Opinion
1282 WDA 2021 J-A22034-22
01-11-2023
COMMONWEALTH OF PENNSYLVANIA v. GEORGE ALLEN JOHNSON III Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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
DUBOW, J.
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, 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." 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." 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." 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.
N.T. Guilty Plea Hr'g, 4/13/21, at 5.
Id. at 6.
Id.
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[,]" 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.
N.T. Sentencing Hr'g, 7/30/21, at 27.
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. The Commonwealth characterized Appellant's past conduct as proof that Appellant "cannot be trusted in the community," made its own request that the court impose a standard-range sentence, and offered commentary in support of the recommendation.
Id. at 28-29.
Id. at 29.
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." The 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."
Id. at 30.
Id. at 30.
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. 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.
Post-Sentence Motion, 8/6/21, §§ 2-7.
Appellant pro se filed a timely notice of appeal and obtained new counsel. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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 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).
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 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 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.
Judgment Entered.
DISSENTING MEMORANDUM
COLINS, J.
I respectfully dissent because I believe that my esteemed colleagues in the majority are overstating the terms of the plea agreement in this case in order to conclude that there was a contractual breach. As an aside, the precise circumstances of this case lead me to the additional conclusion that a grant of relief would most likely result in protracted litigation to arrive at the same procedural posture.
While guilty pleas occur in criminal cases, "a plea agreement is quasi-contractual in nature and must be analyzed under the terms of contract law." Commonwealth v. Lutz, 788 A.2d 993, 1000 (Pa. Super. 2001). Defendants are generally entitled to the benefit of assurances made by a prosecutor as a matter of due process and as compelled by the principle of fundamental fairness. Commonwealth v. Cosby, 252 A.3d 1092, 1131-32 (Pa. 2021). "[W]hen a plea rests in any significant degree on a promise or agreement by the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. at 1132, quoting Santabello v. New York, 404 U.S. 257, 262 (1971). Once a bargained term is enveloped in a plea agreement, a defendant "is entitled to the benefit of his bargain through specific performance of the plea agreement." See, e.g., Commonwealth v. Martinez, 147 A.3d 517, 533 (Pa. 2016) (holding that offenders were entitled to specific performance of the terms of their plea bargains which limited or eliminated the defendants' obligations under the then-applicable sexual offender registration statute where a newly-enacted sexual offender registration statute conflicted with the terms of the plea agreements).
Moreover,
[D]isputes over any particular term of a plea agreement must be resolved by objective standards. A determination of exactly what promises constitute the plea bargain must be based upon the totality of the surrounding circumstances and involves a case-by-case adjudication.
Any ambiguities in the terms of the plea agreement will be construed against the Government. Nevertheless, the agreement itself controls where its language sets out the terms of the bargain with specificity.Commonwealth v. Kerns, 220 A.3d 607, 612 (Pa. Super. 2019) (citation omitted).
The plea agreement in this case was addressed in the following exchange in the notes of testimony from the plea hearing:
THE COURT: And I'm assuming then that there is no deal that was reached?
[PROSECUTOR]: No, Your Honor. This is a general plea.
[DEFENSE COUNSEL]: With that said, Your Honor, I would put on the record that it's my understanding that there would be no objection for commentary at the time of sentencing to what the Defense requests. That was my understanding of our general plea.
THE COURT: Well we're not doing sentencing today anyway because you want the [pre-sentence investigation report].
[DEFENSE COUNSEL]: Certainly, Your Honor. What I mean is, even though there's no formal agreement about charges that we're pleading to or term of sentence or anything of that nature, I would just put on the record that [the prosecutor] indicated she would not object at the time of sentencing to a sentencing request that we make at the time of the hearing.
THE COURT: Okay. I mean, that's fine. She cannot object. That doesn't need to go with either one of yours just so you guys all know.
N.T. 4/13/21, 5-6 (emphasis added).
The key phrases encapsulating the plea agreement for purposes of our review are "no objection for commentary at the time of sentencing to what the [d]efense requests" and "would not object at the time of sentencing to a sentencing request that [the defense would] make at the time of the hearing." The word "commentary" in these contexts refers to arguments that Appellant would make in support of his sentencing recommendation. The party that would be refraining from raising an objection would be the Commonwealth. Accordingly, "commentary" could not be referring to arguments or recommendations made by the Commonwealth because the Commonwealth would logically not be objecting to itself. I thus interpret the remarks as reflecting only an agreement whereby the Commonwealth would not object to Appellant making a sentencing recommendation.
If the parties wanted to make the Commonwealth remain silent at sentencing a term of the plea agreement, they could have. See, e.g., Commonwealth v. Anderson, 995 A.2d 1184, 1192-95 (Pa. Super. 2010) (denying an ineffective assistance claim where a record did not establish that the Commonwealths' complete silence at sentencing was a term of a plea agreement or integral to Anderson's decision to plead guilty; at no time did plea counsel or Anderson ask the Commonwealth to agree to stand silent altogether at sentencing or ask the court to require it to do so). The remarks at the plea hearing did not reflect that that was an agreed-upon term of the bargain mentioned by Appellant's counsel. They simply made clear that the Commonwealth would not prevent Appellant from making a sentencing recommendation via an objection.
