find Commonwealth v. Anderson, 788 A.2d 1019(Pa.Super. 2001), Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011), and
Bryant, supra, instructive. In Anderson, we ruled that a defendant who is
resentenced at a revocation proceeding has one year from the date of
finality of his new judgment of sentence to challenge, via a PCRA, any issues
relative to the new sentence. Anderson, supra at 1021 (“where a new
sentence is imposed at a probation revocation hearing, the revocation
hearing date must be employed when assessing finality under § 9545(b)(3)
to any issues directly appealable from that hearing.”). However, the
defendant could not backdoor any challenges to his underlying conviction
when challenging his new sentence via the PCRA.
Similarly, in Lesko, supra, the Pennsylvania Supreme Court ruled that
a defendant could not seek merits PCRA review of claims relating to his
original judgment of sentence of death after a federal court awarded limited
habeas relief relative to sentencing. The Lesko Court ruled that the
petitioner could only challenge what occurred at his new sentencing. See
Lesko, supra at 366-367. While Anderson and Lesko involve issues
-6-
J-S39013-15
pertaining to the timeliness of a PCRA petition, and not a notice of appeal,
they illustrate that petitioners cannot seek to enlarge the time frame for
contesting their underlying conviction by relying on a new sentencing
proceeding. Instantly, Appellant is attempting to enlarge the period for
challenging his PCRA denial, which ultimately relates to his original guilty
plea proceeding.
Even more apt, is our Supreme Court’s decision in Bryant, supra. In
Bryant, the PCRA court denied guilt phase relief in a capital matter, but
awarded a new sentencing. The defendant initially appealed the denial of
the guilt phase claims to the Superior Court, and the Commonwealth elected
not to file a cross-appeal. However, the Commonwealth requested, and the
PCRA court agreed, to stay the new sentencing proceeding pending
resolution of the appeal.
Recognizing that an appeal from a PCRA matter where a death
sentence has been imposed properly belongs with the Pennsylvania Supreme
Court, Bryant moved to transfer the case. This Court erroneously denied
that motion, and quashed the appeal as interlocutory. A unanimous
Supreme Court reversed. In doing so, the High Court relied on Pa.R.A.P.
341(b), Pa.R.A.P. 903, and Pa.R.Crim.P. 1510, the latter of which is now
Pa.R.Crim.P. 910. The Court declared that the order denying relief in part
and granting sentencing relief was a final order as to both Bryant and the
Commonwealth. It held that had Bryant not appealed from the denial of his
-7-
J-S39013-15
guilt phase claims within thirty days that “he would have waived future
review of the decision of the PCRA court.” Bryant, supra at 648.
Although Bryant involved a capital case, its discussion of the
predecessor to Rule 910, Rule 1510, and Pa.R.A.P. 903, relative to a final
order applies with equal force in the present setting. It is beyond cavil that
the September order herein was final for purposes of appeal—the court
disposed of all of his claims. See also Commonwealth v. Scarborough,
64 A.3d 602 (Pa. 2013) (discussing what constitutes a final order with
respect to 42 Pa.C.S. § 9543.1 of the PCRA). Appellant is seeking to
lengthen the notice of appeal period and challenge his underlying conviction
via the denial of his merits based PCRA claims by appealing from the order
entered after his new sentencing hearing. We have regularly precluded
defendants from contesting their underlying conviction after a new
sentencing via a new PCRA petition. Similarly, we agree with the
Commonwealth that a defendant cannot ordinarily challenge the denial of
PCRA relief from a new judgment of sentence order, but must timely appeal
from the denial of PCRA relief.4 Here, Appellant failed to file an appeal
within thirty days of that order.
____________________________________________
4
We are cognizant that this issue is currently being considered by an en
banc panel of this Court. See Commonwealth v. Gaines, 1497 MDA 2013
(argued June 30, 2015).
-8-
J-S39013-15
Nonetheless, the record does not contain the PCRA final order in
question. While the court entered its order orally on the record relative to
denying Appellant’s request to withdraw his guilty plea and directing
resentencing, it did not advise Appellant of his appellate rights. Moreover,
the order that is docketed does not appear in the record and there is no
indication in the record that counsel was ever advised that he had to appeal
within thirty days of the denial.5
We add that, although there was no evidentiary hearing, the PCRA
court entered its order after a hearing in which oral argument was
presented. This implicates both Pa.R.Crim.P. 907 and Pa.R.Crim.P. 908.
