Com. v. Johnson, G. ( 2023 )

J-A22034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE ALLEN JOHNSON III :
:
Appellant : No. 1282 WDA 2021
Appeal from the Judgment of Sentence Entered July 30, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007141-2019
BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: JANUARY 11, 2023
Appellant, George Allen Johnson, III, appeals from the July 30, 2021
Judgment of Sentence entered in the Allegheny County Court of Common
Pleas following his guilty plea to four firearms offenses, two driving under the
influence offenses, and seven drug and drug paraphernalia possession
offenses. Appellant contends that the Commonwealth breached the plea
agreement. We agree and, thus, we vacate Appellant’ judgment of sentence
and remand for further proceedings.
The relevant facts and procedural history are as follows. On May 11,
2019, police arrested Appellant for drunk driving after finding him unconscious
in the driver’s seat of a vehicle that had come to a stop in a residential front
yard. Police searched the vehicle and discovered two firearms, cocaine,
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* Retired Senior Judge assigned to the Superior Court.
J-A22034-22
heroin, marijuana, a digital scale, a plastic spoon covered in powder residue,
and plastic baggies. Police also found a large amount of cash on Appellant’s
person. The Commonwealth then charged Appellant with the above crimes.
On April 13, 2021, Appellant entered a general guilty plea to all the
charged crimes. In explaining the terms of the plea agreement, Appellant’s
counsel informed the court there had been no agreement as to sentence and
that “it is my understanding that there would be no objection [or] commentary
at the time of sentencing to what the [d]efense requests.”1 Counsel further
clarified that the Commonwealth “indicated she would not object at the time
of sentencing to a sentencing request that we make at the time of the
hearing.”2 The Commonwealth did not object to Appellant’s counsel’s
characterization of the plea agreement or offer its own interpretation of the
agreement it had reached with Appellant. The plea court acknowledged the
agreement by stating “Okay. I mean, that’s fine. She cannot object.” 3 The
court then conducted a plea colloquy, after which it accepted Appellant’s guilty
plea. The court deferred sentencing pending preparation of a presentence
investigation report.
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1 N.T. Guilty Plea Hr’g, 4/13/21, at 5.
2 Id. at 6.
3 Id.
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Appellant appeared for sentencing on July 30, 2021. Prior to the
imposition of sentence, Appellant’s counsel recommended that Appellant
“qualifie[d] for a rehabilitative mitigation sentence[,]”4 and requested that the
court impose a Justice Related Services (“JRS”) plan that included a
structured, long-term, inpatient drug, alcohol, and mental health treatment
program.
In response to Appellant’s request for a JRS plan, the Commonwealth
asserted that Appellant’s “presentence report is replete with facts that he
cannot be supervised in the community,” and then proceeded to enumerate
Appellant’s prior convictions and flight from drug treatment. 5 The
Commonwealth characterized Appellant’s past conduct as proof that Appellant
“cannot be trusted in the community,”6 made its own request that the court
impose a standard-range sentence, and offered commentary in support of the
recommendation.
Appellant’s counsel responded by reiterating her understanding that
Appellant and the Commonwealth “had an agreement . . . that there would be
no recommendation on sentencing from the Commonwealth today.”7 The
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4 N.T. Sentencing Hr’g, 7/30/21, at 27.
5 Id. at 28-29.
6 Id. at 29.
7 Id. at 30.
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Commonwealth then explained that when the parties “discussed the possibility
that there would be no recommendation, I certainly did not expect that you
would be asking for a JRS plan[,]” which the Commonwealth opined was
“completely inappropriate.”8
Following the parties’ arguments, the court imposed an aggregate term
of six to twelve years’ incarceration followed by five years of probation.
Appellant timely filed a post-sentence motion for modification of
sentence, explaining the terms of the parties’ plea agreement and noting that,
contrary to the agreement, the Commonwealth made a sentencing
recommendation.9 At a hearing on the post-sentence motion, Appellant’s
counsel orally moved for leave to amend the motion to include a request to
withdraw the plea. The court denied the request as untimely. After arguments
from counsel, the court denied Appellant’s post-sentence motion.
Appellant pro se filed a timely notice of appeal10 and obtained new
counsel. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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8 Id. at 30.
9 Post-Sentence Motion, 8/6/21, §§ 2-7.
10 It is implicit in Pa.R.A.P. 904, the rule governing the content of notices of
appeals, that the correct date of the order appealed should be included in a
notice of appeal. Commonwealth v. Martin, 462 A.2d 859, 860 (Pa. Super.
