Appeal from the Judgment of Sentence April 4, 2006, In the Court of Common Pleas of Berks County Criminal, No. CP 06 CR 3312 - 2004.
The opinion of the court was delivered by: Gantman, J.
BEFORE: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, BENDER, BOWES, GANTMAN, PANELLA, DONOHUE, AND ALLEN, JJ.
¶ 1 Appellant, the Commonwealth of Pennsylvania, asks us to determine whether the trial court erred when it sentenced Appellee, Stephen A. Parsons, to three (3) months of electronic monitoring under the supervision of the Berks County Probation Office, followed by a five-year term of probation, in violation of the parties' plea agreement that called for a greater sentence. After careful review of the certified record as well as the relevant, settled law pertaining to plea agreements, we hold the court erred when it allowed Appellee to lodge an untimely challenge to the sentencing term of the plea agreement, and when the court set aside the sentencing term, without the Commonwealth's consent, despite the clarity of the plea agreement both as to the charges and the specific sentence, which the court had previously accepted. Accordingly, we vacate the judgment of sentence and remand for imposition of the sentence contained in the parties' plea bargain.
¶ 2 The relevant facts and procedural history of this appeal are as follows. Between January 2002 and April 2003, Appellee engaged in a relationship with the victim, during which the two had sexual intercourse three or four times a week at Appellee's home. Appellee was 19-20 years old, and the victim was 13-14 years old. Appellee and the victim were not married to each other. Both Appellee and the victim are mentally challenged.
¶ 3 As a result, the Commonwealth charged Appellee on March 23, 2004, with numerous offenses including rape (forcible compulsion), sexual assault, involuntary deviate sexual intercourse ("IDSI") forcible compulsion, IDSI (person less than 16 years of age), statutory sexual assault, two counts of aggravated indecent assault (complainant less than 16 years of age), indecent assault (without consent of other), indecent assault (person less than 13 years of age), indecent assault (person less than 16 years of age), indecent exposure, corruption of minors, and rape (person less than 13 years of age).*fn1
¶ 4 On January 27, 2006, Appellee entered into a negotiated plea agreement regarding his multiple sex acts with the underage victim. Under the agreement, the Commonwealth agreed to pursue only one count of statutory sexual assault and one count of corruption of minors. In exchange Appellee agreed to plead guilty to these two counts and to accept imposition of a negotiated sentence of six (6) to twenty-three (23) months of county incarceration, followed by five (5) years of probation. Both the charges and the sentence were expressly stated in the written plea colloquy. (Statement Accompanying Defendant's Request to Enter a Guilty Plea, signed, dated and stamped 1/27/06, at 1). Appellee's counsel assisted Appellee in completing the written colloquy, and Appellee signed each page on the designated line. (Id. at 1-3).
¶ 5 Appellee and the Commonwealth appeared before the court on January 27, 2006, to enter the terms of the plea agreement on the record. The court began with a thorough inquiry into Appellee's understanding of the nature of the charges against him and the rights he was waiving. (N.T. Guilty Plea, 1/27/06, at 2-7). Counsel also verified that he and Appellee had thoroughly reviewed the written colloquy. (Id. at 8). After the Commonwealth placed the factual basis for the plea on the record, Appellee admitted to the facts as stated. (Id. at 8-9). The following exchange then took place:
THE COURT: I understand that we do have a plea agreement?
[THE COMMONWEALTH]: Yes, Your Honor.
THE COURT: Can we have that placed on the record?
[THE COMMONWEALTH]: In the plea agreement, there's an agreed upon sentence by the defense and the Commonwealth for a sentence of 6 to 23 months on the statutory sexual assault followed by 5 years' probation on the corruption of minors. This is a charge agreement as the [c]court can see from the Information as well as the sentencing agreement if the [c]court should choose to accept [the agreement]. I have spoken with the victim, the victim's family, as well as the prosecutor in this case and they have no objections to this resolution.
THE COURT: Very well. [Appellee], do you understand that plea agreement?
THE COURT: Do you understand that the agreement is that you will go to jail and that would be for a minimum of 6 months and then you would be paroled? Usually in Berks County you're paroled after the minimum which means you probably would be released after 6 months to parole. Parole means supervision. You would have to be reporting in and not getting into anymore trouble and then you would have probation for 5 years. Basically, for another [61/2 ] years you would be under the supervision of the [c]court, meaning me as the judge, through the probation office. Do you understand that?
THE COURT: And this is what you are agreeing to?
THE COURT: Do you understand that I was not involved in the negotiation of this plea agreement and that this is an agreement between you through your attorney and the Commonwealth through the Assistant District Attorney?
THE COURT: Do you understand that I am not bound by the plea agreement? In other words, I do not have to follow it if I don't think it's appropriate?
THE COURT: Do you understand if I do not follow the plea agreement but give you a different sentence, that you would have the right to withdraw your guilty plea if you choose and proceed to trial?
THE COURT: Do you understand that the maximum sentence that could be imposed with regard to Count No. 5, statutory sexual assault, this isn't the sentence that would be given necessarily but this is the greatest sentence that could be given for this charge, would be imprisonment up to 10 years and/or a fine of up to $25,000?
THE COURT: And with regard to the charge of corruption of the morals of a minor would be imprisonment of up to 5 years and a fine of $10,000?
THE COURT: [Appellee's counsel], reviewing particularly the answers to [statements] 8 and 9 on the colloquy are you of the opinion that your client is capable of knowingly and intelligently tendering a guilty plea in this matter if he chooses to do so at this time?*fn2
[APPELLEE'S COUNSEL]: Yes, Your Honor. And I have- one, I would note that I have a report from Dr. Rotenberg dated August 26th of 2005 which indicates that [Appellee] is not M'Naghten[*fn3 ] and he is competent to stand trial and understands the legal procedures. I have also met with [Appellee] I think maybe almost every day since last week to prepare for our trial in this matter and I am convinced he understands what he is doing. I have explained this plea to him. He understands what it is and he is making that decision and I believe he is competent to make that decision.
THE COURT: Very well. In that case, [Appellee], considering all the answers you have given here this morning both your spoken answers.as well as the written answers that you gave in your written guilty plea colloquy form through and with your attorney, at this time I would ask you with regard to Count No. 5, statutory sexual assault, at this time are you asking to enter a plea of guilty?
[APPELLEE'S COUNSEL] Do you want to plead guilty?
THE COURT: And with regard to Count No. 11, corruption of the morals of a minor, are you ...