Under Rule 907, when a petition is dismissed without a hearing, a judge
“shall advise the defendant by certified mail, return receipt requested, of the
right to appeal from the final order disposing of the petition and of the time
limits within which the appeal must be filed.” Similarly, pursuant to Rule
908, if, after a hearing, a judge disposes of a case “when the defendant is
not present in open court, the judge, by certified mail, return receipt
____________________________________________
5
In his post-sentence motion after resentencing, counsel averred, “By
denying defendant relief on his claim that he should be permitted to
withdraw his guilty plea and proceeding to sentencing over defendant’s
objection, the court has precluded defendant from raising on appeal an issue
alleging that the court erred by denying his PCRA claim that he was entitled
to withdraw his guilty plea or, at a minimum, proceed to sentencing before
another judge.” Appellant’s Post-Sentence Motion, 11/20/13, at 3 ¶ 9. Of
course, this is technically inaccurate since Appellant should have appealed
from the order denying that relief.
-9-
J-S39013-15
requested, shall advise the defendant of the right to appeal from the final
order disposing of the petition and of the time limits within which the appeal
must be filed.”
Thus, unless the defendant is present at the time of the entry of the
order, the court must inform the petitioner of his appellate rights. Here,
Appellant was not present at the argument hearing held on September 27,
2013, although counsel appeared. The failure of the court to advise
Appellant of his appellate rights can constitute a breakdown in the judicial
system. Commonwealth v. Liebensperger, 904 A.2d 40, 44 (Pa.Super.
2006) (declining to quash appeal as untimely where court failed to advise
defendant of appellate rights in a PCRA matter in either its Rule 907 notice
or final order). Therefore, we decline to quash the instant appeal and will
treat this appeal as arising from the denial of PCRA relief, and reach the
merits of Appellant’s claims.
Appellant initially argues that the PCRA court erred in ruling that he
was not permitted to withdraw his guilty plea based on the Commonwealth’s
breach of its agreement not to recommend a sentence. He maintains that
he only agreed to enter an open guilty plea “because the prosecutor
promised him that he would not recommend any sentence to the trial
court[.]” Appellant’s brief at 9. Appellant points out that throughout the
original sentencing, the prosecutor urged the court to impose a sentence
that would result in Appellant spending the rest of his life in jail.
- 10 -
J-S39013-15
In addition, Appellant highlights that the PCRA court did find that the
prosecutor breached the plea agreement. He submits that the PCRA court’s
resentencing remedy, however, was improper. In support, Appellant relies
extensively on Commonwealth v. Melvin Williams, 481 A.2d 1230(Pa.Super. 1984). In Melvin Williams, a defendant entered a negotiated
guilty plea to aggravated assault and conspiracy. The Commonwealth
agreed to nolle prosse charges of attempted murder, carrying an unlicensed
firearm, possession of an instrument of crime, recklessly endangering
another person, terroristic threats, and simple assault. The prosecutor
therein also agreed not to recommend a sentence. At sentencing, however,
the prosecutor asked the court to impose a sentence of incarceration. This
Court ruled that the prosecutor violated the terms of the plea bargain. The
panel then turned to the appropriate remedy.
The Melvin Williams Court acknowledged that “it could be argued
that [Williams] is entitled to receive no more than the benefit of his bargain
and that was to receive a sentence with no recommendation from the
Commonwealth.” Id. at 1234. Nonetheless, we rejected that remedy and
ordered that he be permitted to withdraw his plea and granted a trial.
The Commonwealth does not present any merits-based argument
relative to Appellant’s position, relying solely on its jurisdictional position.
Nevertheless, during the proceedings below it argued that Melvin Williams
- 11 -
J-S39013-15
did not control and posited that Commonwealth v. Martinez, 539 A.2d
399 (Pa.Super. 1988), justified resentencing.
Martinez involved a Post-Conviction Hearing Act (“PCHA”) appeal.
The PCHA was the predecessor statute to the PCRA. The defendant was
charged with aggravated assault and attempted rape. He agreed to plead
guilty to the aggravated assault charge. In exchange, the Commonwealth
agreed to nolle prosse the attempted rape count and provided that it would
not make any recommendation at sentencing. The prosecutor indicated at
sentencing that the victim did not wish to make a statement but requested
the maximum sentence allowable by law to be imposed. The court
sentenced the defendant to the maximum sentence.