1983), overruled on other grounds, Commonwealth v. Graves, 508 A.2d
1198 (Pa. 1986). Although Appellant did not identify any date for an order on
appeal in his notice of appeal, we will entertain this timely appeal despite the
inadequacy of the notice. See In re McElhatton, 729 A.2d 163, 165 (Pa.
Cmwlth. 1999) (“A failure to comply with Pa.R.A.P. 904 will not result in a
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Appellant raises the following issue on appeal:
Is Appellant entitled to a re-sentencing hearing owing to the
Commonwealth’s breach of the Guilty Plea Agreement (with that
breach occurring when the Commonwealth, which had pledged not
to object to Appellant’s sentencing request or to offer any
comments regarding sentencing, responded to Appellant’s request
for a “rehabilitative mitigated sentence” with a request that he
instead be ordered to serve a term of 7-to-14 years of
imprisonment)?
Appellant’s Brief at 3.
Appellant asserts that the Commonwealth violated the parties’ plea
agreement by objecting to the rehabilitative mitigated sentence proposed by
his counsel and, instead of staying silent, requesting a standard-range
sentence of incarceration. Id. at 29, 40-43, 52.
“Although a plea agreement occurs in a criminal context, it remains
contractual in nature and is to be analyzed under contract-law standards.”
Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (citation
omitted). In assessing whether a plea agreement has been breached, we
consider what the parties to the agreement reasonably understood the terms
to be. Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa. Super.
2013) (en banc). “Such a determination is made based on the totality of the
surrounding circumstances and any ambiguities in the terms of the plea
agreement will be construed against the Commonwealth.” Id. (quotation
marks and citations omitted). Further, “[c]ontract interpretation is a question
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dismissal of the notice of appeal so long as the notice of appeal is timely
filed.”), citing Commonwealth v. Gumper, 512 A.2d 699 (Pa. Super. 1986).
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of law, so our standard of review . . . is de novo and to the extent necessary,
the scope of our review is plenary.” Commonwealth v. Kerns, 220 A.3d
607, 612 (Pa. Super. 2019) (quotation marks and citations).
Our Supreme Court has held:
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.
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.
Therefore, in Pennsylvania, it is well settled that where a plea
bargain has been entered [into] and is violated by the
Commonwealth, the defendant is entitled, at least, to the benefit
of the bargain.
Commonwealth v. Zuber, 353 A.2d 441, 444 (Pa. 1976) (quotations and
citations omitted).
Here, the trial court accepted Appellant’s guilty plea. As Appellant’s
counsel explained to the court, in exchange for Appellant’s guilty plea, the
Commonwealth agreed to forego objecting to or providing commentary on
Appellant’s sentence request. The Commonwealth did not object to
Appellant’s counsel’s characterization of the parties’ agreement and did not
offer any explanation of its own understanding of this negotiated term in
response to Appellant’s counsel’s representations.
Our review of the notes of testimony indicates that, notwithstanding the
Commonwealth’s manifested assent to the negotiated term of the agreement,
it violated the agreement by explicitly objected and offering comments in
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opposition to Appellant’s sentence request. Specifically, in response to
Appellant’s request for a JRS plan, the Commonwealth objected, stating that
Appellant’s “presentence report is replete with facts that he cannot be
supervised in the community,” and then proceeded to enumerate Appellant’s
prior convictions and flight from drug treatment. N.T., 7/30/21, at 28-29.
The Commonwealth characterized Appellant’s past as proof that Appellant
“cannot be trusted in the community.” Id. at 29. When, in response to these
comments from the Commonwealth, Appellant’s counsel reiterated her
understanding that the Commonwealth had agreed not to make a sentencing
recommendation, the Commonwealth responded by opining that Appellant’s
request for a JRS plan was “completely inappropriate.” Id. at 30. The
Commonwealth then made its own sentencing request and offered argument
in support of its request. See id. at 29. In doing so, the Commonwealth
violated the terms of the negotiated plea agreement.
In sum, following our de novo review, we conclude that the
Commonwealth violated its agreement with Appellant. Because Appellant is
entitled to the benefit of the bargain he struck with the Commonwealth, we
vacate his judgment of sentence and remand for resentencing.
Judgment of Sentence vacated. Case remanded. Jurisdiction
relinquished.
Judge Olson joined the memorandum. Judge Colins filed a dissenting
memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2023
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