In evaluating the terms of the plea agreement in this case, the majority changes the wording of it. The majority restates the provision about "no objection for commentary at the time of sentencing to what the [d]efense requests" as "no objection [or] commentary at the time of sentencing to what the [d]efense requests." Compare Majority Opinion at 2 with N.T. 4/13/21, 5 (emphasis added to each). In doing so, the majority changes the meaning of the plea agreement. Their finding of breach is thus based on a contortion of the record rather than the terms of the plea agreement as they were stated at the time of the plea hearing. This Court at times may be asked to ascribe meaning to ambiguous terms, but our role is not to change unambiguous terms.
If the notes of testimony - and the certified record does not reflect that Appellant ever objected to their accuracy - had included "or" in place of "for" in the operative phrase, I would have joined the majority. While "no objection for commentary" leaves only the interpretation that the Commonwealth would refrain from making an objection to prevent the defense from offering commentary at the time of sentencing, the use of "or" instead of "for" would suggest that the Commonwealth agreed to both refrain from objecting to Appellant's sentencing recommendation and offering any commentary of its own. The majority's alteration of the record seemingly invented an after-the-fact term that the Commonwealth would remain silent at sentencing. The Commonwealth did not breach the plea agreement because defense counsel never alleged that the Commonwealth would remain silent at sentencing.
The plea court based its ruling on the breach claim on the agreement that appeared of record. Plea Court Opinion, 2/9/22, 5-6 (quoting the notes of testimony for the plea agreement referring to "no objection for commentary"). For unapparent reasons, the majority has accepted Appellant's revision of the notes of testimony and based its ruling on the altered version. Appellant's Brief at 8 (rephrasing the agreement as "no objection [or] commentary").
A defendant is entitled to the benefit of the bargain he strikes when he makes a plea agreement, and the terms of the agreement are binding on the prosecution. At the same time, this Court may not include additional terms to an agreement to expand its scope after the fact. An objective review of the stated terms sets the bounds. See, e.g., Commonwealth v. Martinez, 539 A.2d 399, 404 (Pa. Super. 1988) ("Even where a promise has been made to make no recommendation as to sentencing, a district attorney is not required to stand mute at the sentencing hearing. He or she may offer evidence and, in the face of misinformation by the defense, may speak to make necessary factual corrections"). I am thus compelled to dissent. See Commonwealth v. Freuhan, 557 A.2d 1093, 1094 (Pa. Super. 1989) ("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.'") (citation omitted).
While the merits of Appellant's breach claim hinges entirely on our interpretation of the plea agreement, it would be very remiss of me not to point out that the majority's grant of relief sets up an odd procedural path forward in this case. The majority remands for resentencing without any additional instructions. The resentencing would necessarily need to be conducted by a new jurist because there is no way to "unring the bells" with respect to the sentencing recommendation that the presently-assigned lower court judge already heard from the Commonwealth. See Martinez, 539 A.2d at 403-04 & n.2 (remanding for resentencing by another judge where a prosecutor breached an agreement to make no recommendation as to sentencing and the defendant did not raise a challenge to the validity of his guilty plea), distinguishing Commonwealth v. Williams, 481 A.2d 1230, 1234 (Pa. Super. 1984) (holding that the appropriate remedy for the prosecuting attorney's breach of an agreement to make no recommendation as to sentencing was to permit the defendant to withdraw his guilty plea).
Here, Appellant only received one imprisonment term and that term was at the bottom of the mitigated range recommended by the Sentencing Guidelines. Appellant is pursuing his instant breach claim to obviously seek a more beneficial outcome in sentencing. A new jurist, however, would not be cabined in by the present sentence and could very well impose a higher term of imprisonment. If a new jurist were to impose a higher sentence, Appellant could make a compelling case that his present counsel was ineffective for litigating the instant breach claim because it permitted a higher sentencing exposure than the currently imposed term. A grant of relief on that type of claim would require us to remand for resentencing consistent with the term that the majority is now vacating. The only outcomes that would not spur additional litigation would be the imposition of a term matching the existing sentence or a term of imprisonment reflecting a departure below the Sentencing Guideline's mitigated range, a result that the plea court's opinion suggests is extremely unlikely given that Appellant pleaded guilty to thirteen separate offenses. See Plea Court Opinion, 2/9/22, 14-18.
The issues of judicial economy posed by the grant of relief here are not relevant to the disposition of Appellant's breach claim, however, they appear to be appropriate to mention when the basis for relief is premised upon an improper revision of the notes of testimony from Appellant's guilty plea hearing that the majority adopts from Appellant's brief. The majority is not allowing the plea agreement reflected in the notes of testimony to control and the potential results are a high probability of protracted litigation leading to the reimposition of the current sentence, a reasonable likelihood of the reimposition of the same sentence, and an unlikely potential for a new and more beneficial outcome for Appellant.
[*] Retired Senior Judge assigned to the Superior Court.