Martinez did not seek to withdraw his plea, but filed a motion
contesting his sentence. Within that motion, Martinez averred that the
Commonwealth had breached its plea agreement. The motion was denied
and Martinez’s direct appeal was dismissed after counsel failed to file a brief.
Thereafter, Martinez filed a PCHA petition. The court appointed counsel,
conducted an evidentiary hearing, and denied the petition.
On appeal, this Court reversed in part. Specifically, we ruled that
Martinez was entitled to be resentenced. In directing Martinez to be
resentenced rather than ordering the withdrawal of his guilty plea, the panel
found it significant that Martinez, unlike Appellant herein, did not allege that
counsel was ineffective in failing to file a post-sentence motion arguing that
- 12 -
J-S39013-15
his plea was invalid. Instead, Martinez argued that his sentence was
excessive and was unduly influenced by the prosecutor’s statement.
Accordingly, the panel did not afford relief in the nature of granting the
withdrawal of the plea.
It is evident that Martinez does not control. In the present case,
Appellant did allege that counsel was ineffective in neglecting to move to
withdraw his plea after the prosecution recommended that he be sentenced
to a term of imprisonment for the remainder of his life. The PCRA court,
nonetheless, found Melvin Williams, supra distinguishable because in that
matter the prosecutor’s promise induced the defendant to enter the plea. In
the instant case, although the court afforded sentencing relief, it found that
Appellant’s decision to enter his plea did not occur as a result of the
prosecution’s promise not to recommend a sentence. Thus, it ruled that
Appellant’s plea itself was valid, despite the prosecutor’s breach of the
agreement.
We begin by noting that Appellant did not raise a claim regarding the
withdrawal of his plea during his sentencing or in a post-sentence motion.
Accordingly, his underlying claim is waived and can only be preserved
through the vehicle of an ineffectiveness claim. Commonwealth v.
Rachak, 62 A.3d 389 (Pa.Super. 2012); Commonwealth v. Anthony
- 13 -
J-S39013-15
Williams, 660 A.2d 614, 617 (Pa.Super. 1995); Commonwealth v.
Shekerko, 639 A.2d 810 , 814 (Pa.Super. 1994).6 Although Appellant
leveled such an issue below, his brief on appeal does not set forth the three-
pronged ineffectiveness test relative to prior counsel. Nevertheless, despite
Appellant’s failure to expressly outline the ineffectiveness test, his brief
contains a discussion of numerous post-conviction cases that are specific to
ineffective assistance of counsel and guilty plea withdrawal issues. See
Appellant’s brief at 18-19 (citing Commonwealth v. Zuber, 353 A.2d 441(Pa. 1976); Commonwealth v. Kroh, 654 A.2d 1168 (Pa.Super. 1995);
Shekerko, supra; Anthony Williams, supra); Id. at 16 (citing
Commonwealth v. Anderson, 995 A.2d 1184 (Pa.Super. 2010), and
Martinez, supra). Thus, this is not a case where the appellant has failed to
adequately present argument.
Our Supreme Court has opined that,
____________________________________________
6
The PCRA statute contains a section specifically governing guilty plea
withdrawals. That provision reads that a person is entitled to relief if the
conviction or sentence resulted from, “A plea of guilty unlawfully induced
where the circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.” 42 Pa.C.S. §
9543(a)(2)(iii); see also Commonwealth v. Lynch, 820 A.2d 728(Pa.Super. 2003) (distinguishing between guilty plea withdrawal subsection
and ineffectiveness claim relative to withdrawing a guilty plea). The original
guilty plea withdrawal subsection passed in 1988 did not have an innocence
averment requirement. The guilty plea subsection was amended in 1995 to
include an innocence standard. Appellant at no point has maintained his
innocence.
- 14 -
J-S39013-15
The standard for post-sentence withdrawal of guilty pleas
dovetails with the arguable merit/prejudice requirements for
relief based on a claim of ineffective assistance of plea counsel,
see generally Commonwealth v. Kimball, 555 Pa. 299, 312,
724 A.2d 326, 333 (1999), under which the defendant must
show that counsel's deficient stewardship resulted in a manifest
injustice, for example, by facilitating entry of an unknowing,
involuntary, or unintelligent plea.
Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa. 2004). Hence,
generally, prejudice in the guilty plea context requires a showing that the
defendant would not have pled guilty. However, in circumstances where the
allegation relates to the prosecution’s failure to abide by an agreement not
to recommend a sentence, the resulting prejudice has not always focused on
whether the petitioner would not have pled guilty. See Zuber, supra
(concluding that plea was not voluntarily and knowingly entered but
affording relief in the nature of modifying the sentence and not withdrawing
the plea).
In Kroh, supra, this Court, quoting Zuber, opined that, “there is an
affirmative duty on the part of the prosecutor to honor any and all promises
made in exchange for a defendant’s plea.” Kroh, supra at 1172 (quoting
Zuber, supra at 444)). The Commonwealth in Kroh was requesting that
the defendant testify after sentencing in a forfeiture proceeding against
another person. Kroh alleged that this violated the terms of his plea
bargain, which required cooperation as to criminal prosecutions for three
individuals, including the person involved in the forfeiture case. Kroh filed a
- 15 -
J-S39013-15
petition entitled as a petition for specific performance of his plea agreement.
Treating the matter as a PCRA petition, this Court noted that, whenever a
plea bargain is violated, a defendant is entitled to the benefit of his bargain.
The Kroh Court determined that the Commonwealth did violate its plea
bargain. It then opined, “We must decide which remedy is best suited for
appellant: either to permit him to withdraw his guilty plea or to order
specific performance of the plea agreement by the Commonwealth.” Id. at
1174. Since Kroh specifically sought specific enforcement and was not
attempting to withdraw his plea, this Court held that he was entitled to the
benefit of his bargain and directed the Commonwealth to refrain from
requiring his testimony in the civil proceeding.
The Kroh decision relied extensively on Zuber, supra. In Zuber, the
Pennsylvania Supreme Court addressed a petition filed under the PCHA.
There, the petitioner claimed that he was induced to plead guilty based on a
promise by the Commonwealth that it would not request that he serve a
parole violation sentence consecutive to his new sentence in the underlying
case. However, by law, the petitioner was required to serve the time
consecutively. Thus, the promise was meaningless. The Zuber Court held
that the plea was not validly entered. Nonetheless, it concluded that, since
Zuber only asked for a modification of his sentence, withdrawal of the plea
was unnecessary. Accordingly, it modified his judgment of sentence. The
- 16 -
J-S39013-15
dissenting justices actually reasoned that Zuber was entitled only to
withdraw his plea.
The Zuber Court relied on Commonwealth v. Alvarado, 276 A.2d
526 (Pa. 1971). Alvarado involved a capital direct appeal and an allegation
of ineffective assistance of counsel. Specifically, the defendant asserted that
the Commonwealth induced a guilty plea to first-degree murder with a
promise that it would not seek the death penalty. The Alvarado Court
determined that the prosecutor violated his promise. It then turned to the
appropriate remedy.
The Court first acknowledged, “The majority of jurisdictions that have
faced this issue permit the withdrawal of a guilty plea when the prosecutor
violates a plea bargain.” Alvarado, supra at 529. Continuing, the High
Court recognized “a minority rule which does not permit the withdrawal of
the plea but instead gives the defendant the benefit of the bargain by
modifying his sentence in accordance with the prosecutor's promise.” Id. at
529-530. Lastly, it set forth that courts had “given a defendant the option of
either withdrawing his plea or accepting a modification of his sentence in
accordance with the plea bargain.” Id. at 530. Ultimately, the Alvarado
Court declined to adopt a bright-line rule and held, “that in the particular
circumstances of this case the appropriate disposition is to modify Alvarado's
sentence to life imprisonment rather than to allow withdrawal of his guilty
plea.” Id.
- 17 -
J-S39013-15
The Court reasoned that because “the Commonwealth did not breach
any promise until [a]fter Alvarado had been found guilty of murder in the
first degree, a life sentence rather than death was the [m]ost benefit he
could have derived from fulfillment of the prosecutor's promise.” Id. It
concluded that “[n]o consideration of fairness or sound judicial
administration dictates that he now be given an opportunity to withdraw his
plea, stand trial, and possibly escape criminal liability altogether.” Id.
More recently, in Anthony Williams, supra, this Court declined to
authorize a guilty plea withdrawal based on a claim that the prosecutor did
not abide by the terms of the plea agreement because the record did not
support the factual claim. However, the panel set forth, “Certainly, if the
prosecutor failed to adhere to the terms of the plea agreement, this would
provide grounds for PCRA relief as it would be a miscarriage of justice for a
person to relinquish cherished constitutional rights based on a promise that
was not kept.” Id. at 619. The Court then, in a parenthetical, posited, “If a
prosecutor fails to abide by the terms of a plea agreement, defendant must
be allowed to withdraw his plea.” Id. Hence, Pennsylvania courts have
differed in the remedy that attaches to a guilty plea withdrawal claim based
on the prosecution’s failure to abide by an agreement not to recommend a
sentence.
In the present case, the Commonwealth did not appeal from the
decision to resentence nor, in light of its argument here and the unusual
- 18 -
J-S39013-15
procedural posture of this matter, has it sought a cross-appeal challenging
the award of sentencing relief. Indeed, the Commonwealth requested and
acquiesced in the resentencing. Therefore, we are not faced with examining
whether plea counsel had no reasonable basis for not raising the
Commonwealth’s breach of its agreement. Instead, we are asked to decide
if the remedy the PCRA court fashioned was appropriate. As noted, the
remedy has varied.
In cases where the defendant does not seek to withdraw his plea and
proceed to trial, but asks for the benefit of his bargain, both this Court and
our Supreme Court have determined resentencing or a modification of the
defendant’s sentence is appropriate. See Zuber, supra; Kroh, supra;Martinez, supra. Additionally, in a capital case, our Supreme Court has
denied a defendant the opportunity to withdraw his plea but directed that he
be resentenced to life imprisonment where the prosecutor reneged on his
promise not to recommend a sentence. Alvarado, supra. In contrast, this
Court, in a direct appeal matter, held that a defendant was entitled to
withdraw his plea where the prosecutor recommended a sentence in
violation of the negotiated guilty plea. Melvin Williams, supra. Similarly,
in Anthony Williams, supra, we opined that the failure of a prosecutor to
adhere to his promise is grounds to allow such a withdrawal.
In Melvin Williams, this Court opined that the benefit of the bargain
principle could apply to “those situations where the Commonwealth promises
- 19 -
J-S39013-15
to ask for a specific sentence and then in violation of that promise asks for a
more severe sentence which is in fact given.” Melvin Williams, supra at
1234. While the Commonwealth in this case did not promise to seek a
specific sentence and then asked for a more severe sentence, the sentencing
court was required to sentence the defendant to a mandatory minimum
sentence. The only discretion the sentencing court enjoyed was whether to
impose the mandatory sentence concurrently or consecutively. Hence,
unlike Melvin Williams, the “implementation of the ‘benefit of the bargain’
principle can be done with certainty and fairness.” Id. This case is more
akin to Alvarado where the only sentencing options were life imprisonment
or the death penalty. Hence, we do not find that the PCRA court erred in
choosing to order resentencing rather than permit Appellant to withdraw his
plea.
Nonetheless, we are aware that in Melvin Williams, supra, this Court
noted in dicta that if the defendant therein was entitled to “no more than the
benefit of his bargain” that “[w]e could do that by remanding for sentencing
before a different judge[.]” Id. at 1234. Further, in Martinez, supra, this
Court directed that the resentencing therein take place before a different
jurist. Appellant in his second issue argues that the PCRA court erred in
denying his request to be resentenced by another judge. In light of
Martinez and Melvin Williams, we agree. Compare also United States
v. Hayes, 946 F.2d 230 (3d. Cir. 1991); Santobello v. New York, 404
- 20 -
J-S39013-15
U.S. 257, 263 (1971).7 Accordingly, we vacate the PCRA court’s denial of
resentencing before a different judge and vacate Appellant’s judgment of
sentence. We direct that Appellant be resentenced before a different judge
without any recommendation from the Commonwealth.
PCRA order vacated in part. Judgment of sentence vacated. Case
remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2015
____________________________________________
7
In Santobello v. New York, 404 U.S. 257 (1971), the United States
Supreme Court remanded a matter where it determined that the prosecutor
violated the terms of the plea agreement by recommending a sentence. In
doing so, it directed that if the lower court determined the defendant should
be resentenced rather than allowed to withdraw his plea, such resentencing
must occur before a different judge. Hence, this is not akin to those cases
involving sentencing challenges where the Pennsylvania Supreme Court has
directed this Court to refrain from directing proceedings to occur in front of a
new judge. Compare Commonwealth v. Whitmore, 912 A.2d 827 (Pa.
2006).
- 21 -